Constitutional Law 2012

Commonwealth Employment Equity Act 2012

Commonwealth Employment Equity Act 2012

Introduction

Commonwealth Parliament introduced a legislation known as Employment Equity Act 2012 which creates certain obligations for the 'designated employers' with respect to the balanced representation of women at all levels of the workforce. According to the act, the designated employees must develop and implement a plan stating annual objectives and procedures to monitor and evaluate the level of compliance with legislation. As per the Act, employers are not bound to impose quotas but they are supposed to make affirmative action. The Act also demanded establishment of a Commonwealth Employment Equity Judicial Commission under the presidency of an eligible judge of the Federal Court of Australia.

The Directors of an incorporated entity named as Rugby League Foundation seek legal advice as their turnover falls within the terms of this Employment Equity Act (2012). The legal advice to the directors of the foundation have been provided with respect to the Constitutional validity of the provisions of the Commonwealth, their legal applicability to Rugby Foundation, constitutional validity of the Commission and Justice Ferguson's appointment.

In order to legally analyse the above points, a proper analysis of the concepts of Separation of judicial powers and characterization and interpretation of Employment Equity Act 2012 has been done. In order to determine whether the Employment Equity Act 2012 is connected to enumerated power, its direct legal effect will be determined by integrating the legal techniques of characterization and interpretation.

Constitutional Validity of the Provision of the Commonwealth and their Imposition on Rugby Foundation Team

Grain Pool Case (2000)

Grain pool case (2000) summarizes the principles which are to be applied in characterization of laws. The first principle states that the Constitutional text should be taken with generality. The second principle emphasize that the character of the law must be determined by reference to the power, rights, liabilities, privileges and duties which it created. Thirdly, the practicality and the legality of the law must be analysed in order to determine the connection between head of power and the law. Final principle states that if the connection does exist than it is considered to be a matter of legislative choice.

Characterisation of the Legislation under the Corporations Power (section 51(xx)) and Principles of Grain Pool Case

As stated in Bank of NSW v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 at 187,in order to determine whether a law is connected to enumerated power, its direct legal effect will be determined. In this context, the provisions of Commonwealth act that commision can penalize the entities violtaing the obligations enacted by Commonwealth Act and it can determine applications for exemptions from act are compatible with the enumertaed legislative power. The main reason to hold the Employment Equity Act 2012 as constitutionally valid is its direct legal affect on the matters included in the legislative power like regualting the employment conditions of people and imposing binding quotas in the corporations to ensure equal representation of women at all levels of ...