Victoria v Commonwealth [1996] HCA 56

Victoria v Commonwealth [1996] HCA 56

Sections 170DE(2) and 170EDA(1)(b) of the Industrial Relations Act 1988 (Cth), imposing a 'harsh, unjust or unreasonable' termination test in addition to treaty requirements, are invalid for exceeding the scope of the external affairs power and are severable. Many challenged provisions are valid but do not bind States with respect to persons employed at the higher levels of government, when s 6 is read down to preserve State functions per implied constitutional prohibition. Some discrimination-related terms are invalid where not properly supported by treaty or consultation. All other challenged provisions are valid by reference to their relevant head of power.

Jurisdiction
Australia
Procedural Posture
Constitutional Challenge / Final Judgment and Orders
Outcome
Certain provisions declared invalid and severed; most provisions upheld subject to limits binding States; orders as to costs given.
Legal Topics
['external Affairs Power' 'conciliation and Arbitration Power' 'corporations Power' 'industrial Relations' 'discrimination in Employment' 'collective Bargaining' 'right to Strike']
['constitutional Law' 'labour Law'] ['external Affairs Power' 'conciliation and Arbitration Power' 'corporations Power' 'industrial Relations' 'discrimination in Employment' 'collective Bargaining' 'right to Strike']

Case Brief

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Procedural Posture

Constitutional Challenge / Final Judgment and Orders

Legal Issues

  1. 1 ['Are provisions of the Industrial Relations Act 1988 (Cth) or their application to the States invalid as beyond Commonwealth legislative power?' 'Are invalid provisions severable?' 'Do certain provisions offend the implied constitutional prohibition against discrimination or destruction of State functioning?' 'Are provisions supported by the external affairs, conciliation and arbitration, and corporations powers?']

Ratio Decidendi

Sections 170DE(2) and 170EDA(1)(b) of the Industrial Relations Act 1988 (Cth), imposing a 'harsh, unjust or unreasonable' termination test in addition to treaty requirements, are invalid for exceeding the scope of the external affairs power and are severable. Many challenged provisions are valid but do not bind States with respect to persons employed at the higher levels of government, when s 6 is read down to preserve State functions per implied constitutional prohibition. Some discrimination-related terms are invalid where not properly supported by treaty or consultation. All other challenged provisions are valid by reference to their relevant head of power.

Court Disposition

Certain provisions declared invalid and severed; most provisions upheld subject to limits binding States; orders as to costs given.

Orders

  • ['Sections 170DE(2) and 170EDA(1)(b) are invalid and severable.' 'Section 6 of the Act is to be read down: States bound only where provisions do not prevent them from determining number of persons employed, term of appointment, redundancy, and conditions at higher levels of government.' 'Specified provisions do not...