3.
PART I – THE LITIGATION AND THE LEGISLATION
1The litigation
4 Seven actions were commenced in this Court seeking declarations of invalidity of the whole Amending Act, or, alternatively, of specified provisions. Five of the actions were commenced by the States of New South Wales, Victoria, Queensland, South Australia and Western Australia. The other two actions were commenced by trade union organisations. The statements of claim followed a substantially similar form, reciting the impugned legislation, and its legal effect, and asserting its constitutional invalidity. To each statement of claim the Commonwealth demurred, the ground of demurrer being that none of the impugned provisions was invalid. Those demurrers are now before this Court for decision. Although there were some, relatively minor, disagreements between the parties upon various points of construction of the legislation, there are no matters of disputed fact that are claimed to affect the questions of validity that have been argued. That being so, the demurrer is an appropriate procedure for the resolution of the issues of validity that arise. This procedure has been adopted on many past occasions[1], and no question of an advisory opinion or of a hypothetical case arises.
5 After oral argument was concluded the parties agreed upon a joint document setting out the provisions that were challenged, which parties made the particular challenges, and the bases upon which those challenges were made. These reasons have been prepared on the footing that the document contained an exhaustive list of the live issues in the litigation and thus reflected some narrowing of the controversies presented by the pleadings and earlier written submissions.
6 The Attorneys-General of Tasmania, the Northern Territory and the Australian Capital Territory intervened in support of the plaintiffs. The Attorney-General for Victoria intervened in certain of the proceedings. The position of the State of Victoria is affected by the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) ("the Referral Act") by which the
- ↑ Examples include Melbourne Corporation v The Commonwealth (1947) 74 CLR 31; The State of Victoria v The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575; Attorney-General (Vict) v The Commonwealth ("the Marriage Act Case") (1962) 107 CLR 529; Victoria v The Commonwealth ("the Payroll Tax Case") (1971) 122 CLR 353; Victoria v The Commonwealth and Hayden ("the Australian Assistance Plan Case") (1975) 134 CLR 338.
