Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52

Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52 - HCA 1930 case summary — Zoe

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setting it aside ab initio. The case of Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1) was cited as showing that the power to vary included power to terminate in part or in whole; but the case does not decide that. It does not decide that power to vary gives power to set aside. Sec. 38 (oa) attaches no conditions whatever. It simply gives power to set aside an award or any terms of an award. The distinction between setting aside and variation is indicated in sec. 38 (0). Variation must be distinguished from setting aside, and must be regarded as leaving the Court's ruling in existence but in a different form. The present award deals with basic wage, margins, and separate conditions of labour. No question is raised as to the validity of the appoint- ment of the Committees. In the absence of express instructions from the Railway Commissioners it was not intended to raise the constitutional question as to the control of State railways by the Arbitration Court. If the Court is of opinion that such question must be decided, I ask for an adjournment in order to obtain specific instructions on the point. It would be necessary to consider not only the constitutional aspect of the case but also all the legislation in the various States governing the control of State railways. The real question in this case is whether the Arbitration Court has power to set aside an award without dealing with the dispute thus reopened. The case of Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia did not decide that power to vary included power to set aside a term in whole or in part, but that under a power to vary the clause prescribing the term might be varied, and that decision related to the expression "set aside " or "vary." The order is a setting aside and not a variation, and there- fore is not prohibited by sec. 33 of the Act. There is now a recog- nized distinction between variation and setting aside. The pro- vision which prescribes the rate of wages is a matter distinct from the part which prescribes the margins, and therefore, where the margins are set aside this does not involve a " variation" of the

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statutory bodies to which the general principles of ultra vires law apply (Ashbury Railway Carriage and Iron Co. v. Riche (1); Attorney- General v. Great Eastern Railway Co. (2)). In the latter case it was laid down that, in the case of a railway company such as was" there referred to, any power not given by express words or necessary implication must be prohibited. According to the language of the relevant statutes the Commissioners would have no power to pay wages if a demand were made on them for payment. If they pur- ported to agree, it would be wltra vires and a mere nullity (London County Council v. Attorney-General (3); Amalgamated Society of Railway Servants v. Osborne (4); The Queen v. Reed (5); Corbett v. South Eastern and Chatham Railways Managing Committee (6)). As they cannot agree, they therefore cannot dispute, and cannot be the subject matter of an arbitration award (Caledonian Collieries Lid. v. Australasian Coal and Shale Employees' Federation [No. 1] (7)). As to the effect of an ultra vires agreement, see Sinclair v. Brougham (8). As regards each and all the States no award could be made. In the case of Tasmania, although four independent powers are given the property remains vested in the Crown. On the plain construe-_ tion of the relevant Acts not one of the States was competent to have an industrial dispute. Payment of salaries, wages and allowances depends entirely upon parliamentary appropriation therefor (Rail- way Commissioners of New South Wales v. Orton (9) ). It would be ultra vires of the Commissioners' powers to make an agreement - for somebody to pay whether Parliament appropriated the money or not. The authority of the Commissioners is restricted only to pay, and therefore only to agree to pay so far as Parliament appro- priates the money (Churchward v. The Queen (10)). The employ- ment of the employeesis at the will of the Commissioners (Williames v- Victorian Railways Commissioners (11) ),and the Commissioners have no power to consent to something which, if it became the subject matter of an award, would put an end to the condition of employ- ment being held at will. The Commissioners are an incorporated (7) (1930) 42 (8) (1914) A. (9) (1922) 30 ¢. (10) (1865) L.

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relationship of employer and employee, the industry and the discrimination as to what should be paid, that is sufficient to constitute, subject to the other conditions of the Constitution, an industrial dispute. The situation is no different in principle from the position which existed in The King v. Sutton (1). In order to determine who is the employer of a person, the test is who is control- ling and directing him, who engages and has the right to dismiss him (Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. (2)). There is no immunity from either the operation or the selected method of enforcement of any Commonwealth law in favour of any State instrumentality or any officer of the State, or any person within the territorial limits of the State. If you have State property and the State is bound by Commonwealth law, there must be some method, on ultimate analysis, of enforcing the will of the paramount power, and that method is to be selected by the Commonwealth. The Judiciary Act 1903-1927 in sec. 66 chooses the type of method of enforcement. The Crown Remedies Act is substantially the same. The arbitration system in New South Wales, Victoria and South Australia extends, by express words, so as to cover all Crown employees within certain limits. The Common- wealth is entitled to act if there is an industrial dispute in fact, something which should be settled in the interests of the Common- wealth as a whole (Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (3)). A State may purport to place ineapacities on its employers, but for this purpose the Commonwealth can amend or alter those incapacities. Sir Edward Mitchell's argument as to ultra vires is disposed of in Clyde Engineering Co. v. Cowburn (4). No distinction can be drawn between the various State Constitutions and the various other provisions in State laws, such Constitutions are completely uncontrolled and have the ordinary character of ordinary laws of the State (McCawley v. The King (5)). The Constitution of a State is a law of that State within the meaning of sec. 109 of the Commonwealth Constitution.

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non-existent, upon the ground of implied prohibition, based on } doctrine of D'Emden v. Pedder (1), an implication which the Co considered was strengthened by the reference to the specific pro' relied on by Mr. Menzies and already referred to. That appears not only from a perusal of the judgment in that case, but also fron the statement made by Barton J. in Malcolm's Case (2). to the Railway Servants' Case (3) the learned Justice said : - "In arriving at this conclusion the Court decided two questions, whic were both fully argued. The first was whether the Stat railways were exempt from Federal control as instrumentalities of State government. This the Court answered in the affirmatiy For reasons which are not material to the present case, it was held that the provision attacked could not be supported as a exercise of the powers conferred by sec. 51 (XXXvV.), so as toe State-owned railways from such immunity." The " attacked" was a provision in the Conciliation and Arbitr: Act for registering an organization. The second question refe1 to by the learned Justice as having been decided in the Railway Servants' Case referred to the trade and commer power, and is irrelevant to the present case. When the whole position came to be considered in the Engineers' Case (4), I do no agree with the suggestion that the members of the Court and lea counsel overlooked the familiar rule of construction that a statu must be considered as a whole, and that, either by express words or necessary implication found elsewhere, any of its provisions may be modified. The truth is that there is no room for the applicati of that doctrine in the present case. On the contrary, there 1 affirmative evidence in sec. 51 itself that the generality of sub-sec. xxxv. is not intended to be cut down. First, it has always to remembered that "an enumerated power" is complete in i acknowledging no limitations other than those prescribed by tl Constitution. (See the judgment of White C.J., for the whole Court, in Brolan v. United States (5).) This is exactly in line with th judgment of Lord Selborne quoted in the Engineers' Case (6).

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has to be done is, as expressed in the Engineers' Case (1), " to discover in the actual terms of the instrument their expressed or necessarily implied meaning." The fact "that State railways were specially recognized by the Constitution " was not overlooked in that judgment (see Engineers' Case (2)). And still, the Justices, parties to the first judgment, made the statement earlier quoted. I now propose to consider the provisions relied on for restriction. Sub-sec. xxxt. deals not with industrial disputes, but the acquisition of property from State or individual for any purpose in respect of which the Parliament has power to make laws. Under that sub-section it is clear that property might be acquired from a State to erect a Customs House or a Court, even an Arbitration Court, and the property aequired might be the site of a railway station. Sub-sec. xxxm. permits laws to be made by the Commonwealth Parliament for " the control of railways with respect to transport for the naval and military purposes of the Commonwealth." As observed by Dr. Hvatt, it is noticeable that there all railways are included, not merely State railways, as in sub-sec, xxi. or sec. 104. That sub-sec. xxxu. enables the Commonwealth to take over the control of all railways private or public for the purposes of transport in connection with the defence of the country, that is to use them for the given purpose as if they were the property of the Commonwealth. If that sub- section impliedly excludes State railways from sub-sec. XxXxv., so it must also exclude any private railways. Sub-sec. xxi. is an independent power in the sense of absence of connection with other legislative authority, and in this respect differs from sub-sec. xxx1. Mr. Blackburn was right in saying that it really amounts to a capacity to purchase State railways if the State is willing to sell. Sub-sec. xxx1v. is similar to sub-sec. xxxu. in this respect. But none of the sub-sections quoted in any way touch the question of conciliation or arbitration, for the prevention and settlement of industrial disputes. As for sec. 98, I would quote the opinion of Barton J. in Malcolm's Case (3). He there said : - " Sec. 98 is not intended to amplify the trade and commerce power beyond the spheres of inter-State and external trade, but to explain it as to the included

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subject matter by removing grounds for possible doubts of it extent." I agree with that, and hold that the reference to the railways of a State in sec. 98 does not indicate by implication necessary or unnecessary, that without sec. 98 trade and commere on the State railways would have been free from Commonwe: regulation. If the contrary is true, the same must be said o navigation and shipping, which is unthinkable. Secs. 102-10 have no connection whatever with sub-sec. xxxv. and cannot, by any stretch of construction, be considered as limiting its primar meaning. On the other hand, if the argument be sound that is advanced that State railways are excluded from Commonwe legislation unless expressly referred to, the Steel Rails Case above mentioned must have been wrongly decided and wrongly approved of later. The railways would also be exempt from a control under sub-sec. v. of sec. 51, referring to postal, telegraph "| telephonic and other like services. Notwithstanding any Commo wealth legislation under sub-sec. x11., the railway authorities of State might disregard Commonwealth laws as to legal tender. TI State railway authorities similarly could disregard patent laws the Commonwealth, laws as to employment of aliens, and laws as to immigration. Reference to sub-secs. xm. and x1v., referred to by Dr. Evatt, indicate that while State banking and State insurance simpliciter are excluded from Commonwealth legislative jurisdiction as to banking and insurance, yet even State banking extending beyond the limits of the State concerned, are expressly brought within the Federal legislative power. This, to my mind, is a strong indication that sub-sec. xxxv., referring to industrial disputes extending beyond the limits of any one State, and to such disputes. only, is not to be cut down by any implication excluding Sta industries of any kind, railway or otherwise. The truth is that State banking or insurance extending beyond the limits of the Sta concerned, and State railway disputes or other State disp extending beyond the limits of any State concerned, are reg by the Constitution as national matters, and proper to be dealt ¥ and, indeed, only capable of being dealt with as a whole, by tl Commonwealth Parliament. In the Builders' Labourers' Case

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"Reasoning along these lines, the Nottingham system of arbitration - siovzrs. and conciliation, the first great systematic effort, becomes historic." - jsaacs C.J. He traces Mr. Mundella's effort, and relates the conference which led to organization of what was termed "the Board of Arbitration and Conciliation in the glove and hosiery trade." He shows that in 1863 and 1864, and later, the example was followed in the building trades of Wolverhampton, with some differences, the iron trade and the coal trade. Then he relates instances of miners' strikes and engineers' strikes. Then, with regard to the miners' dispute in 1893, a Board of Conciliation was constituted to last for one year at least, consisting of an equal number of coal owners' and miners' representa- tives, fourteen each. Mr. Wright observes : - ''It was provided that at their first meeting they should endeavour to elect a chairman from outside, and if they failed, they were to ask the Speaker of the House of Commons to nominate one, the chairman to have a casting vote, the Board when constituted was to have power to determine from time to time the rate of wages on and from Ist February 1894. It is plain from this statement that the whole Board, including the representatives, was a board of arbitration as well as conciliation, ~ and it is equally plain that if the chairman was to have only a casting vote, he was to have no vote where a majority existed." In various industries, as, for instance, in the boot and shoe industry of Northampton, after the strike of 1895, it was agreed, says Mr. Wright, that there should be a joint committee of "representatives of the employers and workmen, four of each, to determine the principles and methods of arrangement and classification on which piece-work statements for machine workers shall be based ; that there may be various local boards of arbitration and conciliation, consisting of equal numbers of representatives of employers and workmen in the Northampton district." And he says: "Only once since 1895 has an umpire been called upon to make a decision of award for

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breach of compact." In many other industries have what are ca boards of conciliation and arbitration been constituted as in 18 and although it is self-evident that where the respective represent tives of the two contestants voted solidly in opposition to e other, no agreement or determination could be arrived at without the assistance of an umpire or referee. The term " arbitration was used, at least in many cases, with reference to a determination arrived at not by the umpire or referee solely, but by means of his vote giving a majority to one side or the other. The recent wo k, published in 1929, entitled Industrial Arbitration in Great B by Lord Amulree, G.B.E., one of His Majesty's counsel, and formerly President of the Industrial Court and chairman of the Nation Wages Board for Railways (now the successor as Air Minister | the late Lord Thomson), throws great light upon this subject. It will be sufficient to say of that work that it giyes a succinct account of the subject matter of its title. At p. 85 is a reference to a memorandum appended to the Commission of 1867-1869, refer ing to spontaneous boards of arbitration of the character already mentioned. It would be tedious to do more than select a few leadi passages. At pp. 99-100 the author, speaking of "the volunta boards of arbitration, whether set up by the trades themselves o1 by outside authorities," says they were faced with a difficulty, : namely, " when the parties went outside the trade for an arbitrator or _ umpire, it was not always easy to find a suitable man." It
obvious from that, that they did not always go outside the trade. Actual proof of that will be presently given. In 1894 a Roy Commission, the report of which has been frequently quoted in th Court, endeavoured to define more clearly the terms in com use. "Arbitration" was defined as "the settlement by one or - more presumably impartial persons of an issue on which the pa have failed to agree." The accepted meaning of this will present be seen. "Conciliation" was defined as "the coming together of the parties for the discussion of questions with a view to amical settlement." In 1896 was passed the Conciliation Act 1896, entitled '« An Act to make better provision for the Prevention and Settlem of Trade Disputes." In sec. 2 there is a provision that where difference exists or is apprehended between an employer or any class

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ence and adequacy of means available for conciliation in the district or trade and the circumstances of the case," power to" appoint a person or persons, to act asa conciliator or as a board of conciliation ;" and then " (d) on the application of both parties to the difference, appoint an arbitrator." Itisscarcely necessary to say that under the Acts Interpretation Act the word "arbitrator"? may be read as "arbitrators." Now, Lord Amulree, in relating the course taken in appointing arbitrators, shows how the word " arbitration" is legally interpreted in this connection. At p. 112 he says that "in the early years under the Conciliation Act 1896, the Government and parties were fortunate in obtaining the services as arbitrators of men of sound sense and good judgment, and there was less disposition to rely upon exalted rank and high-sounding titles. Sir William Markby, Sir Edward Fry, Sir David Dale, Sir Henry James (after- wards Lord James of Hereford), Sir Horatio Lloyd and Mr. J. V. Austin (County Court Judges), and Dr. Spence Watson, were of the type of men that were called in." I pause there for a moment to say that Sir David Dale was himself one of the largest employers in the North of England in the iron trade, and although it is said that he was an entirely exceptional man, being trusted by both sides, his selection under the Act as arbitrator to settle industrial conditions in which he himself was directly interested, itself shows that as the term "arbitration" was understood in relation to such disputes, the decision of the dispute by a person personally interested and, indeed, one of the disputants, is not outside the ambit of arbitration in this connection. But Lord Amulree continues in a passage that is of the very highest importance in this case. He says : - ' The awards of such men were loyally accepted. It was felt, however, that the practice of throwing full and undivided responsibility upon one person had its drawbacks. The single arbitrator relied entirely upon the arguments and statements put forward by the parties appearing before him. If the case was highly technical he might have the help of assessors; but these were only for consultation on the facts and in no way shared

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provision in any award or order of a Conciliation Committee affecting tsaacs 3. (a) wages, (b) hours, (c) any condition of employment, which in the opinion of the Court is likely to affect the public interest. Sub-sec. 4 of the same section says that an award or order of a Conciliation Committee "shall not, except by consent of all the parties, have effect until after the expiration of twenty-one days from the making thereof." It is plain from the sub-section last quoted that even a unanimous Conciliation Committee is not the agreement of the parties. It is equally plain that when the Act speaks of a proceeding before the Conciliation Committee, Parliament never intended the Conciliation Committee to be the parties themselves, or to be their representatives in the sense of agents in the conduct of the case in the proceeding upon which the tribunal was adjudicat- ing, or to decide the issues without hearing the parties. Conse- quently, when we reach sec. 33 it is obvious that Parliament has determined that if either party has asked for a Conciliation Committee as the tribunal, and if the Executive has acceded to that equest by appointing one, the Court is not to be the tribunal for dealing with the dispute or varying an award. That function is assigned to the Conciliation Committee, or in certain events to the Conciliation Commissioner with an appeal as to designated matters to the Arbitration Court. On sec. 34 the whole structure of Concilia- tion Committees rests. If that section is invalid, it seems to me not merely are conciliations annihilated, but the office of Conciliation Commissioner is practically a sinecure, at best a costly and almost useless occupation in the scheme of Arbitration, and even the Court is shorn of some of its intended jurisdiction. The first disputable provision of sec. 34 is sub-sec. 5, already quoted. Now, when it says that one-half of the members of a Conciliation Committee, other than the chairman, shall be "representative of employers,"

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There are three reasons which convince me that at the first meeting of a Conciliation Committee in relation to any particular dispute, an opportunity must, even for conciliation, and certainly for arbitration, be given to the parties themselves to be present personally or by their representatives, and to have a full and fair opportunity to support their respective views. The first is, by sub-sec. 3 of sec. 34, the appointment of the Committee is not in relation to any specific material dispute. It is appointed like the various tribunals under the Industrial Peace Act, as a standing tribunal in relation to all industrial disputes that have occurred or may occur and require to be settled during the period for which it is appointed (sub-sec. 1) in the industry or branch or section of the industry for which it is appointed. If sec. 34 is invalid, so may be the Industrial Peace Act. It is evident that the personal identification of its members with any given dispute is by no means acertainty. The second reason is that its function is first of all to conciliate the parties, and, as appears from sec. 31 of the Principal Act as amended, sub-secs. 4, 5 and 6, and from sec. 31a of the Principal Act already quoted, the Committee has judicial functions to perform - not judicial in the strict sense, but in the same sense as administrative bodies frequently perform their function. This fact brings into play the principle of the common law stated by Lord Loreburn L.C. in Board of Education v. Rice (1), and already quoted. It is true that the members have been selected because of their personal acquaintance with the industry for which the Committee has been appointed. Still, that may leave a multitude of considerations to be put forward and urged by the respective parties and supported if the parties choose both by agreement and evidence. And Lord Loreburn, in the passage I have mentioned, has referred very clearly to the legal duty of administrative bodies who may have to arrive at a conclusion of fact or law. There are many other cases laying down the same inherent principle. They include Lapointe v. L' Association de Bienfaisance et de Retraite de la Police de Montreal (2) and Green vy. Howell (3), and it would be pedantic further to quote authorities for the elementary proposition

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quasi-judicial determination, there is no need to express it. Court will always intervene if it has been violated. Sub-see. 1] therefore connotes that the parties have an opportunity by themselv or their representatives, in the sense of agents, to be present and to place their respective cases before the Committee. In fact, to my min it is absurd that the parties should not be notified to be pres since they are the disputants to be reconciled. What I have as to. the history of arbitration in industrial disputes really puts this beyond question. The third reason is that subsequent mee are to be held at times agreed upon between " the parties," or, it default of agreement, fixed by the chairman. The sub-secti itself draws a clear distinction between the Committee and tl parties, and there is very good reason for this. One or other of th parties disputing may require more time for consideration than th other party is willing to allow, and it is very desirable that t Conciliation Committee at such a stage should not side with one party or the other. In any case the Court has no warrant altering the words of the Legislature. Sub-sec. 8 is as follows: "The chairman shall not be present at or take part in any delibera- tions of a Conciliation Committee until or unless he is of opinion or is informed by a representative of one or each of the parti } that the representatives appear unlikely in his absence to come an agreement upon all the matters in dispute." Again, "rej sentative " is used as a noun, and in relation to the parties. provision that the chairman is not to be present at or take part any of the deliberations of a Conciliation Committee until it is 0 seems to him unlikely that the parties will come to a comp agreement, is one of the provisions of this section which indicat as I have already said, that the framers of the section had an intimate knowledge of the history of industrial conciliation and arbitrati Lord Amulree, at p. 82, points out that Mr. Mundella sometim

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sub-sec. 12. That sub-section says : - "If the parties are unable to agree upon the terms of a proposed award for the prevention or settlement of a dispute or part thereof" (which is the converse of sub-sec. 10), then says the sub-section: "and the views of the chairman do not coincide with the views of either party" (and how can he know unless the parties are present and have been heard by him ?), "the chairman may issue a summons directed to such persons or organizations as he thinks proper, calling upon them to show cause to him why an award should not be made in accordance with the terms which in his view should be inserted in an award, which terms shall be set forth in, or attached to, the summons." The succeeding provisions from sub-sec. 13 to sub-sec. 17 inclusive need not be quoted verbatim, because no one could for a moment dispute that they merely regulate the procedure of an undoubted arbitrator. Tt should here be added as to sub-sec. 12, that if the parties are unable to agree upon the terms of a proposed award, but the views of the chairman do coincide with the views of one of the parties, the Act provides, by sec. 18c, that he may proceed under the general powers of sec. 38 to make an award accordingly. For every conceiv- able case the Act makes provision for arbitration if necessary, and partly by the express words of the statute and partly by force of the common law principles of natural justice, the law requires that the parties be sufficiently heard before an award is made by any tribunal. Two considerations it is imperative to bear in mind at this point. The first is the presumption of legality of a statute unless the Court is compelled by coercive language to the contrary. I repeat what I said on this subject in Federal Commissioner of Taxation vy. Munro (1): - "Has Parliament, on the true con- struction of the enactment, misunderstood and gone beyond its constitutional powers? It is a received canon of judicial construction to apply in cases of this kind with more than ordinary anxiety the maxim Ut res magis valeat quam pereat Nullification of enactments and confusion of public business are not lightly to be introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must

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be allowed to stand as the true expression of the national w Construction of an enactment is ascertaining the intention of the Legislature from the words it has used in the circumstances, on the occasion and in the collocation it has used them. There is always an initial presumption that Parliament did not intend to beyond constitutional bounds. If the language of a statute is no so intractable as to be incapable of being consistent with this presumption, the presumption should prevail. That is the prineiple upon which the Privy Council acted in Macleod v. Attorney-Gen for New South Wales (1). It is the principle which the Supreme Court of the United States has applied, in an unbroken line of - decisions from Marshall C.J. to the present day (see Adkins y. Children's Hospital (2) ). It is the rule of this Court (see, for instance per Griffith C.J. in Osborne v. Commonwealth (3) )." The secon is that no Court can presume in advance that a tribunal constitute by Parliament to perform quasi-judicial functions will fail to observe the elementary requirements of justice. If a failure occurs, - that can always be corrected, but the failure affects, not th validity of the enactment, but the particular decision complaine of. With regard to an award by the Court or a Conciliation Commis- _ sioner sec. 25 gives express directions. With regard to the award of a Conciliation Committee under sec. 34, no such express directions _ are given. But why? Simply because the law presumes natural justice will be adhered to, and, indeed, must be adhered to ii conciliation is bona fide attempted, and because the only award - which the Committee is empowered to make is one in accordance' with the agreement which the parties themselves or their representa- _ tives for that purpose ultimately make. The opinion of this Court under sub-sees. 4, 5 and 6 of sec. 31 is one to which the agreemen of the parties submitted to the Committee must conform before the Committee can transform it into an award under sec. 24. Am if that course is not adopted, or in any other proper case, the provisions of sec. 314 apply as to wages (apparently so as not to transgress the law as to basic wage), or hours (apparently to - preserve standard hours), or any condition affecting the publi

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have the constitutional duty or power of determining the validity or meaning of a statute - that every Commonwealth Act " shall be read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth." That portion of the section is a direction to every Court - to this Court in the present case - to disregard any portion of the statute that is invalid as exceeding the legislative powers of the Commonwealth. The second part proceeds to a further process of construction, namely, "To the intent that where any enactment . . . would, but for this section, have been construed as being in excess of that power " - as, for instance, sec. 33 or sec. 34 - ' it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power." That is to say, if, after discarding all excess exercise of legislative power, there remains any legislation that is within that power, the valid portion stands and must be given effect to. Now, although the section did not "commence " until it was proclaimed, yet once it has commenced so as to be a binding direction to this Court, its operation goes back to the commencement of every Act that is affected by it. It needs no subtle reasoning to convince one that a Court cannot say an Act was invalid yesterday and is valid to-day. Without that statutory rule of construction the Court might, as in the case of Owners of s.s. Kalibia v. Wilson (1) be compelled to say an enactment is invalid in toto. But with that rule of construction in existence, there cannot at the same moment be a reading and construction that makes the Act valid and one that makes it invalid. There canat a given moment be only one " construction " of a statute. The leading relevant principle is that stated by Parke B. in Attorney General v. Hertford (2): " The Act, though not expressly mentioned to be so, yet, by way of construction, is declaratory of an antecedent Act, which is placed within the operation of the present Act: so that we must treat as part of it all cases falling within the antecedent Act." And Platt B. said (3): "The Court must give judgment in accordance with the direction contained in" the later Act, " which requires it so to expound the law, that certain gifts, though they might not before have been, shall now be deemed legacies subject

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"case in of an application made under " section " - that is, sec. 34. There are two decided cases of great importance with reference to sec. 15a of the Acts Interpretation Act, and which support the views I have expressed. I take them in order of date. In the case of Newcastle and Hunter River Steamship Co. vy. Attorney-General for the Commonwealth (1) the very words of that section were construed by this Court. The provision appeared in sec. 2 (2) of the Navigation Act 1912-1920. Inter alia, the validity of the whole Act with its Schedules was challenged, in so far as it applied to the plaintiff's ships. This claim was made in reliance on the Kalibia Case (2). In the judgment in the Newcastle and Hunter River Case (3) it is said by the whole Court (consisting of Knox C.J. and Higgins, Gavan Duffy, Powers, Rich and Starke JJ.) : " We think this provision is a legislative declaration of the intention of Parliament that, if valid and invalid provisions are found in the Act of Parliament, however interwoven together, no provision within the power of Parliament shall fail by reason of such conjunction, but the enactment shall operate on so much of its subject matter as Parliament might lawfully have dealt with." (The italics are mine.) I think it would be difficult to frame a 'proposition more definitely supporting the position that sec. 15a is a declaratory Act as to construction, and therefore retrospective as well, as to the validity of the necessary sub-sections of this case. Though not a member of the Court in that case, I entirely agree with the proposition quoted. The judgment proceeds : - " The intention and effect of the section may be illustrated by reference to sec. 135 of the Act. In terms the provisions of that section apply to the owner of every steamship registered in Australia or engaged in the coasting trade. This class of ships includes: (1) every ship registered in Australia engaged in inter-State or foreign trade ; (2) every ship so registered engaged solely in intra-State trade ; (3) every ship not so registered engaged in inter-State trade; (4)

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With respect to the ships comprised in classes ] and 3, the Parliament has power to enact the provisions of sec. 135: with respect to those comprised in classes 2 and 4, it has no such power. The decision - in the Kalibia Case (1) proceeded on the footing that the inclusion in one collective expression in an Act of Parliament of objects as to some of which the enactment was invalid, operated to invalidate the whole enactment because it did not appear that Parliament - would have imposed the rule as to some only of the class if the whole class could not be affected. The whole enactment was declared invalid in that case only because it was impossible to ascertain an - intention that some only of the class designated by the collective expression should be affected if the others were not. But in the present case sec. 2 (2), though its verbal expression may be open to criticism, sufficiently disclosed the intention of Parliament that if all four classes of ships could not be brought under the provisions of sec. 135 those provisions should operate in respect of all ships to which they might lawfully be applied. There is, in our opinion, nothing to prevent Parliament from legislating in this way in order to make its intention clear." Again I entirely agree. That case, indeed, goes much further than is at all necessary in the present case. That section in terms included " the owner of every steamship registered in Australia, or engaged in the coasting trade." So far as the words of the section itself are concerned, it was one complete conception embracing in general terms the whole of the classes mentioned in the judgment referred to, and it was therefore impossible, but for the saving sec. 2 (2), to disintegrate the general statement and - apply the enactment to such portions as were within the jurisdiction of the Federal Parliament. Sec. 34 of the Conciliation and Arbitration Act, on the other hand, is itself segregated, and, in my opinion, - whatever might be said of its severability in the absence of the recent Acts,Interpretation Act, sec. 154, I cannot conceive how, in - the presence of that section and the decision referred to, any doubt can be left as to the validity of all the conciliation provisions of sec. - 34. And, as I have already stated, if so much is saved, there is sufficient to answer the conditions required by sec. 33. The same

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Governor-General in Council considers likely to appreciate their interests. This is made clear by the provision contained in sub-see. 6 which requires the Governor-General in Council merely to " take into consideration " any recommendations made by or on behalf of employers or organizations of employees in relation to such appoint- ments. The chairman of the Committee is to be a Conciliation Commissioner. He is to summon the first meeting of the Committee _ in relation to a particular dispute, but he is not to be present at, or take part in, its deliberations, until or unless he is of opinion or is informed by a representative of one or each of the parties that the - representatives appear unlikely to come to an agreement on all of the matters in dispute. Thereafter he is to preside at the meetings of the Committee. Sub-secs. 10, 11 and 12 are as follows : - * (10) If _ an agreement between all or any of the parties as to the whole or - any part of the dispute is arrived at, the provisions of sub-section 1 of section twenty-four of this Act shall apply to that agreement. (11) If the majority of the members comprising a Conciliation - Committee agree upon the terms of a proposed award for the - prevention or settlement of a dispute or part thereof, the provisions - of sub-section 1 of section twenty-four of this Act shall, subject to this _ section, apply to the agreement embodying those terms. (12) If the parties are unable to agree upon the terms of a proposed award for the prevention or settlement of a dispute or part thereof, and the views of the chairman do not coincide with the views of either party, the chairman may issue a summons directed to such persons or organizations as he thinks proper, calling upon them to show cause to him why an award should not be made in accordance with - the terms which in his view should be inserted in an award, which terms shall be set forth in, or attached to, the summons." It appears to us to be quite clear that sub-sec. 11 purports to empower the - majority of the members of a Committee to agree upon the terms of an award, and purports to apply the provisions of sub-sec. 1 of - sec. 24 of the Act to that agreement of the Committee. Sec. 24 (1) provides that "if an agreement between all or any of the parties as to the whole or any part of the dispute is arrived at, a memorandum - of its terms shall be made in writing and certified by a Judge ora Conciliation Commissioner, and the memorandum when so certified

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shall be filed in the office of the Registrar, and unless otherwise ordered and subject as may be directed by the Court or a Conciliation Commissioner shall, as between the parties to the agreement have the same effect as, and be deemed to be, an award for all purposes. . . ." Weare quite unable to adopt the construction of sub-sec. 11 of sec. 34 by which it is made to mean that when the terms of a proposed award are agreed upon by the majority of the members of the Committee then they may be embodied in an agreement of the disputants themselves if they choose to make one. Such a construction appears to us to set the words of the provision at defiance and to make nonsense of its substance. It is evident upon a reading of the provision that the words "the agreement embodying those terms"' refer to the agreement of the majority of the members of the Committee. To suppose that two agreements were contemplated, each voluntary and both to the same effect, is to render the first entirely superfluous. The parties are well able to arrive at an agreement whether a majority of the Committee do or do not agree, and it is not credible that the Legislature intended to fetter the parties' power to settle a dispute by agreement, by requiring as a preliminary condition that a majority of the Concilia- tion Committee should come to an identical agreement among themselves. We think that sub-sec. 1 of sec. 24 was meant to operate upon the agreement of the majority of members as it would operate upon an agreement between the parties to a dispute so that when filed pursuant to the certificate of the Commissioner it would bind the disputants as if it were an award. Sub-sec. 12 proceeds to provide for the case of the majority of the Committee being unable to agree upon the terms of a proposed award. When it says that "if the parties are unable to agree upon the terms of a proposed award . . . and the views of the chairman do not coincide with the views of either party " the chairman may call upon such persons or organizations as he thinks proper to show cause against an award which he proposes, it is clear that the " parties " referred to are the representatives. The chairman is not required to summon persons outside the Committee to show cause unless he cannot agree with one or other of the parties in the Committee. It is ridiculous to suppose that the provision means that if he is able to agree

[312]

the States in the Engineers' Case (1) and in the Merchant Service Case (2). The answer, however, to the argument is that the Constitu- tion is the supreme law of the land, and, as it is interpreted by this Court, States and persons natural or artificial representing States are subject to it, if parties to industrial disputes extending beyond the limits of any one State, and are bound by the provisions of any law made within its powers. (See Constitution, sec. 5.) But then it is said that this doctrine impinges upon the Constitutions of the States, which prohibit moneys being taken out of the Consolidated Fund of the States (into which the revenues of the States are paid), except under a distinct authorization from the Parliaments of the States. (See as to Tasmania, 13 & 14 Vict. c. 59, sec. 14; 18 Vict. No. 17, sec. 1; and as to Victoria, Constitution Act, secs. 44, 55, 58, Schedule to 18 & 19 Vict. c. 55; Churchward v. The Queen (3); Commercial Cable Co. v. Government of Newfoundland (4) ; Mackay v. Attorney-General for British Columbia (5); Auckland Harbour Board v. The King (6) ; Attorney-General v. Great Southern and Western Railway Co. of Ireland (7); Commonwealth and the Central Wool Committee v. Colonial Combing, Spinning and Weaving (Co. (8).) It would require, I agree, the clearest words in the Constitution to interfere with or impair this constitutional principle, embedded in the Constitution of the States, and I can find nothing in sec. 51, pl. xxxv. or pl. Xxx1x., which warrants any such conclusion. And, in the absence of any such provision in the Constitution, sec. 106is conclusive. But, even if awards made by tribunals constituted by the Commonwealth under the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, imposed obligations upon the States or on corporations or bodies managing or controlling their activities (see Mallinson v. Scottish Australian Investment Co. (9) ), still, as Lord Haldane pointed out in Attorney-General v. Great Southern and Western Railway Co. of Treland (10), the responsibility of producing the fund out of which

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arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. But when sec. 51 (xxxv.) receives this meaning an intention to exclude State _ Railways from its operation, although otherwise the States and their agencies are included within it, can scarcely be inferred from the provisions of the Constitution which deals specifically with railways (see. 51 (Xxx1I.), (XXxIIT.), (XX XIV.), sec. 98, sec. 102 and sec. 104). These provisions might have been used in support of the doctrine which formerly prevailed, namely, that prima facie a legislative power of the Parliament did not extend to the States or their agencies. But after the overthrow of that doctrine, it does not appear reasonable to find in these provisions an intention specially to exclude State Railways from the consequences of the doctrine by which it has been replaced. The Commissioners of Railways are, in my opinion, no less within the operation of sec. 51 (xxxv.) than the Governments of the States. From this it follows that the Parliament has power to make a law for the settlement by arbitration of industrial disputes including disputes upon State railways. But it does not necessarily follow that the Parliament may in such a law deal with a State, and the agencies of a State, as if it were legislating for the subject. During the argument of this case it appeared that the judgment of the majority of the Court in the Engineers' Case (1) ought not to be understood as laying it down that over a State the power of the Parliament is as full and ample as over the subject and allows the same choice of remedies, measures and expedients to secure fulfilment of the legislative will. Whether any and what sanctions may be applied to a State by a law of the Parliament with respect to industrial arbitration, or whether such _ a law can do no more than impose upon a State duties of imperfect _ obligation, are matters which did not then arise for consideration. Perhaps private rights may be conferred which are enforceable according to a law made under sec. 78 and sec. 76 (u.) of the Constitution. It may be that sec. 106 provides the restraint upon

At a glance

Court

Decision date

Before

Source

Judgment (334 paragraphs)