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FEDERAL-STATE relations could change "radically and forever" if the Federal Government survives the High Court challenge to its workplace reforms, Justice Michael Kirby said yesterday.

Justice Kirby told the court there would be few areas of life the Commonwealth could not regulate if the court ruled section 51(20) of the Constitution - the corporations power - was valid for employer-employee relations. He said it was important to "see where logic is taking us".

"We are looking down a tunnel which has very great significance … you [will have] changed the notion of federalism radically - and forever."

He said a Commonwealth victory would mean that section 51 (35) of the Constitution - which covers the prevention and settlement of industrial disputes - "may as well not have been there".

Brett Walker, SC, for NSW, said the power was intended only to regulate a company's "outside" dealings such as trade and not "inside" workings like staff matters.

But Justice William Gummow said the corporations power was first used for labour issues in 1988, again in 1993 and then in 1996.

And as the Victorian solicitor-general, Pamela Tate, SC, argued s51 (35) was the only power intended to cover employee relations, he again said: "This is pure originalism (the theory that says the Constitution does not evolve)".
http://www.smh.com.au/news/national...-of-power-judge/2006/05/05/1146335930379.html

It pretty much gives Federal Government sweaping powers s51(20) which could undermind State's ability to manage its own affairs.
 

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http://www.hcourt.gov.au/registry/dailylists/04-05-06.html

COURT NO. 1
Parkes Place, Canberra

THURSDAY, 4 MAY 2006

AT 10:15 AM

BEFORE THE FULL COURT

FOR HEARING

State of New South Wales v Commonwealth of Australia

State of Western Australia v Commonwealth of Australia

State of South Australia v Commonwealth of Australia

State of Queensland v Commonwealth of Australia

Australian Workers Union & Anor v Commonwealth of Australia

Unions NSW & Ors v Commonwealth of Australia

State of Victoria v Commonwealth of Australia​
 

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MILIUX said:
It pretty much gives Federal Government sweaping powers s51(20) which could undermind State's ability to manage its own affairs.
If that really is the case then it is about bloody time. Bring it on.

States suck.
 

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Here's some interesting bit:

MS TATE: That is the point of departure between Victoria and New South Wales. However, of course, we support in the alternative the argument that is put by New South Wales to this Court that even if the express restriction within 51(xxxv) does not operate as a substantive limitation on 51(xx), nevertheless it provides a powerful reason for favouring a narrow construction of 51(xx) as opposed to a broad construction. So we support the submissions of New South Wales, but we put them in the alternative. We seek to argue that there is a substantive limitation that can be drawn from 51(xxxv).
Now, this relationship was recognised in the Bank Nationalisation Case and it was recognised and confirmed in the more recent case of Bourke v State Bank of New South Wales (1990) 170 CLR 276, but if I could take your Honours first to the Bank Nationalisation Case. In that case, of course, the Court famously held as invalid those laws which provided for the compulsory acquisition by the Commonwealth Bank of Australian shares in Australian private banks. It also held invalid the laws insofar as they provided for the management of Australian banks by directors chosen and appointed by joint action of the Commonwealth Bank and the Treasurer of the Commonwealth, and also invalid a prohibition on the carrying on of banking business in Australia by private banks.

The Act did not apply to State banking, that is, banking controlled and conducted by the States as banker, but otherwise it purported to give a monopoly of banking to the Commonwealth Bank. Now, four of the six Judges made observations about the relationship between 51(xiii) and 51(xx). In particular Chief Justice Latham considered the relationship, and he did this at page 184 of the report in what we submit is an important passage. At about point 2 of the page Chief Justice Latham said:

Under s. 51 (xx.) of the Constitution there is power to make laws with respect to financial corporations formed within the limits of the Commonwealth. Under s. 51 (xiii.) there is power to make laws with respect to banking other than State banking. A State bank would almost certainly be a corporation, and, if so, it would be a financial corporation. If pl. (xx.) were construed to mean that the Commonwealth Parliament could pass any law whatever which touched and concerned financial corporations, then the Commonwealth Parliament could make laws controlling State banks. The result would be that the exception of State banking from the power conferred by pl. (xiii.) would mean nothing. When the two provisions are read together it is a reasonable conclusion that pl. (xx.) was not meant to reduce to complete insignificance the specific provision excluding State banking from Federal legislative power.

Thus the Constitution must be read as a whole, and each power conferred upon the Federal Parliament must be read in the context of the words prescribing the other legislative powers of the Parliament.

The Constitution assigns only specific legislative powers to the Commonwealth Parliament. It is a Federal Constitution, not a unitary Constitution. This has been emphasised again and again in the judgments of this Court, and in no case more clearly than in the Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. where reference is made to the conclusion “as to which this court has never faltered, that the Commonwealth is a government of enumerated or selected legislative powers” . . . “It is undoubted that those who maintain the authority of the Commonwealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority.” Accordingly, no single power should be construed in such a way as to give to the Commonwealth Parliament a universal power of legislation which would render absurd the assignment of particular carefully defined powers to that Parliament. Each provision of the Constitution should be regarded, not as operating independently, but as intended to be construed and applied in the light of other provisions of the Constitution. Thus an endeavour should be made to “reconcile the respective powers . . . and give effect to all”.
http://www.austlii.edu.au/au/other/HCATrans/2006/216.html
 

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about time - the states are plagued by inefficiencies and inability to address problems!
there are too many areas where policy is divergent between states
 

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From the Constitution of the Commonwealth of Australia:

These are the paragraphs in dispute...

Section 51:
The parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth in respect to:

(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth

(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State
 

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Sounds like Kirby is against it, but often he is the odd man out on the High Court, so if he doesn't agree it might mean the others will.

In any case, hope the states win, centralisation of power is a B-A-D, though great if you are the one getting all the power...
 

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zach24 said:
there are too many areas where policy is divergent between states
That's exactly why the states exist. Having regional governments allows law to cater to the specific needs and values of a population.

But the blurring of state and Commonwealth jurisdiction over the 20th Century has hindered the state’s ability to serve this purpose. In addition, there has emerged a need for national regulation of corporations etc., an explosion of communication technology as well as the emergence of globalisation. State governments in their current form may not have a place in this climate.

The solution to Australia’s Federation problems is not to abolish or to further undermine the status of the states, but to instigate real Constitutional reform that will clarify the division of power, as the current wording of the document is clearly insufficient.

Far too often the people advocating the abolition of the states do so because they take issue with the present success of Labor governments at the state level. Bear in mind that Victoria, New South Wales and the rest are democracies just like the Australian Commonwealth, and their governments have a mandate to make law. You should also remember that the Liberal Party platform still lends its wholehearted support to the federal system.
 

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quite frankly the outcome in this case was know in 1983 when the Tasmanian Dams case was decided. Nothing in the Constitution (despite Chief Justice Gibbs' protestations) guarantees any power reserved to the states (as in the Engineers Case in 1920) and nothing in the Constitution specifies anything about a 'Federal Balance' whereby the Commonwealth government and the State governments have some intrinsic 'no step on each toes' requirement.

There are two lines of argument in this case
1. That the Melbourne Corporation v Cth (the Bank Nationalisation Case) which states (basically) that the Commonwealth cannot so burden the states so as to make it impossible for the states to function here operates so as to preclude these IR laws regulating private sector employees.

The theoretical basis for this I guess is that because states have corporatised so much of their core function that this law operates so as to fulfill the Melbourne Corp. test

The problem is that in the Engineers Case, the Court had no problem saying that the Commonwealth could use its interstate concilliation and arbitration power to regulate the industrial relations of not just state government corporations, but state government instrumentalities

2. The other is that the Corporations power doesn't extend to include the industrial relations of corporations. This is possible, I suppose -- the the Incorporation Case (NSW v Cth) in 1990 the Court decided that Corporations power didn't extend to actually creating corporations. Kind of bizarre.

What goes against it is that otherwise the Corporations power has been found to act practically in all other circumstances. So much so that s51(i), the interstate Trade and Commerce power has been rendered irrelevant. So why shouldn't it be able to happen with s51(xxxv) interstate Concilliation and Arbitration?

--

The states may be able to pick up a Justice or two (Kirby, maybe Callinan; Crennan is a wildcard and this is her first major Constitutional case), but I doubt Gleeson, Gummow, Hayne or Heydon will go for it.

Interestingly Tasmania is not a party to the case...
 
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