Use (Abuse) of Section 51(35) of the Australian Constitution
AbstractThis article examine the origins of s 51(35) of the Australian Constitution and its use/abuse in industrial relations in Australia since Federation. Section 51(35) states that the Parliament may make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." Section 51(35) was introduced to enable a federal body to resolve industrial disputes that extended beyond State boundaries, which were unable to be resolved by any one State. This power has been extensively used by both employers and unions assisted by a very broad approach adopted by the High Court of Australia as to the interpretation of s 51(35). To ensure the continuation of this broad approach the High Court has adopted different approaches to the interpretation of the words of s 51(35). Two cases are analysed to demonstrate the ability of employers and unions to manipulate s 51(35) for their own ends. The author concludes that recent changes to the Workplace Relations Act 1996 (Cth) will make the use of s 51(35) to invoke the jurisdiction of the Australian Industrial Relations Commission unattractive to unions and result in a reduction in industrial disputes said to extend across State boundaries. |