Robert 34 Expane parte ofvCommon- of Ausiralia Bank; v Westpac. OE

Robert 34 Expane parte ofvCommon- of Ausiralia Bank; v Westpac. OE - [1943] HCA 37 - HCA 1943 case summary — Zoe

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demolition to clear sites for the foundations of, buildings and other structures, such as factories, wharves, bridges, aerodromes, roads, gun emplacements, bombproof shelters and the like ; (b) the mining of coal for the provision of heat and power used in the manufacture of munitions of war or their transportation by land or sea or in the construction of factories and works for their manufacture or use ; (c) the demolition of buildings or other obstructions whose demolition may be required for defensive purposes; (d) the mining of coal for the provision of heat and power in the manufacture or preservation or distribution of food and clothing for the needs of that portion of the population engaged either in the armed forces or in the manufac- ture or construction of munitions of war or defensive works or factories or other structures connected therewith; (e) the mining of coal and the quarrying of stone or other materials for the provision of heat or power in the manufacture, preservation or distribution of food and clothing and for the provision of transport, transit and shelter for that portion of the population which, though not engaged in the armed forces or in the manufacture or construction of munitions of war or defensive works or factories or other structures connected therewith, is, in order to liberate men and women for work directly connected with the prosecution of the war (for example, in the armed forces or in the manufacture of munitions of war) called upon to undertake or to continue to fulfil, or is voluntarily undertaking or continuing to fulfil, the work of manufacturing or distributing goods or affording services in accordance with the essential needs of the civilian population ; (f) purposes other than those mentioned above. The explosives handled at the Explosives Depot destined for use in the manufacture of actual munitions of war as above described have represented a very small proportion of the total of explosives so handled. During the whole of the period of eleven months covering the days in question on only two occasions were explosives, which I am able to find were used in the manufacture of actual munitions of war as above described, handled by any of the applicants, viz., on 24th September 1942 (see par. 20 of this case) and on 23rd July 1942 (not being one of the days in question) on which day a number of cases of torpedo parts were handled.

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applicants rely upon reg. 19 of the Supplementary Regulations (coupled with reg. 294) for 27th December 1941, reg. 44 (and 29a) for 16th March and 6th and 7th April 1942, and reg. 29 (8)-(10) for 24th September and 3rd November 1942. Reg. 29 (1), which is limited to work connected with the war, is, on the case stated, not applicable to any of the days in question here. Regs. 19, 29 (8)-(10 and 44 are all quite general in expression and are not necessarily limited either in relation to industry in general or war work in particular. They are wholly invalid or, at least, invalid so far as they purport to apply to State servants (R. v. Commonwealth Court of Conciliation and Arbitration ; Ex parte Victoria ; Victoria v. The Commonwealth (Public Service Case) (1)). There is no possibility of severance or reading down of the provisions of regs. 19, 29 (8)-(10) or 44, at all events in any manner affecting the nt The Court cannot say what would have been intended by the subordinate legislative body on the assumption that these regulations in their present form were beyond power, and there is no room for the application of s. 46 (6) of the Acts Interpretation Act (R. v. Poole ; Ex parte Henry (No. 2] (2)). The real effect of the decision in the Public Service Case (1) is that sub-regs. 8-10 of reg. 29 are wholly invalid or invalid in so far as they purport to bind the State of Victoria. These sub-regulations are not limited in terms to work connected with the war or even to industrial work ; they purport to bind the State in respect of all its servants, and cannot be read down so that they will be limited to State servants engaged in either industrial or war work. This applies also to regs. 19 and 44. The defence power does not authorize interference with State services even in the carrying on of an industry. If it is sought to distinguish the Public Service Case (1) on the ground that there the declaration of invalidity was restricted to servants not engaged in industry and that the work now in question is industrial, the applicants are still faced with the proposition that the defence power does not include a general power to control industry (Victorian Ohamber of Manufac- tures v. The Commonwealth (Industrial Lighting Regulations) (3) ). Tt may be that the regulations in question or some of them can be read down so that they do not apply to State servants, but the respondent here is not concerned with that. The true effect of the Public Service Case (1) as here submitted is shown by passages in the judgments, per Latham C.J. (4) ; per Rich J. (5); per Starke J. (6) ;

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power in that regard in the Regulations, and it is not for the Court to say whether the means chosen are the correct or the best means of achieving the purpose. The extension of the jurisdiction of the Arbitration Court is merely the adaptation of the existing machinery for the purpose of accomplishing something which is necessary by reason of the abnormal circumstances created by the war, and is a proper exercise of the defence power. It is impossible to say in advance that any particular industrial dispute will or will not militate against the efficiency of the war effort, and the only prac- ticable way of dealing with the matter is to assume control of all industrial disputes. As to the Supplementary Regulations, for the purposes of this case reg. 19 (Statutory Rules 1941 No. 297) is material to 27th December 1941. Reg. 44 (Statutory Rules 1942 Nos. 125, 157) is material to the days in March and April: It was repealed but by Statutory Rules 1942 No. 282, a new regulation, 29a, preserving rights under reg. 44 and providing a procedure for the purposes of reg. 19, was enacted. The object of reg. 29a was to enable workers who were not protected by laws or awards to obtain holiday pay for days worked during the Christmas, New Year and Easter periods. Reg. 29 (8) (Statutory Rules 1942 No. 407) was inserted to deal with the Victorian statutory holiday, 24th September 1942 (Show Day), and reg. 29 (9), (10) (Statutory Rules 1942 No. 422), to deal with the day which ordinarily would have been Melbourne Cup Day (3rd November 1942). So far as Show Day and Cup Day are concerned reg. 29 (1) would apply if the applicants' work was connected with the war (which is a question for the Arbitration Court) and it would not be necessary to invoke reg. 29 (8) for Show Day or reg. 29 (9) or (10) for Cup Day. Regs. 19, 44, 29 and 29a are merely the manner whereby the Commonwealth exercises its control over man power; the existence of the power is not to be confused with the policy which directs its exercise. Once it is shown that the Commonwealth has power to control and direct the man-power resources of the Commonwealth it follows that the Commonwealth may say to the whole working population of Aus- tralia, whether engaged in the war effort or in manufacturing articles which have no immediate connection with the war effort: " You may take a holiday on a particular day," or: " You may not." It is reasonably incidental to the exercise of the power to require people to work that those for whom they work be required to pay

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The first objection to the Regulations submitted by the State of Victoria is based upon s. 51 (xxxv.) of the Constitution, which confers upon the Commonwealth Parliament power to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." It is contended that this provision implies a negative - that it means, not only that the Commonwealth Parliament shall have power to legislate in relation to the industrial disputes there defined and in the manner there prescribed, but also that the Commonwealth Parliament shall not have power to deal with any other industrial matter or with any industrial dispute in any other manner. In my opinion this argument cannot be supported. Sec- tion 51 (xxxv.) is a positive provision conferring a specific power. The particular terms in which this power is conferred are not, in my opinion, so expressed as to be capable of being so construed as to impose a limitation upon other powers positively conferred. Further, if s. 51 (xxxv.) were construed so as to prevent the Parlia- ment from dealing with industrial matters except under that specific provision, similar reasoning would lead to the conclusion that the Commonwealth Parliament could not (under any legislative power) provide for the use of conciliation and arbitration in relation to any other matter than inter-State industrial disputes. It must, I think, be conceded, for example, that the Commonwealth Parliament can, in legislating with respect to the public service of the Commonwealth (Constitution, s. 52 (ii.) ), provide for conciliation and arbitration in relation to matters such as wages, conditions and hours, whether or not any dispute about those matters is industrial, and whether or not it extends beyond the limits of any one State. In my opinion the objection to the Industrial Peace Regulations based upon s. 51 (xxxv.) of the Constitution must be rejected, because it finds no support in the words of this provision for the implied prohibition suggested.

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Mr. Phillips, in an interesting argument, submitted to the Court that the Act was not directed to the construction of laws for the purpose of determining their meaning, but to the operation of all laws. The Act applies only when the law, construed according to its terms, is beyond power. One view of the section is that if it appears that Parliament intended it to operate under certain con- ditions, even though it could not operate fully as expressed, and if this intention can be ascertained from an examination of the law itself (taking the Acts Interpretation Act into account), then it is valid in relation to those conditions. This view treats the Act as prescribing a rule of construction, as stated by Hvatt J. in R. v. Poole ; Ex parte Henry (No. 2] (1). Upon this view, where, to use the words of Isaacs J. in Whybrow's Case (2), good and bad provisions are contained in separate words and expressions, then it will be possible to strike out the invalid parts, provided that the operation of the remaining parts of the law remains unchanged. But if, either in such a case or in the case of " general words or expressions " the Court is of opinion that the law was intended to operate fully and completely according to its terms, or not at all, then the law would be either completely valid, or completely invalid. The opposing view, for which the applicants contend, is that the Act should be read as affecting the operation of all laws in the sense that all laws are to be held to be valid in all eases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases: that is, that the Act in effect says that all laws are to be construed as validly applying wherever they could by suitable limita- tions have been made validly applicable. Upon this view no legis- lation would ever be completely invalid if a case could be discovered to which it could have been validly applied. This argument may be illustrated by an example. Let it be supposed that the Common- wealth Parliament passes a general statute dealing with larceny which, according to its terms, is plainly beyond Commonwealth legislative power because the Parliament has no power to make general criminal Jaws. Prima facie the law is invalid. But the Commonwealth has full powers of legislative control, e.g., in relation to all the territories of the Commonwealth, in relation to acts and defaults of postal, customs and other Commonwealth officers, and in relation to acts which constitute parts of inter-State and foreign

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nevertheless takes control of them. And, further, by reg. 10, where any organization or employer is aware of any industrial matter which may lead to the occurrence of a strike, a stop-work meeting or any other interruption of work the Court may by appro- priate procedure hear and determine the matter or cause another tribunal to hear and determine the matter as if it were an industrial dispute. And this jurisdiction is assumed over the whole field whether the disputes or matters have or have not any relation to national security or to defence. The greatest and the most trivial industrial disputes and matters are all alike brought under Common- wealth power. It is difficult, I think, to justify the validity of regulations in this form, having regard to the decisions of this Court in the Lighting Restrictions Case (1) and R. v. University of Sydney; Ex parte Drummond (2). And it is equally difficult to justify the Regulations on the ground that they are a system of dealing with all industrial disputes and matters and so con- nected with defence and war. Such a proposition would be equally true at any time. And it is merely asserting that all matters, particularly industrial matters, affecting the well-being of the community have such a relation, which I understood was a pro- position denied in the Lighting Restrictions Case (1). Again, in Victoria v. The Commonwealth (3) it is recognized that the defence power is not without limit, and yet with regard to industrial disputes and matters that power is apparently without any limit whatever. And this is apparently so because otherwise it would be difficult to keep within power and much litigation would result. But I may point out that this difficulty is not apparent in the National Security Act itself, for it confines the power to make regulations to those securing the public safety and defence of the Commonwealth, nor in various regulations which have similar restrictions: Cf. Supple- mentary reg. 29. In my opinion reg. 4 transcends the limits of the National Security Act and the defence power in the Constitution, and it brings down in its train regs. 5 and 11.

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The Executive has stated on the face of the National Security (Industrial Peace) Regulations the purposes for which it made them. In the first place the Executive makes the statement that the pre- servation of peace in industry is a necessary condition for the efficient prosecution of the war. This is a self-evident truth, at least as regards such parts of industry as are concerned with things needed in war. In the second place, the Executive has stated on the face of the Regulations that, in order to preserve peace in industry, it is desirable that certain limitations on the jurisdiction of industrial tribunals constituted under the laws of the Commonwealth should be removed and that provision should be made for those tribunals to deal with industrial disputes with greater expedition. The limitations correspond with those which are inherent ins. 51, pl. xxxv. pursuant to which those laws were passed. The only means which those laws provided for the prevention and settlement of industrial disputes were conciliation and arbitration, and the only disputes to which those laws extended were inter-State disputes. Because of these limitations no Commonwealth industrial tribunal could inter- vene to prevent or settle a dispute that did not extend beyond a State, even if the industry disrupted by the dispute is vital to the economy of the whole Commonwealth. Furthermore, because of these limitations, no Commonwealth industrial tribunal could, as a matter incidental to the prevention or settlement of an industrial dispute between the disputants, make an award which would apply generally to all employers and employees, irrespective of whether they were disputants or not, and finally, because of the limitation in the existing laws for the prevention and settlement of industrial disputes, much prolixity and artificiality, which led to industrial unrest, often characterized the steps by which Commonwealth industrial tribunals got cognizance of the industrial disputes in respect

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separation, or to anticipate what effect industrial disputes or indus- trial unrest in one industry which, taken in isolation, might not appear to have any association with the prosecution of the war, would have upon other industries which are associated with its prosecution. Moreover, the objective in war-time is to confine pro- duction to industries which assist the war effort and to achieve a maximum output in these industries by concentrating all available man power on this work. It is essential to keep the industrial machine running smoothly if this output is to be achieved and main- tained. Legislation which sets up some national machinery to deal with industrial disputes and industrial unrest on a uniform basis throughout the Commonwealth is more likely to attain this end than legislation by each State, which would probably take different forms. 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, reasonably capable of aiding the war effort for the Common- wealth to legislate 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. War does not brook delay and to confine the Regulations to industries having some general classification such as industries associated with the prosecution of the war would invite litigation and therefore delay and expense in order to decide whether such an association existed or not. It is like price fixing. It can be urged that some goods and services are not essential to the maintenance of the armed or civilian population, so that it cannot aid the prosecution of the war to fix their prices. But it has been held by this Court that the Common- wealth Parliament can, in time of war, control the prices of all goods and services. It has been established by previous decisions of this Court and by the statements of Lord Haldane and of the Supreme Court of the United States of America which I cited in the case of the Women's Employment Act (1) that the Commonwealth Parliament, charged with the responsibility for the defence of the realm, and the Executive which it controls must be given considerable latitude to decide what means are required to make that defence effective. Looking at the matter in this way it cannot be said to be beyond the defence power for the Commonwealth to exercise control over all industrial disputes and industrial unrest in war-time. For these reasons I am of opinion that the National Security (Industrial Peace) regs. 3, 4, 5 and 11 are a valid exercise of power and that the first question should be answered in the affirmative. (1) (1943) 67 C.L.R. 347.

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