Huddart Parker Limited v Commonwealth [1931] HCA 1

Huddart Parker Limited v Commonwealth [1931] HCA 1 - HCA 1931 case summary — Zoe

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scheme of the regulation is thus inconsistent with the scheme of the Act, which only requires a person to be licensed. There is an inconsistency because the new scheme requiring membership of the Waterside Workers' Federation is different from the scheme under the Act which required only a licence (Clyde Engineering Co. v. Cowburn (1); Hume v. Palmer (2)). [EvarrJ. Inconsistency under sec. 109 of the Constitution between Commonwealth and State laws is distinct from inconsistency between an Act and a regulation proceeding from the same Government.] Tf the second scheme is different and distinct from the former though both could be obeyed, they are inconsistent. Some men are put out who would have been in before the regulation was passed. This regulation makes the engagement of non-members of the Waterside Workers' Federation unlawful when it would by the Act have been lawful but for the regulation. The test of inconsistency is whether this regulation makes unlawful some- thing made lawful or treated as lawful by the Act itself. No qualification was required of a person who desired to be selected as a waterside worker, preference to unionists having gone. Then the Transport Workers Act required a waterside worker to have a licence, and that is the one qualification imposed by the Act. The regulation makes unlawful what is recognized as lawful under the _ Act. The schemes of the Act and the regulation are fundamentally different. The Act qualifies a waterside worker for work by reference _ to his individual holding of a licence ; and the regulation qualifies "him by reference to his membership of a political or social group. The regulation is inconsistent with the Act, which provides that the only condition shall be the obtaining of a personal licence. The tegulation-making power given by sec. 24 is confined to Part III. to implement the provisions of that Part, and it is difficult to justify _ the regulation under that section. The regulation was apparently, _ therefore, made under sec. 3. : (Gavan Durry C.J. On this basis what use is sec. 24 if sec. 3 is there to cover the matter? Does sec. 24 limit the power in

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Workers Act 1928-1929 and, in particular, sec. 3, form a valid law of the Commonwealth, there is nothing which I desire to add. But the question whether sec. 3 is valid when construed by the aid of sec. 15a of the Acts Interpretation Act 1901-1930 raises a difficult question of far-reaching importance, and I wish to express in my own words exactly why I think that, when sec. 3 is read down in the manner required by sec. 15 of the Acts Interpretation Act, it constitutes a valid law sufficient to authorize the regulation. When construed in this manner, its provision appears to me to authorize the making of regulations with respect to the performance of work and the conduct of operations by means of employees which truly form part of or an incident in trade and commerce with other countries and among the States. It is unnecessary to express any opinion whether the provisions of the section, when construed so as to fall within the limits of the constitutional power, can or do extend to the general relationship of master and servant subsisting between persons doing work or conducting operations in connection with trade and commerce. The regulation does not appear to me to deal with that relationship, or at any rate directly to do so. It requires that persons who seek to perform by their employees the operation of loading goods on a ship for oversea or inter-State carriage or unloading goods from a ship after oversea or inter-State carriage shall, in a competition for employment, avail themselves of the services of the members of a trade union bound by an industrial award in priority to the services of the non-unionists. It is evident that the reason or policy which inspired this regulation is industrial but it does not follow that the object, scope or operation of the statutory regulation does not fall within the commerce power. Unless its purport and operation properly understood are not within that power it appears to me to be authorized by sec. 3. Further, although the motive may be industrial the actual regulation of the intending employer's conduct goes no further than a requirement that he shall prefer one man to another in engaging a servant to do particular work. That work is an operation in trade and commerce. I think it follows that, if the provision contained in the regulation can truly be described as a law with respect to that

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Act is the power to make laws for the peace, order and good goyern- ment of the Commonwealth with respect to trade and commerce with other countries and among the States; and the Constitution, sec. 98, extends the power to navigation and shipping and to railways the property of any State. In Citizens Insurance Co. of Canada v. Parsons (1) the Judicial Committee pointed out that the power contained in sec. 91 of the British North America Actto make laws for the regulation of trade and commerce, in its unlimited sense, is sufficiently wide, if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with other governments requiring the sanction of Parliament, down to minute rules for regulating particular trades. But they held that a consideration of the Act showed that the words were not used in this unlimited sense, and laws made pursuant to it must not trench on the subjects. assigned exclusively to the Legislatures of the Provinces. And for this reason the Industrial Disputes Investigation Act 1907 of Canada. was held invalid and not within the competence of the Parliament of Canada (Toronto Electric Commissioners v. Snider (2) ). On the other hand, the Supreme Court of the United States has held that the power in the American Constitution to regulate commerce with foreign nations and among the several States and with Indian. tribes, extends incidentally to every instrument and agent by which such commerce is carried on. Therefore Congress may legislate concerning the agents or instruments of commerce and concerning the conditions under which those agents and instruments perform the work of inter-State commerce, whenever such legislation bears. or can be deemed to bear upon the reliability or promptness or economy or security or utility of the inter-State Commerce Act. For these reasons the Employers' Liability Act of 1918 and the Railway Labour Act of 1926 were supported (Second Employers' Liability Cases (3); Texas & N. O. Railway Co. v. Railway Clerks (4))- Still, the same Court denied, in Adair v. United States (5), that the power to regulate trade and commerce warranted a law making it a crime for an agent or officer of an inter-State carrier to discharge an.

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It remains to consider the Transport Workers' Act 1928-1929, and certain regulations made thereunder, in the light of this construction of the Constitution. The title of the Act of 1928 is: " An Act relating to Employment in relation to Trade and Commerce with other Countries and among the States." But it prescribes no rule in relation to such employment: it remits the whole matter to the regulation of the Governor in Council. Extraordinary though this form of legislation undoubtedly is, still, it is not beyond the power of Parliament (Roche v. Kronheimer (3) ). And the safeguard against hasty and ill-considered regulations is found, no doubt, in the right of either House of Parliament to disallow any regulations so made (Acts Interpretation Act 1904, No. 1, sec. 10; 1930, No. 23, sec. 2). The Transport Workers' Act 1928-1929, sec. 3, provides that the Governor-General may make regulations, not inconsistent with the Act, which, notwithstanding anything in any other Act but subject to the Acts Interpretation Act 1901-1918 and the Acts Interpretation Act 1904-1916, shall have the force of law with respect to the employment of transport workers, and in particular for regulating the engagement, service and discharge of transport workers, and the licensing of persons as transport workers, and for regulating or prohibiting the employment of unlicensed persons as transport workers, and for the protection of transport workers. A transport worker means a person offering for or engaged in or in connection with the provision of services in the transport of persons or goods in relation to trade or commerce by sea with other countries or among the States (Transport Workers Act 1929, No. 3, sec. 5 - inserting new sec. 2 in the Principal Act). The Transport Workers Act No. 3 of 1929 provided for the licensing of waterside workers. Formerly, regulations had dealt with the matter, but the 1929 Act substituted statutory provisions : - A waterside worker means (sec. 5) a transport worker who offers or is engaged for work in the loading or unloading of ships as to cargo, coal, or oil fuel (whether for bunkers or not), and includes

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(except as otherwise declared by the Minister by notice in the ite) persons working in or alongside the ship in connection with direction or checking of the work of other waterside workers, but does not include (except as otherwise declared by the Minister by notice in the Gazette), (a) the members of the crew of a ship on the ship's articles, (b) the members of the crew of a lighter who do not handle cargo or bunker fuel. Any person desiring to obtain alicence as a waterside worker at a port to which the Act applies (secs. 4 and 6) may apply therefor; but no person can engage is a waterside worker for work unless that person is the holder of licence (sec. 13), and no person can engage another person as a waterside worker unless that other person was the holder of a licence (sec. 14). All these provisions for the licensing of waterside workers are, in my opinion, beyond the competence of the Parliament under the trade and commerce power in the 'Constitution. They place restrictions upon the right of persons to employ others and upon the right of such other persons to be employed in the loading or unloading of particular cargoes on ships. 'The power of Parliament is not to make laws with respect to employment, in foreign or inter-State trade, or the rights and duties of employers and employees in such trade, whether as to ement, service, discharge, wages or otherwise, but to make _laws with respect to foreign and inter-State trade and commerce as such : its general regulation as opposed to the regulation of particular trades and avocations. Nothing in the incidental power (Constitu- tion, sec. 51 (xxxrx.)) affects this conclusion (Attorney-General for the Commonwealth v. Colonial Sugar Refining Co. (1); In re Judiciary and Navigation Acts (2) ). And the Acts Interpretation Act 1930, No. 23, sec. 3, has no bearing upon this question, for the whole of the 'Provisions of Part III. of the Transport Workers Act are, in my opinion, in excess of the power of Parliament. This brings me to he Regulations which have been directly attacked in this case, Statutory Rules 1930, Nos. 158 and 159.

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It is said, however, that the powers given by sec. 3 in respect of transport workers in general do not now apply to waterside workers, This view is founded upon the provisions of the Transport Workers Act 1929. By this Act amendments are made in the Act of 1928 which result in the composite Transport Workers Act 1928-1929 wearing an appearance very different from that of the Act of 1928. Sec. 3 is headed '" Part II - Transport Workers," and is the only provision of that Part. Part III. is headed "' Waterside Workers," and is devoted to the parliamentary enactment of the substance of the law which was contained in regulations made under the Act of 1928. Itincludes, however, a section, i.e., sec. 24, which empowers the Governor-General to make regulations not inconsistent with that Part prescribing all matters which are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to that Part. Part I. of the Act is headed "' Preliminary," and contains a definition section, i-e., sec. 2, which, after defining '' transport worker,"' defines " waterside worker"? to mean a transport worker who, in effect, works as a wharf or stevedore's labourer in connection with oversea or inter- State ships. It thus appears that all waterside workers are transport workers. In terms sec. 3 covers all transport workers and, if its operation is not to extend to transport workers who are waterside workers, it must be because it is so limited by some necessary implication. I am unable to find any such implication. The fact that Part III. contains a complete scheme for licensing waterside workers and for making penal the employment of unlicensed persons, considered with the manner in which the Act is divided into Parts and with the inclusion of another power to make regula- tions, may afford ground for inferring that the Legislature supposed sec. 3 would have no further application to waterside workers. But whatever plausibility may be found in this inference, it cannot, in my opinion, amount to the necessary intendment which is required in order to control the natural meaning of the language of

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hat there was no such connection between inter-State commerce cand membership in a labour organization, as to authorize Congress to prohibit inter-State carriers from dismissing their employees because of membership in such organization. Adair's Case must be looked at in the light of subsequent decisions of the United States Supreme Court. It was decided in the year 1908, but in 1912 in 'the Second Employers' Liability Cases (2) Mr. Justice Van Devanter, in giving the decision of the Court, said (3) : - "'This power over 'commerce among the States, so conferred upon Congress, is complete 'jn itself, extends incidentally to every instrument and agent by which such commerce is carried on, may be exerted to its utmost extent over every part of such commerce, and is subject to no limitations save such as are prescribed in the Constitution. But, of course, it does not extend to any matter . . . which does not have a real or substantial relation to . . . such commerce." "In Adair's Case itself, the reasoning of the dissenting judgment of Mr. Justice O. W. Holmes is difficult to resist, if the matter is considered upon strictly logical grounds. He said (4) : - ' As we all know, there are special labour unions of men engaged in the service of carriers. These unions exercise a direct influence upon the employment of labour in that business, upon the terms of such employment and upon the business itself. Their very existence

is directed specifically to the business, and their connection with it is at least as intimate and important as that of safety couplers, _ and, I should think, as the liability of master to servant - matters which, it is admitted, Congress might regulate, so far as they concern commerce among the States. I suppose that it hardly _ would be denied that some of the relations of railroads with unions of railroad employees are closely enough connected with commerce to justify legislation by Congress. If so, legislation to prevent the exclusion of such unions from employment is sufficiently near." Most recently of all, in the year 1927, in the case of Di Santo v. Pennsylvania (5), the majority of the United States Court regarded a licensing system applying to agents selling steamship tickets

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Judgment (209 paragraphs)