Matters in the high court


Matters in the high court

The High Court is presently considering whether the foundations of Australia's national corporations law system are constitutionally sound.


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Corporations Law

The High Court is presently considering whether the foundations of Australia's national corporations law system are constitutionally sound. The matter of The Queen v Hughes, was heard over 1 and 2 March 2000, and judgement has been reserved. The Full Bench of the High Court is being asked to consider the constitutional logic underpinning what has been described as a "pseudo-Commonwealth law". Corporations Law in Australia has been facilitated by the passing of identical legislation at a State level. In turn the States have introduced corporations laws and introduced them as laws as that are operated and are policed as Commonwealth laws. The implications of a decision finding the Corporations Law to be unconstitutional would be far reaching. The national regulation and enforcement of corporations law would be undermined.

CFMEU High Court challenge
It was reported that the High Court had reserved its decision on a a constitutional challenge by the CFMEU against the award simplification transitional provisions of the Workplace Relations and Other Legislation Amendment Act 1996 (WROLA). The challenge related to items 50 and 51 of the WROLA Act, and to the removal of non-allowable matters. A decision in this matter is expected around Easter. Therefore, managers and industrial lawyers have turned their attention to considering the implications of the challenge succeeding.

If items 50 and 51 are held to be invalid, the decision will impinge upon around 1500 awards that were not simplified prior to the 1 June 1998 deadline. The 120 awards simplified under the provisions of item 49, prior to the deadline, will not be affected. Therefore, on a simple level, a successful challenge will see all post- 1 July 1998 simplification rulings be declared void and the awards being returned to their pre-simplified state.

CFMEU v AIRC & Gordonstone Coal Management Pty Ltd & Ors

In an unrelated matter, the CFMEU has applied to the High Court constituted by Gleeson CJ and McHugh C for what was essentially its last throw of the dice in its long running dispute with Gordonstone Coal Management Pty Ltd.

The union sought the consideration of s150(1) of the Workplace Relations Act 1996, which provides that:

(1) Subject to this Act, an award (including an award made on appeal): 
(c) is not subject to prohibition, mandamus or injunction in any court on any account.

The union submitted before the Court, that this privity provision may be viewed as affecting the availability of s75(v) of the Constitutionwhich provides that:

In all matters -
(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth: the High Court shall have original jurisdiction.

The CFMEU argued that the provision of s150(1)(c) of the Workplace Relations Act 1996was antithetical to the constitutional provision allowing the High Court original jurisdiction.

The High Court has previously considered the interaction between s75(v) of the Constitutionand the predecessor to s150, that being s60of the Conciliation and Arbitration Act 1904. In O'Toole v Charles David, (1991) 171 CLR 232, the Court applied the Hickman principles established in R v Hickman, (1945) 70 CLR 598. Generally, it was held that privity provisions are statutory provisions which qualify what otherwise would be limits on jurisdiction and are therefore reconciled within the context of the instrument (in this instance the Workplace Relations Act 1996) as a whole.

Given that the issue raised by the CFMEU had already been considered by the High Court, their Honours held that the matter did not raise any issues suitable for the granting of special leave. The application for special leave was accordingly refused.

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