Jumbunna Coal Mine v Victorian Coal Miners' Association

Jumbunna Coal Mine v Victorian Coal Miners' Association - [1908] HCA 95 - HCA 1908 case summary — Zoe

[8]

The question of registration is one for this Court and this Court alone -- the Commonwealth Court of Conciliation and Arbitration; and as I have been made solely responsible for the efficient working of this Court, I think it is my duty as far as possible to exercise the sole control which the Act gives me over the office and over the Registrar. If the main contention of the companies is right, the Registrar will have, in every case before registering an association, to decide whether the association can or cannot possibly be concerned at the present time, or at any future time, in an industrial dispute extending beyond the limits of any one State. This is a task of a nature not usually assigned to Registrars, and the Registrar himself would be the first to admit that it is not a matter which he should be called on to decide. Yet, though I should not ordinarily feel justified in seeking to cast on others the burden of problems relating to this Act and to this Court, I should not hesitate to exercise my discretionary power to state a case for the High Court if I felt that my decision would finally bind the rights of any of His Majesty's subjects in some important respect, and if I felt substantial doubt as to the legal position. I should also be much more disposed to state a case before declaring an Act of Parliament ultra vires and void, than before refusing to so declare. In this case, however, if my decision be in favour of the association, it will not prevent the validity of the registration from being tested when the association attempts to use its new status as an organization, say, by applying to enforce an award, or by suing its members for penalties. I asked Mr. Mitchell to point out how his clients were prejudiced by registration, and the strongest point in his answer was that under sec. 9 an employer loses by the fact of registration his right to dismiss an employé for the mere fact that he is a member of an organization. But even in such a remote case the employer can, notwithstanding sec. 57, raise the defence that the association is not an "organization" and could not be an "organization," as it is not legally registrable. Moreover, if the question of registration should at any time become crucial, any party interested, or the Registrar, may apply for cancellation (sec. 60). I might add that, but for the course taken by the Full Court in the Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employé_s Association_ [1], I should have doubted the propriety of allowing an Act of Parliament to be impeached as unconstitutional and void on a mere application to register an association, or at the instance of persons who are not hurt or affected by the mere fact of registration. The practice in the United States is not to decide against an Act except "in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals": Chicago and Grand Trunk Railway Co. v. Wellman [2], at p. 345. However, I bow to the opinion of the Full Court on the point; and I shall also treat as binding me for the purposes of this case all the principles laid down in the Railway Traffic Employé_s Case_ [3], notwithstanding the subsequent judgment of the Privy Council in Webb v. Outtrim [4]. My decision in this case is to be regarded as merely a decision as to the duties of the Industrial Registrar on an application to register.

[9]

One of the arguments used against registration is that this association is incapable of being concerned in an industrial dispute "extending beyond the limits of any one State." These are the words of sub-sec. XXXV. of sec. 51 of the Constitution, which may, for the purposes of this argument, be taken as defining the limits of the legislative power of the Federal Parliament on this subject. The argument assumes that, if an association cannot be concerned in an industrial dispute of the character mentioned in the Constitution -- which I may call for shortness "a two-State dispute" -- the Federal Parliament has no power to allow the association to be registered. Counsel have argued on this assumption, and I shall first deal with their arguments. I shall say something as to the assumption afterwards. Let it be assumed, then, that there is no power for the Federal Parliament to allow an association to be registered if it cannot possibly be concerned in a two-State dispute. Yet I am certainly not prepared to say that this association cannot be concerned in such a dispute -- now or at any future time. It is true that there is at present no evidence of any combination or understanding between the colliery owners of Newcastle, or of the Collie coalfield with the owners of these Victorian mines; and that there is no evidence of any combination between the employés at these places. But it is not difficult to conceive circumstances in which there might be such a combination on both sides; and, in my opinion, this is just the kind of case that the constitutional provision in sec. 51 sub-sec. XXXV. was designed to meet: -- "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." I may grant that in an industrial quarrel each of the employés is disputing with his employer. In this sense each man's dispute is separate from every other man's dispute. But the phraseology of sub-sec. XXXV. treats an industrial dispute as if it were an epidemic disease or a fire. Of course each of the victims has a separate disease; and each blade of grass has its separate blaze. But there is such a connection between the various sufferers, or the various blades of grass, that it is not unusual or incorrect to speak of the disease, or of the fire as "extending" or as "spreading." So with an industrial dispute. At the time that the Constitution was enacted by the British Parliament, nothing was more marked than the tendency of strikes to "spread"; and to "restrict the area of a strike" was a common endeavour. Union is strength; and nothing is more common in modern industrial disputes than for the employers to seek a common course of action, and for the employés to mass themselves in one opposing array. Mr. Mitchell has sought to confine the disputes referred to in sub-sec. XXXV. to disputes where there is one employer -- one person or partnership or company -- carrying on business in at least two States. But sub-sec. XXXV. does not provide that the employment must extend beyond the limits of one State -- it provides that the disputes must so extend. Mr. Mitchell said that this Court would have no power to intervene even if the Sydney wharf labourers, having a dispute with a line of steamers, refused to handle goods for that line, and sought to induce, or even actually induced, the wharf labourers of Melbourne to follow their example. He suggested, however, that there might possibly be an alternative case -- the case, for instance, of all the pastoralists of New South Wales and Victoria having a binding agreement to insist on one common set of conditions of labour, and the shearers having a counter agreement among themselves. This suggested case becomes very nearly an admission of the impossibility of accepting the view at first pressed. But there is no need to confine the power conferred on the Parliament within such narrow limits. The power was evidently meant to enable the Federal Parliament to deal with disputes which could not be so effectually dealt with by a Parliament having power only within the limits of one State. The New South Wales Parliament can deal with a dispute which is confined to New South Wales -- when the Newcastle mine owners act in combination, and the Newcastle miners act in combination. But it cannot deal so effectively with a dispute when the Newcastle mine owners act in a combination with the Victorian mine owners, and the Newcastle miners act in combination with the Victorian miners; and, in my opinion, sub-sec. XXXV. was meant to enable the Australian Parliament to make provision for such latter combinations. The only difficulty seems to arise from the fact that a "dispute" is something intangible and abstract, and yet the section requires us to measure it by things concrete and tangible -- by States, areas of territory. But the meaning of the language is plain enough.

[10]

The next argument is that, even if this association can possibly be a party to a two-State dispute, sec. 55 is too wide in that it allows associations to be registered which cannot by any possibility be parties to such a dispute, and that therefore the whole of sec. 55 is unconstitutional and void. The instances suggested by Mr. Mitchell of associations that cannot by any possibility be parties to such a dispute -- Melbourne railway employés, Melbourne corporation employés, employés in a Queensland industry -- are not, indeed, very convincing as illustrations. But let it be assumed that there are associations which can never be parties to such a dispute; what follows? In the first place, as the words of sec. 55 are general, it would be the duty of the Court to presume that the legislature meant to keep within the bounds of the Constitution, and to allow registration to such associations only as could be interested in such disputes: D'Emden v. Pedder [5], at p. 119; United States v. Coombs [6], at p. 75; Parsons v. Bedford [7]; Grenada County Supervisors v. Brogden [8]; Presser v. Illinois [9], at p. 269. But even if this rule of construction were not applicable, even if sec. 55 means that all industrial associations of 100 members are free to register whether they can be interested in a two-State dispute or not, even if sec. 55 is too wide as to the kind of associations that may register, is sec. 55 therefore to be treated as void altogether? Is it to be held that no association can register because the section purports to allow some associations to register which are not within the constitutional power? Mr. Mitchell admits that, if his argument is right, no association can be registered; and so there can be no "organization" under the Act; and there can be no industrial dispute entertained by this Court, and no award can be given; and, in short, the whole Act becomes nugatory. This seems to be a conclusion revolting to common sense; but it must be accepted if in accordance with law. It is urged that where we find an enactment in general terms in one section, terms that may include some things that Parliament has not power to legislate about, the whole enactment is void. In my opinion, there is no such rigid rule of law. Whenever Parliament transcends its powers in legislation, the Court has to determine, as in the case of any other agent exceeding its powers, whether the part intra vires is so bound up with the part ultra vires that it cannot be disentangled. If a man wrongfully mix up another's property with his own so that it cannot be ascertained which is his and which is not his, he loses the whole; and so with legislatures of limited powers. If the legislature has power to deal with matters called A, and not with matters called B, and it pass a clause dealing with A and B as one united indivisible whole, or in some other fashion indicating that its dealing with A is dependent on its dealing with B, then the whole clause is void. If the Commonwealth Parliament had power under the Constitution to make laws for the government of the tropical part of South Australia, and passed an Act providing for the government of all tropical Australia as one whole, the Act would be invalid. But if it passed an Act providing for the government of the tropical part of South Australia, and also enacted -- in the same Act, or in a subsequent Act -- that the same provisions should apply to the tropical part of Queensland, and to the tropical part of Western Australia, severally, the Act would be valid as to South Australia and invalid as to Queensland and Western Australia. The same result would follow if South Australia, Queensland and Western Australia were all referred to in the same section and the same sentence. The doctrine of unconstitutionality in legislation is really a branch of the law as to powers -- a part of the law that has been developed with more logical completeness than most parts. If there be an appointment to several persons, some of whom are and some of whom are not objects of the power, and the appointment to the objects is severable from the appointment to the strangers, it will be valid, and the appointment to the stranger will fail. Contra, if it is impossible to say how much of the appointment falls within the power and how much not: Farwell on Powers, 2nd ed., pp. 298, 312; Adams v. Adams [10]; Hamilton v. Royse [11], at p. 332; In re Brown's Trusts [12]; In re Kerr's Trusts [13]; In re Farncombe's Trusts [14]. The test is, if Parliament had rightly understood the extent of its power, would it not have executed it in this manner as to the associations subject to its power. This test fits the Railway Traffic Employé_s Case_ [15], at pp. 545-7, and the American cases therein cited. In that case the Court was considering the validity of the definition of "industrial dispute" in sec. 4 of this Act. The question was (so far as now material), could the Federal Parliament deal with railway servants by virtue of the inter-state trade and commerce power (sec. 51, sub-sec. 1) taken in conjunction with sec. 98? The Court assumed, for the sake of argument, that it could, but "only so far as regards inter-state traffic and only as far as regards men engaged in that traffic" [16]. But, inasmuch as the Act dealt with New South Wales railway servants in connection with any kind of traffic, whether interstate or confined to New South Wales, and had no intention of dealing with, say, a shunter at Albury, in his inter-state functions -- as distinguished from his State functions -- acting in one set of functions for three minutes, and another set for the following thirty, the Court held that the power of legislating for railway servants as regards inter-state functions had simply not been exercised. Similarly in the Trade Mark Cases [17], at pp. 96, 98-9 cited by the Court the American Judges find that "the main purpose" of the Federal Act was to "establish a regulation applicable to all trades, to commerce at all points," and that "it was designed to govern the commerce wholly between citizens of the same State." In other words, the Act would not have been passed except as an entirety. Similarly in the electoral machinery case: United States v. Reese [18], at p. 221, the Court found that the Federal Congress, having power to legislate so as to prevent the States from denying the rights of citizens on account of race, colour &c., had actually prescribed for the State its electoral machinery for voting irrespective of race and colour, and as the parts could not be separated in administration, the whole provision had to be treated as void. The principle does not depend on the form of words used, whether they are found in one section or in several; whether in one general phrase or in successive specific expressions. As it has been expressed by Mr. Justice Cooley (Constitutional Limitations, 7th ed., 250), "a legislative Act may be entirely valid as to some classes of cases and entirely void as to others. A general law for the punishment of offences, which should endeavour to reach by its retroactive operation acts before committed, as well as to prescribe a rule of conduct for the citizen in future, would be void so far as it was retrospective; but such invalidity would not affect the operation of the law in regard to the cases which were within the legislative control." This passage was read with approval, and adopted by the Supreme Court in Jaehne v. New York [19], at p. 194. In the Massachusetts case of Commonwealth v. Hitchings [20], at p. 486, the Court said as follows -- "The constitutional and the unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial; but whether they are essentially and inseparably connected in substance." Again in Warren v. Charlestown [21], at p. 99, the same Court said: -- "if they (the parts) are so mutually connected with, dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that, if all could not be carried into effect the legislature would not pass the residue independently, and some parts are unconstitutional, all the provisions which are thus dependent, conditional or connected, must fall with them."

[13]

Now I come to the assumption that the Federal Parliament has no power to permit an association to be registered, even on its own application, if the association cannot, in the opinion of the Court, be concerned in a two-State industrial dispute. I must say that, to my mind, this assumption is by no means obviously right. No doubt the Federal Parliament must not trench on State functions. But if, with a view to dealing effectively with all disputes of a two-State character, it permit any association of a certain number of members, and having certain industrial objects, to register, and thereby secure particulars with regard to such associations, to be used if and so far as required, if and when a two-State dispute occurs, I am not prepared to say that the direction would be invalid. The Federal Parliament has to deal with defence. If, with a view to organizing a citizen army, it allowed any adult male to register his name, would not that law be good, even though it allowed the maimed and blind to register? The powers of the Federal Parliament, even as the powers of trustees and other donees of powers, must be exercised bona fide to the ends and within the limits prescribed; but the means, the machinery, the method of carrying out the powers, are all in the discretion of the Parliament. Even if the words of sub-sec. XXXV. of sec. 51 of the Constitution are not sufficient of themselves to enable Parliament to permit (we are not now talking of compelling) an industrial association of 100 members to register itself with a view to possibilities, yet sub-sec. XXXIX. enables the Parliament to make laws as to "matters incidental to the execution of any power vested by this Constitution in the Parliament." This power is certainly at least as comprehensive as that in the Constitution of the United States -- "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." Yet, in the United States, the Courts never set aside any legislation of Congress as unconstitutional unless it is clearly apparent that it can by no means be needful or appropriate to the execution of the specified powers. This principle was carried to an extreme length by Marshall C.J. in the great case of M'Culloch v. Maryland [31], at p. 421, for there it was held that Congress could incorporate a bank, as incidental to its powers of levying and collecting taxes, borrowing money, conducting war, &c. It was held that Congress could adopt any means "which are appropriate, which are plainly adapted to that end." Our Constitution, like the United States Constitution, is "meant to endure for ages, and therefore to be adapted to the various crises of human affairs"; and no one can foretell the future developments in industrial combinations. In the present case the registration of any industrial association of 100 members that desires to register (under sec. 55), or is proclaimed an organization against its will (under sec. 62) may well be helpful to the President when he proceeds to prevent a two-State dispute before it occur, or to settle it after it has occurred. It seems to be often overlooked that the Constitution allows provision for conciliation as well as for arbitration, and for prevention as well as for settlement. "Prevention" involves interference before the evil -- the evil of a two-State dispute -- has occurred; while the dispute is perhaps only threatened, or is confined as yet to only one State. As disease may be dealt with by way of prevention as well as by way of cure, so a dispute may be dealt with by the way of prevention as well as by the way of settlement. I assume that the evil to be cured -- or prevented -- is a dispute which extends in fact into more than one State. But just as disease may be stamped out, or a bush fire extinguished, before it pass a State boundary, so may a two-State dispute be "prevented" from existing as a two-State dispute. Under sec. 16 of the Act, therefore, the President is required to endeavour to reconcile and prevent two-State disputes; and registration is an obviously convenient method of finding out to whom he should address himself (sec. 16), whom he should summon, who should be heard as applicants or as parties interested or possibly interested, and on whom awards and orders should be made binding. No doubt, if Parliament or the President, under colour of dealing with disputes of the two-State character, attempted to take out of the control of the State authorities a dispute which could not extend beyond the State the Courts would declare the steps taken by Parliament or by the President to be void. It may be difficult in some cases to draw the line between cases in which federal power may, and cases in which it may not interfere. But that is a difficulty inherent in the subject matter dealt with in sub-sec. XXXV. of the Constitution. As was well said in Gibbons v. Ogden [32], at p. 239. "Wherever the powers of the respective Governments are frankly exercised, with a distinct view to the ends of such powers, they may act upon the same object, or use the same means, and yet the powers be kept perfectly distinct." "The sovereignty of Congress, though limited to specified objects, is plenary as to those objects" [33]. The Constitution allows of "all appropriate means which are conducive or adapted to the end to be accomplished, and which, in the judgment of Congress will most advantageously effect it": Legal Tender Cases; (Juillard v. Greenman) [34], at p. 440. "It would be incorrect," said Marshall C.J., "and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power": United States v. Fisher [35], at p. 396. For the purpose of gaining information with a view to the exercise of its admitted powers, the United States Congress enforces a census periodically, and obtains thereby information as to sex, age, production, &c., throughout both States and territories, yet the Constitution provides only for an enumeration of the people of the States. For the present purpose, all I need say is that, in my opinion, a provision is not unconstitutional which enables any industrial association of 100 members to write its name as it were in the books of the Court, so that the Court may find it and deal with it if there should be occasion. I have not now to consider the consequences of registration. It may possibly be that some of the sections of the Act prescribing consequences (secs. 57, 58, 67, 68, 69, &c.) may not be upheld, but the registration itself would not thereby be invalidated.

[52]

In this view of the mischief to be guarded against or remedied I am, after much consideration, unable to agree with the contention that the terms of sub-sec. XXXV. demand that every disputant, to become one of the parties to what the learned President has called a two-State dispute, must have a sphere of operations extending beyond a single State. That does not follow from the fact that the subject matter of the dispute permeates or may permeate the whole extent of such operations, of which the disputant occupies only a partial area. Surely disputants in different States may make common cause to defend a common interest when it is attacked or threatened, provided that mere sympathy is not confounded with material interest. I think the power granted is wide enough to enable the legislature to make a body like the respondent association registrable as, under circumstances which may arise, though not perhaps in all events, a competent participator in a dispute extending beyond State limits where its industrial interests are wholly or in part at stake. Whether by reason of its registration or otherwise it will be a competent party in any future dispute, in which it may claim participation, will depend on the nature of that dispute, and the question how far its interest in the subject matter is inherent. I think too that the Statute contains an exercise of the power of which, if it survives attack on other grounds, the respondent association is at liberty to take advantage to the extent of registration. In my judgment it is not essential, in order to arrive at a just settlement of disputes affecting, say, the whole of the coal miners or the colliery owners of the Commonwealth or of more States than one, that the whole of the interests on the one side or the other should be gathered together in one huge organization. What they may respectively consider expedient is one thing; the indispensable requirement of the law is another. I am of opinion that organizations in the States concerned in a dispute within sub-sec. XXXV., each of them consisting wholly of members belonging to one or the other of those States, may join together as claimants or be joined as respondents in respect at least of an existing dispute in which their interests coincide.

[54]

I take it as beyond doubt that the power in sub-sec. XXXV. even without that in sub-sec. XXXIX., is abundant to authorize legislation to constitute a Court of Arbitration and to provide for the proper representation of parties and the enforcement of its decisions. It is well to say here that I do not encumber this judgment with any avoidable references to the conciliation power and its exercise, because it is enough for the purposes of this appeal if a provision attacked is justified as an exercise of the arbitration power. It is here that resort may be had to sub-sec. XXXIX. in aid, if it be necessary, of sub-sec. XXXV., though I must not be taken to assert that the former power would not have been exercisable without express grant. Still it has been explicitly given, perhaps largely because a similar express grant of power was thought convenient by the framers of the American Constitution. In this connection we here may well apply as nearly as may be the words of the Supreme Court of the United States in Juilliard v. Greenman(one of the Legal Tender Cases) [40], at p. 439. "A Constitution ... is not to be interpreted with the strictness of a private contract. The Constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of these powers, or to specify all the means by which they may be carried into execution." In that Constitution the section which grants to Congress its principal powers of legislation concludes by giving that body authority "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department thereof." The judgment already quoted says that [41] "By the settled construction and the only reasonable interpretation of this clause, the words `necessary and proper' are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which in the judgment of Congress will most advantageously effect it." In the case of United States v. Fisher [42], Marshall C.J. said in delivering judgment : -- "In construing this clause it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorized which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution." In M'Culloch v. Maryland [43], at p. 421, the Court says through the same great Judge: -- "We admit, as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

[59]

The proper representation of the parties before the tribunal and the enforcement of its decisions being within the power, it was constitutional to provide by sec. 55 for such representation to be by means of the registration of such associations as there described, and their conversion thereby into "organizations" capable of being parties if they complied with the other valid conditions prescribed in Part V. But as a condition precedent to registration, sec. 55 (2) requires compliance, so long as they remain unaltered, with the requirements of Schedule B. That Schedule insists that the affairs of the applicant association shall be regulated by rules specifying the purposes of its formation and providing for, among other things, "(d) the mode in which industrial agreements and other instruments may be made by or on behalf of the association." The appellants urged that this requirement was beyond the powers of Parliament, and in fact challenged the whole of the provisions of the Act relating to industrial agreements. Sec. 73, which is at the head of that Part, provides that: "Any organization may make an industrial agreement with any other organization or with any person for the prevention and settlement of industrial disputes by conciliation and arbitration." The attack centres on this section. The remaining sections of this Part are ancillary to sec. 73. It is urged that agreements for the prevention and settlement of industrial disputes cannot be authorized by this section. But the agreements are to be for the prevention of such disputes by conciliation and arbitration, and I see no reason why parties should not be allowed thus to bind themselves to resort to the authorities provided by the Act, so that they may prevent disputes by the aid of the one authority, or settle them by the aid of either, or, if necessary, both. The disputes to be prevented or settled are "industrial disputes" -- that is (sec. 4) disputes in relation to industrial matters ... extending beyond the limits of any one State. So far I have no difficulty. But it is contended that "industrial matters" depend upon the meaning given by the Act to the term "industry," in the same section, and that this meaning is wider than the Constitution sanctions, so that "industrial disputes" acquire also too wide a meaning. It is true that this Court has decided that an "industrial dispute" as defined cannot include a dispute in relation to employment on State railways. But that portion of clause 4, preceded as it is by the word "including," is not essential to the definition, and though we have held that it is not in seseverable so as to distinguish between employment in intra-state and employment in inter-state traffic (see the Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employé_s Association_ [46]), still that segment as a whole is clearly separable from the rest of the definition section, even under the test exacted by the reasoning of MillerJ. in the Trade Mark Cases [47], at pp. 96, 98, 99, quoting United States v. Reese [48]. Without "making a new law," these objectionable words can as a complete part be dropped out so as not to be "included" in "industrial disputes," and so, if they were held to be unauthorized, could the subsequent references to industries carried on by or under the control of a State Government or a State authority. Hence it is not necessary, in order to bring the provision within bounds, to introduce words of limitation "into the Statute so as to make it specific when, as expressed, it is general only." In that respect, then, I think sec. 55 stands. If, however, Schedule B (d) referred to industrial agreements generally, it might in a certain view affect fatally the whole of the registration provisions. But by definition an "industrial agreement" means such an agreement "made pursuant to this Act," which, as to essentials, means pursuant to sec. 73. Moreover, assuming that I have taken too liberal a view of sec. 73 as to the meaning of "industrial dispute" as there used, it does not follow that Schedule B (d) is fatal. It is true that it may in that case be looked at as providing for agreements as to matters outside the powers of the Parliament. But the other construction is equally open that this is a limitation by Parliament of the privilege of registration to associations whose members have agreed by rule to give them leave to deal with matters similar to, if not connected with, the matter authorized, though not quite within their scope. Such a limitation or restriction the Parliament could impose, as it would amount to a grant of a privilege less extensive than it might have validly accorded. In that view Schedule B (d) is constitutional and, as between two constructions, equally open and equally within reason, it is our duty to accept that one which makes for the validity of the enactment. Before we construe an enactment as transcending the powers of Parliament, it should appear that such a construction is the only reasonable one. The legislature are to be considered as conferring nothing but what they had a reasonable right to grant. "A doubt of the constitutional validity of a Statute is never sufficient to warrant its being set aside:" Cooley, Principles of Constitutional Law, 3rd ed., p. 171, quoted by Thayer, 1 Const. Cases, 174.

[60]

A very strong assault was made on the provisions of sec. 58, and I must admit that I was during the argument much disposed to admit its success. That section gives to every registered organization for the purposes of the Act perpetual succession and a common seal, and power "to purchase take on lease hold sell lease mortgage exchange and otherwise own possess and deal with any real or personal property." It was truly urged that the grant of these powers and privileges amounted to the exercise by Parliament of power to create corporations and regulate the holding and use of property, and that such a grant was beyond the competence of Parliament. And it does seem difficult to find in the Act any very substantial purposes to which these grants can be applied. If the enactment is invalid, say the appellants, it brings down with it the whole fabric of registration, for every association otherwise capable of engaging in a dispute will be created as soon as registered a corporation in breach of the Constitution. The section was defended on the ground that the powers and privileges conferred were incidental or ancillary to legislation for the main and authorized ends of the Statute, and that they would have been "necessary and proper" provisions in relation to a similar power if existing in the United States Constitution. Hence, it was argued, they were "incidental" provisions within the meaning of sec. 51, sub-sec. XXXIX. Having regard to the reasoning I have cited and endeavoured to apply, I am of opinion, though not with great confidence, that this is the correct view. The power to use a common seal and to hold land (to summarize the section) is helpful in some measure to the efficiency of the bodies, representing employers as appropriately as employés. It is of some consequence that their collection of fees and fines and any lands they may acquire should be held in some way conveniently to be reached and dealt with by the Court. The degree to which this is a necessity and the question whether the instrument is wisely selected are, as I have shown, political questions. If in our judgment the enactments of sec. 58 are means to a constitutional end, if they exist in respect of a matter or matters incidental to the execution of a constitutional power, then the degree of their mere suitability, if they are applicable at all, and the wisdom of their selection, if other methods could have been adopted, are matters beyond our jurisdiction and therefore immune from our criticism. We must assume also that Parliament has acted from a deep sense of responsibility and in full consciousness of the limits of its powers, and of its sacred obligations to the Constitution which they whom it has called into legislative existence would surely be the last two violate.

[90]

XXXIX. of sec. 51 expressly authorised the making of laws with respect to: "matters incidental to the execution of any power" vested by the Constitution in the Parliament. In this they follow, though in different language, the Constitution of the United States, which empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." In considering whether the legislation challenged is incidental to the execution of the power conferred by sub-sec. XXXV. it must be conceded that it is for the Parliament to determine by what means and in what method the exercise of the power shall be made effective, and it is for the Court to decide whether the means and the method are "incidental to the execution of any power" within the meaning of the Constitution. This raises the exceedingly important question how is the word "incidental" to be interpreted, and at what point and on what principle will the Court interfere with the discretion of the legislature? The same question arose very early in the history of the American Constitution in reference to the corresponding provision to which I have already referred, and which is in substance and meaning identical with that now under consideration. The principles laid down in M'Culloch v. Maryland [51], at p. 421 by Chief Justice Marshall in 1819 have ever since been followed by the American Courts. "We admit," he says, "as all must admit, that the powers of the government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."

[92]

That reasoning is unanswerable, and is as applicable to the Australian as to the American Constitution. It furnishes, as it seems to me, a reasonable test to be applied in the determination of the matter now under consideration. Is the end aimed at by the legislature within its powers? Are the means which it has devised appropriate and plainly adapted to that end? If the answer to both these questions is in the affirmative, the Court cannot interfere. If the answer to either of them is in the negative, the legislation challenged cannot stand. The end aimed at by the Act in question here is the prevention and settlement of industrial disputes extending beyond any one State by conciliation and arbitration. It may well be conceded that there is no general power to prevent and settle industrial disputes by any means the legislature may think fit to adopt. The power is restricted to prevention and settlement by conciliation and arbitration. Any attempt to effectively prevent and settle industrial disputes by either of these means would be idle if individual workmen and employés only could be dealt with. The application of the "principle of collective bargaining," not long in use at the time of the passing of the Constitution, is essential to bind the body of workers in a trade and to ensure anything like permanence in the settlement. Some system was therefore essential by which the powers of the Act could be made to operate on representatives of workmen, and on bodies of workmen, instead of on individuals only. But if such representatives were merely chosen for the occasion without any permanent status before the Court, it is difficult to see how the permanency of any settlement of a dispute could be assured. Even when the dispute is at the stage when it may be prevented or settled by conciliation, the representative body must have the right to bind and the power to persuade not only the individuals with whom the dispute has arisen, but the ever changing body of workmen that constitute the trade.

[136]

The Constitution and the Act alike look to a dispute that dislocates or may dislocate a particular industry -- the extent of dislocation being immaterial; but the governing idea is primarily the preservation of peace in the industry generally, and its uninterrupted progress, and not the settlement of individual quarrels as such. If, say in New South Wales, there is a simultaneous general demand by employés in a particular industry for certain wages, hours and conditions, and a refusal by the employers to grant it, there is "an industrial dispute" in New South Wales; and it would be a complete misunderstanding of terms, thoroughly well known and understood at the time the Constitution was framed, in Parliament and out of it, to call this general trouble affecting the industry as a whole so many separate industrial disputes. If the men struck, or the employers locked them out, it would be said there was "a strike," -- or "a lock out," and not so many separate strikes or lock-outs. There would then be in that State an industrial dispute, apart from any organization on either side. So, if the industry were carried on in Victoria as well as New South Wales, there could be similarly "an industrial dispute" -- without any organization. The current acceptation of the term "dispute" in this connection is evidenced by innumerable references -- among which it is sufficient to instance the Fifth and final Report of the Royal Commission on Labour (_House of Commons Parliamentary Papers_1894, vol. 35, e.g., at pp. 144 and 145); Webb's History of Trade Unionism (1894, pp. 210, 329, 390); The Trade Disputes Conciliation and Arbitration Act 1892 (N.S.W.); The Conciliation Act 1894 (S.A.); The Conciliation Act 1896 (England); and The Industrial Conciliation and Arbitration Act 1900 (W.A.); the last mentioned being after the framing of the Constitution, but so close to it as to be good evidence of the pre-existing meaning of the terms employéd. See also Murray's Dictionary, "Dispute," col. 498, No. 2. If then, for instance, the industrial demands were made and refused simultaneously in the two States, can anyone doubt that the mutual antagonism existing between employers and employéd, the demands on the one side of the industry in the two States, and the refusal on the other, would constitute what was and is ordinarily known as "a dispute" in that industry, or, in other words, "an industrial dispute" actually extending beyond the limits of one State and within the jurisdiction of the Commonwealth Court. Organization is immaterial. The public in the two States are as much inconvenienced, and persons, indirectly dependent upon the uninterrupted course of the industry immediately concerned, are as greatly prejudiced by a strike or lock out where there is no organization of employers and employés as where the most elaborate system of organization prevails. To introduce by implication into the Constitution a condition that, apart from perhaps inter-state navigation, and a few comparatively rare and insignificant exceptions such as a station-holder in two States and employing the same men in both, or a merchant in two States and employing the same commercial travellers in both, there must be organization of disputants on both sides, would practically reduce the admitted Commonwealth power to a nullity.

[138]

Besides, an organization is not an employé, nor is it a party to an agreement of employment. The contracting parties to such agreement are the individual employers and employés; and, though collective bargaining may take place, that is only true in the larger sense -- the same large sense in which a collective dispute takes place. The strict and narrow sense would confine bargain and dispute alike to individuals; the broader extends both. Organizations of employers may agree with organizations of employés that they will pay certain wages to any person employéd, and that employés will work a certain number of hours, but that is not the contract of employment. If in breach of that arrangement an employer employs a man on other terms, the employé can claim no more than he has individually agreed to take. And if the employé agrees to work and works longer hours, that is no breach of any contract of employment made by him. The dispute in the industry generally, which is an industrial dispute in the large economic sense, must be carefully distinguished from an individual dispute between a specific single employer and one of his employés. The latter may be an industrial dispute too but in a narrower sense, and not in the broad national sense which the Constitution intended. Compare sec. 24 of the New South Wales Act of 1892. However numerous may be the individual instances of the same, or substantially the same, point of difference, they together constitute one "industrial dispute" between the two classes of disputants. The result of these considerations is that, apart from any organization at all, and assuming the workers and employers were alike unassociated, each of them, though his own occupation were confined to one State, could conceivably be involved in an industrial dispute extending or capable of extending beyond the limits of one State. He might not be one of the parties to the dispute so extending because the parties might consist of two, namely, all the employés demanding and all the employers refusing the conditions. But he would be a component portion of one of the parties, and as there is nothing in the Constitution requiring only complete parties to be registered; there is no reason why a legislature having plenary power over the subject matter of such industrial disputes cannot permit him to be registered. And if one employé in one State may be registered, an association of ten, or ten thousand in that State may equally be registered.

At a glance

Court

Decision date

Before

Source

Judgment (197 paragraphs)

Jumbunna Coal Mine v Victorian Coal Miners' Association (No 2) [1908] HCA 95 (6 October 1908)

Parties

Legislation Cited (1)

Cases Cited (1)