oi lianis v Corman,

Held, by Latham C.J., Rich, McTiernan and Williams JJ. (Starke J. senting), that the Regulations are within the defence power of the 0 wealth Parliament; by Latham and McTiernan J. on the ground they are a measure for the organization and distribution of man power the control of industry; by Rich and Williams JJ. on the ground control of employment in industry is at present within the defence p

Australian Woollen Mills Ltd., a company incorporated in N South Wales, and other companies, some of which were incorpor in that State and others in other States of the Commonweal brought an action in the High Court against the Commonwe and the Minister of State for Labour and National Service. F the plaintiffs' statement of claim it appeared that each of the ple tiffs carried on business in some one or more of the industries describe in par. 15 of the statement of claim as set out hereunder. The ment of claim proceeded substantially as follows : -

ll. Each of the plaintiffs in the course of carrying on its business in the industry or industries ascribed to it in the preceding para- raphs of the statement of claim employs and intends to employ numbers of females.

2. The rates of pay and conditions of labour of the said females in each case governed by awards, orders or determinations of an trial authority or industrial authorities within the meaning of e National Security (Economic Organization) Regulations.

er the National Security Act 1939-1943 the National Security ale Minimum Rates) Regulations, which were published in the nonwealth Gazette on the same day.

4. On 28th July 1944 the Minister of State for Labour and itional Service purported to refer in pursuance of reg. 5 of the Security (Female Minimum Rates) Regulations to the

ition in respect of certain industries and occupations described "vital industries and occupations within a vital industry" and 'ified in a schedule to the reference the following questions : - "(a) The question as to whether under awards, orders, deter- minations and industrial agreements in force at the date of this reference the minimum rates of pay for females employed in those industries and occupations are unreason- ably low in comparison with the minimum rates of pay for females employed in other industries or parts thereof which are vitally necessary during the war; and (b) If so, the question as to whether it is in the national interest, and fair and just, to increase the minimum rates of pay so determined to be unreasonably low ; and (©) If.so, the question as to what minimum rate or rates of pay for females shall be paid in those industries and occupations, or what amount or amounts shall be paid in addition to the rates prescribed by the awards, orders, determinations or industrial agreements in force at the date of the deter- mination ; and (@ The question as to the period (not extending beyond six months after the termination of the present war) in respect of which the rate or rates or amount or amounts shall be paid." The industries and occupations specified in the schedule to he said reference were : - The woollen and worsted textile manufacturing industry.

eae AUSTRALIAN Wootten Murs Lrp. THe Common- WEALTH.

The cotton textile manufacturing industry. The knitting and hosiery manufacturing industry. The fruit and vegetable preserving, pickle and jam-making, fruit juices and cordials preparation industry. The meat preserving industry. The milk processing, butter, cheese and margarine making industry. : The egg processing and packing industry. The boot and shoe making industry. The aircraft manufacturing and assembling industry. The industries carried on in motor body, coach or carriage- building establishments. ; i i i \

The occupations of the domestic staffs of hospitals, asylums and institutions of a like nature.

16. By notice published in the Commonwealth Gazelle on 1th August 1944 the Industrial Registrar of the Commonwealth Court of Conciliation and Arbitration gave public notice of the said reference and required employers or organizations of employers or of employees - desiring to obtain leave to appear in pursuance of reg. 7 of the National Security (Female Minimum Rates) Regulations to file in the Registry of the said Court on or before 2nd September 1944 six copies of a submission in writing setting out certain particulars.

17. The said National Security (Female Minimum Rates) Regula- tions and the said reference to the said Court and the determination by the said Court of the questions aforesaid or any of them are not authorized by the National Security Act 1939-1943.

18. The National Security Act 1939-1943, if and so far as upon its true construction it authorizes the making of the said Regulations or any of them or the said reference or the determination by the said Court of the said questions or any of them, is not authorized by any power conferred by the Constitution of the Commonwealth.

(a) A declaration that the said National Security (Female Minimum Rates) Regulations and each of them and the said reference are beyond the powers conferred upon the Governor-General by the National Security Act 1939-1943 and are void and of no effect. :

(b) A declaration that the said Act to the extent, if at all, to which it purports to authorize the making of the said Regulations or of the said reference is beyond the powers of the Commonwealth Parliament and is void and of no~ effect and that the said Regulations and the said reference are void and of no effect accordingly.

(1) The National Security (Female Minimum Rates) Regulations are within the powers to make regulations conferred upon the Governor-General by the National Security Act 1939-

(2) The references mentioned in par. 14 of the statement of claim are authorized by the said National Security (Female Minimum Rates) Regulations and are valid and effective.

(3) The National Security Act 1939-1943, including such parts thereof as authorize the making of the Regulations above mentioned, is a valid and effective exercise of the legislative

The relevant regulations are set out in the judgments hereunder.

_ It was agreed that counsel for the plaintiffs should begin.

_ Pullagar K.C., Stanley Lewis and Tait, for the plaintiffs.

-Pullagar K.C. The Regulations in question are not within the defence power, and the Commonwealth has no other power that could support them. The Regulations present some difficulties of con- truction. The meaning of reg. 8 (c), in particular, is obscure. reover, it is not clear whether the words of reg. 5 are confined to ustries declared by the Governor-General within the definition of "vital industry " in reg. in reg. 5 (a) the phrase " vitally neces- sary" appears to be used independently of any declaration by the vernor-General; under reg. 5 (a) it seems that the Court (as efined in reg. 4) may for purposes of comparison consider whether

jes are "vitally necessary" even if they have not been wed by the Governor-General. However, any industry whatever her or not it has any connection with the war - may be ed a "vital industry" for the purposes of the Regulations, the purport of the Regulations is to bring about a general ation of wages in such industries. The mere general regulation of wages as such without reference to anything connected with the is not within the defence power. The Regulations are really of general social legislation directed to raising the wages of nen in pursuance of the idea of "equal pay for equal work." y are much more far-reaching than any Regulations which have usly been upheld under the defence power: they are rather of the kind held invalid in Victorian Chamber of Manufactures v. Commonwealth (Industrial Lighting Regulations) (1). The Female

Minimum Rates Regulations cannot be supported by any suppose analogy with the Regulations upheld in Victorian Chamber of Manu actures v. The Commonwealth (Women's Employment Regulatic (1). That was an entirely different type of case; the conn with defence which was there found cannot be found in the p Regulations. The Federal power over industry in war-time exte no doubt, to anything which can assist in the prosecution of the w or the defence of the Commonwealth ; but the mere regulation industrial conditions as such is not within the power. The question to be resolved in respect of any particular regulation is: " Where

the connection between this particular law and the defence of Commonwealth ?"' The necessary connection does not exist in present Regulations. [He referred to Pidoto v. Victoria (2) ;

vy. Sinderberry (3); Adelaide Company of Jehovah's Witnesses In v. The Commonwealth (4); R. v. University of Sydney; Bx parte Drummond (5).}

Tait. Reg. 3, purporting to state the objects of the FM Minimum Rates Regulations, is not connected up in any way ¥ the rest of the Regulations ; it is not repeated or reflected in other of the regulations. The language of the other regulati cannot, on any reasonable construction, be limited by reference reg. 3. For instance, the inquiry and determination of the questio under reg. 5 (a) whether certain rates of wages are "' unreasol low " are left quite at large. The Regulations supply no standard of "unreasonableness", nor do they link up the question at with the war effort. The use in reg. 5 (6) of the phrase "in national interest " is significant ; it shows that the power conferred on " the Court " (as defined in reg. 4) was not meant to be limit by reference to "national security " or defence at all. Legislation (by Parliament or its delegate) of such a kind, leaving a matter to be

determine is to be exercised only for purposes within the de power. There is no such indication in the present Regulations ; 0 the contrary, they are expressed to confer a much wider pov one which has no necessary relation to defence or national secu Of course, if the Court is prepared to decide that the defence pov gives the Commonwealth during war complete control of all indus

o that it may legislate in any way it thinks fit with regard to it, plaintifis must fail; but it would be difficult to reconcile such decision with previous decisions of the Court. [He referred to loto's Case (1).|

Barry K.C. (with him P. D. Phillips), for the defendants. The Female Minimum Rates Regulations in reality are concerned with the problem of the mobilization of female labour. The Regulations may be construed either (1) as being capable of application to any industry by order of the Governor-General ; or (2) as being capable f application only to war industries, industries which are necessary for the effective prosecution of the war. On either construction they are valid. They must be considered in the light of the present situation. (1) The Government has established a Food Control ation ; (2) production of food, textiles and the like to meet itments is now an urgent war task. Labour has to be directed industries which have always employed female labour and which ave developed a new importance and which must therefore be expanded. The Regulations are declared to have as their object e effective transfer of female labour. If an examination of their shows them capable conceivably of achieving that object, y are valid as the law mobilizing the residents of Australia for its ence (Reid v. Sinderberry (2) ). On the first construction, " vital lustry " is merely a designation which means " such industry as Governor-General orders." The purpose of the insertion of ital industry" is to supply a basis for the machinery of the

lations. The machinery is to require Cabinet consideration ore any industry can be made the subject of a reference by the iister. This is to enable all relevant Government Departments ough their respective Ministers to agree in Cabinet before any rder is made. A check is thus created so that the need for a stable

economy can be served. If the object be as declared, the ations are within power. They are concerned with the nobilization of labour for production purposes, and are complemen- tary to manpower control. They thus fall within the conception e sed in Reid v. Sinderberry (3); Pidoto's Case (4); Victoria 4 'Foster (5); Women's Employment Regulations Case (6). The

at p. 100. (5) (1944) 68 C.L.R. 485, per Latham CJ. at pp. 494, 495; per McTiernan J., at p. 499; per Williams J., at p. 502.

t) (1943) 68 C.LLR., per Latham C.J-, 'at pp. 102, 104; per Williams J. at pp. 127, 128.

effective transfer of labour is part of a flexible economy. The fe the obstacles to the transfer, the more flexible and therefore prod tive for war purposes the economy, and the more flexible the economy, the more adaptable it is. The transfer of labour involves (1) intro- duction of labour into the particular industry ; (2) causing labour to remain in the industry. The administrative problem is thus transfer plus industrial stability. The transfer may be achieved by persuasion, by compulsion, by threat of compulsion. _ It is legitimate for the Government to see that conditions under which persons are directed to labour are fair and just. The removal of wage disparities, if determined by the Court, will or may (1) facilitate transfer because it will assist to minimize compulsion to go into the industry; (2) lessen absenteeism, minimize industrial dissatisfaction and promote efficiency and therefore productivity in the industry. The Regula- tions are complementary to the scheme of wage pegging introduced by the Economic Organization Regulations because they permit of careful adjustments to obviate or remove causes of dissatisfaction that may lead to industrial unrest. The Regulations have the object declared in reg. 3: See regs. 5, 8 (b) and (c). " Fair and just" relates to individuals; " national interest" to economic stability. - On the second construction, " for war purposes " must be supplied as part of the definition of vital industry. The definition is incomplete, because " vitally necessary" must relate to some purpose. There is a presumption in favour of validity, and the Governor-General's power to order must be presumed not to exceed the defence power. The Regulations must be construed as a whole, and the purpose to which the phrase " vitally necessary " relates must be found in the purpose recited in the objects clause, reg. 3. Regulations relating to the effective transfer of labour are within power as they relate to war industries. If the Governor-General were to declare an industry vitally necessary when in fact it was not, the declaration would be bad and outside the defence power and could be challenged by appropriate proceedings (Reid v. Sinderberry (1) ).

Gowans, for certain trade unions and the members thereof (intervening by leave granted on the condition that the interveners bear their own costs in any event), adopted the argument submitted on behalf of the defendants and added : - The expression " vitally _ necessary " must be construed by reference to the objects stated in reg. 3; it relates to the maintenance of supplies and services essential to the life of the community. Whether an industry is " vitally

necessary " in that sense is a matter which the Court may examine ' (1) (1944) 68 C.L.R., per Rich J., at p. 514; per Starke J., at p. 516.

notwithstanding a declaration by the Governor-General. Although the Regulations do not in so many words confer on the Governor- General a power to declare a " vital industry", such a power must e inferred from the definition of " vital industry" in reg. 4, and it is open to the Court to determine whether a declaration is a valid exercise of the power. The power under reg. 5 to "inquire and etermine" is limited to vital industries validly declared by the Governor in Council, and the comparison in reg. 5 (a) is between h a declared industry and other industries which, whether declared or not, are in fact bound to be " vitally necessary during the war."

Pullagar K.C., in reply. The definition of " vital industry" does not in any relevant legal sense confer a power, and a declaration of an industry could not be challenged as could a purported exercise of a power. As to the narrower construction of the Regulations sted on behalf of the defendants, the determination to be made reg. 5 is not, even on that construction, a determination with nce to war-time necessities or conditions, but is a matter of general social policy.

The following written judgments were delivered : - Latuam C.J. Demurrer to a statement of claim in which the plaintifis challenge the validity of the National Security (Female Minimum Rates) Regulations, Statutory Rules 1944 No. 108, made under the National Security Act 1939-1943. Reg. 3 is as follows : - 'The objects of these Regulations are, for the purposes of the defence of the Commonwealth and the more effectual prosecution of the war, to facilitate the effective transfer of females from the work in which they are ordinarily engaged to work which may, from time to _ time, be more necessary during the war, by reducing disparities in the minimum rates of pay for females under existing awards, orders, _ determinations or industrial agreements." 'There is no express pro- vision (as in the case of other Regulations - e.g., those considered in Rv. University of Sydney; Ex parte Drummond (1)), that the Regulations shall be "administered and construed accordingly." But even if there were such a provision it would not be decisive when the question of the constitutional validity of the Regulations ose for decision: Cf. South Australia vy. The Commonwealth (Uniform Tax Case) (2).

Reg. 4 defines "vital industry" as meaning "any industry which is declared by the Governor-General, by order, to be vitally

(1) (1943) 67 CLR. 95, (2) (1942) 65 CLLR. 373, at p. 432.

necessary." I agree with the contention on behalf of the plaint that under this provision the Governor-General may declare a industry at all to be vitally necessary. Where any action ta under the Regulations depends upon the existence and validity

vince of a court to consider and determine whether the phr "vitally necessary" should be construed as meaning essential the life or welfare of the community as a whole or as mean essential in relation to some war purpose or object - or whether t

An order of the Governor-General could make any industry a industry for all the purposes of the Regulations. Reg. 5 is in the following terms : -

a vital industry or occupation within a vital industry, refer to t]

(a) the question as to whether under awards, orders, determin

tions and industrial agreements in force at the date of

reference the minimum rates of pay for females employ'

in the industry, part or occupation are unreasonably lo

in comparison with the minimum rates of pay for female

employed in other industries or parts thereof which a

(b) if so, the question as to whether it is in the national intere'

and fair and just, to increase the minimum rates of pay

(c) if so, the question as to what minimum rate or rates of pay

for females shall be paid in the industry, part or occupation,

or what amount or amounts shall be paid in addition to

the rates prescribed by the awards, orders, determinations

or industrial agreements in force at the date of the deter-

(d) the question as to the period (not extending beyond six

months after the termination of the present war) in respect

of which the rate or rates or amount or amounts shall be

Reg. 6 provides that the Court shall, wpon receipt i a reference

from the Minister, proceed to inquire into and determine the ques- tions specified in the reference and that for that purpose the

shall have the powers of the Court of Conciliation and Arbitrat Reg. 7 provides that interested parties may be allowed to appea

National Security (Economic Organization) Regulations - the lations which provide for the " pegging " of wages. Reg. 8 (b) provides that, in making its inquiry and determination on a reference, e Court "shall not have regard to any submission that it is ssary to offer a differential monetary inducement or attraction to promote the recruitment of female labour for vital industries."

_ Reg. 9 provides that rates of pay fixed by a determination shall be paid by the employers in accordance with the determination s the minimum rates in respect of females employed by them in he relevant industry. The proviso to this regulation prevents the duction of any wages by a determination made under the Regula- ns.

Under these provisions the Governor-General may declare any industry to be a vital industry, and the Minister may then refer to

females employed in the industry are unreasonably low in comparison with the minimum rates of pay for females employed in industries ich are vitally necessary during the war. The reference in this

ence to industries which are in fact vitally necessary during e war, as distinct from industries which become " vital industries " y reason of a declaration by the Governor-General that they are itally necessary. In considering the questions referred the Court is required to determine whether it is in the national interest or fair and just that the minimum rates should be increased. It was urged in ment that this reference to the national interest and to fairness nd justice shows that the Regulations are concerned with the general ibjects of national interest and fairness and justice, and that they therefore assume that the Commonwealth Parliament has a general ower to legislate with respect to all matters of national interest or of fairness and justice. This, however, is not a true interpretation of the provision. The provision means only that these matters are

ides that in the hearing and determination of every industrial ite, and in exercising any duties or powers under or by virtue the Act, the Court shall act according to equity, good conscience, and the substantial merits of the case. This provision does not mean that the Commonwealth Parliament has assumed a right to ite on the requirements of equity and good conscience generally. direction to the Court which is contained in the regulation now under consideration is of the same character,

AUSTRALIAN WOooLLEN Mitts Lrp. v THE Common- WEALTH.

In the argument on behalf of the plaintiffs much attention devoted to reg. 8 (b), which excludes any consideration by Court of what has been called an attraction wage for the purpose promoting the recruitment of female labour for vital industries. Ii was contended that this provision, prohibiting the Court from doing anything to attract female labour into vital industries, shows that the Regulations are not directed towards providing female labour: for such industries, and that therefore the Regulations cannot be regarded as concerned with any object associated with defence, even if the phrase " vital industry" is construed as meaning vital in relation to defence purposes. It was urged that this provision excludes from the consideration of the Court a matter which might possibly have supported the Regulations under the defence power. -

The provision in question does show that it is not the object of the Regulations to attract female labour into any particular indus- tries. Reg. 3 declares that it is the object of the Regulations to facilitate the effective transfer of females from the work in which they are ordinarily engaged to work which may, from time to time, be more necessary during the war, by reducing disparities in minimum rates of pay for females under existing awards, &e. This provision states in express terms what might have been inferred from the Regulations as a whole, and particularly from reg. 8 (b). The object of the Regulations is not to increase the number of females employed in vital industries, but to facilitate effective transfers of females between industries from time to time as changes in industrial requirements (necessarily largely determined by the war) may be thought to render it wise to redistribute female labour power. In order to achieve this object reg. 5 enables the Minister to refer to the Court the question whether rates of wages in declared industries (which may be competing for a limited available amount of female _ labour) are unreasonably low.

Under the National Security (Man Power) Regulations, Statutory - Rules 1942 No. 34 as amended, there is power to direct any person - resident in Australia to engage in any employment under the direction and control of any employer specified in the direction, or to perform any work or services specified in the direction. The practical working of those Regulations will, so far as female labour is concerned, be facilitated by removing disparities in rates - of pay in the various industries in which female labour is employed. Redistributions of such labour thought to be wise will be facilitated by the absence of such disparities, whether the powers of compulsion - conferred by the Man Power Regulations are actually utilized, or whether they are only held in reserve, reliance being placed upon - inducement or persuasion rather than upon compulsion.

In my opinion the scheme set up by the Regulations in question ' provides a method of utilizing to the maximum 1 the female labour of e country under conditions determined by the Arbitration Court to be reasonable in the national interest and fair and just. It has already been held in Reid v. Sinderberry (1) that the Man Power Regulations are within the defence power of the Commonwealth. 'It was so held upon the ground that in time of war the organization the working power of the community was a subject directly con- nected with the defence of the Commonwealth. Upon this ground, in my opinion, the Regulations now challenged should be held to be valid.

It has, however, been argued that past decisions of the Court _ prevent the Court from now holding that these regulations, assuming, _ as in my opinion they do, a power to fix rates of wages for female labour in any industry whatever, are valid. Several decisions have been given by the Court with reference to the defence power in relation to industry. Each decision was given with respect to some particular regulations and it was not necessary in any of the cases _ to decide whether the Commonwealth Parliament had in time of "war a general power to control wages in industrial employment. _ (In referring to these cases I do not examine those relating to _ employees of the States engaged in governmental services, as distinct from industrial employment. In such cases there are special cireum- stances which distinguish them from cases of ordinary industrial _ employment.)

In Victorian Chamber of Manufactures vy. The Commonwealth (Women's Employment Regulations) (2), the Court upheld the validity _ of the Women's Employment Act, which gave large powers of regulat- ing the employment of women who were engaged in work which had theretofore or usually been performed by males. In that case the Court was dealing with a particular problem arising from the substitution of women for men in industry, and it was held that this particular matter was sufficiently connected with considerations of defence to justify the regulations under the defence power. In Pidoto v. Victoria (3), the regulations which were under considera- tion dealt with industrial disputes and industrial unrest in war- time, and it was held that the Commonwealth Parliament had power

• to legislate with respect to such matters, notwithstanding the limita- tion of the power conferred by s. 51 (xxxv.) of the Constitution to -inter-State industrial disputes. This case did not formally decide that the Commonwealth Parliament in time of war had a general

(1) (1944) 68 CLLR. 504. (2) (1943) 67 CLR. 347, (3) (1943) 68 CLLR. 87.

H.C. or A. power of dealing with all industrial matters, but the reasons for

judgment show that the continuity of industrial production in time of war was regarded as a matter which had a direct connection with defence. The actual decision, however, related only to industrial disputes and industrial unrest. In Reid v. Sinderberry (1) the Court upheld the validity of the Man Power Regulations for reasons which, as I have already said, I regard as applying to this case. The basis of that decision was that the organization of the resources, including the man power, of the community, was a function which the Govern- ment of the Commonwealth could validly exercise in time of war. The organization and effective utilization of man power under modern conditions must include provision for securing the payment - of fair wages to all the classes of labour concerned.

The plaintiffs relied strongly upon Victorian Chamber of Manufac- - tures v. The Commonwealth (Industrial Lighting Regulations) (2). In - that case it was declared that the fact that legislation might promote the general welfare of the community was not in itself sufficient to bring the legislation within the defence power: See also Victoria y. - The Commonwealth (Public Service Case) (3). It has been stated - more than once with reference to the Industrial Lighting Case (2) that the interpretation of the defence power sometimes raises questions of degree: See, for example, R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (4); Reid vy. - Sinderberry (5). In the Industrial Lighting Case (2) the subject matter of the Regulations was considered by the Court to be remote from considerations of defence. But, for reasons which I have stated, the rates of wages payable in industry have in my opinion not only a real, but a particularly close and important, connection - with defence.

I find it difficult even to think of a modern State conducting a large-scale war without the power of controlling the industry of the country. In the organization of the working capacity of the people - and the provision of conditions which will make that working capacity - available with a minimum of friction and of economic and industrial disturbance the Commonwealth Parliament is, in my opinion, exercising a power in relation to a subject which is most directly connected with defence.

In my opinion the demurrer should be allowed. As this decision determines the whole case, there should be judgment in the action for the defendants.

(1) (1944) 68 C.L.R. 504, (4) (1944) 68 C.L.R, 485, at p. 492. (2) (1943) 67 C.LR. 413. (5) (1944) 68 C.L.R. 504, at p. 514.

'Rich J. The question raised by this demyrrer whether the al Security (Female Minimum Rates) Regulations are a valid 'ise by the Executive of the power delegated to it by the al Security Act 1939-1943 to exercise the defence power erred by s. 51 (vi.) of the Constitution upon the Commonwealth ament can, I think, be briefly answered. In my opinion these tions have some bearing on the distribution of female labour industry, in that they tend to remove disparities in the rates of pay for females working under various orders, awards, determina- and industrial agreements and as a consequence they facilitate e transfer of female labour from industries at present necessary to the war effort to industries which are becoming more neces the war proceeds. Although it is a matter of degree upon which ons may differ, Regulations such as those under consideration e have, in my opinion, some nexus between their subject matter the defence power of the Commonwealth, and these Regulations, ore, should be regarded as a valid exercise of the power con- d upon the Executive by the Act in question.

e demurrer should be allowed and judgment entered for the

ity of the National Security (Female Minimum Rates) Regulations d a reference made by the Minister of State for Labour pursuant eto and also the Act itself in so far as it purports to authorize the 'tions and reference. And the defendants have demurred to e statement of claim. e substantial question is whether the constitutional power of e Parliament of the Commonwealth to make laws with respect to naval and military defence of the Commonwealth and the several tates authorizes the Regulations. We live in perilous times, and creates many problems, political, financial, economic, industrial so forth, and this Court has supported much remarkable legis- ition and regulation under this power. Thus we have the National ity Act authorizing the Governor-General to make regulations securing the public safety and defence of the Commonwealth

ord and tenant and of rents (Silk Bros. Pty. Ltd. v. State Elec- Commission of Victoria (4) ), the marketing of commodities

(Andrews v. Howell (1) ), the settlement of industrial, includin;

mining, disputes (Australian Coal and Shale Employees Federation Aberfield Coal Mining Co. Ltd. (2); Pidoto v. Victoria (3)), th employment of women in industry (Victorian Chamber of Manufa tures v. The Commonwealth (Women's Employment Regulations) (4) and, most remarkable of all, legislation for the establishment of uniform system of taxation in relation to income tax and the taki over from the States their administrative departments of income t (South Australia v. The Commonwealth (5) ). The application of the decisions must raise difficult questions when it becomes clear that circumstances which called them forth have passed and there is no justification for the continued exercise of so exceptional an in ence on the part of the Commonwealth with matters normally wi the constitutional powers of the States: Cf. Fort Frances Pulp

yet arrived. The decisions of this Court, however, are so far- that the Commonwealth now claims almost plenary authority the defence power ; in any case, that in time of war the constituti power of the Commonwealth with respect to defence extends to regulation of wages of employees and conditions of employment all industries whatever. The argument is based upon such generaliti as that the regulations deal with problems which have arisen fi the war; or that the regulations are sufficiently connected defence and the war because they provide methods of dealing witl industrial matters that may lead to industrial unrest or that regulations conceivably, even if incidentally, aid the effectuation of the defence power. No doubt passages may be cited from the case to this effect, but the defence power is not without any limits what ever (Victoria v. The Commonwealth (7)). And, extensive as is th defence power, it does not, as I said in the Women's Employment Case (8), enable the Commonwealth " to seize control of the whol social, industrial and economic conditions of Australia and legi for them as it thinks proper." Consequently, the particular lation or regulation must be examined in the light of any relev: surrounding facts, the true nature and character of the legisla and its operation and legal effect considered. The legislation or regulation must have some real connection with defence, afford som reasonable and substantial basis for the conclusion that the law one with respect to defence. But I have stated the authorities (6) (1923) A.C. 695, at p. 706. (7) (1942) 66 C.L.R. 488, at pp. 5M,

propositions on other occasions (Victoria v. The Commonwealth I); Victorian Chamber of Manufactures v. The Commonwealth strial Lighting Regulations) (2); Reid v. Sinderberry (3) ). And from this point of view that I examine the present Regulations. are called Female Minimum Rates Regulations, and their objects stated in clause 3 (though this is not conclusive (South Australia v.

Commonwealth (4); R. vy. University of Sydney; Ex parte u (5))) are for the purposes of the defence of the Common- Ith and the more effectual prosecution of the war, to facilitate effective transfer of females from work in which they are ordinarily ed to work which may be more necessary during the war, by educing disparities in the minimum rates of pay for females under

ng awards, orders, determinations and industrial agreements.

"Clause 5 of the Regulations raises the real question in this case.

l or a part of that industry or an occupation within that industry er to the Commonwealth Court of Conciliation and Arbitration

(a) The question as to whether under awards, orders, deter- ; minations and industrial agreements in farce at the date of the reference the minimum rates of pay for females employed in the industry, part or occupation are unreason- ably low in comparison with the minimum rates of pay for females employed in other industries or parts thereof . which are vitally necessary during the war; and __(b) if so, the question as to whether it is in the national interest, h and fair and just, to increase the minimum rates of pay so c determined to be unreasonably low ; and _ (¢) if so, the question as to what minimum rate or rates of pay be for females shall be paid in the industry, part or occupation, or what amount or amounts shall be paid in addition to the rates prescribed by the awards, orders, determinations or industrial agreements in force at the date of the deter- mination ; and (d) the question as to the period (not extending beyond six months after the termination of the present war) in respect of which the rate or rates or amount or amounts shall be paid. use 4 provides: A "vital industry" under the Regulations neans any industry which is declared by the Governor-General -. . to be vitally necessary", but the regulation does not in (1) (1942) 66 C.L.R., at pp. 513,514. (4) (1942) 65 C.L.R. 373, at p.

(2) (1943) 67 C.L.R. 413, at p. 421. (5) (1943) 67 C.L.R. 95, at p. (3) (1944) 68 C.L.R., at p. 515.

terms state for what purpose the industry is vitally necessary ; a reasonable implication from the character and other provisions the Regulations is that the industry is vitally necessary for the poses of defence and the more effectual prosecution of the Standing alone, clause 4 is innocuous. But it is not the declarat so much as the powers dependent upon the declaration that req consideration. The declaration itself is an act essentially of st manship, which courts of law cannot or at least are loath to consider Cf. Fort Frances Pulp & Power Co. Ltd. v. Manitoba Free Press Ltd. (1). ; Still it is for the courts of law to determine whether the pow

notwithstanding a declaration by the Governor-General that

are "vitally necessary" for the defence of the Commonw

the Commonwealth to assume control in time of war over all ind whatever in Australia. It may of course pay its own empl such wages and prescribe for their benefit such conditions of emplo ment as have constitutional sanction, but it cannot regulate the of wages and the conditions of employment generally merely b

of the existence of a state of war. Accordingly, in my opin a regulation authorizing the control of Australian industry gen or the regulation of wages, conditions of employment and so f in industry generally transcends the Constitution notwithsta a declaration by the Governor-General that all industries are viti

the grant of powers contained in the Regulations (Victorian Ci of Manufactures v. The Commonwealth (Prices Regulations) But it is the function of the courts of law to determine whether tho powers do or do not transcend the Constitution. In this ¢ neither the Governor-General's declaration nor the Minister's refe ence covers all industries whatever in Australia, but they are confin to certain specified industries or occupations within an indust Still they are very extensive : The woollen and worsted textile manufacturing industry. The cotton textile manufacturing industry. The knitting and hosiery manufacturing industry. The fruit and vegetable preserving, pickle and jam- fruit juices and cordials preparation industry. The meat preserving industry. The milk processing, butter, cheese and margarine maki industry. a (1) (1923) A.C 695, at p. 706. (2) (1943) 67 C.L.R. 335, at p. a

_ The egg processing and packing industry. : The boot and shoe making industry. _ The aircraft manufacturing and assembling industry. The industries carried on in motor body, coach or carriage- building establishments. _ The occupations of the domestic staffs of hospitals, asylums and 7 institutions of a like nature. _ The munitions manufacturing industry. 'Some question may arise whether the occupations of the domestic s of hospitals, asylums and institutions of a like nature are tions within an industry, but, if not, the whole declaration teference would not thereby be avoided, though it would not e that which is not an occupation within an industry such an tion. rence to the Women's Employment Regulations, the Economic mization Regulations and the Man Power Regulations (which I ce to be relevant surrounding facts) is desirable before considering e Regulations now attacked. By the Women's Employment ions it was provided that the rate of payment to be made to adult female in certain categories should not be less than 60 rcent nor more than 100 per cent of the rate of payment made to males employed on work of a substantially similar character, by the Economic Organization Regulations industrial authorities precluded from altering in respect of any employment the rate emuneration applicable to that employment on 10th February and by the Man Power Regulations any person resident in alia might be directed to engage in any employment specified direction. The provision in the Women's Employment Regula- led to a considerable increase in the wages of women within he categories covered by those Regulations, and naturally women

by industrial agreements which provided lower rates of pay ht or desired the higher rates. And the Economic Organization , Which pegged wages, prevented as a general rule any in wages. An object of the Regulations is to facilitate the fective transfer of females engaged in work during war by reducing ities in the minimum rates of females under existing awards, determinations or industrial agreements. All these awards, and determinations, it should be understood, have the sanction ederal or State legislation, and industrial agreements are probably he same position. A real disparity, however, was created by the ommonwealth itself by the Women's Employment Regulations. disparities or no disparities, the Man Power Regulations con- ed authority to transfer females from one employment to another

if so directed by the proper authority. But the Female Minimu Rates Regulations provide that the Arbitration Court should not bound by the provisions of the Economic Organization Regula and give it practically a free hand in fixing the rates of pay in i tries covered by the Regulations, subject only to this, that the should not have regard to any submission that it is necessary | offer a differential monetary inducement or attraction to promo the recruitment of female labour for vital industries and that it sh not express its determination so as to increase the rate of remun tion of any female employment for which the basic rate, to; with any margin or other allowance, immediately prior to the dat of its determination, is equal to or exceeds the total amount pay as the minimum rate under the Court's determination. Minimu rates of remuneration under awards, orders and determination may observe, tend in Australia to become the normal and maximum rates of remuneration. But from all this it appears the Female Minimum Rates Regulations operate to reduce disparitit in industries which in fact "are vitally necessary during the war and those which are not vitally necessary but are simply dec by the Governor-General to be vitally necessary ; further that att tion wages for " vital industries" are forbidden; that the p of the Regulations is not to increase the rates of pay for the p of attracting females to industries declared to be " vital " whe' those industries were in fact vitally necessary during war or but because those wages are unreasonably low, although all rates had been fixed pursuant to Federal or State laws ; still, that disparities had been created in the minimum rates of for females not owing to war conditions but by reason of the ex by the Commonwealth of the defence power and its pegging ri tions ; and finally that the industries covered by the declaration reference are with two exceptions industries in which females been employed long before the war at rates fixed under Federal State laws or industrial agreements operating under those la though no doubt those industries are now largely engaged in wal work.

The result of this examination satisfies me that the Fe Minimum Rates Regulations do not fall within the category of with respect to naval or military defence, but within the cat of laws for the improvement and betterment of the social industrial conditions of females engaged in certain specified i tries, which is a subject matter within the constitutional power the States.

McTiernan J. In my opinion the demurrer should be allowed. have read the reasons for judgment of his Honour the Chief tice and agree entirely with them. In my opinion the case uld not be decided in the plaintiffs' favour without deserting the soning upon which the Women's Employment Case (1), Pidoto v. toria (2), and Reid v. Sinderberry (3) were decided.

Wru1ams J. This demurrer raises the question whether the al Security (Female Minimum Rates) Regulations are a valid ercise by the Executive of the power delegated to it by the National urity Act 1939-1943 to exercise the defence power conferred upon Commonwealth Parliament by s. 51 (vi.) of the Constitution. Reg. 4 defines " vital industry" to mean any industry which is by the Governor-General to be vitally necessary. The al Security Act is entituled an Act to make provision for the and defence of the Commonwealth and its Territories during y war in which His Majesty is or may be engaged; s. 19 of that provides that the Act shall continue in operation until a date o be fixed by proclamation, and no longer, but in any event not ger than six months after His Majesty ceases to be engaged in Reg. 3 states that: "The objects of these Regulations are, or the purposes of the defence of the Commonwealth and the more al prosecution of the war, to facilitate the effective transfer females from the work in which they are ordinarily engaged to which may, from time to time, be more necessary during the , by reducing disparities in the minimum rates of pay for females existing awards, orders, determinations or industrial agree- nts". 'The Court was therefore invited by counsel for the Commonwealth, [ it was necessary to do so in order to uphold the validity of the ations, to construe the words " vitally necessary" in this to mean vitally necessary for the defence of the Common- alth and the more effectual prosecution of the war. But I am ble to place this restricted meaning on the words. They were ntended, I think, to confer upon the Governor-General, that is, pon the Federal Executive Council, power to declare any industry to be a vitally necessary industry and not to leave the question whether any particular industry was in fact a vitally necessary stry for these purposes open to review by the court. But I think it is apparent from reg. 3 that the Regulations only intend that any industry which is or becomes necessary for these purposes

(1) (1943) 67 C.L.R. 347. (2) (1944) 68 C.L.R. 87. (3) (1944) 68 C.L.R, 504.

should be declared to be a vital industry so that a declaration declared an industry to be vital which had no connection with th purposes would not be a bona fide exercise of the power. A

In view of the objects stated in reg. 3, counsel for the Commo wealth contended that the Regulations were intended to assist effective administration of the Man Power Regulations which held to be valid by this Court in Reid v. Sinderberry (1). The in deciding upon the constitutional validity of legislation, and p ticularly of legislation under the defence power during the war, ambit of which from time to time depends so greatly upon the e¢ ditions which exist from time to time, is entitled to take into con sideration relevant facts that are common knowledge. The chal lenged Regulations were gazetted on 19th July 1944, and at time it was common knowledge, as counsel said, that Australia y becoming more and more a base of supply for the armed forces. the allies engaged in the war against Japan. It follows from tl that industries which were less important in the earlier stages 0 the prosecution of the war in the Pacific, when Australia was danger of invasion and the major emphasis had to be placed on t production of munitions, have become more important now that # major emphasis may have to be placed on the production of foot supplies. It is also common knowledge, and the awards can spe for themselves if necessary, that in many of the industries producin; munitions the wages of women have been fixed at 90 per cent of men's wages by the Women's Employment Board. The purpose 0 the present Regulations is to enable the Commonwealth Court Conciliation and Arbitration to raise the minimum rates of pay ¢ 0 females in vital industries or parts of vital industries or occu where they are unreasonably low in comparison with the mini rates of pay for females employed in other industries or parts #) which are vitally necessary during the war. The Regulations

rates may be raised. This is left to the discretion of the But the Court is given certain general directions in the matter, general trend of which is to require the Court to bring the n minimum rates, where it is in the national interest and fair and j to do so, into reasonable conformity with the rates with which are to be compared.

The validity of the Regulations has been attacked on the gro that they are simply general social legislation and have no suffici

tion is adopted. I have indicated in several previous judgments, (1) (1944) 68 C.L.R. 504,

"atest being R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Victoria; Victoria v. Foster (1), what I consider to be a sufficient connection. Particular reliance was placed by counsel for the plaintiffs upon reg. 8 (6), which provides that in making its inquiry and determination upon a reference the Court shall not have

F regard to any submission that it is necessary to offer a differential monetary inducement or attraction to promote the recruitment of female labour for vital industries. It was submitted that this pro- vision indicated that the Regulations in their scope and purpose went far beyond the objects stated in reg. 3 and showed that these were not the real objects of the Regulations at all. But I cannot agree with this submission. The purpose of reg. 8 (b) is, to my mind, to make it clear that it is not the function of the Court under the Regulations to fix a minimum rate so attractive that women will _ be induced thereby to seek to change from one occupation to another. Such a diversion of woman power falls within the province of the Man Power Regulations. The general object of the Regulations : is to keep the minimum rates in all industries considered from time to time to be vitally necessary in the changing course of the war on a reasonably level basis, so that work in any of these industries will be equally attractive, and thereby, to apply the words of reg. 3, to facilitate the effective transfer of females from the work in which 'they are ordinarily engaged to work which may from time to time be more necessary during the war. Reading the Regulations as a whole it can be said, I think, if I might venture to adapt in substance the words used by Lord Atkin in delivering the judgment of the Privy Council in Abitibi Power and Paper Co. v. Montreal Trust Co. (2) to the present case, that there is no reason to reject the statement _ of the Executive, contained in reg. 3, that the power is given to the : Court for the objects therein mentioned. The increase in the rates will, of course, enure for the benefit of those women already employed _ in industries declared to be vitally necessary as well as for those who are transferred to them from other industries either voluntarily or under compulsion or the threat of compulsion, but this is inevitable and is indeed only fair and just, because the former class of women could not possibly be expected to work for less than the latter class. I agree with the contention of counsel for the plaintiffs that there "must be some specific and not a mere general connection between the particular legislation and the prosecution of the war, but in the Present case such a connection does arise, in my opinion, from the objects stated in reg. 3. Apart from reg. 3, there is also a sufficient connection because the Regulations are an exercise of the power to

(1) (1944) 68 C.L.R. 485, at pp. 500, 501, (2) (1943) A.C. 536, at p. 548.

load. Ww AUSTRALIAN Woortes Mus Lr. THE Common- WEALTH.

1944, re AUSTRALIAN Woottes Mus Lr. v Tue Common- Weraurn,

fix the terms and conditions of employment in industry. While it is true that in the Women's Employment Regulations Case (1) and in Pidoto's Case (2) the Court was dealing with particular aspects of that employment, it seems to me that the effect of these decisions, and particularly of that in Pidoto's Case (2) is, as I said in R. v. Com- monwealth Court of Conciliation and Arbitration ; Ex parte Victoria; - Victoria v. Foster (3), that it is within the ambit of the defence power for the Commonwealth in time of war to regulate the terms - and conditions of work undertaken by women in all industry. I _ can only repeat the views expressed in Pidoto's Case (4), applied mutatis mutandis in Reid y. Sinderberry (5), that: " The amount of industry which possibly has no connection with the war must be - so small when compared with industry which has some connection that, in view of the general interlocking, it is, in my opinion, reason- _ ably capable of aiding the war effort for the Commonwealth to legis- _ late to maintain industrial peace in the whole of industry, even if it is open to dispute in the case of some industries whether they have any connection with the prosecution of, the war." That line of reasoning is entirely consistent with the unanimous decisions of this Court relating to the Landlord and Tenant Regulations (Silk Bros. Pty. Ltd. y. State Electricity Commission of Victoria (6)) and the Prices Regulations (Victorian Chamber of Manufactures y. The Commonwealth (7) ) and with the joint judgment of the Chief Justice and McTiernan J. in the subsequent case of Reid v. Sinderberry (8). Further, the judgments in two recent decisions of the Supreme Court of the United States of America, Bowles v. Willingham (9) and Yakus v. United States (10) relating to the Emergency Prices Control Act of that country, contain general statements relating to the ambit of what is there called the war power under the Constitution of the United States of America which are just as wide as the widest construction placed upon the defence power under the - Australian Constitution by any member of this Court, and in particular statements which not only strongly support the views expressed in these judgments in Pidoto's Case (2) and in Reid v. - Sinderberry (11) that in time of war practical questions such as the feasibility of separating industries which are in fact associated with the prosecution of the war from those which are not and the

(1) (1943) 67 C. 2) (1943) 68 (3) (1944) 68 (4) (1943) 68 C.L. (5) (1944) 68 CLLR, at p. 523. (6) (1943) 67 C.L.R. 1.

(9) (1943) 88 Law. "Ed. (U.S,) (Ad- e vance Opinions) 626.

(10) (1943) 88 Law. Ed. (U.S.) (Ad- vance Opinions) 653.

y caused by litigation to determine whether such an associa- n exists are circumstances which should be taken into account in determining whether legislation is within the ambit of the defence ower: See particularly (1). The suggestion made in the Prices ations Case (2) that the power given to the Minister to declare ny goods or services could be valid not because the general control of the prices of goods or services during war is within the ambit 'of the defence power, but because, although the Minister has this power, nevertheless if the Minister declares all goods and services, the Prices Commissioner can only fix prices for those goods or services hich are related to the prosecution of the war, will not, in my pinion, bear examination. If it is a valid exercise of the defence power to authorize the Minister to declare all goods and services so s to make them liable to have their prices fixed, then it must be within the ambit of the power for the Prices Commissioner to fix "prices of all goods and services without any examination of separate and distinct connection with the prosecution of the If there was any substance in the suggestion it could be applied to the present Regulations by holding that, although the Executive could declare any industry to be vitally necessary, the Minister could only refer to the Court those industries which were connected. with the prosecution of the war. But it was submitted during the ment, and it has been submitted before, that the decision in ie Industrial Lighting Regulations Case (3) is inconsistent with

in war time. I am unable to follow this submission. The Industrial Lighting Regulations did not relate to the terms and conditions of employment in industry. They were in substance a law relating to public health in industrial premises. The present Regulations em a matter of a temporary character, whereas legislation ed to control and alter the construction and equipment of s is legislation to achieve a purpose of a permanent character. Tt is legislation upon a social subject which does not present any features in time of war which are not present in normal times.

4 But as I propose to uphold the demurrer, I desire to say a few words with respect to the provisions of reg. 5 (d) which authorize the Minister to refer to the Court, inter alia, the question as to the period (not extending beyond six months after the termination of the present War) in respect of which the rate or rates or amount or amounts Shall be paid. This provision is obviously founded on s. 19 of the National Security Act. The words " ceases to be engaged in war" (1) (1943) 88 Law. Ed. (U.S.) (Ad- (2) (1943) 67 C.L.R. 355.

vance Opinions), at pp. 634-636, (3) (1943) 67 CLR. 413, 639, 664, 679, 680.

' war, it may well be that long before that date the ambit of the

in that section have not yet been construed by a court and I do not. propose to express any opinion upon their meaning. Assuming, however, that they mean until six months after the signing treaties of peace with all the nations with which His Majesty is at

defence power, which has been stretched to an unprecedented extent as the war has extended and increased in gravity, will com- mence to shrink, As my brother Dixon said in Andrews v. Howell (1): "The existence and character of hostilities, or a threat of hos- tilities, against the Commonwealth are facts which will determine the extent of the operation of the power. Whether it will suffice to authorize a given measure will depend upon the nature and dimen- sions of the conflict that calls it forth, upon the actual and appre- hended dangers, exigencies and course of the war, and upon the matters that are incident thereto." So in Pidoto's Case (2), I said that : " The regulations must be within the power to make regula tions conferred upon the Executive by the National Security Act,

This is a power to make regulations for securing the public safety

and defence of the Commonwealth and for the effectual prosecution

of the war. But this power which, as I have already said, corres-

ponds to s. 51 (vi.) of the Constitution, is a power of an indefinite

ambit." The conclusion of hostilities may well have the effect of

causing a considerable contraction in the ambit of the power, and

consequently of the power conferred upon the Executive by the

National Security Act, so that upon the conclusion of hostilities the

ambit of the latter power will no longer be sufficient to authorize many regulations which can only be justified by the state of gravity

existing during actual hostilities. A determination, therefore, that

the increased rates should be paid until six months after His Majesty

ceases to be engaged in war may possibly cease to become effective - prior to that date because the power conferred upon the Executive

by the National Security Act has ceased to be sufficiently wide to - support reg. 5 (d).

Demurrer allowed. Judgment for defendants with costs.

Solicitors for the plaintiffs, Moule, Hamilton & Derham. Solicitor for the defendants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the interveners, Slater & Gordon. : E. F. H.

(1) (1941) 65 CLLR, 255, at p. 278. (2) (1944) 68 C.L.R,, at p. 131,