High Court of Australia

New South Wales v Commonwealth of Australia [2006] HCA 52

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

229 CLR 1; 81 ALJR 34; 231 ALR 1

14 Nov 2006

Case Number: S592/2005 P66/2005 A3/2006 B5/2006 B6/2006 S50/2006 M21/2006

Before

Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon, Crennan JJ

Catchwords

Constitutional Law (Cth) – Powers of federal Parliament – Workplace Relations Amendment (Work Choices) Act 2005 (Cth) amended Workplace Relations Act 1996 (Cth) – Amending Act altered primary constitutional basis of Workplace Relations Act 1996 (Cth) so as to place reliance on s 51(xx) instead of s 51(xxxv) of the Constitution – Constitutional validity of Workplace Relations Amendment (Work Choices) Act 2005 (Cth) – Whether s 51(xx) of the Constitution confers power upon the federal Parliament to regulate the employment relationship between "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth" and their employees.

Constitutional Law (Cth) – Powers of federal Parliament – Section 51(xx) – Whether, to be supported by s 51(xx), the fact that a corporation is a foreign, trading or financial corporation must be significant in the way in which the law relates to it – Whether sufficient for law to be characterised as law with respect to constitutional corporations that it singles out constitutional corporations as the object of statutory command.

Constitutional Law (Cth) – Powers of federal Parliament – Relationship between s 51(xx) and s 51(xxxv) – Whether s 51(xx) confined in its operation by reference to terms of s 51(xxxv) – Whether s 51(xxxv) represents the totality of the federal Parliament's power to make laws with respect to industrial relations, except in relation to employees of the Commonwealth and other limited categories of employees – Whether s 51(xxxv) contains a "positive prohibition or restriction" to which s 51(xx) is subject – Whether s 51(xxxv) contains a "safeguard, restriction or qualification" to which s 51(xx) is subject.

Constitutional Law (Cth) – Powers of federal Parliament – Section 51(xxxv) – Constitutional validity of Sched 6 of Workplace Relations Act 1996 (Cth) as amended by Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("Amended Act") – Whether Sched 6 supported by s 51(xxxv) of the Constitution.

Constitutional Law (Cth) – Powers of federal Parliament – Section 122 – Amended Act applied to any body corporate incorporated in a Territory and any person or entity that carried on an activity in a Territory so far as the person or entity employed an individual in connection with the activity – Whether supported by s 122 of the Constitution.

Constitutional Law (Cth) – Powers of federal Parliament – Exclusion of State and Territory laws – Section 16 of Amended Act excluded certain State and Territory laws – Whether s 16 a law with respect to any head of power in s 51 of the Constitution – Whether s 16 amounted to a bare attempt to limit or exclude State legislative power – Whether s 16 impermissibly curtailed the capacity of the States to function as governments.

Constitutional Law (Cth) – Powers of federal Parliament – Section 117 of Amended Act empowered the Australian Industrial Relations Commission to restrain a State industrial authority from dealing with certain matters – Whether s 117 contrary to s 106 of the Constitution – Whether s 117 impermissibly impaired capacity of States to function as governments – Whether s 117 supported by s 51(xx).

Constitutional Law (Cth) – Powers of federal Parliament – Regulation-making powers – Sections 356 and 846(1) of Amended Act together empowered the Governor-General to make regulations specifying matters to be "prohibited content" in relation to workplace agreements made under the Act, without expressly stipulating any relevant criteria – Whether regulation-making power amounted to a "law" – Whether regulation-making power a law with respect to any identifiable head of Commonwealth legislative power.

Constitutional Law (Cth) – Constitutional interpretation – Applicable principles of interpretation – Relevance of failure of proposals to alter Constitution by referendum.

Constitution – ss 51(xx), 51(xxxv), 122.

Workplace Relations Amendment (Work Choices) Act 2005 (Cth).

Workplace Relations Act 1996 (Cth).
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