Matters Vic v Cth (IR Case) geographically Did Federal Government's industrial relations legislation conform with external to the international obligations and matters of international concern. Cth – Provisions which closely followed requirements of the treaty were valid Treaties As were equal remuneration provisions. However, unfair dismissal provisions, which were based on the criterion of 'harsh, unjust or unreasonable' dismissals, were beyond the scope of treaty obligations that dealt only with dismissals that were not 'valid'. Anti-discrimination provisions were valid, except those that dealt with mental disability, which was not in the treaty. Partial implementation of a treaty? in implementation of a supporting Convention is not “Deficiency necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention” Matters Koowarta geographically Mason, Murphy Brennan JJ external to the Broad view: the Cth had power to implement any treaty obligation, regardless Cth – of subject matter Treaties Mason J was concerned that a narrower view could fragment the decision making process and weaken and standing in Australia’s participation international matters Mason J was also critical of the narrow view because it relied on the fallacy that internal and external affairs were mutually exclusive categories Gibbs CJ, Aickin and Wilson JJ: Narrow view: the Cth can only implement treaties under xxix where the subject matter was international in character Gibbs CJ was concerned with the possibility that the Cth might be able to acquire unlimited legislative power, and that the distribution of powers/the federal balance would be ‘obliterated’ Stephen J resolved the 3:3 split when he found that the Cth could implement a treaty that related to a of international ‘matter concern’ The topic of racial discrimination was such a matter Matters The power is not confined to the subject matter of another head of power granted geographically to the Cth: external to the Racial Discrimination (Koowarta) Cth – Heritage listed areas (Tasmanian Dam Case) Treaties Employment conditions Vic v Cth (IR Case)
Matters geographically external to the Cth – Treaties Vic v Cth (IR Case) Did Federal Government's industrial relations legislation conform with international obligations and matters of international concern. Provisions which closely followed requirements of the treaty were valid As were equal remuneration provisions. However, unfair dismissal provisions, which were based on the criterion of 'harsh, unjust or unreasonable' dismissals, were beyond the scope of treaty obligations that dealt only with dismissals that were not 'valid'. Anti-discrimination provisions were valid, except those that dealt with mental disability, which was not in the treaty. Partial implementation of a treaty? “Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention” Matters geographically external to the Cth – Treaties Koowarta Mason, Murphy Brennan JJ Broad view: the Cth had power to implement any treaty obligation, regardless of subject matter Mason J was concerned that a narrower view could fragment the decision making process and weaken Australia’s participation and standing in international matters Mason J was also critical of the narrow view because it relied on the fallacy that internal and external affairs were mutually exclusive categories Gibbs CJ, Aickin and Wilson JJ: Narrow view: the Cth can only implement treaties under xxix where the subject matter was international in character Gibbs CJ was concerned with the possibility that the Cth might be able to acquire unlimited legislative power, and that the distribution of powers/the federal balance would be ‘obliterated’ Stephen J resolved the 3:3 split when he found that the Cth could implement a treaty that related to a ‘matter of international concern’ The topic of racial discrimination was such a matter Matters geographically external to the Cth – Treaties The power is not confined to the subject matter of another head of power granted to the Cth: Racial Discrimination (Koowarta) Heritage listed areas (Tasmanian Dam Case) Employment conditions Vic v Cth (IR Case)