R v Duncan; Ex parte Australian Iron & Steel Pty Ltd

(1) Cessation of all industrial action by mining unions on the issue.

(2) The extension of the employment of employees of A.I. & S. Pty. Limited under notice of Kamira, Cordeaux, Tower and Nebo collieries for a period of two weeks expiring on 12 November 1982. Such extension is for the purpose only of consideration by the Tribunal of certain matters relating to benefits on retrenchment and no other matters.

This interim order enured for the benefit of the members of the unions other than the Deputies' Association (already covered by the interim award of 27 October) and ACSA.

AIS applied to this Court for an order nisi for a writ of prohibition directed to the unions and to the Tribunal prohibiting further proceedings on the decisions and orders of 27 and 29 October and prohibiting them from proceeding with the further hearing of the unions' application. On 5 November Mason J. granted an order nisi, but refused a stay application which would have precluded the Tribunal from making further interim orders. However, further proceedings upon the orders already made and the making of a final award or order were stayed.

Pursuant to an application dated 8 November, the advocate for the Miners' Federation on 9 November sought "further interim orders concerning the men employed by Australian Iron and Steel until such time as the case before the High Court has been determined". The Tribunal, mistaking the meaning and operation of the stay ordered by Mason J., then refrained from making any order on that application. The mistake was corrected, and on 12 November the Tribunal ordered that:

1. The notices, the subject of the existing interim order are hereby further extended for a period of one week, expiring on 19 November 1982;

2. Leave is reserved to the union to argue for retrospectivity at the appropriate time of any final order that may, subject to the High Court proceedings, be issued in this matter.

An order nisi for a writ of prohibition prohibiting the Unions and the Tribunal from proceeding further upon this order was obtained on 23 November. AIS now seeks to make absolute the orders nisi granted on 5 and 23 November. The fundamental attack upon the validity of the orders made by the Tribunal is that the Tribunal itself is not validly constituted, for it is said to be a hybrid, exercising both federal and State powers, and of a kind unknown to the Constitution.

By the Coal Industry Act 1946 Cth (the Commonwealth Act) and the Coal Industry Act 1946 N.S.W. (the State Act) the Governor-General and the Governor of New South Wales are respectively authorized to enter into an arrangement for the constitution of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal (s. 30(1) of the Commonwealth Act; s. 36(1) of the State Act). By definition, "the Tribunal" means "the Coal Industry Tribunal constituted in pursuance of this Act" (s. 4; s. 4(1)). The Acts provide for the creation of a single tribunal although there is a question, noted by Dixon C.J. in Australian Iron & Steel Ltd. v. Dobb [40] , whether a person appointed to an office pursuant to both Acts (in that case, the office of a Local Coal Authority) "is endowed legislatively with dual personality".

As stated in the preambles, the Acts were passed in pursuance of an agreement between the two governments. Their provisions substantially correspond. The Acts respectively provide (s. 32(1); s. 38(1)) that, upon the making of the arrangement and the appointment of a person to constitute the Tribunal, the Tribunal is to have all the powers and functions specified in the relevant parts of the respective Acts. Those powers are specified in similar terms by s. 34 of the Commonwealth Act and by s. 40 of the State Act. The vesting of powers in the Tribunal is effected by s. 32(2) of the Commonwealth Act and by s. 38(2) of the State Act. Section 32(2) of the Commonwealth Act provides:

Subject to the Constitution those powers and functions [i.e., all the powers and functions specified in that Part of the Act] are by this sub-section, but not otherwise, vested in the authority in relation to which they are specified to the extent to which they are not in excess of the legislative power of the Commonwealth. Section 38(2) of the State Act is in similar terms except that it substitutes "State" for "Commonwealth" where it last appears. "By this ingenious legislative device", this Court observed in Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [41] , "the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them". The Acts make it clear that each Parliament intends the Tribunal to have and to exercise powers vested in it by the Act of the other Parliament. 1. (1960) 103 C.L.R. 15, at p. 20.

The powers which both Parliaments intend the Tribunal to have are those specified by s. 34 of the Commonwealth Act and s. 40 of the State Act. The material provisions of s. 34(1) of the Commonwealth Act and, subject to an immaterial variation, of s. 40(1) of the State Act are as follows:

(1) Subject to this section, the Tribunal is to have power to consider and determine -

(a) an industrial dispute extending beyond the limits of any one State;

(c) an industrial matter arising under an award or order of the Tribunal relating to the coal mining industry in the State;

(d) an industrial matter arising under an award, order, determination or agreement continued in force by section 3 of the Coal Industry Act 1951 and relating to the coal mining industry in the State;

(e) an industrial dispute or matter referred to the Tribunal by a Local Coal Authority; and

(f) any other matter affecting industrial relations in the coal mining industry in the State which the Board declares to be, in the public interest, proper to be dealt with under this Act.

(1a) For the purpose of the exercise of the power referred to in sub-section (1), the Tribunal is, subject to this section, to have (in addition to all other powers conferred on it by this Act or the State Act) all powers which are given by the Conciliation and Arbitration Act 1904-1956 to the Commission or to a member of the Commission in relation to industrial disputes before it under that Act.

In the State Act, sub-s. (1A) reads as follows: For the purpose of the exercise of the power referred to in subsection (1), the Tribunal is, subject to this section, to have (in addition to all other powers conferred on it by this Act or the Commonwealth Act) all powers which are given to the Court in relation to an industrial dispute of which the Court has jurisdiction. The "Court" here refers to the Industrial Commission of New South Wales. Sub-section (7) of the Commonwealth Act provides: The power specified in sub-section (1) to consider and determine industrial disputes, in so far as that power is vested in the Tribunal by this Act, is declared to be a power exercisable by way of conciliation and arbitration for the prevention and settlement of those disputes. The State Act does not contain a provision corresponding with sub-s. (7) of s. 34 of the Commonwealth Act, and thus the powers vested in the Tribunal by the State Act do not have to be exercised by way of conciliation and arbitration for the prevention and settlement of disputes (see Aberdare Collieries Pty. Ltd. v. The Commonwealth [42] ). Each Act defines "industrial matters" to mean "all matters pertaining to the relations of employers and employees in the coal mining industry" including "the right to dismiss a particular person or class of persons" and certain other specified matters. A dispute as to an industrial matter is an "industrial dispute" (s. 4; s. 4(1)). 1. (1952) 86 C.L.R. 12, at p. 31.

AIS submits that it is beyond the powers of the Commonwealth Parliament to authorize the making of an arrangement for the constitution of a tribunal and for the appointement of a person to constitute a tribunal that is to have and to exercise both federal and State powers. The objection is not so much to the mode of creation and appointment of the Tribunal but rather to the hybrid nature which the submission attributes to the Tribunal. It is of course beyond the power of the Commonwealth Parliament to vest the Tribunal with State power, but that is not what the Commonwealth Act does. The Act approves the Tribunal's having and exercising State powers but it does not purport to vest them. It vests only federal powers (s. 32(2)). If the Act had merely constituted or authorized the constitution of a tribunal and had vested federal powers of conciliation and arbitration in it without reference to State powers, an attempt by a State Act to vest similar State powers in the same tribunal would fail - not because of a constitutional incapacity in a Commonwealth tribunal to have and to exercise State power, but because the Commonwealth Act would be construed as requiring the tribunal to have and to exercise only such powers as the Commonwealth Parliament had chosen to vest in it. If the Commonwealth Act were construed as not permitting the tribunal to be a repository of State power, it would prevail over the State Act by reason of the inconsistency between them. But the Commonwealth Act permits the State Act to repose State powers in the Tribunal. The Commonwealth Parliament, having power to create the Tribunal and vest federal powers of conciliation and arbitration in it, is not bound to refuse permission for the reposing of similar State powers in the Tribunal. Indeed, the object of preventing and settling interstate industrial disputes in the coal industry may be better achieved by permitting the Tribunal to have and to exercise similar powers conferred upon it by a State Act. Section 32(1) permits the Tribunal to have and to exercise State powers to the extent specified in that part of the Act; it does no more. Section 32(2) is the only provision which vests powers in the Tribunal and it does not purport to vest State powers. It is within the competence of the Commonwealth Parliament to permit such a tribunal to have and to exercise State powers where the vesting and exercise of State is conducive to or consistent with the achievement of the object which the vesting and exercise of federal powers is intended to achieve. It is no argument against the validity or efficacy of co-operative legislation that its object could not be achieved or could not be achieved so fully by the Commonwealth alone. In Deputy Federal Commissioner of Taxation (N.S.W.) v. W. R. Moran Pty. Ltd. [43] , Starke J. said:

Co-operation on the part of the Commonwealth and the States may well achieve objects that neither alone could achieve; that is often the end and the advantage of co-operation. The court can and ought to do no more than inquire whether any thing has been done that is beyond power or is forbidden by the Constitution. 1. (1939) 61 C.L.R. 735, at p. 774.

A provision would be beyond the legislative competence of the Commonwealth if it purported to confer a federal power either wider than the Constitution permits or free from any restriction on its exercise which the Constitution requires; but the Commonwealth Act does not purport to confer such a federal power. The federal powers vested in the Tribunal are not extended beyond constitutional limits by the vesting of State powers. The powers vested in the Tribunal by the respective Acts are not intended to blend and do not blend one with the other so as to form an undifferentiated mass without the character and incidents of federal or State power. The two sets of powers are clearly differentiated by the respective enforcement provisions. Section 36(1) of the Commonwealth Act provides:

An award or order made by the Tribunal by virtue of the powers and functions vested in the Tribunal by sub-section 32(2) -

(a) has effect in all respects as if it were an award of the Commission; and

(ii) the persons on whom it is expressed to be binding, including an organization if it is expressed to be binding on an organization,

and the provisions of the Conciliation and Arbitration Act 1904-1956 under which awards of the Commission may be enforced apply in relation to such an award or order made by the Tribunal as if it were an award of the Commission. This provision imports Pt VI of the Conciliation and Arbitration Act as the enforcement provision for awards and orders made in exercise of federal power. On the other hand, s. 42(1) of the State Act provides: Any award or order made by the Tribunal in respect of a matter which is within the jurisdiction of the Court shall be binding on the parties, shall be filed in the Court and shall thereupon have effect in all respects and be enforceable as if it were an award or order of the Court. Part IX of the Industrial Arbitration Act 1940 N.S.W. provides for the enforcement of awards and orders of "the Court" (that is, the Industrial Commission of New South Wales) and that Part is thus imported as the enforcement provision for awards and orders made in exercise of State power.

The Acts thus maintain a separation between the federal and the State powers vested in the Tribunal, each set of powers retaining its particular character and incidents. The power under which an award or order is made determines the mode and forum of its enforcement, for jursdiction under s. 36(1)(a) of the Commonwealth Act or under s. 42(1) of the State Act depends upon the making of an award or order pursuant to power derived from the Act which creates the jurisdiction. However, jurisdiction to enforce an award or order is a question of adjective law, which does not bear upon the substantive effect that an award or order has upon the rights and obligations of the parties bound by it. Those rights and obligations are affected by any valid award or order made by the Tribunal according to its tenor, irrespective of the source of the power to make it.

It may be thought that s. 36(1)(a) gives to an award or order made by the Tribunal under federal power the same exhaustive operation as the Conciliation and Arbitration Act gives to an award or order made under that Act. If that were so, an award or order made under federal power vested by s. 32(2) of the Commonwealth Act would not only override an award or order made under State power vested by s. 38(2) of the State Act, but it would also be incapable of subsequent modification by an award or order made under State power. The theory upon which an award or order validly made under the Conciliation and Arbitration Act is held to override a State Act or an award or order made under a State Act was explained by this Court in T. A. Robinson & Sons Pty. Ltd. v. Haylor [44] :

The theory upon which the operation of State law gives way in favour of an award providing an inconsistent industrial regulation imputes to the Conciliation and Arbitration Act an intention to confer power upon the arbitrator to make on a subject of dispute an exhaustive determination containing an industrial regulation that, on the subject with which it deals, will cover the ground to the exclusion of any different or further provision. Had the Commonwealth Parliament intended that an award or order of the Tribunal made in exercise of federal power should be an exhaustive determination of the particular industrial matter to which the award or order relates, an exercise of federal power by way of conciliation and arbitration for the prevention or settlement of a dispute would exhaust the Tribunal's State power with respect to the subject matter of that dispute, and arid discussions as to the limits of federal power would be likely to hinder the performance of the Tribunal's functions. Such an intention is alien to the general legislative scheme. In Aberdare Collieries [45] the Court said: But in combined legislation of this type we think that the Federal statute should be interpreted as not meaning to occupy the field to the exclusion of the State legislation. In the light of the context of the whole of s. 36 and the manifest intention of the Parliament that the Tribunal should exercise State as well as federal powers, s. 36(1)(a) should not be construed as conferring an exhaustive or exclusive operation upon awards and orders made under federal power. Rather it should be construed as relating to the effect of an award or order upon the rights and obligations of the parties who are bound by it and to the enforcement of the rights and obligations thereby conferred or imposed. 1. (1957) 97 C.L.R. 177, at p. 182. 2. (1952) 86 C.L.R., at p. 30.

In the absence of an intention that an award or order made by the Tribunal in exercise of federal power should be an exhaustive determination of an industrial matter, there is no inconsistency, for the purposes of s. 109 of the Constitution, between the Commonwealth Act and its intended operation upon awards made by the Tribunal under federal power on the one hand and the State Act on the other (cf. Ex parte McLean [46] , and Reg. v. Winneke; Ex parte Gallagher [47] ). As s. 32(1) of the Commonwealth Act and s. 38(1) of the State Act express a common intention that the Tribunal should have powers derived from the State as well as from the Commonwealth and should be at liberty to exercise powers derived from both sources, there is no inconsistency between the law of the Commonwealth and the law of the State upon which s. 109 may fasten to destroy or limit the operation of that co-operative legislative scheme which vests both sets of powers in the Tribunal. The Tribunal may (subject to s. 34(7) of the Commonwealth Act) exercise the two sets of powers concurrently to determine industrial matters, and the awards and orders of the Tribunal (if made within either set of powers) have among themselves the priority and effect that the Tribunal intends them to have, irrespective of the source of the power to make particular awards or orders. However, to permit the Tribunal to exercise State powers with respect to a given subject-matter after the exercise of federal power with respect to the same matter, s. 32(2) of the Commonwealth Act must be taken to confer upon the Tribunal federal power to permit an award or order made in exercise of federal power to be superseded though the new provision which supersedes the old is made in exercise of State power. And so, an award made by the Tribunal in exercise of federal power (or in exercise of both federal and State powers) may be varied in its application to particular parties in a State by a subsequent award or order made in determination of a State industrial matter.

1. (1930) 43 C.L.R. 472, at p. 484. 2. (1982) 152 C.L.R. 211, at pp. 215-216.

It follows that the rights and obligations of the parties bound by a particular award or order of the Tribunal are affected by force of such of the Tribunal's powers as are drawn upon to support that award or order, whatever be the source of those powers. Thus an industrial dispute in a State that is part of an interstate industrial dispute can attract State powers and an award or order made by way of conciliation and arbitration for the prevention or settlement of the dispute will be supported by powers derived from both Commonwealth and State or from either of those sources. Although a single award or order results from a particular exercise of the Tribunal's powers, there is a bifurcation in the consequences of that award or order if it be made in exercise of both federal and State powers: it takes effect as if it were an award of the Conciliation and Arbitration Commission (s. 36(1)(a) of the Commonwealth Act) and it binds (or it may be made to bind) as if it were an award or order of the State Industrial Commission (s. 42(1) of the State Act). Whether a breach of an award made in concurrent exercise of both powers may be prosecuted under federal law and under State law is a question which need not now detain us. We are here concerned to ascertain whether the attempt legislatively to vest federal and State powers to affect the substantive rights and obligations of parties bound by an award or order is beyond the powers of the Commonwealth or is forbidden by the Constitution. Finding no constitutional impediment to the legislative scheme to vest federal and State powers in the Tribunal, I would hold that this ground of attack fails.

Next, it is submitted that, upon the facts of the case and upon the true construction of the respective Acts, the Tribunal had no power to make the orders that it did on 27 and 29 October and 12 November. The starting point is the jurisdiction to determine the matter of the application for a new award clause governing retrenchment of employees and the benefits payable to employees on retrenchment. That application was or was likely to be in dispute between the applicant unions and the several respondents in New South Wales, Queensland and Tasmania. It may be that there was federal jurisdiction to determine the application, but it was not necessary for the Tribunal when it came to make the interim orders now under attack to inquire into the foundation for the exercise of federal power to insert the new clause in the award. At the times material to the subject proceedings, the dispute focussed upon the employees in New South Wales who had been served by AIS with notices of dismissal. The benefits of the proposed new award clause were sought to protect that class of employees, and AIS disputed the claim. If the claim so made by or on behalf of that class of employees was an "industrial matter", the Tribunal was authorized by the State Act to determine it. The Tribunal may well have had federal power also to determine the dispute as to that matter by way of arbitration for the settlement of that dispute. Though there was a fissure separating the Tribunal's federal powers from its State powers there was no crevice between those powers into which the matter then in dispute might have fallen. The relevant questions for the Tribunal were whether the aggregate of its statutory powers as defined in s. 34(1) of the Commonwealth Act and s. 40(1) of the State Act authorized it to determine the matter of the claim for the new award clause to be applied to the employees who had received notices of dismissal and, if so, whether those powers authorized the Tribunal to make the interim orders which it did.

There can be no doubt that the unions' application for a new award clause raised an industrial matter. The conditions upon which an employee may be dismissed and the benefits to which he is entitled on dismissal are important aspects of the relationship of employer and employee; they have relevance to the continuity of employment as well as to the termination of employment. The benefits payable to an employee on dismissal furnish a disincentive to an employer to dismiss and a disincentive to an employee to resign. The unions' application for a new award clause clearly pertained to the relations of employers and employees in the coalmining industry. Whether or not there was, or was likely to be, a dispute as to the new award clause between all the parties to the application susceptible of prevention or settlement by exercise of federal power, there was a clear dispute between the applicant unions and AIS as to whether the employees to whom the notices of dismissal had been given should have the benefits sought by the application. The Tribunal had power to determine the latter dispute in exercise of its State powers, and perhaps in exercise of its federal powers.

However, AIS submits that even if the Tribunal had power to determine that dispute, it had no power to make the impugned interim orders pending the making of a final determination. Those orders were made when AIS was insisting upon its right to dismiss the employees on 29 October, the date specified in the letters of dismissal, or later when AIS was contending that the letters of dismissal had taken effect according to their tenor. The letters had specified a period of notice which complied with the relevant awards as they then stood, and AIS was relying upon its common law right to dismiss. But the claim made by the employees or by the unions on their behalf sought to secure for the benefit of those employees a modification of the common law right to dismiss in accordance with the application for the new award clause. Consequently there was a dispute as to the right of AIS "to dismiss a particular class of persons", namely, those to whom notice of dismissal had been given. The orders of 27 and 29 October and 12 November each purported to restrict the right to dismiss the employees to whom notice of dismissal had been given by extending the time before dismissal. Whatever may be said as to the form of each order, its substance is clear beyond mistake: the Tribunal determined that the right to dismiss should not be exercised before the times specified in the respective orders expired. The periods of notice specified by the respective orders fell short of the three months sought by the unions' application, but the orders extended the period of notice beyond the four weeks' notice which AIS had given in the letters of dismissal. The orders thus determined part of the industrial matter in dispute in so far as it involved the particular class of employees, and the Tribunal had power so to determine. The common law right of dismissal was modified by the respective orders made in respect of the particular class of employees (cf. Kilminster v. Sun Newspapers Ltd. [48] ). It is not necessary to consider whether a purported dismissal by AIS of employees on 29 October or on a later date before the expiry of a period specified in an interim order would have been effective though unlawful or wholly ineffective in respect of those employees who were protected by the interim order. A similar question was discussed, though in a different statutory context, in Automatic Fire Sprinklers Pty. Ltd. v. Watson [49] . The effect of a valid order upon a contract of service is not now in issue. The validity of the impugned interim orders does not turn upon the way in which they modified the common law right to dismiss - either by suspending it for a specified period or by making its exercise illegal during that period.

1. (1931) 46 C.L.R. 284. 2. (1946) 72 C.L.R. 435.

The interim orders also susperseded earlier award provisions prescribing the required period of notice, but there is neither constitutional nor statutory impediment to such a supersession. The earlier provisions were amenable to subsequent supersession or partial supersession by an order modifying the right to dismiss a particular class of employees, though the order be made under State power. The later and particular orders of the Tribunal prevailed over the earlier award provisions simply because that was the Tribunal's intention.

For the reasons stated by the Chief Justice, I agree that the grounds relating to the alleged bias of the Tribunal should be rejected.

For these reasons, I concurred in discharging the orders nisi.

Section 30(1) of the Coal Industry Act 1946 Cth (the Act) authorizes the Governor-General to enter into an arrangement with the Governor of New South Wales for the constitution, subject to the Act, of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal. Section 36(1) of the Coal Industry Act 1946 N.S.W. (the State Act) authorizes the Governor of New South Wales to enter into an arrangement with the Governor-General of the Commonwealth for the constitution, subject to the State Act, of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal. Pursuant to the authority of the respective Parliaments, the Governor-General and Governor of New South Wales entered into an arrangement for the constitution of the Coal Industry Tribunal (the Tribunal). The respondent David Anthony Duncan has been appointed to "constitute" the Tribunal.

In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [50] , this Court explained the joint operation of the Act and the State Act as being that of "concurrent legislation by the two Parliaments under agreement". Both Acts provide that the contemplated arrangement between Governor-General and Governor shall be for the constitution "of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal" (emphasis added). Both Acts recognize that that single Tribunal is to have powers conferred upon it by both the Act and the State Act. Thus, each of s. 34(1A) of the Act and s. 40(1A) of the State Act expressly refers to powers conferred on "the Tribunal" by either Act.

Neither Act, in terms or by implication, confers corporate personality upon the Tribunal. In my view however, both Acts recognize that the Tribunal, whether it be described as a tribunal or an office, has an existence that transcends the tenure of office of any incumbent. It is competent for the legislature to constitute or to authorize the constitution of an entity of a type unknown to the common law (see Taff Vale Railway v. Amalgamated Society of Railway Servants [51] ; Chaff and Hay Acquisition Committee v. J. A. Hemphill and Sons Pty. Ltd. [52] ). This the Acts have, in their concurrent operation, done in the case of the Tribunal. It is unnecessary to attempt to define with precision the nature of the statutory entity which has been established. It suffices to say that the Tribunal has a continuing existence and that it is the Tribunal itself which is the recipient of the powers which both Acts confer. Those powers will lie dormant if, at any time, there is no individual appointed either to constitute the Tribunal or to act as the person constituting the Tribunal during the absence, through illness or otherwise, of the person so appointed (see Act, s. 30(3); State Act, s. 36(3)).

1. [1901] A.C. 426, at p. 429. 2. (1947) 74 C.L.R. 375, at pp. 384-386, 389, 391, 393.

Section 4 of each Act defines "industrial dispute" as meaning:

(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters; and

(b) a situation which is likely to give rise to a dispute as to industrial matters.

In the same section, each Act defines "industrial matters" as meaning "all matters pertaining to the relations of employers and employees in the coal mining industry, and, without limiting the generality of the foregoing" as including, in respect of that industry, the following, amongst other, specific subjects:

(b) the privileges, rights and duties of employers and employees;

(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons.

The definition sections also provide that "industrial matters" include "all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immedately concerned and of society as a whole".

Section 34 of the Act and s. 40 of the State Act confer on the Tribunal authority to consider and determine, amongst other things, "an industrial dispute extending beyond the limits of any one State", "an industrial dispute in" New South Wales, and "an industrial matter arising under an award or order of the Tribunal relating to the coal mining industry" in New South Wales. For the purpose of discharging those functions, the Tribunal is entrusted with powers enjoyed by the Commonwealth Conciliation and Arbitration Commission (Act, s. 34(1A)) and the Industrial Commission of New South Wales (State Act, s. 40(1A)). The Act and the State Act provide that, subject to the Commonwealth Constitution, the powers and functions conferred are vested in the Tribunal to the extent to which they are not in excess of the legislative power of, in the one case, the Commonwealth (Act, s. 32(2)), and, in the other case, the State (State Act, s. 38(2)). In Lydon [53] , this Court expressed the view that by "this ingenious legislative device the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them" (see, also, Australian Iron & Steel Ltd. v. Dobb [54] ). I respectfully agree with that statement of the effect of the relevant provisions of the two Acts and accordingly do not accept a submission, advanced on behalf of Australian Iron & Steel Pty. Ltd. (the prosecutor), that the provisions of s. 32(2) of the Act do not apply to confine the powers conferred by ss. 32(1) and 34 thereof.

1. (1960) 103 C.L.R., at p. 20. 2. (1958) 98 C.L.R. 586, at p. 596.

As a matter of construction, the effect of the operation of the concurrent legislation is that the Tribunal is invested with power to consider and determine any "industrial dispute" within or extending to and beyond New South Wales and any "industrial matter" arising under an award of the Tribunal relating to the coal mining industry in New South Wales to the full extent of the combined legislative competence of the two Parliaments. Subsequently in this judgment, I consider the questions whether the two Acts are within the respective legislative competence of the Commonwealth and State Parliaments and whether there is any lacuna in the combined competence of the two Parliaments to confer such powers. Subject to those questions, the powers conferred upon the Tribunal are full and complete within their terms. It would be contrary to the intended operation of the concurrent legislation to import any requirement that the powers conferred upon the Tribunal by the Act and by the State Act must be exercised in isolation, one from the other. The combined operation of the Acts is to confer composite powers: the powers conferred by the Act can be exercised concurrently with the powers conferred by the State Act and the powers conferred by one Act supplement and complete the powers conferred by the other.

The questions whether the relevant provisions of the two Acts are within the respective legislative competence of the Commonwealth and the New South Wales Parliaments and whether there is any relevant lacuna in the combined legislative competence of the Commonwealth and State Parliaments can conveniently be considered together. They can, in the view I take, be resolved by reference to two related general propositions which are to be derived from the terms of the Australian Constitution and from the nature of the federation which it embodies. The first is that co-operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution: to the contrary, it is a positive objective of the Constitution. The second is that, in the absence of any express or implied constitutional prohibition or of any relevant limitations upon State powers persisting from colonial times, it is to be presumed that any legislative power which naturally appertains to self-government and which is not conferred upon the Commonwealth Parliament remains in the States. The existence of a constitutional objective of Commonwealth/State co-operation may, on occasion, be obscured by the fact that cases in this Court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and of one or more of the States. It is, however, unnecessary to do more than refer to the provisions of s. 51(xxxiii), (xxxiv), (xxxvii) and (xxxviii) and of Ch. V of the Constitution to demonstrate the existence of such a constitutional objective. It would be inconsistent with that objective for there to be any general constitutional barrier to concurrent legislation by Commonwealth and State Parliaments. The second proposition requires a little more elaboration.

The Constitution of Australia was established not pursuant to any compact between the Australian Colonies but, as the preamble of the Constitution emphatically declares, pursuant to the agreement of "the people" of those Colonies. Pursuant to that agreement, there were conferred upon the Commonwealth Parliament such legislative powers as were considered necessary and proper for the purposes of the nation that would be formed by, and would develop under, the federation. Some of those powers were made exclusive; some were made merely paramount. To the extent considered desirable, some specific prohibitions were imposed upon the legislative powers of Commonwealth and State Parliaments. The Constitution did not, however, otherwise modify or abolish the legislative powers of the Parliaments of the States. Rather, s. 107 of the Constitution expressly declares that the legislative powers of the Parliaments of the former Colonies, now States, continue except to the extent that the Constitution otherwise provides. In all these respects, the Commonwealth Constitution generally corresponded with the Constitution of the United States of Amercia where it had long been recognized that, except to the extent of constitutional prohibition, the effect of federation was to share legislative powers between Union and States and not to diminish the amplitude of the totality of legislative powers (see, e.g., Martin v. Hunter's Lessee [55] ; New York v. Miln [56] ).

1. (1816) 1 Wheat. 304, at p. 325 [4 Law. Ed. 97, at p. 102]. 2. (1837) 11 Pet. 102, at p. 153a [9 Law. Ed. 648, at p. 668].

In Attorney-General (Ontario) v. Attorney-General (Canada) [57] , Lord Loreburn L.C., speaking for the Privy Council, said of the Canadian Constitution:

In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again, if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (as, for example, a power to make laws for some part of His Majesty's dominions outside of Canada) or otherwise is clearly repugnant to its sense. For whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act. 1. [1912] A.C. 571, at pp. 583-584.

The applicability of these remarks to the Australian Constitution was immediately recognized (see Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [58] ). In Smith v. Oldham [59] , both Barton J. and Isaacs J. expressly relied upon the completeness of Commonwealth and State legislative powers as a step in concluding that an impugned section of the Commonwealth Electoral Act 1902-1911 Cth was within the legislative powers of the Commonwealth Parliament. In the course of his judgment, Barton J. said [60] :

If then the Parliament of the Commonwealth cannot legislate upon a matter of this sort there can be no legislation upon it at all. But that we cannot say, for the Constitution in the distribution of powers between Commonwealth and States embraces the whole range of legislative authority within the territorial limits of Australia. And as it is plain that no State can deal with the conduct of citizens of the Commonwealth in respect of federal elections, the power must reside in the Commonwealth. Isaacs J. said [61] : It is inconceivable that in Australia there exists no legislative authority competent to pass such a law. I said once before of another Statute (R. v. Barger [62] ): - "The power to pass such an Act must reside somewhere." Recently in the Colonial Sugar Refining Co. v. Attorney-General (Cth) [63] I quoted the words of Lord Loreburn L.C. in Attorney-General (Ontario) v. Attorney-General (Canada) [64] , laying down the same test. I will not now repeat those words; but in effect the Judicial Committee held that in a completely self-governing Constitution it is to be taken for granted a power naturally appertaining to the self-government conferred is contained somewhere within it. 1. (1912) 15 C.L.R. 182, at pp. 214-215. 2. (1912) 15 C.L.R. 355. 3. (1912) 15 C.L.R., at pp. 360-361. 4. (1912) 15 C.L.R., at p. 365. 5. (1908) 6 C.L.R. 41, at p. 101. 6. (1912) 15 C.L.R., at p. 214. 7. [1912] A.C., at pp. 583-584.

It has not been suggested that either the Commonwealth Constitution or the New South Wales Constitution contains any express or implied prohibition upon legislative power which is relevant for the purposes of the present application or that there is any applicable limitation upon the powers of the State Parliament resulting from outmoded doctrines appropriate to times that are gone. The power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (s. 51(xxxv)) and with respect to matters incidental to the execution of that power (s. 51(xxxix)) sufficed to enable the Commonwealth Parliament to legislate to authorize the Governor-General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act. In that regard, it would seem that in present day circumstances, where modern communications and the common involvement of national organizations of employees or employers make escalation of a local dispute into an interstate dispute far more likely than in the early days of the Commonwealth, the reference to prevention in s. 51(xxxv) has become more important, as a source of legislative power, than the reference to "settlement". For its part, the New South Wales Parliament plainly possessed legislative powers adequate to enable the enactment of the provisions of the State Act. Nor, in the light of the underlying constitutional objective of co-operation between Parliaments, is there any valid constitutional ground for refusing to give to the two Acts their full combined operation and effect. In the absence of any constitutional prohibition and of any lacuna in combined legislative competence, that operation and effect is to confer upon the Tribunal power to consider and determine industrial disputes and industrial matters of the relevant type regardless of whether they be confined to New South Wales or extend within and beyond that State. Provided it is acting in the course of considering and determining a relevant "industrial dispute" or "industrial matter" and subject to the under-mentioned qualification, it is unnecessary for the Tribunal to seek to identify or isolate the precise source of the power it is exercising. In particular, if the Tribunal, in exericsing a power which is primarily to be seen as conferred upon it by the State Act, makes an order or award which varies an award previously made by the Tribunal in the exercise of power conferred upon it either by the Act alone or by the combined operation of the Act and the State Act, no question of inconsistency between a law of the Commonwealth and a law of the State arises. The reason for that is that the power to vary and thereby partially repeal such an award in the exercise, for example, of the authority primarily conferred by the State Act to consider and determine a purely intrastate "industrial dispute" is conferred upon the Tribunal by the Act when it confers, to the extent of Commonwealth power, authority to consider and determine such an "industrial dispute". It is not a case merely of the Commonwealth indicating a negative intention not to cover the field. It is a case of positive provision having the effect that the Tribunal is, in the exercise of powers conferred by the State Parliament, vested with ancillary powers which the Commonwealth Parliament could alone confer.

The qualification which needs to be made to the general statement that it is unnecessary for the Tribunal to seek to identify the source of the powers which it is exercising results from the differences between the respective provisions of the two Acts dealing with the nature and content of the Tribunal's supplementary powers and the enforcement of the Tribunal's awards or orders. In exercising powers which are conferred by the Act, the Tribunal is vested with the powers which are given by the Conciliation and Arbitration Act 1904 Cth to the Commonwealth Conciliation and Arbitration Commission or to a member thereof (Act, s. 34(1A)); in exercising powers which are conferred by the State Act, the Tribunal is vested with the powers conferred upon the Industrial Commission of New South Wales in relation to an industrial dispute of which that Commission has jurisdiction (State Act, s. 40(1A)). An order or award which is made in pursuance of the Act takes effect and may be enforced as if it were an award of the Commonwealth Conciliation and Arbitration Commission (Act, s. 36); an order or award which is made in pursuance of the State Act shall, when filed in the Industrial Commission of New South Wales, "have effect in all respects and be enforceable" as if it were an award or order of that Commission (State Act, s. 42(1)). Where the supplementary powers conferred by the two Acts differ in relevant respects or where enforcement provisions or proceedings are involved, it may be necessary to identify the source of the particular powers which the Tribunal is exercising or has exercised in making a particular award or order. In a case where the award or order is not being or was not made in the exercise of concurrent or composite powers derived from both Acts with the result that both sets of supplementary powers and enforcement procedures are prima facie available and applicable, it may be necessary to identify the source of jurisdiction in order to determine the nature and scope of available supplementary powers or the identity of the appropriate enforcement procedures. In a case where an award or order is being made or was made in the exercise of concurrent or composite powers derived from both Acts, it may be that, within particular areas such as the availability of enforcement procedures, questions of inconsistency may arise. The divergence between the two Acts as regards supplementary powers and enforcement of awards and orders may be productive of inconvenience and difficulty in particular cases. Overall however, the circumstances in which the Tribunal will itself be concerned to identify the source of powers will be rare since the Tribunal will not itself ordinarily be concerned with enforcement procedures and the differences between the supplementary powers conferred by the two Acts are not such as to make it likely that they will ordinarily be significant.

In the present matters, it was clear from the outset that there was a dispute before the Tribunal between the prosecutor and each of the industrial organizations ("the unions") as to the rights of members of that organization in the event of their retrenchment by the prosecutor. Notwithstanding the fact that that dispute was between a particular employer and an organization as to the entitlements of particular employees, it was an "industrial dispute" for the purposes of the two Acts (see Reg. v. Portus; Ex parte Australian Air Pilots' Association [65] ). The Tribunal had power to consider and determine that industrial dispute regardless of whether it was an intrastate dispute or an interstate dispute and regardless of whether the Tribunal's order would involve a variation of a previous award of the Tribunal. It was unnecessary for the Tribunal to be concerned with whether the dispute before it came within the ambit of previous disputes which had led to the making of the relevant award. The dispute as to whether the award should be varied was itself an industrial dispute which enlivened the jurisdiction of the Tribunal. Indeed, from the time the prosecutor gave the retrenchment notices, an "industrial dispute" plainly existed for the purposes of the Acts in that there was a situation which was likely to give rise to a dispute as to "industrial matters" in the defined sense.

In follows that the prosecutor's attack on the constitution of the Tribunal and on the jurisdiction of the Tribunal to deal with the dispute between the prosecutor and the unions fails. The only error as to jurisdiction which the Tribunal made was its ruling on 18 October 1982 that it lacked power to vary the awards of the unions other than the New South Wales Colliery Officials' Association Illawarra District in the perceived absence of an interstate industrial dispute. It is unnecessary to consider whether the Tribunal was in any event in error in its conclusion that no interstate industrial dispute existed at that stage. If it had been necessary to consider that question, it may have been of significance that, possibly as a result of a slip in drafting, the Act, unlike the Conciliation and Arbitration Act 1904, does not include, in the defined area of an interstate industrial dispute, an intrastate situation which is likely to give rise to a dispute as to industrial matters which extends beyond the limits of any one State (see the Act, s. 34 and definitions of "industrial matters" and "industrial dispute" and contrast the definition of "industrial dispute" in the Conciliation and Arbitration Act, s. 4(1)).

There remains for consideration the prosecutor's attack on the actual orders which the Tribunal made on the ground that those orders were vitiated either by the appearance of bias or prejudgment on the part of the Tribunal or by some other failure of the Tribunal to observe the requirements of natural justice and on the further ground that those orders were, because of their form, beyond the Tribunal's powers. As regards those matters, I agree with the judgment of the Chief Justice which I have had the benefit of reading in draft form.

It was for the above reasons that I concurred in the discharge of the orders nisi.