Industrial Relations, the Constitution and Federalism: Facing the Avalanche

Contrary to popular opinion, the primary significance of the Howard government's industrial relations legislation(FN1) in the long-term relates not to issues of workplace regulation but to matters of basic constitutional principle. This is because the industrial character of that legislation merely overlays a marked constitutional controversy with profound federal implications. The essence of this controversy lies in the dramatic attempted use by the Howard Government of the Commonwealth's power over trading and other corporations(FN2) as the basis for its industrial relations legislation. This use, if successful, would represent a prodigious expansion of the corporations power, which in turn would have a significant effect upon Australia's delicate federal balance.
It is the nature and extent to which these issues impact on federalism that lies at the heart of this short piece dealing with the constitutional ramifications of the Commonwealth's latest corporations-based foray into industrial relations. To this end, the piece will seek very briefly to do five things. First, it will outline generally the long-recognized potential of the corporations power under the Australian Constitution. Second, it will identify the significance of the current industrial relations legislation and the challenges to that legislation in the context of the future expansion of Commonwealth competence by means of the corporations power. Third, and critically, it will briefly address the broad themes of arguments concerning the validity of the WorkChoices legislation under the corporations power. Fourth, the piece will attempt to predict some likely future expansive uses of the corporations power should the High Court substantially uphold WorkChoices. Finally, the broader implications for Australian federalism of such an expansion of the corporations power will be considered.