Part a What Restrictions Are Imposed on the Federal Government by the Australian Constitution

Part a What Restrictions Are Imposed on the Federal Government by the Australian Constitution

TUTORIAL QUESTION 4 – WEEK 5

Part A – What restrictions are imposed on the Federal government by the Australian Constitution in regards to the achievement of the objective laid down ins3 of WRA 1996 (Cth)?

  • Federal government must legislate within scope of the Constitution, or else the law will be unconstitutional and as a result, invalid.
  • The Federal government can only legislate in regards to a matter over which they have the power to do so. This means the basis for any law must be within the framework of the Constitution, in particular, the list of powers in s51.
  • If the objective does not fall within one of these heads of power, then it may be struck down as been invalid.
  • Therefore, as s3 of the WRA states that the Act’s primary purpose is “the provision of a framework for cooperative workplace relations which promote the economic prosperity and welfare of the people of Australia”, then this must be justified as been a matter which falls under one of the heads of power in the Constitution, otherwise the Federal government has no power to legislate over it.

Also, what powers in addition to the conciliation and arbitration power(s51(xxxv)) have been used by the Federal government to pursue this objective?

  • s51(i) – Trade and Commerce power: Relates to maritime, waterfront and airline industries (between States and other countries); Unfair dismissal provisions under s170CE(1)(a) WRA.
  • s51(ii) – Taxation power: Superannuation legislation.
  • s51(xx) –Corporations power: Unfair dismissal provisions under s170CE(1)(a) WRA; Constitutional Corporations.
  • s51(xxix) – External Affairs power: Unlawful dismissal provisions under s170CE(1)(b) WRA; Implementation of ILO Conventions, treaties relating to labour, etc.
  • s51(xxxvii) – Matters referred to the Cth by the States: Unfair dismissal provisions under s170CE(1)(a) WRA; Victoria’s surrender of their Industrial Relations power.
  • s51(xxxix) – Incidental Power: Registration and regulation of industrial organisations.
  • s52(ii) – Matters relating to any department of public service.

Part B

Top View