Tuesday, November 14, 2006

Because I know you care

So, I've been quiet a while.

As per usual - there are reasons and things. I've been prolifically commenting on other's blogs though. Almost like writing a post of Oanh's own.

In any event, I am sure that you will be absolutely thrilled to know that Australia's highest court handed down its decision today in the most exciting constitutional law case since the Tasmanian Dams case.

It's so important, the case is 411 pages long. There are 1227 footnotes! I haven't read the whole case yet - just scanned it for the juicy bits.

Did I mention that I'm a law nerd?

You can read the official summary here. Please note: this is not to be relied upon for legal advice, of course, but I doubt many of you will be challenging Australia's laws for offending our bland constitution anyway. If you're a law student, you probably shouldn't rely on this in your essays or exams, either. Please read at least *some* of the judgment.

Here's my summary:-

It's a washout.

The federal government of Australia, in its inestimable wisdom, made a law about employment that overrode, undermined and eroded employee's rights, especially those found in each of the individual state's legislation (except for Victoria, which had already given the federal government the power to legislate for its people).

Basically, the corporations power is so broad, a vague connection with a corporation, no matter what the actual subject matter of the law might be, makes the piece of law OK.

There were two dissentients: Justice Kirby and Justice Callinan.

Callinan J says:

To give the Act the valid operation claimed by the Commonwealth would be to authorize it to trespass upon essential functions of the States.

The validation of the legislation would constitute an unacceptable distortion of the federal balance intended by the founders, accepted on many occasions as a relevant and vital reality by Justices of this Court, and manifested by those provisions of the Constitution to which I have referred, and its structure.

And Kirby J says:

I therefore consider that this Court should adhere to the conclusion inherent in the hundreds of earlier cases over more than a century in which the Court has held or implied that, whatever the expanding content of the corporations power in s 51(xx) might otherwise permit, it does not sustain a law which, properly characterised, is one "with respect to" the subject matter of s 51(xxxv), that is, the prevention and settlement of interstate industrial disputes. This new Act is such a law. It does not comply comprehensively with the dual requirements laid down in s 51(xxxv) for laws with respect to that subject. That conclusion presents the issue of its constitutional invalidity.

It is an unsurprising, but very concerning, decision.


This is the part where I beg and plead for my few readers to please return, maybe in a week's time, where there will be an interesting post about stuff unrelated to law. I could promise scandal, acrimony and wit. But you would all know that I'd be lying.


Cee said...

Argh Oanh, the pun, it burns my eyes! How nice it is to know law nerds - I can keep up on all the legal gossip people are likely to ask me stern questions about without expending any effort. Hurrah!

Barry said...

Actually, I only found your blog yesterday, and I like the law nerd stuff, but that's because I am a law nerd myself.

Meredith said...

I'll be back, and I like the law-nerdy stuff anyway.

galaxy said...

Have you finished marking those assignments yet? Where did you even get the time to blog this? ; )

You can see how on top of things I am just reading your post from 4 days ago.

I have also been commenting rather than blogging; I can believe I'm not 'wasting' time when there are more important (but less enjoyable) things to do. (10 to go)

OTT said...

thanks folks!

look out - more law nerdy stuff to come!

I've finished the marking Galaxy! I'm free as a bird. Free!

(I was paid to read the Work Choices Case, that's how I erherm had time to blog about it ...)

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