CFMEU laws unconstitutional, sacked officials claim

The High Court should declare legislation forcing the CFMEU construction division into administration invalid, lawyers for sacked officials argue

Sacked CFMEU officials claim the union has been ‘stolen’ from them. Picture: AFP

The High Court should declare the Albanese government’s legislation forcing the CFMEU construction division into administration invalid because the laws were unconstitutional and breached the implied freedom of political communication, lawyers for the union’s sacked officials said.

A statement of claim prepared by Bret Walker SC and Craig Lenehan SC on behalf of sacked CFMEU Queensland secretary Michael Ravbar and his former deputy Kane Lowth argues the legislation was generally unsupported by any head of power in section 51 of the Constitution.

Sacked CFMEU officials said the special leave application has been filed on the grounds the legislation is unconstitutional and undemocratic, claiming members are “furious” their union was “stolen from them”.

But Workplace Relations Minister Murray Watt has expressed confidence the government’s legislation will withstand a High Court challenge.

Arguing there was “insufficient connection to a head of legislative power”, the statement of claim says the use of the expression “public interest” means the power in the new laws is predicated upon the minister forming a discretionary value judgment by reference to very wide and unspecified factual matters.

It says the legislation limits political communication and freedom of expression, imposes detriments, and involves the taking and acquisition of property.

The legislation, the statement says, imposes an effective burden on the implied freedom by limiting the ability for CFMEU members to be represented by their elected representatives, and limiting the ability of union representatives and members to engage in political communication.

It limits the union’s construction and general division from using its property to engage in political communications and from making political donations or incurring political expenditure unless the administrator agreed.

According to the statement, these limitations are “not compatible” with the maintenance of the constitutionally prescribed system of representative and responsible government and are therefore not legitimate.

The lawyers said the threshold for placing the division into administration was merely based on the minister’s satisfaction that it was in the “public interest”, noting the legislation hands control over the property and affairs of the entire division and every one of its branches to the administrator, regardless of whether or not it is in the public interest for any particular branch to be the subject of a scheme.

Senator Watt said the government had expected the CFMEU’s former leadership to mount a High Court challenge and “we have taken steps to prepare for this case since passing the legislation ... we are confident our laws are legally robust”.