scholarly journals THE CONSTITUTION AND A NATIONAL INDUSTRIAL RELATIONS REGIME

2005 ◽  
Vol 10 (2) ◽  
pp. 498 ◽  
Author(s):  
GEORGE WILLIAMS
Keyword(s):  
Federal Government ◽  
Industrial Relations ◽  
The State ◽  
Title Page ◽  
State Laws ◽  
High Court ◽  
The Law ◽  
Interstate Trade

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The federal Government is proposing to bring about a single national scheme for the regulation of industrial relations in Australia. This will raise a number of important constitutional questions that may need to be resolved by the High Court. These questions as examined in this article are: could a single national law for the regulation of industrial relations be passed under a head of Commonwealth power (in particular, under the Commonwealth's powers over corporations, interstate trade and commerce or external affairs); even such a law could so be enacted, would it nevertheless be struck down due to an express or implied constitutional limitation; and to what extent could the law override the State laws that already govern much of the field?</span><span>] </span></p></div></div></div>

What’s Plainly Wrong in Australian Law? An Empirical Analysis of the Rule in Farah

2020 ◽  
Vol 43 (3) ◽  
Author(s):  
Antonia Glover
Keyword(s):  
20Th Century ◽  
Empirical Analysis ◽  
Internal Consistency ◽  
The State ◽  
Judicial System ◽  
Appellate Courts ◽  
High Court ◽  
Gold Mines ◽  
Modern Context ◽  
The Law

In Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, and again in Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, the High Court pronounced that Australian courts must follow the decisions of appellate courts across Australia unless convinced that those decisions are ‘plainly wrong’. This article seeks to track the development and application of this rule in both a historical and modern context. It first examines the state of the law prior to Marlborough and then engages in an empirical analysis of the use of the rule since Marlborough in 1993, tracking how often the rule has been used and where divergence between jurisdictions has emerged. The results confirm the existence of a judicial system with an increased focus on, and practice of, internal consistency. This replaces the 20th century paradigm in which loyalty to Britain was prioritised over intra-Australian uniformity.

Genuine and 'Post-modern' Industrial Demands: The State Public Services Federation Decision and Federal Tribunal Practice

1994 ◽  
Vol 36 (3) ◽  
pp. 394-416 ◽  
Author(s):  
Stuart Kollmorgen ◽  
Jonathan Harvey
Keyword(s):  
Public Services ◽  
Industrial Relations ◽  
The State ◽  
Crucial Issue ◽  
High Court ◽  
The Past ◽  
Recent Developments ◽  
Industrial Dispute ◽  
Federal Jurisdiction ◽  
Practical Level

This article examines the requirement of 'genuineness' in industrial demands—the doctrine established by the High Court, the manner in which the requirement has been interpreted and applied by the Australian Industrial Relations Commission, and the actual and likely future impact of recent developments upon federal tribunal practice. The commission has, as a matter of practice, considered that the service and subsequent rejection of a log of claims involving inflated, ambit demands through the mechanism of the 'paper dispute' was adequate to form the basis of a statutory and constitutional industrial dispute unless there was extremely clear evidence that the log constituted a mere device to attract federal jurisdiction. The result has been that genuineness has not been argued as a crucial issue before the commission in more than a handful of cases in the past decade. The High Court's re- examination of the genuineness requirement undertaken in cases placed before it during 1993 is unlikely to have a dramatic impact on the traditional doctrinal position. On a practical level, however, genuineness has subsequently been raised as a crucial issue on a far more regular basis, and certain changes to commission practice have been necessitated, first, because of perceived tightening of the require ment and, second, because legislative change has reduced the ability of employers to challenge commission jurisdiction on other bases.

REVISITING CHOISE OF A STRATEGY FOR RUSSIAN LEGAL SPACE DEVELOPMENT

2021 ◽  
pp. 89-92
Author(s):  
Айгуль Фаридовна Чупилкина
Keyword(s):  
Necessary Conditions ◽  
The State ◽  
Important Goal ◽  
State Laws ◽  
Legal Personality ◽  
Natural Laws ◽  
The Status ◽  
Legal Space ◽  
The Law ◽  
Internal Balance

Автор, принимая во внимание выделяемые философами древности необходимые условия (факторы) государственного самосохранения, отмечает, что самой важной целью государства является не его собственное сохранение, а сохранение его главного ресурса - человека. Поскольку право - это регулятор (по определению) и индикатор происходящих в государстве событий, веяний (по В. О. Ключевскому), автор рассматривает один из самых тревожащих юридическое сообщество вопросов законодательной (прежде всего конституционной) перестройки - вопрос о наделении роботов правосубъектностью, что приравнивает статус робота к статусу человека. В связи с этим рассмотрены следующие вопросы: 1) необходимость стабильности для жизни людей, а следовательно, для жизни государства; 2) закон человеческого вырождения; 3) нахождение государственных законов внутри природных законов. Сделаны выводы, которые необходимо принять при разработке стратегии российского правового пространства. Знание и сохранение внутреннего равновесия (природной гармонии) - это необходимость, без которой не выживет человечество в целом. The author takes into account the warnings of ancient philosophers to deduce the necessary conditions (factors) of state self-preservation. But the most important goal of the state is not only its own preservation, but the preservation of its main resource - man. Since law is a regulator (by definition) and an indicator of events and trends taking place in the state (according to V. O. Klyuchevsky), the author considers one of the most disturbing symptoms of legislative (primarily constitutional) restructuring for the legal community - the issue of granting robots legal personality, which equates the status of a robot with the status of a person. In this connection, the following issues were considered: 1) the need for stability for the life of people, and therefore for the life of the state; 2) the law of human degeneration; 3) the finding of state laws within natural laws. The conclusions that need to be taken when developing a strategy for the Russian legal space are drawn. Knowledge and preservation of internal balance (natural harmony) is a necessity, without which humanity as a whole will not survive.

Notes: ‘Observations’ on the State Capture judgment

2021 ◽  
Vol 138 (3) ◽  
pp. 477-500
Author(s):  
Michael Tsele
Keyword(s):  
South Africa ◽  
Case Law ◽  
The State ◽  
Controversial Issue ◽  
Court Decision ◽  
Constitutional Court ◽  
High Court ◽  
The Public ◽  
State Capture ◽  
The Law

This note concerns a controversial issue that has, surprisingly, received limited academic interrogation: whether the Public Protector has the power to instruct the President of South Africa to appoint a commission of inquiry. In this respect, I critique a high court decision which answered the question in the affirmative. I contend that the judgment contradicts prior case law, including Constitutional Court precedent. Thus, I argue that the court misconstrued the law on the President’s powers, particularly when it concluded that those powers are not purely discretionary but entail ‘responsibilities’ which are ‘coupled with a duty’. This reasoning led the court to conclude that the President thus has a constitutional ‘obligation’ to appoint a commission. In summary, I take issue with the court’s conclusion that the Public Protector has the power to instruct the President to appoint a commission of inquiry. I conclude that the decision caused uncertainty on the limitations of the Public Protector’s powers. I further say it is questionable whether the commission, better known as the ‘State Capture’ commission, was established lawfully.

The State School Teachers Decision (High Court 1929) Revisited

1987 ◽  
Vol 31 (3) ◽  
pp. 236-251 ◽  
Author(s):  
Andrew Spaull
Keyword(s):  
Industrial Relations ◽  
The State ◽  
Federal State ◽  
Public Employees ◽  
State School ◽  
School Teachers ◽  
High Court ◽  
High Court Of Australia ◽  
Politics And Law ◽  
State Relations

The State School Teachers decision of 1929 was recently overturned in the High Court (June 1986) thereby opening up the possibility for federal teachers organizations to obtain registration in the federal arbitration system, and eventually obtain one or more federal awards. The 1929 decision by the High Court of Australia was a significant decision in education and industrial relations, because it prevented state teachers and other public employees obtaining access to federal awards for the next 54 years. The decision, however, was veiled in unsettled legal argument, because the High Court overturned much of its expansive thinking of the 1918–25 period. Later generations of academic lawyers described the decision as a ‘bad one’ or ‘an anomalous decision’, but they and the current High Court failed to give any satisfactory explanation of why the Court had reached its decision. This paper offers such an explanation, arguing that the decision was not based on law (or the educational situation) but on the High Court's perceptions of the politics of federal-state relations in the period. The state teachers who had asked for a High Court ruling on the application of the Commonwealth's industrial relations powers (section 51 XXXV of the Constitution) to their work and employment were thus dragged momentarily onto the centre stage of Australian politics and law. They found themselves denied access to a federal award because the High Court felt that the federal arbitration ‘experiment’ had caused too much embarrassment to the federal system of government.

scholarly journals BAKER V THE QUEEN & FARDON V ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

2005 ◽  
Vol 10 (1) ◽  
pp. 271 ◽  
Author(s):  
OSCAR ROOS
Keyword(s):  
Attorney General ◽  
The State ◽  
Title Page ◽  
Judicial Power ◽  
Criminal Sentencing ◽  
High Court ◽  
High Court Of Australia ◽  
Constitutional Protections

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>In 2004, the High Court of Australia had cause to revisit its 1996 decision in </span><span>Kable</span><span>, as well as to consider the nature of judicial power as it relates to the deprivation of liberty, outside of the parameters of conventional criminal sentencing. The resulting decisions of </span><span>Fardon </span><span>and </span><span>Baker </span><span>demonstrate the lack of constitutional protections afforded to people who become the focus of governmental campaigns to be “tough on crime”. The so-called “</span><span>Kable </span><span>principle”, as construed by the High Court in 2004, may prove to be the “constitutional watch dog that barks but once”.</span><span>] </span></p></div></div></div>

scholarly journals A Importância na Uniformidade da Tributação dos Recursos Hídricos

2015 ◽  
Vol 6 (3) ◽  
pp. 50
Author(s):  
Nathieli Dos Santos ◽  
Fernando De Almeida Santos
Keyword(s):  
Water Resources ◽  
Federal Government ◽  
Sao Paulo ◽  
The State ◽  
São Paulo ◽  
Investment Policies ◽  
Sustainable Investment ◽  
The Law ◽  
Vital Resource

This paper leads with the study concerning the scarcity of water resources and focusing on taxes policies at the State of Sao Paulo, Brazil. Conceptually this work deals with sustainability, but focuses on taxes and classifies them regarding the use of water resources based on the Law 12.183 of December 29, 2005, promulgated in the State of São Paulo. The study shows the very important need that measures be taken by the federal government, in general, so that a change on sustainable investment policies may transform society and businesses habits, to become more conscious and sustainable; and so prevent the shortage of this vital resource for life.

The Nature of Inconsistency under Section 109 of the Constitution

1980 ◽  
Vol 11 (1) ◽  
pp. 40-83 ◽  
Author(s):  
Gary A. Rumble
Keyword(s):  
Recent Article ◽  
The State ◽  
High Court ◽  
Basic Proposition ◽  
The Law

In a recent article in this Review Mr Murray-Jones considered the state of the law of inconsistency. Mr Rumble takes issue with some of Mr Murray-Jones' propositions and, in particular, with his interpretation of some of the leading High Court judgments. Some of the most troubling statements about inconsistency that have emanated from the High Court have been related to the problem of persons who commit both Commonwealth and State offences. This article considers how the provisions of the Crimes Act, the Acts Interpretation Act, the Judiciary Act and the Commonwealth Prisoners Act interact in such circumstances. The article also offers an analysis of the nature of inconsistency. The basic proposition of the analysis is that, no matter how many different guidelines are developed to indicate the presence of inconsistency, ultimately there is only one category of inconsistency.

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