New South Wales v Commonwealth
High Court of Australia
Full case name	New South Wales & Ors v Commonwealth
Date decided	14 November 2006
Citations	[2006] HCA 52
Transcripts	Day 1 [2006] HCATrans 215 Day 2 [2006] HCATrans 216 Day 3 [2006] HCATrans 217 Day 4 [2006] HCATrans 218 Day 5 [2006] HCATrans 233 Day 6 [2006] HCATrans 235
Judges sitting	Gleeson CJ, Gummow, Kirby, Hayne, Callinan, Heydon & Crennan JJ
Case history
Prior actions:	none
Subsequent actions:	N/A
Case opinions
(5:2) WorkChoices is constitutionally valid (per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ)

See also: New South Wales v Commonwealth

New South Wales & Ors v Commonwealth is a High Court of Australia case that challenged the constitutional validity of the federal government's WorkChoices legislation. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. Events 1533 - Conquistadors from Spain under the leadership of Francisco Pizarro arrive in Cajamarca, Inca Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar. Anthony Murray Gleeson, AC, QC (born 30 August, 1938) is a former Chief Justice of the High Court of Australia, the William Montague Charles Gummow, AC, QC (b 9 October 1942) is a Justice of the High Court of Australia, the highest court in the Michael Kirby may refer to Michael Kirby (judge, Australian judge Michael J Kenneth Madison Hayne, AC, QC (born 1945 is a Judge of the High Court of Australia which is the highest court in the Australian court hierarchy Ian David Francis Callinan (born 1 September 1937) AC QC is a former Justice of the High Court of Australia; the highest court in the Australian John Dyson Heydon, AC, QC (born March 1 1943) is a Justice of the High Court of Australia; the highest court in the Australian Susan Maree Crennan, AC, QC (born in 1945 is an Australian Judge, a Justice of the High Court of Australia, the highest The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. The Constitution of Australia is the law under which the Australian Commonwealth Government operates The Workplace Relations Act 1996 as amended by the Workplace Relations Amendment Act 2005, or WorkChoices, which came into effect in March 2006, was the most The case was brought by the States of New South Wales, Western Australia, South Australia, Queensland and Victoria, along with the Australian Workers' Union and Unions New South Wales. Western Australia is a state occupying the entire western third of the Australian continent. South Australia is a state of Australia in the southern central part of the country Queensland is a state of Australia, occupying the north-eastern corner of the mainland continent Template talkInfobox Union for usage --> The Australian Workers' Union (AWU is one of Australia 's largest The Labor Council of New South Wales is a representative body of Trade union organisations in the State of New South Wales, Australia. The state of Tasmania, the Australian Capital Territory and the Northern Territory intervened in the case, but were not parties. Tasmania is an Australian island and state of the same name It is located south of the eastern side of the Continent, being separated from it by Bass } The Australian Capital Territory (ACT is the Capital territory of the Commonwealth of Australia and its smallest self-governing internal territory The Northern Territory is a federal territory of Australia, occupying much of the center of the mainland continent as well as the central northern regions

Hearings of substantial matters began on 4 May 2006, and concluded on 11 May. Events 1256 - The Augustinian monastic order is constituted at the Lecceto Monastery when Pope Alexander IV Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar. Events 330 - Byzantium is renamed ''Nova Roma'' during a dedication ceremony but is more popularly referred to as Constantinople The court handed down its decision on 14 November 2006, with the majority of the Court finding WorkChoices constitutionally valid. Events 1533 - Conquistadors from Spain under the leadership of Francisco Pizarro arrive in Cajamarca, Inca Year 2006 ( MMVI) was a Common year starting on Sunday of the Gregorian calendar. Justices Kirby and Callinan dissented. Michael Kirby may refer to Michael Kirby (judge, Australian judge Michael J Ian David Francis Callinan (born 1 September 1937) AC QC is a former Justice of the High Court of Australia; the highest court in the Australian

Contents 1 Background to the case 1.1 WorkChoices legislation 1.2 Corporations power 2 Arguments 2.1 Commonwealth 2.2 States and unions 3 The Judgment 3.1 Majority Judgment 3.2 Kirby J (Dissenting) 3.3 Callinan J (Dissenting) 4 Significance and controversy 5 See also 6 References

Background to the case

WorkChoices legislation

Main article: WorkChoices

The WorkChoices legislation is a package of amendments to existing labour legislation, altering the industrial relations system. The Workplace Relations Act 1996 as amended by the Workplace Relations Amendment Act 2005, or WorkChoices, which came into effect in March 2006, was the most Law is a system of rules enforced through a set of Institutions used as an instrument to underpin civil obedience politics economics and society Australian labour law has had a unique development that distinguishes it from other English speaking jurisdictions The field of industrial relations (also called labor relations) looks at the relationship between Management and workers particularly groups of workers represented The package substantially replaces the existing systems run by the states of Australia, and would cover about 85% of the Australian workforce. The Commonwealth of Australia is made up of 8 states and territories controlled under a federal system of government ^[1]

Some aspects of the package have been very controversial, such as the exemption of companies with fewer than 101 employees from unfair dismissal laws, and reductions in the minimum conditions of employment. Unfair dismissal is the term used in English Welsh and Scottish Law to describe an Employer 's action when terminating an Employee 's Employment contrary

Corporations power

Main article: Section 51(xx) of the Australian Constitution

Section 51(xx) of the Australian Constitution, commonly known as "the corporations power", gives the Parliament of Australia the power to make laws "subject to this Constitution" with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. Section 51(xx of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right The Parliament of Australia or Commonwealth Parliament is the legislative branch of government of Australia. " Historically this power was interpreted narrowly, but after the Concrete Pipes case of 1971, the High Court has taken an increasingly broad view of the power. Strickland v Rocla Concrete Pipes Ltd (1971 124 CLR 468 also known as the Concrete Pipes Case, is a High Court of Australia case Year 1971 ( MCMLXXI) was a Common year starting on Friday (link will display full calendar of the 1971 Gregorian calendar.

There has been little case law on the extent of the corporations power, in terms of what activities or aspects of a corporation can be regulated, at least as opposed to the amount of law on the definition of the power, in terms of which corporations are subject to it. ^[2] Laws regulating the trading activities of corporations have been held to be within the power, and also laws regulating activities for the purpose of trading activities, have previously been held valid, but the question of whether laws not directly or even indirectly connected with the trading activities of corporations are valid is yet to be answered conclusively. ^[2]

Arguments

Commonwealth

The principal argument of the Government of Australia is that the legislation is supported by Section 51(xx) of the Australian Constitution, commonly known as "the corporations power", which gives the Parliament of Australia the power to make laws with respect to "foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth. This article describes the federal government of Australia See Australian governments for other jurisdictions Section 51(xx of the Australian Constitution, is a subsection of Section 51 of the Australian Constitution that gives the Commonwealth Parliament the right The Parliament of Australia or Commonwealth Parliament is the legislative branch of government of Australia. "

Some sections of the legislation are also based on other powers in the Constitution, for example the territories power, insofar as the laws apply to territories, and sections relating to employees of the Government of Australia. Generally speaking, those sections are not being challenged by the states and the unions. ^[3]

States and unions

The states and trade unions involved in the case have divided the issues between themselves, with the lawyers for each party arguing a particular part of the overall argument.

The challengers argue that the legislation is not a valid law under the Constitution of Australia, because it is not supported by any of the heads of power granted to the Parliament of Australia by Section 51 of the Australian Constitution. The Constitution of Australia is the law under which the Australian Commonwealth Government operates The Parliament of Australia or Commonwealth Parliament is the legislative branch of government of Australia. Section 51 of the Australian Constitution grants legislative powers to the Australian (Commonwealth Parliament. Their principal argument is that the corporations power does not extend far enough to support the legislation.

They have distinguished the WorkChoices legislation from other laws which rely on the corporations power (such as the Trade Practices Act 1974) on the basis that those other laws are "manifestly laws with respect to. The Trade Practices Act 1974 is an act of the Parliament of Australia. . . corporations" because they have "a structure whereby the corporation is a relevant actor and the activities in question are to be in trade or commerce. "^[3] That is, those other laws are aimed directly at corporations, and more specifically at their trading and commercial activities. They argue that the WorkChoices legislation is really directed at industrial relations, and is only remotely connected with corporations.

The challengers argue that the limits of the corporations power have not really been tested, since the vast majority of the case law is focused on determining to which corporations the power applies.

The states have also argued that since the time of Federation, the industrial relations system in Australia has been largely state run. The federation of Australia was the process by which the six separate British self-governing colonies of New South Wales, Queensland, South The Commonwealth does have the conciliation and arbitration power in the Constitution, but that section is specifically limited to interstate disputes, and does not extend to disputes existing entirely within one state.

The Judgment

The Court ruled 5:2 in favour of the Commonwealth (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ; Kirby and Callinan JJ dissenting). The full judgment can be read on Austlii.

Majority Judgment

The significant reasons put forward by the majority include:

• At paragraph 198: a law which regulates the relationship between a constitutional corporation and its employees or affects constitutional corporations in the manner upheld in Fontana Films is a law with respect to a corporation under the corporations power.

Kirby J (Dissenting)

The significant ideas put forward by Kirby J include:

• At paragraph 481-3: it is unnecessary for this case to outline or define the scope of the corporations power. The corporations power is restrictions placed on laws regarding industrial disputes by s51(xxxv). What is forbidden is basing a law on one head of power (i. e. corporations power) when it is clearly a law with respect to another head of power (i. e. industrial disputes);
• At paragraph 607: laws with respect to industrial disputes must fit within the two safeguards in s51(xxxv) namely interstateness and independent resolution;
• At paragraph 609 (titled Preserving Industrial Fairness): the idea of a fair go that was at the heart of federal workplace laws is destroyed which has the potential to effect the core values that shaped the Australian Community and Economy; and
• At paragraph 613: the high court should be attentive to the federal character of the Constitution.

Callinan J (Dissenting)

Callinan J summarises his judgment at paragraph 913. Generally, the reasons set down in paragraph 913 include:

• The Constitution should be read as a whole;
• The substance of the legislation in question is with regards to industrial affairs;
• The industrial affairs power includes the two safe guards;
• As much as the corporations power may purport to support the legislation, the power is still subject to the restrictions of the industrial affairs power for industrial affairs legislation;
• To affirm the validity of the Act would be to trespass on the functions of the states; and
• The validation of the Act would result in an unacceptable distortion of the federal balance.

Significance and controversy

Media coverage and commentary on the case has been significant. The case has been "hailed as the most important constitutional case in 80 years"^[1] (a probable reference to Engineers, heard 86 years ago) It has also been described as potentially one of the most important cases in the history of the Court. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (commonly known as the Engineers' Case) was a landmark Australian court case decided in ^[4]

Some feel that this media coverage may be slightly overstated, but it is generally agreed that the case is the most important case regarding the scope of the Federal Parliament's power since the Tasmanian Dams Case in 1983. Commonwealth v Tasmania (1983 158 CLR 1, (popularly known as the Tasmanian Dam Case) was a significant Australian Court

The case is also significant because of the politics surrounding it. Underpinning the challenge is a major political rift in Australian politics between the two major political forces: the Australian Labor Party (ALP) and the Liberal/National Coalition. The Coalition in Australian politics refers to a pragmatic grouping of Centre-right parties that has existed in the form of a coalition agreement since 1922

In 2006 not only did the the Coalition hold the Federal Government of Australia but they also held a majority in the Senate allowing them to completely dominate the Federal Parliament. The Coalition in Australian politics refers to a pragmatic grouping of Centre-right parties that has existed in the form of a coalition agreement since 1922 The Parliament of Australia or Commonwealth Parliament is the legislative branch of government of Australia. Federal Labor's poor result at the 2004 federal election provided the Coalition with control of the Senate for the first time since 1980. Federal elections were held in Australia on 9 October, 2004. All 150 seats in the House of Representatives and 40 seats in the 76-member The Senate is the upper of the two houses of the Parliament of Australia. [1] This gave the Coalition complete Federal legislative freedom. Conversely, Labor governments have been elected in all six states and two territories.

The Workplace Relations WorkChoices Act is itself politically contentious and perceived by some as an attack on both the Union and Labor movements, and the minimum wage setting system as a whole. The Workplace Relations Act 1996 as amended by the Workplace Relations Amendment Act 2005, or WorkChoices, which came into effect in March 2006, was the most An Act of Parliament is a Law enacted as Primary legislation by a national or sub-national Parliament. A minimum wage is the lowest hourly daily or monthly Wage that employers may legally pay to employees or workers The Coalition (inspired by conservative think tank the H. R. Nicholls Society) believe the step to have "bravely taken advantage of. The HR Nicholls Society is a Australian Think tank of the New Right on Industrial relations. . . new found legislative freedom and have created a substantially different and national industrial relations system". The ALP have been aggressive critics of the new laws. On the day the Bill was introduced into the Australian House of Representatives 11 members of the ALP were ejected during heated debate over the Bill. The House of Representatives is one of the two houses (chambers of the Parliament of Australia; it is the Lower house, the Upper house being the Senate In this context the creation of "one national system" is seen by some as a sensible step to modernise Australia's industrial relations regime. Others see it as a coup d'état of the Labor Party's power to create union friendly legislative regimes through their respective State Parliaments. A trade union or labour union is an organization of workers who have banded together to achieve common goals in key areas such as wages hours and working conditions forming

The political (and party political) dimension has led commentators to draw comparisons between this case and two others: the Bank Nationalisation Case and the Communist Party Case, because in those cases the High Court was the final arbiter of divisive political issues. Commonwealth v Bank of New South Wales (1949 79 CLR 497 AC 235 - popularly known as the Bank Nationalisation Case - was a Privy Council decision that Australian Communist Party v The Commonwealth (1951 83 CLR 1 also known as the The Communist Party Case, was a legal case in the

The Case is also significant in that it had the most lawyers to ever appear in the High Court at one time, outstripping Wik Peoples v Queensland for the title. Wik Peoples v The State of Queensland (commonly known as the Wik decision) is a decision of the High Court of Australia delivered on 23 December 1996 A picture of the proceedings has been placed on the High Court of Australia's website for this reason. The High Court of Australia is the final court of appeal in Australia the highest court in the Australian court hierarchy. [2]

Queensland Premier Peter Beattie has said that if the Commonwealth were successful in the case, it would pave the way for the Commonwealth to use the corporations head of power to move into other areas of law traditionally within the purview of the States, such as transport, education and health. Peter Douglas Beattie (born 18 November 1952) Australian politician was the 36th Premier of the Australian state of Queensland He has stated that this "would leave the federation in confusion" and has suggested that a Constitutional Convention would be necessary if that situation arose. In Australian history the term Constitutional Convention refers to four distinct gatherings ^[5]

See also

• Australian constitutional law
• Australian labour law

References

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