''Re Australian Education Union & Australian Nursing Federation; ex parte Victoria''A writ of prohibition is one of the

prerogative writ A prerogative writ is a historic term for a writ (official order) that directs the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected ...

s. In this usage

ex parte In law, ''ex parte'' () is a Latin term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring all ...

means 'on the application of' rather than its other use as a case heard in the absence of a party. The order to show cause is a rule nisi, and if prohibition is granted, the rule is made absolute. is a

High Court of Australia The High Court of Australia is Australia's apex court. It exercises Original jurisdiction, original and appellate jurisdiction on matters specified within Constitution of Australia, Australia's Constitution. The High Court was established fol ...

constitutional law Constitutional law is a body of law which defines the role, powers, and structure of different entities within a State (polity), state, namely, the executive (government), executive, the parliament or legislature, and the judiciary; as well as th ...

case that involves the scope of the intergovernmental immunity doctrine in Australian constitutional law. In the case, the High Court struck down a Commonwealth law on the grounds that it impaired the capacity of a state to function as an independent government, the first time that the Court has taken such action.

Background

Under a Commonwealth law, the

Australian Industrial Relations Commission The Australian Industrial Relations Commission (AIRC), known from 1956 to 1973 as the Commonwealth Conciliation and Arbitration Commission and from 1973 to 1988 as the Australian Conciliation and Arbitration Commission, was a tribunal with powers ...

could refrain from hearing a dispute if it thought it could be handled in a state body. However,

Victoria Victoria most commonly refers to: * Victoria (Australia), a state of the Commonwealth of Australia * Victoria, British Columbia, provincial capital of British Columbia, Canada * Victoria (mythology), Roman goddess of Victory * Victoria, Seychelle ...

argued that the law was discriminatory because Victoria had abolished its state-based system, the only state to have done so. Furthermore, there was the question of whether Commonwealth orders that applied to state employees would prevent the state from exercising their essential functions.

Judgment

In a joint judgment, the Court accepted the tests of discrimination and structural integrity as laid down in ''

Melbourne Corporation v Commonwealth ''Melbourne Corporation v Commonwealth'', also known as the Melbourne Corporation case or the State banking case,. is an important case in Australian constitutional law. It stands for the proposition that there are limits on the scope of expres ...

''. In this case, no discrimination was found, but the court found that the law affected the structural integrity of the state. As for discrimination, there were two issues to consider. Firstly, even though the purpose of the law was to discriminate against Victoria, that is not a factor to consider. Secondly, in its practical effect, it could apply to any state, as well as to any industrial employees. As for the structural integrity argument, it is required that the law directs attention to aspects of a state's functions that are "critical to its capacity to function". Being able to determine minimum wages and working conditions of its employees, especially those in the higher levels of government, is critical to a state's capacity to function.

References

{{reflist

Readings

* Winterton, G. et al. ''Australian federal constitutional law: commentary and materials'', 1999. LBC Information Services, Sydney. High Court of Australia cases 1995 in Australian law Australian constitutional law Intergovernmental immunity in the Australian Constitution cases 1995 in case law

Background

Judgment

See also

References

Readings