'The Work Choices Case: Analysis and Implications' in 'Work Choices: The High Court Challenge 2006'

WORK CHOICES: THE HIGH COURT CHALLENGE 2006, pp. 1-78, Lawbook CO., 2007

University of Melbourne Legal Studies Research Paper No. 218

Posted: 12 Mar 2007

See all articles by Simon Evans

Simon Evans

University of Melbourne Law School

Colin Fenwick

University of Melbourne - Law School

Cheryl Saunders

University of Melbourne - Law School

Joo-Cheong Tham

University of Melbourne

Megan Donaldson

NYU School of Law - Institute for International Law and Justice

Abstract

On 14 November 2006, the High Court handed down its decision in New South Wales v Commonwealth (2006) 156 IR 1; 81 ALJR 34; [2006] HCA 52 (Work Choices case). The decision was eagerly anticipated, both for its potential to affect federal government policy on industrial relations, and for its bearing on constitutional law. This commentary explains the substance of the decision and explores its implications, with frequent reference to paragraphs (eg [142]) of the judgment which is reproduced in its entirety later in this work.

Part 1 of the commentary summarises the facts of the case, the issues that arose for decision and the reasoning that led the majority and the two dissenting judges to their conclusions.

Part 2 explores the constitutional dimensions of the decision, including its importance for establishing the reach of Commonwealth powers and for federalism in Australia, its approach to constitutional interpretation, and its engagement with principles of the rule of law.

Part 3 examines the impact of the decision on industrial relations and labour law in Australia, particularly the uncertain reach of the new legislation, how it bears on practical workplace issues such as rights of entry, and what the Work Choices decision means for the future of labour regulation in Australia.

Keywords: workchoices, Australia, industrial relations, constitution, implications

JEL Classification: J5, K31

Suggested Citation

Evans, Simon and Fenwick, Colin and Saunders, Cheryl Anne and Tham, Joo-Cheong and Donaldson, Megan, 'The Work Choices Case: Analysis and Implications' in 'Work Choices: The High Court Challenge 2006'. WORK CHOICES: THE HIGH COURT CHALLENGE 2006, pp. 1-78, Lawbook CO., 2007; University of Melbourne Legal Studies Research Paper No. 218. Available at SSRN: https://ssrn.com/abstract=969258

Simon Evans (Contact Author)

University of Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
61 3 8344 4751 (Phone)
61 3 9347 2392 (Fax)

Colin Fenwick

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Cheryl Anne Saunders

University of Melbourne - Law School ( email )

Centre for Comparative Constitutional Studies 723 Swanston Street (2nd Floor)
Parkville, Victoria 3010
Australia
61 3 8344 0753 (Phone)
61 3 8344 9374 (Fax)

Joo-Cheong Tham

University of Melbourne ( email )

185 Pelham Street
Carlton, Victoria 3053
Australia

Megan Donaldson

NYU School of Law - Institute for International Law and Justice ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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