High Court: WorkChoices submissions draw to a close

Cases

High Court: WorkChoices submissions draw to a close

As the Federal Government puts its final arguments in support of the constitutional validity of the WorkChoices legislation there are some soft spots appearing in the federal case.

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15/11/05

As the Federal Government puts its final arguments in support of the constitutional validity of the WorkChoices legislation there are some soft spots appearing in the federal case.

Under heavy questioning from the bench, counsel for the Federal Government have been forced to acknowledge that the legislation is an example of the exercise of a potential power in the Constitution allowing for the virtual take-over of States' powers by the Federal Government.

Constitutional corporations

The Federal Government also seemed to acknowledge that there was a wide range of bodies that do not qualify as trading/constitutional corporations. South Australia argued that organisations like the Salvation Army or Red Cross would not be caught by WorkChoices . Also local government authorities arguably would not become trading corporations because they collected garbage and charged for it - rather their principal activity should be the focus and not certain incidental services such as garbage collection.

Submissions are expected to conclude tomorrow. A decision is expected in September/October.

Message for employers

There are clear concerns expressed by some High Court judges as to the extent of the WorkChoices legislation. The outcome of the case is difficult to predict. The Federal Government has argued strongly for the integrity of the whole package. The States and unions have attacked certain aspects of the legislation which could mean that only part of WorkChoices survives the High Court challenge. The States ultimate position is that the legislation is unconstitutional and should be declared to be so.

State of New South Wales & Ors v Commonwealth (AKA Workplace Relations Challenge) [2006] HCAT

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