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New South Wales v Commonwealth

New South Wales v Commonwealth

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Case Copied 14 November 2006 70 min read

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HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJ
Matter No S592/2005
STATE OF NEW SOUTH WALES  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No P66/2005
STATE OF WESTERN AUSTRALIA  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No A3/2006
STATE OF SOUTH AUSTRALIA  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No B5/2006
STATE OF QUEENSLAND  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No B6/2006
AUSTRALIAN WORKERS' UNION & ANOR  PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No S50/2006
UNIONS NSW & ORS  PLAINTIFFS
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
Matter No M21/2006
STATE OF VICTORIA  PLAINTIFF
AND
COMMONWEALTH OF AUSTRALIA  DEFENDANT
New South Wales v Commonwealth of Australia
Western Australia v Commonwealth of Australia
South Australia v Commonwealth of Australia
Queensland v Commonwealth of Australia
Australian Workers' Union v Commonwealth of Australia
Unions NSW v Commonwealth of Australia
Victoria v Commonwealth of Australia
[2006] HCA 52
14 November2006
S592/2005, P66/2005, A3/2006, B5/2006, B6/2006, S50/2006 & M21/2006
ORDER
In each matter:
1.The defendant's demurrer to the statement of claim is allowed.

2.Judgment for the defendant with costs.

Representation
M G Sexton SC, Solicitor-General for the State of New South Wales and B W Walker SC with J K Kirk and I Taylor for the plaintiff in Matter No S592/2005 (instructed by Crown Solicitor for New South Wales)
R J Meadows QC, Solicitor-General for the State of Western Australia with R M Mitchell and D J Matthews for the plaintiff in Matter No P66/2005 (instructed by State Solicitor for Western Australia)
C J Kourakis QC, Solicitor-General for the State of South Australia with G J Parker and S A McDonald for the plaintiff in Matter No A3/2006 (instructed by Crown Solicitor for South Australia)
W Sofronoff QC, Solicitor-General of the State of Queensland with G C Martin SC, R W Campbell, S E Brown and J M Horton for the plaintiff in Matter No B5/2006 (instructed by Crown Solicitor for the State of Queensland)
D F Jackson QC with A K Herbert and N J Owens for the plaintiffs in Matter No B6/2006 (instructed by Sciacca's Lawyers and Consultants)
N C Hutley SC with N Perram and B L Jones for the plaintiffs in Matter No S50/2006 (instructed by Jones Staff & Co)
P M Tate SC, Solicitor-General for the State of Victoria with M Bromberg SC, G R Kennett, M K Moshinsky, S J Moore and D I Star for the plaintiff in Matter No M21/2006 (instructed by Victorian Government Solicitor)
D M J Bennett QC, Solicitor-General of the Commonwealth and R R S Tracey QC and H C Burmester QC with J L Bourke, S B Lloyd and S P Donaghue for the defendant in all matters (instructed by Australian Government Solicitor)
Interveners
W C R Bale QC, Solicitor-General of the State of Tasmania with S K Kay intervening on behalf of the Attorney-General of the State of Tasmania in all matters (instructed by Solicitor-General of Tasmania)
T I Pauling QC, Solicitor-General for the Northern Territory…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] HCA 52
Decision Date: 14 November 2006

CaseChat Overview and Summary

The parties to this case were the Commonwealth of Australia (defendant) and the States of New South Wales, Western Australia, South Australia, and Queensland, along with the Australian Workers' Union and Unions NSW (plaintiffs). The dispute concerned the constitutional validity of the *Workplace Relations Amendment (Work Choices) Act 2005* (Cth), which significantly altered the *Workplace Relations Act 1996* (Cth). The plaintiffs challenged the Act, arguing it exceeded the Commonwealth Parliament's legislative powers. The High Court of Australia was required to determine the constitutional validity of the Amending Act.

The central legal issues before the Court were whether the Commonwealth Parliament possessed the power to regulate employment relationships under section 51(xx) of the Constitution, which grants power over "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth," and whether this power was limited or confined by section 51(xxxv), which deals with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond one State. The Court also considered the validity of specific provisions of the Amending Act in relation to other constitutional heads of power, including section 122 (Territories), and whether certain sections impermissibly encroached upon State legislative power and the capacity of States to function as governments. The Court was asked to determine if the Amending Act was a comprehensive and integrated measure, and if its substance and character were primarily related to industrial affairs, as defined by section 51(xxxv).

The Court reasoned that the *Workplace Relations Amendment (Work Choices) Act 2005* was invalid. It held that the Constitution should be construed as a whole and that the Amending Act was presented as a comprehensive and integrated measure. The Court found that the substance and character of the Act related to industrial affairs, and that the Commonwealth's power in this area was primarily derived from section 51(xxxv) of the Constitution, which concerns conciliation and arbitration for industrial disputes. The Court concluded that the corporations power under section 51(xx) did not extend to the regulation of industrial relations in the manner attempted by the Amending Act, and that any apparent power under section 51(xx) must be subject to the implied restriction imposed by section 51(xxxv). Furthermore, the Court found that the Amending Act trespassed upon essential functions of the States and would constitute an unacceptable distortion of the federal balance.

The Court allowed the defendant's demurrer to the statement of claim and entered judgment for the defendant with costs.

Orders

Orders of the court

1. The defendant's demurrer to the statement of claim is allowed.

2. Judgment for the defendant with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

As Kirby J holds[1224], it is not the function of this Court to save bits and pieces of the new law. I agree generally with his Honour's reasons for rejecting the submissions of the Commonwealth that the Court may and should dissect those sections which might be valid, standing alone, or in a different context, on the basis of the injunction in s 14 of the Act itself, or s 15A of the Acts Interpretation Act 1901 (Cth), for validity under s 51(xx) of the Constitution or otherwise. There is also this, as Windeyer J said in Rocla Pipes[1225]:"The question whether an enactment truly answers to the description of a law with respect to a given subject matter must be decided as it arises in any particular case in reference to the facts of that case."This Court has no relevant facts before it.[1224]At [604].[1225](1971) 124 CLR 468 at 512.PART XI. SUMMARY OF CONCLUSIONS The Amending Act is invalid. The reasons in summary why this is so are these.(i)The Constitution should be construed as a whole and according to the principles of construction that I have stated in these reasons[1226].(ii)The Amending Act was presented and enacted as a comprehensive integrated measure containing generally interdependent provisions.(iii)The substance, nature and true character of the Amending Act is of an Act with respect to industrial affairs.(iv)The power of the Commonwealth with respect to industrial affairs is a power in relation to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" and not otherwise (except for Commonwealth employment and other presently not relevant purposes). As the jurisprudence of this Court shows, that power is a very large one. Much can properly be characterized as preventative of a relevant industrial dispute.(v)The corporations power has nothing to say about industrial relations or their regulation by the Commonwealth. To the extent, if any, that s 51(xx) might otherwise appear to confer such power, it must be subject to the implied negative restriction imposed by s 51(xxxv).(vi)The corporations power is concerned with the foreign, trading and financial activities and aspects of corporations, the precise limits of which it is unnecessary to decide in this case. In Australia, history, the founders, until 1993 the legislators who have followed them, and this Court over 100 years, as Kirby J has pointed out[1227], have treated industrial affairs as a separate and complete topic, and s 51(xxxv) as defining the Commonwealth's total measure of power over them, except in wartime.(vii)To give the Act the valid operation claimed by the Commonwealth would be to authorize it to trespass upon essential functions of the States. This may not be the decisive factor in the case but it at least serves to reinforce the construction of the Constitution which I prefer, that industrial affairs within the States, whether of corporations or of natural persons, are for the States, and are essential for their constitutional existence.(viii)The validation of the legislation would constitute an unacceptable distortion of the federal balance intended by the founders, accepted on many occasions as a relevant and vital reality by Justices of this Court, and manifested by those provisions of the Constitution to which I have referred, and its structure.[1226]See Pt VI of these reasons.[1227]Reasons of Kirby J at [428], [431]-[442].

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ

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