STS Tute Two Notes Final

Power to determine terms and conditions of those

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‘power to determine terms and conditions of those engaged at ‘higher level government’ IN SHORT: Right to hire and dismiss employees on any terms of appointment and control over senior members of Government For lower level employees Valid regulation of minimum wages and working conditions: terms and conditions of employment Invalid regulation of number and identity for employment or dismissal and the terms of appointment Uncertain : conditions regarding promotion and transfer For Senior /executive employees o Most Cth regulation will be invalid: even minimum wages and working conditions NOTE : Dawson J’s dissent : distinctions are artificial. He argues it is a matter for the legislature and the court must not undermine Engineers principles There is a valid argument that an award on minimum wages does in fact determine the number of employees that a state department can hire. In Vic v Cth ( Industrial relations Case ) curtailing the states ability to function may not occur where a law has been in operation or for a period of time, or where a state merely has less money available to spend on state functions Endorsed in AEU Legislation can be read down so not to apply to ‘higher level employees’ B. Discrimination against the states Discrimination may be relevant to determining whether the curtailment test is satisfied: Austin per Gaudron, Gummow and Hayne JJ. On its own it is not enough to breach the Constitutional limitations: Austin per Gleeson CJ Does the law discriminate against or single out the government or agents of a state or states, whether in form or effect? Queensland Electricity
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‘the essential question is whether the law restricts or burdens one or more of the states in the exercise of their constitutional powers’ Austin per Gaudron, Gummow and Hayne JJ ‘though differential treatment may be indicative of infringement of the limitation upon legislative power… It is not, of itself, sufficient to imperil validity’ Austin per Gaudron, Gummow and Hayne JJ o in his view the lump sum the judges had to pay was enough of a discrimination to have an impact on the state government’s ability to function. AEU prescribed that the state must have complete ability to determine the working conditions of those engaged at a high level – this includes judges. Policy reasons? Discrimination can be either: Direct (formal): inferred from the form and express words of the statute o Indicia : singling out a state or entity controlled by a state o Laws having no effect on the activity of a non-state body, but penalizing the same body where it is part of a state government: Melbourne Corporation Indirect (substantive): a law of apparently neutral application but has a disproportionate, detrimental impact on the government of a state or states: Queensland Electricity o Where the state provider is the primary provider in the industry which is subject to the law
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