Victoria v Commonwealth [1996] HCA 56

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Victoria v Commonwealth [1996] HCA 56

ORDER 1. Answer the questions in the case stated as follows: Matter No M46 of 1994 ( Victoria v The Commonwealth ) (1) Are any of the following provisions of the Industrial Relations Act 1988 Cth (the Act), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid —

(a) Div 1 of Pt VIA;

(b) Div 2 of Pt VIA;

(c) Div 3 of Pt VIA;

(d) Div 5 of Pt VIA;

(e) Div 2 of Pt VIB;

(f) Div 4 of Pt VIB;

(g) s 334A;

(h) s 152 in its application to enterprise flexibility agreements;

(i) s 164;

(j) s 166; and

(k) s 166A?

Answer: Yes. Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. See also the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170BC and 170BI, which are in Div 2 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; ss 170KA, 170KB and 170KC, which are in Div 5 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A. No answer is given with respect to the term mental disability in s 170DF(1)(f). (2) Are any of the following provisions of the Act, or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States —

(a) Div 1 of Pt VIA;

(b) Div 3 of Pt VIA;

(c) Div 2 of Pt VIB;

(d) Div 4 of Pt VIB;

(e) s 334A?

Answer: Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. The other provisions are valid. However, see the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A. (3) Are the provisions of Div 1 of Pt VIA of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Victoria? Answer: No. However, see the answer to Q 4 with respect to ss 170AE and 170AH which are in Div 1 of Pt VIA. (4) If any such provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent? Answer: Sections 170DE(2) and 170EDA(1)(b) are severable. Section 6 of the Act is to be read down so as to bind the States only to the extent that the provisions of the Act do not prevent them from determining the number of persons they wish to employ, the term of their appointment, the number and identity of those they wish to dimiss on redundancy grounds and the terms and conditions of those employed at the higher levels of government. Consequently, ss 170AE, 170AH, 170BC, 170BI, 170DB, 170DC, 170DE(1), 170DF, 170KA, 170KB, 170KC and 334A do not bind the States with respect to persons employed at the higher levels of government and s 170PM(3) does not apply to action, which would otherwise be protected action for the purposes of s 170PG, by and against those employed at the higher levels of government. When s 6 is read down in the manner indicated, s 170FA does not apply to the States and s 170DE(1) does not operate to prevent the States from determining the number and identity of those they wish to dismiss on redudancy grounds. Matter No A18 of 1994 ( South Australia v The Commonwealth ) (5) Are any of the following provisions of the Industrial Relations Act 1988 Cth (the Act), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid —