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Australian Boot Trade Employees' Federation v Commonwealth [1954] HCA 9; (1954) 90 CLR 24 (7 April 1954)

CATCHWORDS

Constitutional Law (Cth.) - Industrial arbitration - Prohibition of certain actions by officers, etc., of industrial organizations - Advice to members during currency of award - Validity - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv.) - Conciliation and Arbitration Act 1904-1951 (No. 13 of 1904 - No. 58 of 1951), s. 78.

HEARING

DECISION

2. But in its main features I think that it is a valid law of the Commonwealth, and upon that ground I think that the suit should be dismissed. There are certain reservations that it is better to make expressly lest particular points that seem doubtful but not to require decision are thought to be covered by the general conclusion I have stated, but these will appear. (at p36)

3. Section 78 was placed in the Act in 1951 by Act No. 18 of that year in substitution for a previous provision on the same subject of a much more restricted character and limited operation. That provision was inserted as s. 58BA by Act No. 43 of 1930. (at p36)

4. The first sub-section of s. 78 sets out in five paragraphs, lettered from (a) to (e), the conduct which it prohibits. The paragraphs are preceded by the prohibition which enumerates the persons prohibited and states a condition, on which the prohibition depends, applicable to all the paragraphs that follow. The persons are an officer, servant or agent of an organization or a member of the committee of an organization or branch of an organization. By definition "organization" means organization registered in pursuance of the Act: s. 4. The condition stated is expressed by the words "during the currency of an award". It is to be noted, and it is an important matter, that nothing is said about any connection between the organization and the award. As will be seen each of the paragraphs that follow introduces "the award" as an element in the definition of the conduct it forbids. But the prohibition applies to an officer, servant, agent or committeeman of an organization or branch although it is not a party to the award to which the provision refers. Paragraph (a) then proceeds to make punishable certain acts of the officer servant or agent or committeeman concerning the course which may be taken with reference to employment or work by "a member of an organization which is bound by the award". Here again it need not be the same organization as that of the officer servant or agent or committeeman, although of course it may be. It is made punishable for any of those persons to advise, encourage or incite the member or to prevent or hinder him from (i) entering into a written agreement; (ii) accepting employment; or (iii) offering for work, or working, in accordance with the award or with an employer who is bound by the award. What is meant by this formula? Must the advice, the encouragement, the incitement, the prevention or the hindrance be directed to the fact that the agreement, the employment or the work will be "in accordance with the award" or will be "with an employer who is bound by the award" as the case may be? Or is it enough to advise, encourage or incite the member to refrain from, or to prevent or hinder him from, entering into the agreement or accepting the employment or offering for the work or working, if it turns out that the agreement, employment or work was or would have been in accordance with the award or with an employer bound by the award? The former seems the better interpretation. It means that the ground or reason of the advice, encouragement, incitement, prevention or hindrance must be that the agreement, employment or work was in accordance with the award or with an employer bound by the award as the case may be. But what does "in accordance with the award" mean? Does it mean in compliance with or in obedience to the award? If so the expression can apply only where the award requires that a man enter into an agreement, requires that he accept employment or requires that he offer for work or that he work. That seems an unlikely intention. "In accordance with" usually means "in harmony with, in conformity with, in agreement with", and that seems to be the meaning in par. (a). Before passing from this paragraph it should be noticed that the alternative "or with an employer who is bound by the award" would be unnecessary except to cover cases where the agreement, the employment or the work was governed by no clause in the award so that the agreement, employment or work could not be said to be "in accordance with the award". Stated in another way which perhaps is more precisely in conformity with the interpretation adopted above, it would be unnecessary except to cover cases where it was not because the agreement, employment or work was in accordance with the award that the advice, &c., was given against entering into the relation in question, but because the employer, even although the award was silent as to the particular agreement, employment or work, was nevertheless an employer bound by the award. It may be a question whether a provision made for cases of such a description is sufficiently within the reasoning upon which the constitutional validity of the substance of s. 78 rests. The two ensuing paragraphs, viz., pars. (b) and (c), consist of simple provisions based on advice, encouragement and incitement not to comply with an award and prevention and hindrance from complying with it. The validity of these paragraphs could not be and was not contested. (at p38)

5. The prohibition contained in par. (d) is against advising, encouraging or inciting the member of the organization to retard, obstruct or limit the progress of work to which the award applies by "go slow" methods. The meaning of this is probably clear enough. It will be noticed, however, that the advice, &c., which it forbids is advice, &c., directed expressly at retarding, obstructing or limiting the progress of work. The fifth and last paragraph of sub-s. (1), viz., par. (e), also deals with restricting output but unlike par. (d) it deals with it as a consequence of the thing advised, encouraged or incited and not as the immediate object of the advice, &c. The things which an officer, servant, agent or committeeman of an organization during the currency of an award is forbidden to advise, encourage or incite a member of an organization to do are (i) to perform work to which the award applies in a manner different from that customarily applicable to that work or (ii) to adopt a practice in relation to that work, where (and this condition governs both cases) the result would be a limitation or restriction of output or production or a tendency to limit or restrict output or production. It will be seen that under both (i) and (ii) it is necessary that the award should apply to the work. That, I think, means that it should be work in reference to which the award prescribes either wages or conditions or both or, if it does not do that, the performance or conduct of which it regulates in some degree. No doubt the words "customarily applicable" and "practice" are capable of an indefinite or flexible operation, but a penal provision receives a restrictive rather than an extended interpretation and in any case it is not correct to describe a procedure as customary or as a practice unless it is followed with regularity. (at p38)

6. In sub-s. (1) it will be seen that single persons are dealt with. At none of the three points involving persons is a plurality required. One officer, servant, agent or committeeman can commit an offence unaided by any colleague. It is enough if he advises, encourages or incites one member of the organization bound by the award that is current. Only one employer need be involved or affected. As if to emphasize the last point sub-s. (2) provides that sub-s. (1) shall extend to advice, encouragement, incitement, prevention or hindrance in relation to employment or work with or for a particular employer or of a particular kind. (at p38)

7. The effect of sub-s. (1) is qualified by sub-s. (3) which provides an affirmative defence to a charge of offending against the section. Sub-section (3) provides that in a prosecution for a contravention of the section it is a defence to prove that there were reasonable grounds for the conduct charged, being grounds (a) unrelated to the terms and conditions of employment prescribed by the award; or (b) arising out of a failure or proposed failure by an employer to observe the award. The words "being grounds" introduce a qualification, or two alternative qualifications, of the words "reasonable grounds". It is not enough that the grounds were reasonable grounds. As well as being reasonable they must be grounds which also are of one or other of the two descriptions contained in pars. (a) and (b). No standard or standpoint to judge what is reasonableness is supplied. Presumably what is meant is that when the conduct charged is considered with reference to the respective interests of the three parties concerned and their mutual relations, viz., the organization, the employer and the member of the organization bound by the award, the grounds must appear reasonable in the circumstances. But then, further, the grounds must be unrelated to the terms and conditions of the award or if they are so related they must arise from some failure to observe the award on the part of the employer, actual or proposed. The manner in which the sub-section is framed seems to concede that there may be advice, incitement, encouragement, prevention or hindrance with respect to the matters described in sub-s. (1) based on grounds which are unrelated to the terms and conditions of employment prescribed by the award but which nevertheless are not reasonable grounds. If the defence afforded by sub-s. (3) had rested simply on proof that the grounds of the advice, &c., were not related to the award, it might have been considered tantamount to confining the section to incitements to conduct directed against the award. It would then have become harder to dispute the connection of the section with conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. But as it is, the forms of conduct which sub-s. (1) seizes upon as elements of the offence are not confined to cases where they have no relation to the terms and conditions of an award. It covers cases where there is no such relation but the grounds of the conduct are not reasonable. It is hardly necessary to say that to confine the conduct of which complaint may be made to cases where the grounds are unreasonable, leaves untouched the question whether it falls under the legislative power with respect to conciliation and arbitration, &c., and what is incidental thereto. But, even so, there is not enough support for the contention that the provisions which form the substance of s. 78 are not incidental to the subject of conciliation and arbitration for the settlement of inter-State industrial disputes and so are ultra vires. (at p40)

8. In considering what is incidental to that legislative power with its notorious peculiarities we must be guided less by our own a-priori notions of what might satisfy a true application of principle than by the very definite course of authority in this Court. It is enough to refer to Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309; Stemp v. Australian Glass Manufacturers Co. Ltd [1917] HCA 29; (1917) 23 CLR 226; Metropolitan Gas Co. v. Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 as explained and applied in Walsh v. Sainsbury [1925] HCA 28; (1925) 36 CLR 464, at pp 470, 483 and Federated Ironworkers' Association of Australia v. The Commonwealth [1951] HCA 71; (1951) 84 CLR 265. (at p40)

9. It is unnecessary to trace again the chain of reasoning by which these cases establish that it is incidental to conciliation and arbitration for the prevention and settlement of inter-State industrial disputes to provide for the registration, incorporation and regulation of industrial organizations and for some supervision of their affairs including the election of office bearers. It is likewise unnecessary to restate the grounds upon which it was considered to be incidental to the same subject matter to prohibit a strike or a lock-out on account of an industrial dispute extending beyond a State and a strike or a lock-out in relation to an industrial dispute settled by an award. (at p40)

10. It is, however, important to notice that the validity of the respective provisions forbidding these two varieties of strike or lock-out was supported on almost entirely distinct grounds. Strikes and lock-outs on account of industrial disputes the legislature might prohibit because, settlement by compulsory arbitration being an end for which s. 51 (xxxv.) provides, the achievement of that end might be prevented, hampered or overturned if resort were permitted to the forcible course of strike or lock-out as a means of compelling the concession of industrial demands. But to strike or to lock-out in relation to an industrial dispute settled by an award is to attempt to ignore or frustrate the settlement and enforce the terms sought in the dispute by the ultima ratio of industrial conflict. To forbid this is within the power of the legislature because to do so conduces to the maintenance of the settlement made by the award and to its enforcement. (at p41)

11. The grounds for holding the respective prohibitions of the two classes of strike and lock-out to be incidental to the legislative power are almost entirely distinct but not quite. The point of contact lies in some considerations that seem to apply alike to both classes. They are stated in the following passage in the judgment of Higgins J. in Stemp's Case (1917) 23 CLR 226:- "The tribunal must be unconstrained, free to award what seems to be just and right; and it must not be left to fear that if the stronger side do not get what it wants, it will take it by stoppage of work, or by closing the works. Anyone who is at all familiar with the working out of problems under the Act must know that the two methods of strike and of reason, of might and of right, cannot operate together. Silent leges inter arma; and so, too, if economic pressure is to be used, the processes of the tribunal will generally be futile" (1917) 23 CLR, at pp 244-245. But with this there is again a point of contact in the reasoning given by O'Connor J. in the Jumbunna Case (1908) 6 CLR, at pp 358-360 for holding the provisions for the registration, incorporation and control of industrial organizations to be valid. For the part that must be played by such bodies as a means of making the arbitral settlement effective enters into that reasoning. They must represent individuals and "the everchanging body of workmen that constitute the trade", and must be able to bind and to persuade them. Obedience must be enforced against these representative bodies. But they in turn must have power to control, by the enforcement of rules, and to influence members. (at p41)

12. Section 78 appears to me to be sufficiently supported by very much the same basis of constitutional power. That basis comprises, as has been seen, two elements, viz., the part which industrial organizations play in the system and the importance of protecting the arbitral settlement of disputes from defeat, impairment or circumvention, in other words of ensuring the practical efficacy of awards. These elements combine to support the substantial validity of s. 78. It is true that it is not the organization itself but the officer, servant or agent or committeeman of an organization or its branch that is made the object of the prohibitions it expresses. But that is because, in the view of the legislation, the positions they occupy give them an authority and an influence in the industrial sphere likely to make their advice, encouragement or incitement specially effective and give them an opportunity not possessed by others for preventing or hindering the action of individuals in relation to employment and work. At the same time their position is conceived to carry a particular responsibility in the system because it is through them that the organization must speak and act and perhaps decide. It is convenient here to make a reservation. The word "agent" is capable of a very wide application. "No word is more commonly and constantly abused than the word 'agent'. A person may be spoken of as an 'agent', and no doubt in the popular sense of the word may properly be said to be an 'agent', although when it is attempted to suggest that he is an 'agent' under such circumstances as create the legal obligations attaching to agency that use of the word is only misleading"; per Lord Herschell, Kennedy v. De Trafford (1897) AC 180, at p 188. Perhaps the word "agent" is used in s. 78 (1) to mean a person authorized to act on behalf of the organization and acting within the scope of that authority when he advises, encourages, incites, &c. If so the word may not go too far. But all I desire to say about it is that for the purpose of this case stated I do not feel called upon either to construe or to decide the validity of so much of sub-s. (1) as depends upon the word "agent". It seems evident that even if the word "agent" could have no valid operation, it would be treated as severable from the rest of the sub-section. (at p42)

13. A somewhat analogous question may be raised about the word "servant", which perhaps might be pressed to include even messengers, cleaners and other employees of an organization whose employment gave them no position in the industrial sphere. Perhaps s. 15A of the Acts Interpretation Act 1901-1950 applies so that such persons must be excluded from the denotation of the word. But again the separate application and operation of the word is not a matter with which I feel called upon to deal on this case stated. (at p42)

14. In the same way I shall exclude from my decision the meaning, effect and validity of so much of par. (a) of sub-s. (1) as depends upon the words "or with an employer who is bound by the award". Why I do so appears inferentially from what I have already said about the words. The three immediately foregoing points seem to me not only separate but, once the validity of s. 78 considered generally is upheld, to have no sufficient residual importance to the plaintiffs to make it proper to attempt to decide them in the abstract with no concrete facts before us to test the application of the words in question. (at p42)

15. But dealing with sub-s. (1)(a) generally I can see no sufficient reason for denying to the provision the character of a law incidental to conciliation and arbitration for the prevention and settlement of inter-State industrial disputes. The substance of the provision is that even though each member of an organization may decide as he likes whether or not he will enter into an agreement, accept employment, offer for work or work in accordance with an award, he is not to be subjected to the advice, encouragement or incitement not to do so of an officer or committeeman of his own or any other registered organization and perhaps of a servant or agent of such an organization. Once it is seen that constitutionally, as incidental to the subject matter of s. 51 (xxxv.), the legislature may provide against any impairment of the operation and practical efficacy of awards by officials of registered organizations using the opportunity their positions give them of influencing individuals bound by an award in the course they may take industrially, then there appears no prima-facie reason why sub-s. (1)(a) should not be regarded as addressed to this purpose and as not going beyond it in any essential respect. The fact that it deals with parties individually in the manner already described does not carry it beyond or outside the purpose. For if the provision dealt only with advice, incitement or encouragement to men collectively it would be likely to fail in its object. But many possible examples of acts or conduct on the part of officials were suggested which it was said fell within not only the letter but the true legal meaning of s. 78(1)(a) and yet were quite outside the reasoning on which the validity of the provision is supported. Many of these examples are placed outside the application of s. 78(1)(a) by the construction which I think it should receive so that it covers only cases where the ground or reason of the advice, encouragement, incitement, prevention or hindrance is that the agreement employment or work is in accordance with the award. Many others are met by the fact that they would fall under sub-s. (3), that is, unless it were found wrongly as a fact in the particular case that the grounds were not reasonable. Examples of advice to a member to accept employment with one employer rather than another, the employment in both cases being in accordance with the award, are not I think within par. (a) and it does not matter if the grounds of the advice may be considered to be related to the terms and conditions of the award because the employer preferred gives more in pay or conditions than the award prescribes. It is said that advice to a man not to work or accept given employment because his personal circumstances make it disadvantageous or prejudicial to him could come within s. 78(1)(a). It is difficult, however, to imagine such a case which would do so if the advice is given bona fide in his interest. (at p43)

16. It is perhaps impossible to say that no combination of circumstances will come within s. 78(1)(a) (as it is construed in the earlier part of this judgment) which is not excluded by sub-s. (3) and yet is outside the scope of the legislative power. But such cases if they occur may well be found to be relieved from the operation of the sub-section as a result of the application of s. 15A of the Acts Interpretation Act 1901-1950. Of the validity of pars. (b) and (c) there is no question. The "member" referred to in par. (d) must be a member of an organization bound by the award and therefore bound himself. The award must apply to the work. The advice to him, the encouragement or the incitement, must be to use "go slow" methods and so retard, obstruct or limit the progress of work. To do this may well have been considered by the legislature to mean that practically the intended operation of the award is defeated. The connection with the legislative power is perhaps less evident in par. (e) because the purpose of restricting or reducing work below what is recognized as fair and normal does not appear necessarily to be the basis of the advice, &c. Paragraph (e) refers in terms rather to the result. But again the member advised, &c., must be bound by the award and the award must apply to the work. Then the tenor of the advice, &c., must be the desertion of a custom or the adoption of a practice which would result in the limitation of output or production or a tendency thereto. I think that it means that the advice, encouragement or incitement, or perhaps I should say the adviser, encourager or inciter, must contemplate this result. To desert a custom or adopt a practice involves something systematic. It all spells a detraction from the practical operation of the award and on the whole I think it was competent to the legislature to adopt the provision as a means of preventing officials of an organization contributing to the indirect impairment of the settlement made of the dispute. (at p44)

17. The fact that a provision is made to apply according to objective facts and is framed to leave no room for escape does not take it outside power if it is calculated to effect the purpose upon which its validity depends. In the case of pars. (d) and (e) as in the case of par. (a) illustrations were given of possible circumstances which were said to be hit by the provisions but yet to be outside any fair application of the legislative power. The same observations as have already been made in dealing with par. (a) apply to these illustrations. (at p44)

18. The foregoing reasons have led me to the conclusion that the plaintiffs cannot succeed in showing that s. 78 is in substantial respects invalid. (at p44)

19. Whether for the purpose of establishing their locus standi to sue for a declaration of right or for the purpose of showing the kind of action on the part of a secretary of an organization that might possibly be affected by the provisions of s. 78 does not appear, but the plaintiffs tendered evidence of certain things that the officers of the plaintiff organization did in the day to day performance of their duty. Their locus standi to claim the relief sought was however, conceded during the course of the hearing of the suit. The evidence was rejected, but as the plaintiffs sought to rely upon it in connection with their attack upon the validity of s. 78, the case stated raised the question of its admissibility. Questions of the admissibility of evidence in matters of constitutional validity always seem to me to depend on the bearing of the facts it is sought to prove upon the interpretation of the legislation attacked or its connection with legislative power invoked to support it. Here it is difficult to see how the facts proved by the evidence bore on either of these matters. But as I am of opinion that the provision attacked ought not to be held ultra vires with or without the evidence there is nothing to be gained by pursuing the question of admissibility. (at p45)

20. As I have said, the Commonwealth conceded the locus standi of the plaintiffs to sue for a declaration of right. That does not deprive the Court of its discretion to refuse such relief. But holding the opinion I do as to the validity of s. 78 and feeling very little embarrassed in forming it by the abstract nature of the question presented by the suit, I see no reason to refuse to pronounce that opinion in response to the question in the case stated. (at p45)

21. I think that question 2 in the case stated should be answered that in no substantial respect entitling the plaintiffs to relief is s. 78 of the Conciliation and Arbitration Act 1901-1951 beyond the powers of the Parliament of the Commonwealth and invalid. To question 1 it should be stated that in view of the answer to question 2 it becomes immaterial. The costs of the case stated should be reserved for the judge disposing of the suit. (at p45)

WEBB J. I would refuse a declaration and injunction and answer the questions in the case accordingly. (at p45)

2. Even if the Court were convinced that s. 78 of the Conciliation and Arbitration Act 1904-1951 is beyond power and invalid to the extent claimed by the plaintiffs, still it would not follow that a declaration to that effect should be made and an injunction granted. That would depend on practical considerations which I think do not arise here. No prosecution is threatened and none appears likely while the activities of union officials fall short of deliberate attempts to undermine industrial awards; and counsel for the plaintiffs made it clear that no such attempts had been made or were contemplated by the plaintiffs. In any event if such attempts were made it is unlikely that the necessary evidence to warrant prosecutions would be forthcoming, except in isolated cases, seeing that for successful prosecutions the co-operation of the employees against their union officials would generally be required. (at p46)

3. There is then no likelihood of s. 78 being put in force against the plaintiffs and so there is no ground for a declaration and injunction. (at p46)

FULLAGAR J. In this case I have had the advantage of reading the judgment of the Chief Justice. Finding myself in agreement with that judgment, I am prepared to assent to the order proposed by his Honour. I think, on the whole, for three reasons, that the questions asked by the case stated ought to be answered. In the first place, no objection was raised by any of the defendants at any stage directed to the discretion of the Court to entertain, or refuse to entertain, a suit for a declaration of invalidity, and the case was stated not merely with the consent, but at the request, of counsel for all parties. In the second place, suits not glaringly dissimilar in character have been entertained on very many occasions in the past. In the third place, I entertain, after full argument, a clear opinion that s. 78 of the Conciliation and Arbitration Act 1904-1951 is a valid exercise of constitutional power, and I cannot see any very strong reason for declining at this stage to reveal this opinion. To say this is not, of course, to commit oneself in advance on every question that can possibly arise in the future as to the construction or valid operation of s. 78. (at p46)

2. What was claimed by the statement of claim was "a declaration that s. 78 of the Conciliation and Arbitration Act 1904-1951 is beyond the powers of the Parliament of the Commonwealth and invalid." This appeared to me to be a claim for a declaration that s. 78 was wholly invalid, and not for a declaration or declarations that the section did not apply, or could not validly apply, to particular acts or things. On this view I held that the evidence tendered by the plaintiffs was inadmissible, and on this view I am still of the same opinion. I acceded, however, later to the request of counsel for the plaintiffs that I should insert in question 2 the words "or any part thereof". Apart from those words I should have thought that the only legitimate subject for debate would have been whether the general nature of the provisions of s. 78 was such that they fell within the "incidental power" as expounded in such cases as Stemp v. Australian Glass Manufacturers Co. Ltd. [1917] HCA 29; (1917) 23 CLR 226. Having regard to numerous precedents, I can see no objection to dealing with such a question in the present action: indeed, I should have thought that the Court was almost bound to deal with it. It is a different matter if what is sought is a declaration that particular acts, which are done or proposed to be done, lie outside the scope of the section. There may be objections to entertaining such a suit: see, e.g. Bruce v. Commonwealth Trade Marks Label Association [1907] HCA 41; [1907] HCA 41; (1907) 4 CLR 1569 and Luna Park Ltd. v. The Commonwealth [1923] HCA 49; (1923) 32 CLR 596: but, if it is entertained, it would seem necessary, or at least desirable, that evidence should be received with regard to the acts, done or proposed to be done, which are said to lie outside the scope of the section. It is a different matter again if the substance of what is sought is general advice as to the scope of the section and the extent of its valid operation. I should have thought that only in rare circumstances, if ever, should such a suit be entertained. (at p47)

3. I think that the insertion in question 2 of the words "or any part thereof" and the general course of argument in the Full Court tended to give to the suit a wider scope than I had attributed to it at the hearing before me. When it is regarded in that wider aspect, objections to entertaining the suit at all do, of course, suggest themselves. Nevertheless, for the reasons given above, I think, on the whole, that the questions should be answered. (at p47)

KITTO J. The proceeding before us is the hearing of a case stated by Fullagar J. under s. 18 of the Judiciary Act 1903-1950 (Cth) at the request of the parties to an action pending in this Court. The plaintiffs are an organization of employees registered under the Conciliation and Arbitration Act 1904-1952, and the secretary of its Victorian branch. The defendants are the Commonwealth, the Attorney-General of the Commonwealth, and the Minister in charge of the administration of the Act. Two questions are submitted for decision by the Full Court. In effect they are (1) whether certain evidence tendered on behalf of the plaintiffs and held by his Honour to be inadmissible should have been admitted wholly or in part; and (2) whether s. 78 of the Act, or any part thereof, is beyond the powers of the Parliament of the Commonwealth and invalid, (a) on the assumption that the evidence rejected is inadmissible, and (b) on the assumption that that evidence is admissible and is accepted. (at p47)

2. The question whether s. 78 is wholly or partially invalid is the substantial question in the action, as appears from the pleadings which the case stated sets forth. The relief claimed by the plaintiffs consists of a declaration of the invalidity of that section, and an injunction restraining the Commonwealth, its Ministers of State, officers and servants from enforcing its provisions in relation to any officer, servant or agent or member of a committee of the plaintiff organization or any branch thereof. (at p48)

3. By par. 6 of their defence the defendants denied the locus standi of the plaintiffs to seek in this Court the relief they claimed; but at the hearing of the action before Fullagar J., counsel for the defendants said that he did not propose to challenge the locus standi of the plaintiffs or to deny that they and each of them had a sufficient interest to maintain the action. Accordingly par. 6 of the defence was deleted by leave. Upon the hearing of the case stated, however, the question was raised from the Bench whether the action provided an appropriate occasion for the making of a declaration as to the validity of s. 78, either in its entirety or in any, and if so in what, part or parts. On this question the attitude adopted by counsel for the defendants was, in effect, that while they were prepared to argue fully all questions of validity which the plaintiffs' arguments might raise, and did not desire to urge that the Court should refrain from deciding those questions in this action, they were unable to see any answer to the suggestion that a more expedient course would be to leave the decision of all such questions until they should actually arise in concrete instances. (at p48)

4. Section 78 as it now stands was inserted in the Act by the Conciliation and Arbitration Act (No. 2) 1951 (No. 18 of 1951.) It forbids, on pain of a penalty of 100 pounds, a wide variety of conduct on the part of an officer, servant or agent, or a member of a committee, of an organization or branch of an organization, during the currency of an award. Its prohibition in respect of two classes of conduct was conceded to be valid, namely, those described in pars. (b) and (c) of s. 78(1) by the words "advise, encourage or incite such a member" (i.e., a member of an organization which is bound by the award) "to make default in compliance with the award", and "prevent or hinder such a member from complying with the award." These two descriptions of conduct show, clearly enough, that the section is concerned, partly at least, with the protection of awards as effectual settlements of industrial disputes to which the Act applies; but the argument for the plaintiffs is that in its other prohibitions the section travels beyond this topic and beyond the frontiers of legislative power. (at p48)

5. These other prohibitions all apply to advice, encouragement, or incitement, in relation to employment or work, whether with or for a particular employer or of a particular kind or not. As has been stated, they are imposed upon persons described as occupants of certain positions, the nature of which is such that they offer special opportunities for exerting influence upon members of organizations. The organizations referred to are those to which the Act accords special advantages. The conduct prohibited is such only as occurs during the currency of an award; and it is conduct towards a member of an organization which is bound by that award, affecting him in relation either to the award, to the work to which it applies, or to an employer upon whom it is binding. (at p49)

6. But although, superficially at least, the section wears the appearance of an enactment directed to the maintenance of awards, the plaintiffs contend that when its provisions are analysed they are found to have an operation of an entirely different character, for on their true construction they preclude, if valid, many forms of conduct in which union officials are likely to engage in the normal discharge of their functions and which the Commonwealth Parliament has no constitutional power to forbid. It was in support of this contention that the evidence was tendered which Fullagar J. held to be inadmissible. At the threshold of the case, however, is the question whether s. 78 is a provision upon which it is expedient that this Court should give a decision in the present action. The claim for an injunction could not possibly succeed, I should think, for s. 78 does not admit of enforcement in any other manner than by prosecution for a contravention of its provisions, and a person charged with contravening any such provision which is invalid has in that very fact all the protection he needs against a conviction. So far as I am aware it has never been held that a person's apprehension that, if he does an act which in the future he may desire to do, he will be charged with an offence and will be put to trouble and expense in establishing a constitutional answer to the charge, affords by itself any ground for an injunction. On the contrary, it is well recognized that an injunction to restrain criminal proceedings will not be granted upon a ground which may be set up as a defence in those proceedings; for the court will assume that all valid defences will be given full weight by the tribunals in which those proceedings take place: Kerr v. Corporation of Preston (1876) 6 Ch D 463, 466. (at p49)

7. This being so, the action is in truth one for a declaration, in which no consequential relief can be granted. The action is not for that reason incompetent: see High Court Rules, O. 26, r. 19; but the Court has a discretion to give or withhold a decision according as the interests of justice appear to require. "The Court", said Latham C.J. in Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339 "has a discretion to determine whether a declaration as to the rights of a plaintiff shall be made without giving consequential relief: see cases cited in Halsbury's Laws of England, 2nd ed., vol. 19, pp. 215, 216. As a general rule the Court would not make a declaration so as, in effect (though not in form), to intercept proceedings in a criminal court by passing upon the validity of a statute or regulation with an offence against which an accused person was charged. If the accused relied upon the invalidity of an enactment he could raise his contention as a defence in the criminal proceedings" (1948) 77 CLR, at p 348. It is a fortiori where there is no question relating to past conduct or to events which have happened, and the plaintiff's purpose in the proceedings is simply to obtain a decision as to whether there is any conduct of a kind in which he may wish to indulge (and, if so, what that conduct is), which falls within the terms of a statutory prohibition but is not validly prohibited thereby. (at p50)

8. In the course of the hearing it has become clear that s. 78 is by no means free from difficulties of construction. Naturally, the plaintiffs have sought at every point to attribute to the section as wide an operation as possible, in order to show that it reaches beyond the limits of legislative power, while the defendants have contended for a substantially narrower interpretation. In the event of a prosecution a reversal of roles might be expected, and the meaning of the section could be decided in the normal course of the judicial process of determining whether and how an enactment applies to a person actually and not hypothetically concerned, by reason of ascertained and not supposititious facts. To interpret a statute in the air ought, I think, to be regarded as a course not to be adopted without some positive justification. As the Court remarked in Carter v. Potato Marketing Board [1951] HCA 60; (1951) 84 CLR 460: "It is seldom, if ever, desirable to decide any question of constitutional validity in abstracto and independently of the facts" (1951) 84 CLR, at p 478. Undoubtedly cases can arise, and in the past they have arisen from time to time, in which the course of resolving questions of validity in anticipation of events, prima-facie unsatisfactory though it is, appears to be desirable because the circumstances provide reasons in its favour which outweight the objections to it. But I do not find it possible to take that view in this case. The plaintiff's submission that a reason for making a declaration as to validity should be found in the fact that otherwise persons interested will have to suffer prosecution before they can have the construction and validity of s. 78 decided is a submission to which, in my opinion, no countenance should be given. It appears to me highly desirable that exegesis of the section and pronouncement as to the validity of its several provisions should await an occasion or occasions when the Court can grapple with specific problems concerning it in relation to situations which have actually arisen. (at p51)

9. For these reasons I am of opinion that the action ought not to be entertained, and that therefore the questions asked in the case stated should not be answered. Nothing I have said should be taken as indicating that I have formed an opinion that any part of s. 78 is invalid. (at p51)

TAYLOR J. In the suit in which the case in this matter was stated the plaintiffs sought a declaration that s. 78 of the Conciliation and Arbitration Act 1904-1951 is beyond the powers of the Parliament of the Commonwealth and invalid. They also sought an injunction restraining the defendant Commonwealth, its Ministers of State, officers and servants from enforcing the provisions of that section in relation to any officer, servant or agent or member of a committee of the organization or any branch thereof. (at p51)

2. The plaintiff organization is an organization of employees registered under the Act and the second-named plaintiff is the secretary of the Victorian branch of the organization. As the basis for a claim for a declaratory decree the statement of claim alleged that, in the course of performing their duties as officers of the organization, the plaintiff Hayes and other officers of the organization are frequently called upon to advise, and do advise, the members of the organization in relation to accepting and rejecting employment with employers bound by the relevant award. In par. 7 it was further alleged that if the provisions of s. 78 are valid officers of the organization, including the plaintiff Hayes, in carrying out their duties referred to in pars. 5 and 6 of the statement of claim, will be liable to prosecution for the penalties provided for in the said section and that the said officers, including the plaintiff Hayes, will thereby be impeded in or prevented from carrying out duties of their offices, and that the organization will be impeded in or prevented from carrying out its objects. (at p51)

3. I have made this mention of the allegations contained in the statement of claim because of the nature of the relief which is sought and because it is, I think, a matter of importance to decide whether this is a proper case for the making of a declaratory decree. (at p52)

4. Section 78 contains a number of provisions and any inquiry as to its validity must in the circumstances of this case be preceded by the ascertainment of the precise meaning of every part of it. For, unlike the situation which generally presents itself in cases where relief of a similar nature is sought, the contentions of the parties in this case as to the meaning and effect of the section differ widely. The construction of the section is a matter which is attended by considerable difficulty and, not unnaturally, counsel for the plaintiffs sought to maintain a construction which would give to it an extremely wide operation. Such a construction would aid the contention that the section involves such a degree of interference with union activities as to make it proper for this Court to make a declaratory decree, and, further, it would support the main contention of the plaintiffs that the section travels outside the relevant legislative power. It was made clear to us, however, that the case of the plaintiffs was not thought to depend solely on the adoption of the wide construction contended for and, while I agree that this may be so, I cannot help but feel that unless such an interpretation be given to the section no real or substantial interference with union activities is involved. (at p52)

5. It is not the case in this suit that the allegations in par. 7, to which I have referred, are admitted. Further, the allegations contained therein are of a very general nature and, in the light of the argument of counsel and all the material before us, must be taken to have been made on the assumption that the true meaning and effect of the section is in accordance with the contention advanced at the hearing on the plaintiffs' behalf. As at present advised, however, I do not think that the section has the wide meaning contended for. It is, in my opinion, subject to some, at least, of the limitations suggested by counsel for the Commonwealth and this being so, I am far from satisfied that the section involves any interference with union affairs of such a nature or to such a degree as to make it proper for this Court to exercise its power to make a declaratory decree. (at p52)

6. This point was discussed during the course of the argument and we were referred to a number of cases in which declaratory decrees have been made. It is true that there have been a number of such cases but, so far as I can see, it is equally true that declaratory decrees have been made only in suits where it was clear that there was a substantial and immediate interference with a plaintiff's rights. We were referred, among others, to the case of Bank of New South Wales v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, but in that case a declaratory decree and consequential relief by way of injunctions was sought by the plaintiff banks to prevent an admitted threatened and imminent seizure and consequent complete loss of their respective businesses. The same broad proposition is true of the circumstances in which a declaratory decree was made in the case of Federal Council of The British Medical Association in Australia v. The Commonwealth [1949] HCA 44; (1949) 79 CLR 201. In that case the questions involved were raised on demurrer and it was admitted on the pleadings that the defendant Commonwealth "threatened and intended to prevent and hinder the plaintiff doctors from and in practising and carrying on their professions and to hinder them in the proper medicinal treatment of their patients" by the enforcement of the provisions of the Pharmaceutical Benefits Act 1947-1949 (Cth.) and the regulations made thereunder. That very substantial interference with the practices of the plaintiff doctors was the direct and immediate effect of the legislation was apparent and that the allegation was well founded was borne out by the view of the majority of the Court that the Act imposed a form of civil conscription. Crouch v. The Commonwealth [1948] HCA 41; (1948) 77 CLR 339 to which we were also referred, is a further illustration of the type of case in which the Court thought it proper to make a declaratory decree. Again, in that case, it was apparent and admitted on the pleadings that the immediate effect of the legislation was to prevent the plaintiff from carrying on his business. There have been many cases of this type, but I am unaware of any case where the mere possibility or risk of future interference with a plaintiff's rights has been recognized as an appropriate basis for the exercise of the jurisdiction to make a declaratory decree. That is, undoubtedly, a form of relief which may be granted or withheld at the discretion of the court and in my view it should not be granted in such a case. The discretion to make such a decree clearly ought not to be exercised where the rights of parties are not involved and where, accordingly, the question is of academic interest only. The condition necessary for the exercise of this discretion, though satisfied, where rights are immediately and substantially threatened is not satisfied where the plaintiff's apprehension rests merely on a possibility or risk that unlawful interference with his rights may occur at some future time. This case, I think, falls into the latter category. Indeed the vital dispute between the parties is as to the meaning and effect of s. 78. Counsel for the defendants was not concerned to justify the section on the interpretation ascribed to it by counsel for the plaintiff whilst the attack of the latter on the section would be deprived of a very great deal of its substance if the construction advanced for the defendants be correct. But considering, as I do, that the meaning and operation of the section is not nearly as wide as that for which the plaintiffs contended, I am of the opinion that this is not a case for the making of a declaratory decree. (at p54)

7. In the circumstances of this case I should perhaps add that I am by no means satisfied that any substantial provision of s. 78 is invalid. (at p54)

ORDER

Costs of the case stated reserved for the Justice disposing of the action.