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Australia
Joseph Catanzariti
Clayton Utz
Sydney, Australia
Introduction
Federal Nature and Constitutional Issues
As in any federation, lawmaking powers in Australia are divided between the
Commonwealth and state governments. The Australian Federation consists of
six states (New South Wales, Victoria, Queensland, Tasmania, South Australia,
and Western Australia) and two territories (the Northern Territory and the
Australian Capital Territory).
The powers of the Commonwealth government are governed by the Constitution
Act of 1900. The states have retained a plenary power that allows them to pass
laws for the peace, order, and good government within their jurisdictions. The
Commonwealth’s lawmaking powers are generally limited to specific areas set
out in Section 51 of the Constitution.
The states also may legislate with respect to these issues unless the
Commonwealth provisions express an intention to exclusively govern the area.
Section 109 of the Constitution provides that to the extent that any inconsistency
exists between the state and the Commonwealth law, the latter will prevail to the
extent of the inconsistency.
Section 122 of the Constitution provides that the Commonwealth may make
laws for the government of any territory surrendered by a state. Thus, the
Northern Territory and the Australian Capital Territory are covered by federal
legislation, and may only legislate on issues not already covered by federal
legislation.
Development of Labor Law
Australian labor law was historically influenced by the British system, but
Australia ultimately developed its own system of industrial relations by adopting
a legislative approach that was better equipped to deal with lawmaking given the
country’s colonial origins.
Trade unionism has developed since the mid-1820s, when workers and
employers were subject to the master and servant legislation enacted by the
