Constitutional Considerations for a National IR System

By George Williams

The potential avenues and restrictions upon the federal government's power to introduce a national industrial relations system.

The Federal government will use the Corporations power (section 51(20) of the Constitution to mould the IR system.

A potential problem that the extent of this power is unclear. Two possible views are outlined:

The narrow view looks at the category of corporations as specified: "foreign corporations" and Australian-based "trading" or "financial" corporations. Thus what the Commonwealth can regulate must have something to do with the characteristic that brings corporations within Commonwealth power. This would mean, for example, that only the trading activities of a trading corporation could be regulated and not other activities such as the relationship between employer and employees.

The broad view sees no limits to the scope of the corporations power at all. Provided the corporation has the characteristics that bring it within s51(20) any aspect or activity cn be regulated. So far a majority of the High Court has gone beyond the narrow view but has not embraced the broad view. The Tasmanian Dams case of 1983 and the decision in 1995 in Re Dingjan; ex parte Wagner are briefly described.

(CCH Industrial Law News. Issue 4, 5 May 2005)