High Court may block national IR plan, lawyers warn

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High Court may block national IR plan, lawyers warn

The High Court may block the Federal Government’s plans to establish a national industrial relations system through the use of its corporations power, senior legal figures have warned.

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TheHigh Court may block the Federal Government’s plans to establish a national industrial relations system through the use of its corporations power, senior legal figures have warned.  The Federal IR Minister disagrees. 

 

Prof McCallum's view
 

The Dean of Law at the University of Sydney, Professor Ron McCallum, said in a recent lecture that ‘if the current Federal Government believes that through utilising the mantra of the corporations power it is able to enact a set of national labour laws and ride roughshod over the states, it may end up learning a few unpalatable lessons.’ McCallum said.  

‘Not only may such laws be seen as inappropriate by Australia’s industrial citizens, but in order to ensure a balance in our federal compact the High Court may be obliged to draw a line in the sand and limit the relentless advance of the corporations power.’  

There is growing legal opinion that the Federal Government’s plan to ride over state industrial relations systems will not withstand a High Court challenge.


Jeff's Shaw's role

The union movement has retained former NSW Attorney General Jeff Shaw to prepare a legal team to argue its case against the national IR system. 

Shaw, the architect of the NSW industrial relations system, says on Workers Online that unions will have a strong case if the Federal Government attempts to over ride its existing industrial relations powers.

  

‘If the Federal Government does attempt a hostile takeover using corporations power it would take an activist High Court to rule it was an appropriate use of federal powers,’ Shaw says.

‘Even if the Court did uphold the use of the powers the result would be patchy and unsatisfactory - with arguments raging about whether public servants, employees in small business and local government workers were outside the scope of the laws.’

 

Greg Craven's view

Leading constitutional academic and former Victorian solicitor-general Greg Craven warns that a Federal Government takeover of state responsibilities would amount to ‘an ideological war on the states’.  

‘I think this is an extraordinarily short-sighted as well as an a-constitutional view of melding policy and constitutionalism,’ he told the 7.30 Report.

  

Craven said there may well be ‘any number of reasons why you might want to pursue industrial relations reform’.  

‘What you don’t do is pursue it at the price of the constitution, because our federal constitution - which has worked, I think, brilliantly, as the Prime Minister keeps telling us, for 100 years - has always worked on the basis that you divide and balance power to make sure that power is not abused, and quite frankly, that is bigger than anything on the policy agenda, even including industrial relations,’ he said.


Minister’s response  
 

Meanwhile Federal Workplace Relations Minister Kevin Edwards has told Channel 10’s Meet the Press program that he is not ‘nervous’ about the High Court knocking back his national IR legislation.

‘I’m not nervous about it at all,’ he said.

  

‘We’ve had advice, we’ve had advice back in the 1990s when we were looking at this as a Government after we were elected. We’ve had more recent advice.

‘And the first time the corporation’s power was used was in fact by the Keating government back in 1993 with their industrial reform bill. So, there’s been over a decade now of reliance on the corporation’s power.  

‘It won’t amount to a total national system because our estimate is that that would bring about 85%, maybe tops 90%, of workers into a national system. So, there would still be a place for state systems if they wish to retain it.

‘I couldn’t see the sense of that personally, but we’ll wait and see.’


Related 

 

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