State of New South Wales & Ors v Commonwealth (AKA Workplace Relations Challenge) [2006] HCATrans 195 (12 April 2006)

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State of New South Wales & Ors v Commonwealth (AKA Workplace Relations Challenge) [2006] HCATrans 195 (12 April 2006)

Last Updated: 13 April 2006

[2006] HCATrans 195

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S592 of 2005

B e t w e e n -

STATE OF NEW SOUTH WALES

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Perth No P66 of 2005

B e t w e e n -

STATE OF WESTERN AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Brisbane No B5 of 2006

B e t w e e n -

STATE OF QUEENSLAND

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Adelaide No A3 of 2006

B e t w e e n -

STATE OF SOUTH AUSTRALIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Brisbane No B6 of 2006

B e t w e e n -

AUSTRALIAN WORKERS UNION

First Plaintiff

AUSTRALIAN WORKERS UNION OF EMPLOYEES QUEENSLAND

Second Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Sydney No S50 of 2006

B e t w e e n -

UNIONS NSW

First Plaintiff

PUBLIC SERVICE ASSOCIATION AND PROFESSIONAL OFFICERS’ ASSOCIATION AMALGAMATED UNION OF NEW SOUTH WALES AND NEW SOUTH WALES LOCAL GOVERNMENT CLERICAL ADMINISTRATIVE ENERGY AIRLINES & UTILITIES UNION AND ELECTRICAL TRADES UNION OF AUSTRALIA NEW SOUTH WALES BRANCH AND NATIONAL UNION OF WORKERS NEW SOUTH WALES BRANCH AND NEW SOUTH WALES TEACHERS FEDERATION

Second Plaintiffs

and

COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
Melbourne No M21 of 2006

B e t w e e n -

STATE OF VICTORIA

Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summonses for direction

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 12 APRIL 2006, AT 9.33 AM

(Continued from 9/3/06)

Copyright in the High Court of Australia

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If the Court pleases, I appear for the States of New South Wales, Western Australia and South Australia and for the Attorneys-General of Tasmania, the Northern Territory and the Australian Capital Territory who intervene in the proceedings and I mention the matter on behalf of Mr Perram of counsel who appears for Unions New South Wales. (instructed by Crown Solicitor of New South Wales, State Solicitor for Western Australia, Crown Solicitor for South Australia, Solicitor-General of Tasmania and Jones Staff & Co)

MS P.M. TATE, SC, Solicitor-General for the State of Victoria: May it please the Court, I appear on behalf of the State of Victoria in proceeding M21 of 2006 and on behalf of the Attorney-General intervening in proceedings S592 of 2005, P66 of 2006, B5 of 2006 and A3 of 2006, with my learned friends, MR M. BROMBERG, SC and MR M.K. MOSHINSKY. (instructed by Victorian Government Solicitor)

MR D.F. JACKSON, QC: If your Honour please, I appear with my learned friend, MR A.K. HERBERT, for the applicant/plaintiffs in the AWU matter. (instructed by Sciacca’s Lawyers and Consultants)

MR D.M.J. BENNETT, QC, Solicitor-General of the Commonwealth of Australia: If the Court pleases, I appear with my learned friend, MR S.P DONAGHUE, for the defendant in all matters. (instructed by Australian Government Solicitor)

MR J.M. HORTON: Your Honour, I appear on behalf of the State of Queensland in matter B5 of 2006. (instructed by Crown Solicitor for the State of Queensland)

HIS HONOUR: Yes, Mr Solicitor.

MR SEXTON: Your Honour, perhaps if I could take my clients one by one. There is nothing to be said in relation to the various Attorneys-General who intervene. In relation to the State of New South Wales, we already have leave to amend the statement of claim to deal with essentially renumbering between the two pieces of legislation but we would seek additional leave to delete two lots of paragraphs: 75 to 77, which deal with State corporations, a matter that is no longer to be litigated, and 33 to 39, which deal with a trade and commerce question. There may be some consequential amendments in terms of those paragraphs that seek declarations.

HIS HONOUR: Is that opposed, Mr Solicitor?

MR BENNETT: It is consented to, your Honour.

HIS HONOUR: You have that leave.

MR SEXTON: Thank you, your Honour. In relation to Western Australia your Honour will see that a summons has been filed and that there is a draft – in their case it will be an amended statement of claim and, as I understand it, there is no opposition from my learned friend to that.

HIS HONOUR: Is that the case, Mr Solicitor?

MR BENNETT: That is so, your Honour.

HIS HONOUR: You have that leave.

MR SEXTON: In the case of South Australia it will be a further amended statement of claim and I think a copy of that has been supplied to my learned friend and to the Court as well.

HIS HONOUR: Is that opposed, Mr Solicitor?

MR BENNETT: It is not opposed, your Honour.

HIS HONOUR: You have that leave.

MR SEXTON: Yes, and finally, your Honour, in the case of Unions New South Wales I have some consent orders between the Commonwealth and Unions New South Wales which I can hand up. They have not been signed on behalf of the plaintiffs as yet, but that will be done and they will be filed on behalf of the plaintiffs, as I understand it.

HIS HONOUR: All right. Well, there is nothing for me to do about that. You can sign them yourself, can you not?

MR SEXTON: Yes, that is so. Your Honours, I wanted to raise the matter about the reply if it is convenient to do that just at - - -

HIS HONOUR: Let us go through any further amendments to the statement of claim. Solicitor-General of Victoria, is there a question of amendment in your case?

MS TATE: Yes, there is, your Honour. Victoria also seeks to amend its statement of claim. It is in the form exhibited to the affidavit of Alison O’Brien sworn 10 April and the amendments fall into three categories; the two categories which the Solicitor-General for New South Wales has already mentioned, and a third category which is a category of amendments to clarify the manner in which the Act operates, in particular, which parts of the Act depend upon the basic definition of “employer” under section 6 and which parts of the Act depend only upon the ordinary meaning of “employer”. So those amendments that have been made purely for the purposes of clarification and I understand there is no opposition to any of those amendments, your Honour.

HIS HONOUR: I take it they do not raise any issues of fact?

MS TATE: They raise no issues of fact, your Honour.

HIS HONOUR: Is that consented to, Mr Solicitor? Yes, you have that leave, Solicitor.

MS TATE: May it please the Court.

MR JACKSON: Your Honour, we seek leave to amend the writ and statement of claim to the form attached to the summons and our submissions indicating the basis of the amendments as set out in part A of the written submissions we have filed.

HIS HONOUR: Is that opposed, Mr Solicitor?

MR BENNETT: No, your Honour.

HIS HONOUR: You have that leave, Mr Jackson. Mr Horton?

MR HORTON: Your Honour, I seek leave to amend the amended statement of claim in the form of a draft further amended statement of claim attached again to my client’s summons. The effect of the amendments sought to be made are outlined in paragraphs 3, 4 and 5 of my outline of submissions on the summons.

HIS HONOUR: They raise no issues of fact?

MR HORTON: No, your Honour.

HIS HONOUR: Is that opposed, Mr Solicitor?

MR BENNETT: No, your Honour.

HIS HONOUR: You have that leave, Mr Horton.

MR HORTON: Thank you, your Honour.

HIS HONOUR: Now, Mr Solicitor for New South Wales, you wanted to raise something?

MR SEXTON: Yes, thank you, your Honour. On the last occasion there was some discussion about the reply and the parties were agreed that it would occupy the last half day of the proceedings.

HIS HONOUR: Thursday afternoon?

MR SEXTON: That is right, your Honour. Your Honour’s view at that stage was that it would be confined to one person. We wanted to make the submission that in view of the division of argument that has taken place in the written submissions and will be essentially reflected in the oral argument, that it would be more practical, we would say, to have two persons from the States and one from the private parties to do the reply, although not taking any longer, that it would still be confined to that period.

HIS HONOUR: If you can agree between yourselves on a division of the limited available time, at the moment I cannot see any problem about that. What do you say, Mr Solicitor?

MR BENNETT: I have no opposition, your Honour. My only concern about replies is that one recognises the practical reality that there may well be an application for a short reply on the basis that some new matter is introduced. That tends to happen in long cases and it needs to be borne in mind.

HIS HONOUR: There is nothing much we can do about that, Mr Solicitor.

MR BENNETT: No. I have no opposition to this, your Honour.

HIS HONOUR: Very well. Do you say anything about that, Mr Jackson?

MR JACKSON: Your Honour, all I wanted to say was your Honour has received our written submissions on this issue. We wish to have a separate reply if possible. We are content to do it as part of the three possible replies.

MR HORTON: Queensland’s submission, your Honour, on this point is that there is sufficient degree of commonality between the States’ cases to warrant just one reply being given so far as the States are concerned.

HIS HONOUR: All right. Then, on the basis that there will only be half a day available for reply and the parties can agree between themselves on the appropriate division of time, as far as I am concerned I am content for there to be three arguments in reply. Anything else?

Now, a couple of mechanical matters. The submissions are starting to come in. In relation to the books I am not sure – they will be demurrer books, will they not? In relation to the demurrer books is it proposed that they be prepared together with the written submissions of the parties? Is it proposed, in other words, that there be a bundle, as it were, a book, as it were, that will contain the pleadings and the submissions of the parties and if so how will that be arranged?

MR SEXTON: I am not sure that we have turned our mind to just what form it would take, your Honour, but perhaps that could be discussions with the Registry as to what would be most convenient for the Court as to the format. It could certainly take that form that your Honour has raised.

MR JACKSON: I understand that has been the subject of discussion while this has been going on this morning and some arrangement has been arrived at.

HIS HONOUR: All right. I just encourage people to see if they can reach an agreement on the manner of presentation to the Court of the material. I think you can assume that we will have those white books that are the legislation – yes, what is in front of Mr Jackson, the legislation and explanatory memorandum. We will all have a copy of those. They are the documents that are produced by the Parliament for the public. But in terms of convenience of reading and transportation of written materials it will be very useful for us to have demurrer books that contain the written submissions I think. Any other mechanical matters?

MR BENNETT: Your Honour, I had understood that the Seamens’ Union was going to make an application which we were going to oppose.

HIS HONOUR: I will be dealing with the Seamens’ Union in due course, Mr Solicitor. I am just dealing with the first seven matters in the list.

MR BENNETT: I am sorry, your Honour.

HIS HONOUR: Now, is there anything else that we need to talk about? All right, call matter No 7, please.

AT 9.45 AM THE MATTER WAS CONCLUDED