Australian Coal and Shale Employees Federation v Aberfield Coal Mining Company Limited [1942] HCA 23

Australian Coal and Shale Employees Federation v Aberfield Coal Mining Company Limited [1942] HCA 23 - HCA 1942 case summary — Zoe

[38]

Mitchell K.C. (with him Dignam), for the Commonwealth, inter- yening. The legislature has not endeavoured merely to regulate industrial disputes under placitum xxxv. of sec. 51 of the Constitu- tion. It has purported to control all industrial disputes irrespective of placitum xxxv. The regulations now under consideration do not depend on that placitum for their validity. The fact that a matter has been covered by an award does not obviate the right or power to make an industrial dispute in relation to it (Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. Ltd. (1)). So, applying those observations to reg. 16 of the Industrial Peace Regulations, if there is a dispute in fact and if there are difficulties under the Act in bringing a dispute within the cognizance of the Court, then if it is a dispute of such a character that it might result in delay prejudicial to industrial peace the Minister may direct a Conciliation Commissioner to hear and determine the matter by making an award. 'The scope of the matters intended to be so referred to a Conciliation Commissioner is shown in regs. 9 and 11. Waterside Workers' Federation of Australia v. Common- wealth Steamship Owners' Association (2) is merely an authority for the proposition that there was an industrial dispute and that the Court was precluded from dealing with it. That position is now met by reg. 16, The provision in reg. 16a that an award, order or decision of a Conciliation Commissioner shall have effect as if it were an award or order of the Central Reference Board shows that the intention was to give the Conciliation Commissioner power to exercise jurisdiction over matters with which he could not otherwise deal. That regulation has not been expressed to take effect at a date prior to the date of notification. The matter is governed by sub-sec. 1 of sec. 48 of the Acts Interpretation Act 1901-1941 and not by sub- sec, 2 of that section. The regulation operates upon existing things and future matters. No other construction would give effect to the language of sec. 48 (2). The result is that as from 16th December 1941 there shall be no right of appeal from the relevant awards ; the regulation operates to destroy that right as from that date. The manner and procedure in which Conciliation Commissioners obtain power to hear and determine industrial disputes is shown in secs. 19, 23 and 24 of the Commonwealth Conciliation and Arbi- tration Act 1904-1934. Allocation as between the Court and the Conciliation Commissioners is left to be arranged as a matter of administration. Reg. 16 was intended to give to the Conciliation Commissioners a jurisdiction or cognizance which overrode, and was intended to be able to override, a decision of the Court upon

[45]

within sub-sec. 2 of sec. 48 of the Acts Interpretation Act 1901-1941 : See Willmott v. Kaufline (1). The draftsman cannot get rid of the effect of sec. 48 (2) by refraining from using such words as " taking effect" or "operating from" a specified date and yet making the regulation take effect. The powers conferred by sec. 51 of the Constitution are " on the same logical level" (Farey v. Burvett (2) ) and should not be construed in such a way as to conflict with each other or with other powers conferred or limitations imposed by the Constitution. The Industrial Peace Regulations, as amended, are ultra vires. Those Regulations are not authorized by the defence power conferred by placitum vi. of sec. 51. The meaning of the defence power does not change, but its application may vary accord- ing to circumstances. It may have a wider operation in time of war. It can be invoked prior to hostilities or subsequent thereto (Roche v. Kronheimer (3) ), but whatever its operation at any time, at all times there are two limitations to it, that is, (2) the law must be within the scope of the Constitution and not prohibited by other provisions of the Constitution, and (b) there must be some reason- able connection of cause and effect between the law that is made and the efficient defence of the country (Farey v. Burvett (4) ; Andrews y. Howell (5) ). Téa law lacks either of those characteristics it is void. Those characteristics are lacking in the Industrial Peace Regulations. Those Regulations are forbidden by placitum xxxv. of sec. 51 of the Constitution, e.g., reg. 4, in effect, eliminates from the Commonwealth Conciliation and Arbitration Act those words in it which were necessitated by the words in placitum xxxv. limiting industrial disputes to those extending beyond the limits of any one State. Regs. 6, 7, 9-11, 13, 15 and 17 would, inter alia, fall with reg. 4. Federated Engine-Drivers' and F iremen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (6) did not decide that there were not any implied prohibitions in the Constitu- tion. The Regulations are wlira vires because they include intra- State disputes. Any code which covers every industrial dispute in Australia is not so connected with the defence of the country as to be within placitum vi. of sec. 51. There was not a new industrial dispute but a continuance of the old industrial dispute. In those circumstances the proper procedure was to apply for a variation of the award (Federated Gas Employees' Industrial Union v. Metropolitan Gas Co. Ltd. (7)). Reg. 16 was only directed to the elimination of delay. Reg. 16aa was promulgated twelve months after reg. 16

[111]

75 (v.) of the Constitution, I shall content myself by adhering to that opinion without repeating similar reasons for it. I shall, however, briefly state my reasons for thinking that the respondents are also entitled to proceed with their appeal to the Commonwealth Arbitration Court under sec. 31a (1) (c) of the Commonwealth Con- ciliation and Arbitration Act 1904-1934. Reg. 16aa of the National Security (Industrial Peace) Regulations was notified in the Gazette on 16th December 1941. Before this date, viz., on 5th December 1941, the respondents had a right of appeal to the Arbitration Court, and one of the matters debated before us was whether the regulation was not invalidated by sec. 48 (2) of the Acts Interpretation Act 1901-1937. This sub-section was, I think, intended to enforce com- pliance with the well-known trite maxim omnis nova constitutio futuris formam imponere debet non praeteritis and to prescribe that except in special cases the new law ought to be construed so as to interfere as little as possible with vested rights (Reid v. Reid (1) ). Legislation, whether by statute or regulation, if in accordance with this maxim would be based on sound and just principles. Does then reg. 16aa infringe this sub-section? A regulation may take effect either from the date of notification or from a date specified in it (sec. 48, sub-sec. 1), but it must not have an operative effect from a date before the date of notification where rights existing at the date of notification would be prejudicially affected (sub-sec. 2). Now on 5th December 1941, a date before 16th December 1941, the date of notification, the respondents had a right of appeal as I have already mentioned, and reg. 164 expresses or represents in words that it is both retrospective and prospective. It purports to "include an award or order made, or a decision given, whether before or after the commencement of the regulation." And it is expressed to take effect before the date of notification. Accordingly the right of appeal vested in the respondents at the date of notification was affected in a manner prejudicial to them, inasmuch as the regulation purports to defeat this right and to deprive the respondents of it (Colonial Sugar Refining Co. Lid. v. Irving (2) ). In construing a regulation one must consider on what it purports to operate and in what manner it operates. The limitation provided by sub-sec. 2 is that where existing rights are prejudicially affected a regulation shall not be expressed to take effect before date of notification. (1) (1886){31 Ch. D. 402, at pp. 408, 409. (2) (1905) A.C., at p. 372.

[164]

On 14th July 1942 the applicants filed a summons in this Court under sec. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1934 raising the following questions : - (1) Whether the Commonwealth Court of Conciliation and Arbitration had jurisdiction to entertain the application for, or power to grant the certificate pursuant to rule 9 of Part XIla. of the Rules of the said Court. (2) Whether the Commonwealth Court of Concilia- tion and Arbitration has jurisdiction to entertain an appeal from the order and determination of Donald Morrison, Conciliation Commis- sioner, dated 5th December 1941, and made in industrial disputes submitted to him by the Minister for Labour and National Service on 25th November 1941 whereto the parties to the said summons, amongst others, were parties, (a) in the absence of the consent of the Minister for Labour and National Service to the institution of the said appeal, or (b) at all. (3) Whether the Commonwealth Court of Conciliation and Arbitration has power to vary or set aside the order and determination by Donald Morrison, Conciliation Commis- sioner, dated the said 5th December 1941 and made in disputes submitted to him by the Minister for Labour and National Service on 25th November 1941, whereto the parties to the said summons, amongst others, were parties, or to make any award, order, deter- mination or decision inconsistent with the said order and determina- tion of the said Donald Morrison, (a) except in pursuance of an application or reference made to the said Commonwealth Court of Conciliation and Arbitration with the consent of the Minister for Labour and National Service, or, (b) at all. (4) Whether in the events which have happened the Commonwealth Court of Conciliation and Arbitration has jurisdiction or power (a) to enter- tain an appeal pursuant to the notice of appeal which has been given by the respondents to the said summons from the order and deter- mination by Donald Morrison, Conciliation Commissioner, dated 5th December 1941 and made in disputes submitted to him by the Minister for Labour and National Service on 25th November 1941 whereto the parties to the said summons, amongst others, were

[196]

can only be deprived by altering the legal character of a past transac- 4 yorparian tion. Ifa regulation deprives a litigant of such a right it is operative Coan with regard to past time and to past circumstances and so has an fo, suave antecedent or retrospective operation. In Phillips v. Eyre (1) Willes Fupnrarioy J.,in delivering the judgment of the Court, cited a passage from the 4 ymrrrenp judgment of the Supreme Court of the United States in Calder v. Coan Bull (2), in which the following sentence occurs: " Hvery law that ae is. to have an operation before the making thereof, as to commence at an antecedent time ; or to save time from the Statute of Limitations ; or to excuse acts which were unlawful, and before committed, and the like; is retrospective." In Moon v. Durden (3) Platt B. said : "A statute may have a retrospect to a time antecedent to that of its commencement. Thus, a statute which compels a covenantor to do an act, which before the passing of the statute he had covenanted not to do, or which forbids his doing an act, which he had before the passing of the statute covenanted to do, repeals the covenant." To adapt, with respect, the words of Buckley L.J. in West v. Gwynne (4), if an event has happened before the regulation is passed so that at the moment when the regulation comes into operation a right of appeal exists, an investigation whether the transaction is struck at by the regulation involves an investigation whether the regulation is retrospective. In order, therefore, to deprive the respondents of their right of appeal, reg. 16a must operate upon that right from the date when the right first came into existence and so must take effect upon that right from 5th December 1941. It follows that the regulation is expressed to take effect with respect to Mr. Morrison's order from a date before the date of its notification. Sub-sec. 2, in my opinion, prevents regulations being passed which have a retro- spective effect where, as here, the vested right of a person other than the Commonwealth or an authority of the Commonwealth, existing at the date of the notification, would be affected in a manner pre- judicial to that person.

At a glance

Court

Decision date

Before

Source

Judgment (211 paragraphs)