GLEESON CJ, GUMMOW, HAYNE, HEYDON AND CRENNAN JJ.
Introduction
1 In December 2005, the Parliament enacted the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("the Amending Act"). The Amending Act made extensive amendments to the Workplace Relations Act 1996 (Cth) ("the Act"). The Act in its form before those amendments will be referred to as "the previous Act"; the Act in its form after those amendments will be referred to as "the new Act". The most notable change effected by the Amending Act was an alteration of the constitutional basis of the Act. Although certain provisions of the previous Act had been enacted in reliance on the power conferred by s 51(xx) of the Constitution (the corporations power), its general framework was based upon the power conferred by s 51(xxxv) (the conciliation and arbitration power). Although certain provisions of the new Act are still based on the conciliation and arbitration power, and although the Amending Act invoked other heads of Commonwealth legislative power, the new Act is now, in large part, an exercise of the corporations power. The Parliament's capacity to rely upon that power to sustain the legislation is the principal question in issue in these proceedings.
2 The principal amendments to the Act commenced on 27 March 2006. On that day the Workplace Relations Regulations 2006 ("the Regulations") also commenced.
3 These reasons are organised as follows:
PART I – THE LITIGATION AND THE LEGISLATION
1The legisation [4]–[6]
2The legislation [7]–[44]
3The principal issue: Constitution, s 51(xx) [45]–[55]
4Other issues [56]
PART II – SECTION 51(xx)
1The plaintiffs' principal arguments [57]–[60]
2The Commonwealth's principal arguments [61]–[63]
3A distinction between "external" and "internal" relationships [64]–[67]
4Huddart Parker [68]–[95]
5Relevant nineteenth century developments [96]–[124]
6Failed referendums [125]–[135]
7The course of authority after Huddart Parker [136]–[178]
(a) The Banking Case [147]–[152]
(b) The Concrete Pipes Case [153]–[156]
(c) Fontana Films [157]–[165]
