Record number of counsel at the High Court (1 Viewer)

[Frigid]

for what? the workchoices case of course. SMH reports:

THE barristers' banquet that is the states' challenge to workplace laws got off to a shaky start yesterday, with a judge describing one argument as "sloppy talk".

A record 39 counsel - 16 QCs or SCs and 23 juniors - crammed into the High Court in Canberra with about 15 solicitors for what is being hailed as the most important constitutional case in 80 years.

And like the case itself, the status-obsessed profession had to rely on the court to adjudicate on the seating arrangements. As talks hit a stalemate, the registrar stepped in to settle the bar table pecking order.

Most of the counsel are appearing on cut-price Crown rates, but can expect a thorough workout if NSW's opening to the six-day hearing is anything to go by.

Bret Walker, SC, challenged the Federal Government's use of the corporations power in the constitution to regulate workplace relations.

He said the power was intended only to cover relations with people outside a company, such as other traders, and did not extend to workers.

The states, backed by Unions NSW and the Australian Workers Union, are resisting the push to place 85 per cent of the workforce under a national industrial relations system.

If the Government wins, legal observers, such as Professor George Williams, of the University of NSW, believe there will be few limits on areas the Commonwealth may seek to take over from the states. These could include transport, health and education.

The judicial blowtorch was first applied to the NSW solicitor-general, Michael Sexton, SC, who was told at one point that he had "homework" to do.

When Mr Walker admitted he did "not have many strings to my bow", Justice Ken Hayne said: "I know that. I want to know how many." And as Mr Walker made a point about foreign corporations - saying they were subject to the corporations power because they are here - Justice Hayne again interrupted: "This notion of 'here' really is just too sloppy … simply sloppy talk."

He spoke of the "remarkably different place the corporation has in the economy today" and said the definitions in the constitution - foreign, financial and trading - had to be seen in the context of 1890s boom and bust times.

Justice Hayne said the authors were aware there might be changes in interpretation.

Justice Michael Kirby said Australia had been moving towards a national industrial relations system since the Keating government used the corporations power in passing labour laws in 1993.

"This is the next step," he said.

He asked why the constitution's industrial disputes power had been used for labour laws since Federation "if lurking in the background was the corporations power".

Justice William Gummow offered one answer: "It was a question of political will." Justice Kirby rejoined: "It would not be the first time that powers have been found in the constitution that our predecessors did not see."

Victoria, Unions NSW and Western Australia will present their submissions today, with the Commonwealth not scheduled to address the court until Tuesday.

as an aside, i love fedcon

juicy bits:

GLEESON CJ: Although the scheme of regulation is much more elaborate, is the essential question that arises in relation to Part 7 whether the Commonwealth Parliament could enact a law saying all constitutional corporations must provide their employees with at least three weeks annual leave?

MR SEXTON: And other questions similar to that, yes, your Honour, which is what we say Part 7 does.

GUMMOW J: But you would not dispute, would you, that the Commonwealth could pass a law with effect immediately upon incorporation under a State law that a trading corporation shall not trade unless it has a licence and its licence is going to require it to comply with a system like this?

MR SEXTON: We would dispute that, your Honour.

GUMMOW J: Well, that flies in the face of Murphyores, Fairfax, Breckler.

MR SEXTON: Well, there are questions there of connection really, your Honour.

GUMMOW J: Why cannot the Commonwealth say a trading corporation shall not trade, full stop, and then lift that prohibition by the acceptance of conditions?

MR SEXTON: Well, in our submission, your Honour, there is a question of characterisation there as well as to what the nature of the law is. We would say it is not a law about trading corporations.

KIRBY J: I suppose you are entitled to say, why did we have all those disputes, all those cases, all those battles about section 51(xxxv) if lurking in the background always ever ready was the corporations power?

CALLINAN J: And the legal fiction of paper disputes?

MR SEXTON: Yes.

CALLINAN J: And if ever there is a legal fiction, it is that one.

KIRBY J: All that intellectual energy of this Court over a century, so many cases.

MR SEXTON: Quite so, your Honour.

KIRBY J: When there was a solution just waiting in the wings.

GUMMOW J: It was a question of political will, and that is not for us to debate, over time.

CALLINAN J: Not just political will. The people had a say in this in the referenda about it. It is not a blank sheet of history.

 

[santaslayer]

how much is a party of juniors gonna cost...let alone the 16 QC's...

 

[xeuyrawp]

how much is a party of juniors gonna cost...let alone the 16 QC's...

There are two uses for an apostrophe in English:
1. An alteration of a longer word or phrase - can't, '60s (although alterations at the start are frequently dropped), gov't, cont'd, lock 'n' stock, etc, but not in abbreviations (mp3s, QCs, ATMs, etc).
2. An indication of a direct genitive (outside of the pronouns his, hers, ours, yours, theirs, whose, its) - santas' post, my cat's head, his hat, etc.

I'm sorry to be the Nazi, but *shrugs* we're here to learn.

 

[hfis]

Full transcript of proceedings is here for those too lazy to go seek it out themselves.

 

[Dellaware]

I'm sorry to be the Nazi, but *shrugs* we're here to learn.

Nazi! OMG

 

[MoonlightSonata]

This is all very exciting

 

[santaslayer]

There are two uses for an apostrophe in English:
1. An alteration of a longer word or phrase - can't, '60s (although alterations at the start are frequently dropped), gov't, cont'd, lock 'n' stock, etc, but not in abbreviations (mp3s, QCs, ATMs, etc).
2. An indication of a direct genitive (outside of the pronouns his, hers, ours, yours, theirs, whose, its) - santas' post, my cat's head, his hat, etc.

I'm sorry to be the Nazi, but *shrugs* we're here to learn.

u didnt correct my whole sentence structure...



nazi? far from...

 

[Frigid]

second day of hearing...

KIRBY J: Mr Walker, can I raise with you – I see you are getting to your peroration – some matters that concern me. If one does not give a lot of weight to the 19th century except as a historical context setting matter, and looks simply at the language of the Constitution, giving it under Engineers the full ambit that the words connote, the problem then presented is that if the Commonwealth’s submission is correct that the Commonwealth, the Federal Parliament, can make laws with respect to corporations as designated. Given the enormous importance today and likely greater important in the future of corporations as such eo nomine, you really then present the risk that the Federal Parliament has enormous powers effectively to deal with matters such as housing, education and many other things that in the past it has not done.

That in a sense requires one to pause and look at what you called constitutional technique and to look again at where logic is driving us; that is, if you take the view that the federal scheme of the Constitution is absolutely central to it and therefore something that is worth preserving, as I am inclined to do.

Now, if one comes to that position, it may be that lawyers’ logic will take us down one path and looking at the whole Constitution will require us to pause and see where our logic is taking us, and it has always to be remembered that the opening words of section 51 say “The Parliament shall, subject to this Constitution” and that is often thought to take you outside section 51 to the other provisions of the Constitution, especially Chapter III, but subject to this Constitution also includes section 51.

So the question I am asking is, have you been bold enough – I mean, why, if you are looking at section 51, do you not, as Justice Callinan has repeatedly suggested, have to as it were find meaning for a particular paragraph by reference to other paragraphs? In an ordinary legal document you would do that without question, and the argument against it in the past has been, “Well, we don’t do it in section 51 because they’re grants of power”.

But where you have a particular provision such as section 51(xxxv) which has addressed, for historical reasons that we know, the particular issue of industrial relations regulation, why does one not, in order, as it were, to preserve the federal scheme, read the grants of power, including to under paragraph (xx), as having to find its meaning in the context of a section which also provides a particular and special and limited regime for industrial disputation, and therefore that you have to read the two together.

Now, that is contrary to what the Court has said in the past, but we are now looking down a tunnel which has very great significance not just for this case but for the whole federal scheme and therefore it may be that it requires us as lawyers to see where our logic is leading and then to pause, not to undue the whole Engineers’ notion, but at least to undo the notion that you just do not have any regard to what is said in other paragraphs for the purpose of interpreting paragraph 20.

MS would smile at this:

KIRBY J: It is really Immanuel Kant’s approach to logic, that you have to test each proposition ultimately by what is the consequence if it becomes the general rule?

MS TATE: We certainly would not want to dissuade your Honour from considering what the consequences of a finding here in this Court that the corporations power is an unrestricted and limitless head of power. Clearly, in our submissions - - -

KIRBY J: Because if it is, then you are undoing the federal scheme which is absolutely central to the nature of the Constitution.

 

[xeuyrawp]

u didnt correct my whole sentence structure...



nazi? far from...

I know! I'm sorry, but the whole apostophe thing kills me.

 

[MoonlightSonata]

MS would smile at this:

KIRBY J: It is really Immanuel Kant’s approach to logic, that you have to test each proposition ultimately by what is the consequence if it becomes the general rule?

lol

I'm impressed but his honour is a little off the mark..

 

[erawamai]

Frigid you do fed con? I have a very limited understanding of the commonwealth laws and the argument that the states are going to use. All I know is that Commonwealth is going to use s 51(xx) to support the laws and that various ALP ministers are banging on about the importance of state rights. For some reason I don't think the states are going to try and bring to life the long long long long dead doctrine of reserve state powers.

None of us here can really comment on the whether the Workchoices laws are valid or not (we don't understand the law, we dont understand it's actual operation and therefore we cannot characterise the law) but if these laws simply regulate industrial rights of those who are employed or who are related to constitional corporations I think it falls within the narrow view of s 51(xx) in that such a law would relate to the trading acitivities of the trading corporation. I don't even think the wide view is needed.

 

[Frigid]

i do fedcon robbie.. yes according to my tutor and my mentor most of the workchoices legislation will be valid under s51(xx).

pre-Engineers ghosts should not keep walking.

 

[hfis]

MR BENNETT: But there is no doubt there is a danger in drawing inferences about specific matters and the sort of matter I was - - -

KIRBY J: There is also a bit of a danger in living in a world that is only occupied by the Commonwealth Law Reports. I mean, somewhere between those two dangers lies a practical and commonsense world in which judges live.

I guess we are to assume that the majority of our judges were deported from this wonderful, magical land.

Edit:

HAYNE J: These points are amplified a little at pages 9 and 29 of the explanatory memorandum, which I note the Commonwealth does not seem to have brought to Court.

MR BENNETT: Yes. We have, your Honour; it simply had not been placed in front of me.

HAYNE J: You have got the slim line obviously, Mr Solicitor.

MR BENNETT: Yes. I have the second reading speech; the explanatory memorandum as well, which is very short, yes.

GLEESON CJ: That shows you have not read it.

HAYNE J: Snap.

Remember kiddies, come prepared for class. Justice Hayne demands it.

 

[MoonlightSonata]

lol

amusing stuff

 

[erawamai]

Justice Hayne said 'snap'?

 

[hfis]

Justice Hayne said 'snap'?

Yep. Countdown until he calls a counsel's line of argument 'gay'

 

[santaslayer]

wtf is snap?

 

[charlie_charlie]

wtf is snap?

pwnd.



...that's my understanding, anyway.