Tun Krxa v CoMMON-

Tun Krxa v CoMMON- - [1944] HCA 16 - HCA 1944 case summary — Zoe

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P. D. Phillips, for the Commonwealth (intervening) and for the defendants in the action. On the true view of the construction of the Regulations before the repeal of reg. 5a they were not confined to dealing with women in industry but extended to women in work and employment. Legislation with respect to the substitution of women for men in work and employment during the war is within the defence power: there is nothing in the Public Service Case (1), properly understood, which limits that view of the defence power, and there is no constitutional bar to the exercise by the Common- wealth of the defence power so as to affect persons employed in the governmental spheres of the States. In the Women's Employ- ment Regulations Case (2) three members of the Court, Rich, Starke and Williams JJ., were of opinion that the Regulations were limited to industry, but only Williams J. took the view that the validity of the Regulations depended on that interpretation. It is submitted that the Regulations, if valid, must gain their validity from some- thing other than the limitation of women's employment to industry. The organization of the whole of the labour power - whether indus- trial or not - of the community, so far as that labour power is affected by the war, has that real connection with defence which is necessary to bring it within the defence power of the Commonwealth. So to organize labour power - to remedy dislocation caused by the war - is the intention of the Regulations now in question, and they are therefore within power even if not limited to industry. [He referred to the Women's Employment Requlations Case (3), per Latham C.J.} The test of the validity of legislation under the defence power is not whether it deals with industry or prices or a matter of such importance as to be related to defence, but whether the problem it solves or attempts to solve - the subject matter of the legislation itself{ - is a problem arising out of the war and calling for solution as part of the war effort. The Public Service Case (1) does not determine the present case. The Regulations there in question dealt with continuity of work, and the case is authority for no more than this, that a law directed to continuity of work must be confined to work of the nature of war work and does not extend to State servants of the normal governmental category. In Pidoto v. Victoria (4) the problem was again continuity of work, and the decision was that the securing of continuity of work by State servants engaged in industry had a sufficient connection with defence though it was otherwise as to governmental work. That decision does not affect the present case. 'The decisions do not establish any universal

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be made absolute. Court oF Reg. 5a, however, was repealed by statutory rule No. 70 of Concranion 1944. The result is that any general limitation of the application Axsrrra- of the Regulations to industry arising from the terms of reg. 5a has 0/08. disappeared, and that the other regulations must be considered in Vicrorra. their own terms and in their context as it now stands. Reg. 6 is yoronra the principal regulation and it provides that where an employer __ v. proposes to employ, or is employing, or has, since 2nd March 1942, P0ST®®: employed females on "' work " which was usually performed by males, Latham 0.7. either generally or within that employer's establishment, since the outbreak of the present war, or which, immediately prior to the outbreak of the present war, was not performed in Australia by any person, the employer shall make an application to the Board for a decision in accordance with the regulation, unless an application has already been made, or a decision already given. The other provisions of the regulation refer to " work " without any limitation to industrial as distinguished from other work. I am unable to find in the Regulations since the repeal of reg. 5a any provisions which limit the application of the Regulations to industrial employment. Work in industry falls within the provisions of the Regulations, but the Regulations are not, in my opinion, limited to such work. I therefore proceed to consider whether the Regulations are valid if they apply to employment in all forms of work without any limita- tion to industrial work. The distinction between a profession on the one hand and an industry on the other, or between employment in governmental activities on the one hand and industrial employment on the other, is a distinction which is relevant and important in certain cases. For example, if the question for decision was whether a dispute as to the rates of pay, &c., of State school teachers was an industrial dispute within the meaning of the Arbitration Act, it was important to consider whether State school teachers were engaged in industry : See Federated State School Teachers' Association of Australia v. Victoria (1). When the question arose whether holiday pay of State governmental servants could be determined by a Federal authority under the Industrial Peace Regulations, which were construed as limited to industrial matters, it was important to determine whether

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Victorian Chamber of Manufactures v. The Commonwealth (Industrial #. ©. ov A. Lighting Regulations) (1). cH In the case of the military organization of the community, it is py, Kine not for a court to seek to place limits upon what the Commonwealth v. Parliament may do. Ina war such as this the civilian organization Common of the community also is or may be closely associated with war Co 7 requirements. This Court has already held that control of prices, concen of rents, of the employment of doctors, of advertisements, are Arsrrra- within the war power: Victorian Chamber of Manufactures v. The 0's cnn Commonwealth (Prices Regulations) (2); Silk Bros. Pty. Ltd. vy. Vicrorta. State Electricity Commission of Victoria (3) ; Gonzwa v. The Common- wealth (4); Ferguson v. The Commonwealth (5). I refer to what Griffith C.J. said in Farey v. Burvett (6) : - "So far as the attack Kose is made upon the Act as distinct from the regulation the Court is Latham C.J. invited to assume the function of determining whether the facts were at the time when the Act was passed such as to warrant the Parliament in exercising the defence power by passing it. Whether it was or was not authorized to do so must, so far as the authority depends upon facts, depend upon the facts as they appeared to it, of which we have not, and cannot have, any knowledge. In my opinion there is no principle, and there is certainly no precedent, which would justify a court in entering upon such an inquiry, if upon any state of facts the exercise of the legislative power in the particular way adopted could be warranted. If it appeared on the face of the Act that it could not be substantially an exercise of the defence power different questions would arise. I am not prepared to say that it" (that is, the provision in question) " may not have some, and some important, influence upon the successful conduct of the war." Many of the arguments which have been addressed to this Court from time to time for the purpose of supporting a contention that National Security Regulations are invalid appear to me to be based upon either an inability or a refusal to realize the significance of total war. I do not regard "total war" as a vague or merely rhetorical phrase. I regard it as expressing in appropriate terms the true character of the most pressing and urgent reality of the present times. There is, I think, no doubt that under the war power the Common- wealth can take measures to protect Australia against bombing, to

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Court

Decision date

Before

Source

Judgment (115 paragraphs)

Parties