New South Wales v. Commonwealth: corporations and connections

Tony Blackshield*

*Corresponding author for this work

Research output: Contribution to journalArticlepeer-review

Abstract

In the WorkChoices Case, the High Court held by a 5:2 majority (Kirby and Callinan JJ dissenting) that the Workplace Relations Amendment (Work Choices) Act 2005 (Cth), substantially reshaping the Workplace Relations Act 1996 (Cth), was valid. The substantive repeal of the older provisions based on s 51(xxxv) of the Constitution was a valid exercise of power under s 51(xxxv); their substantive replacement by new provisions based on s 51(xx) was a valid exercise of the latter power. The result entailed a clear rejection of the ‘narrow’ view of s 51(xx), and to that extent appeared to vindicate the ‘wide’ alternative view. However, the joint judgment did little to clarify the principles involved. This case note argues that despite the width now accorded to s 51(xx), the underlying rationale is still dependent on the need to establish a ‘sufficient connection’ with the business of corporations in order for legislation relying on this head of power to be valid. It also explores the possibility that the same idea of ‘sufficient connection’ might have been used to give stronger support to the dissident arguments against wholesale encroachment on the province of s 51(xxxv).
Original languageEnglish
Pages (from-to)1135-1160
Number of pages26
JournalMelbourne University Law Review
Volume31
Issue number3
Publication statusPublished - 2007

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