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R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535 (6 September 1983)

CATCHWORDS

HEARING

DECISION

2. What is sought by the prosecutor are writs of prohibition prohibiting the respondents from proceeding further on decisions and orders of the Tribunal made respectively on 27 October 1982, 29 October 1982 and 12 November 1982. The effect of those decisions and orders will be stated hereunder. (at p543)

3. The prosecutor's collieries in the Wollongong district supply coal to the steelworks at Port Kembla. The steel industry in Australia is today faced with grave problems caused, inter alia, by surplus production throughout the world, reduced domestic demand and considerable increases in the cost of production. Some steel plants have become redundant and the requirements of the steelworks for coal have been reduced. In consequence the prosecutor is unable to find markets for its coal and has found it necessary to reduce its output and to retrench the workforce at the collieries. Accordingly, on 1 October 1982, dismissal notices were given to a number of employees, members of the respondent unions, whom the prosecutor considered to be redundant. Each notice informed the employee to whom it was given that "it is necessary to terminate your services from Friday, 29th October, 1982". The conditions of employment of the employees were governed by awards made by the Tribunal. The awards which related to members of the unions registered under the Conciliation and Arbitration Act were expressed to be made under the Commonwealth Coal Industry Act and provided that the employment of the employees might be terminated by a week's notice or, in one case, by two weeks' notice. The award which related to members of the Deputies' Association appears to have been made under the State Coal Industry Act; its provisions were not before the Court, but it appears to have been common ground that in all cases the notices of dismissal given by the prosecutor were in accordance with the relevant awards. (at p543)

4. The unions promptly responded to the dismissal notices. On 1 October 1982 an application was made to the Tribunal on behalf of all the respondent unions except ACSA to vary the relevant awards by including provisions that would prevent the prosecutor from terminating the employment of any employee on account of redundancy until the finalization of a report by the Industrial Commission of New South Wales on matters concerning the steel and coal industries in New South Wales. On 5 October 1982 ACSA applied to be included in the application. The two applications were listed together. The Tribunal, after hearing argument which extended over a number of days, gave its decision on the applications on 18 October 1982. It held that all of the awards except that governing the members of the Deputies' Association were made under the Commonwealth Coal Industry Act, and that there was no power to vary them because the dispute raised by the respondent unions was not an interstate dispute. However, the Tribunal held that it did have power to vary the award applicable to members of the Deputies' Association, since that award was made under the State Coal Industry Act. However, in view of subsequent developments, the application, so far as it relates to the Deputies' Association, has since been adjourned indefinitely. (at p544)

5. On 22 October a further application was made to the Tribunal on behalf of the respondent unions except the Deputies' Association. The application, omitting immaterial parts, was in the following terms:

"In the matter of an industrial dispute

where in the following unions:-

Australian Coal and Shale Employees
Federation,
Federated Mining Mechanics,
Electrical Trades Union,
Amalgamated Metal Workers and
Shipwrights Union,
Federated Engine Drivers and
Firemens Association
and Australian Collieries Staff
Association

and

The New South Wales Coal
Association,
The Queensland Coal Owners'
Association
and Cornwall Coal Co., Tasmania and
others are parties.
AND IN THE MATTER OF an application
by the Australian Collieries' Staff
Association

APPLICATION IS HEREBY MADE to vary or insert into the
appropriate awards the following clause:

RETRENCHMENT AND REDUNDANCY
An employee may only be retrenched or deemed redundant
after it has been established by the employer, to the satisfaction
of the employee and of the union, that no other alternative
exists.
Where an employee is retrenched or deemed redundant he or
she shall be entitled to -
(a) Three months' notification of the cessation of his or her
services, and
(b) 12 weeks' pay, at the rate which would have been paid if at
work, for each year of service, and
(c) All Long Service Leave entitlements.
We wish also, to request that if no determination has been
made by Wednesday afternoon, that the Tribunal issue orders
extending the terminating date of those members of all unions
on threat from Australian Iron and Steel until after this
application has been finalised."

6. The applications of 22 and 27 October were heard on 27 October. Argument was advanced at some length on the question of jurisdiction. In the course of that argument ACSA submitted that it had created a new dispute by the service of a new log of claims, but the other unions submitted that their present claim was within the ambit of the disputes raised by the delivery of earlier logs of claims. The Tribunal found itself unable to resolve the question of jurisdiction so far as it concerned the claims by the unions whose members were subject to awards made under the Commonwealth Coal Industry Act, but it held that it had jurisdiction to deal with the application by the Deputies' Association. In relation to that application it made an interim order in the following terms:

"Pending completion of a hearing on that matter I hereby order
(by way of interim order) Australian Iron & Steel Pty. Limited
to extend the notice of, or in the alternative reinstate in its
employment members of the New South Wales Colliery
Officials Association currently under notice of termination
expiring on Friday next 29 October at its Kemira, Nebo,
Cordeaux and Tower Collieries. Such extension or
reinstatement
is for a period expiring on Friday, 12 November 1982 and
is for the purpose only of completion of proceedings currently
before me."

7. On 29 October the Tribunal heard further argument. The Tribunal held that the claim by ACSA had not been properly served and that the Tribunal had no jurisdiction in regard to ACSA. The Tribunal then proceeded to make a further interim order in the following terms:

"By way of interim order I therefore order -
(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 at Kemira, 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."

8. The prosecutor complied, under protest, with the orders made on 27 and 29 October. In fact, the employees concerned were told that there was no work for them, and that they need not attend for work, but that they would nevertheless be paid. Some of the employees in fact reported for work and some did not. (at p546)

9. On 5 November an order nisi was made in relation to the orders made on 27 and 29 October. On 8 November the Miners' Federation applied to the Tribunal for "the making of further interim orders concerning the men employed by Australian and (sic) Iron and Steel until such time as the case before the High Court has been determined". The Tribunal, misconceiving the effect of an order for a stay made by Mason J. on 5 November when he made the first order nisi, held that it was bound to refrain from dealing with the matter. At a further hearing on 12 November the misunderstanding as to the effect of the order was corrected, and after hearing further argument the Tribunal made a further interim order as follows:

"I hereby order 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."

10. The orders nisi are sought on a number of grounds, but it is first convenient to consider a submission advanced on behalf of the prosecutor that the orders of 27 and 29 October were made in disregard of the rules of natural justice. First it was submitted that the order of 27 October was made without affording to the prosecutor a fair and proper opportunity, or any opportunity, to be heard. The proceedings before the Tribunal on 27 October occupied the better part of a day. Early in those proceedings the representative of the Miners' Federation said:

"We have requested that if no determination has been made by
this afternoon, that the Tribunal issue orders extending the
termination date of those members of all unions on threat from
A.I. & S. until after this application has been finalised."

"Now Mr. Crawford, the application that is currently being
dealt with is this initial one at the bottom of the application.
(The reference can only have been to the request for interim
orders which appears at the foot of the application made on 22
October.) You have directed various submissions going to
jurisdiction. I take it that they are all directed really to that
particular matter. Is that correct? I know other things were
covered but is that the point of the submissions at the present
time?"

"They are, sir. They are directed to both the application 'coal'
and to that aspect of the application because quite clearly if you
have any power to make an interim order then it is a question
of whether there is a matter before you."

11. The argument for the prosecutor was that before the order was made on 27 October, the prosecutor had not been heard in relation to the making of interim orders. Indeed, it was said that the Tribunal expressed the opinion that it was not necessary to give to persons who would be affected by its orders an opportunity to be heard before those orders were made. This last mentioned submission is based on something that occurred at the hearing on 29 October. Mr. Crawford then complained that he had not been heard on the question whether the interim orders should be made. When the Tribunal came to give its reasons Mr. Duncan said:

"I find it regrettable that the company has refused to accept the
recommendations I made on Wednesday. In the midst of an
industrially difficult situation it apparently believes that I
should determine a host of complex jurisdictional points before
I took any initiative to resolve this situation. That is not a view
I share.
Further, it suggests that I should have awaited further
submissions before taking the action I did. I reject that
proposition entirely. The Tribunal is not and will not be seen to
be an arbitral body which will not take its own initiatives to
contain a serious, devisive and complex industrial situation in
the coal mining industry."

12. It appears from what Mr. Crawford said on 29 October that he thought that he had not been fully heard on 27 October. However, it was perfectly clear from the course which the proceedings had taken on 27 October that the Tribunal had been requested to make an interim order and was considering that request. Mr. Crawford was given an opportunity to address the Tribunal and he availed himself of that opportunity. He was not prevented from putting whatever argument he wished to put. It was incumbent upon him either to address to the Tribunal the submissions that he wished to make or to ascertain clearly from the Tribunal whether he would be given a further opportunity to make submissions before an order was made. If Mr. Crawford was under a misapprehension as to the procedure that was being followed, it is impossible to conclude that anything said or done by the Tribunal contributed to his misunderstanding. It has not been shown that the Tribunal on 27 October failed to give the prosecutor a full and fair opportunity to be heard. A party which is given such an opportunity, and fails to take advantage of it, cannot complain that it has been denied natural justice. (at p548)

13. Then it was submitted, in relation to the order of 29 October, that the Tribunal was affected by bias, or at least that the parties or the public might, in all the circumstances, have reasonably concluded that the Tribunal had prejudged the issue, and that it had decided to give the effect of an order to the recommendations which it had made on 27 October. During the hearing on 29 October this exchange occurred:

"MR. CRAWFORD: Well, sir, we are prepared to make
submissions
to you on the question of interim orders, but, as you
have already made an interim order without hearing us on the
question, it seems clear that you have already made up your
mind.
MR. DUNCAN: No, that is not the case at all.
MR. CRAWFORD: Well, sir, I do have submissions to put to you
on interim orders.
MR. DUNCAN: I think that I should remind you of the fact that
the authorities in regard to interim awards suggest that reasons
should not be given or, if so, should be confined to the smallest
detail, but so far as I am concerned anybody who wishes to put
anything in relation to the question of orders should put them
before the orders are going to be made."

14. It was submitted that if the orders of 27 or 29 October were bad by reason of a denial of natural justice, those made on 12 November were infected by the earlier invalidity. However, the argument that there was a denial of natural justice in relation to any of those orders must fail. (at p549)

15. The other grounds on which prohibition was sought relate to the constitution and powers of the Tribunal. First, it was submitted that the Tribunal is not validly constituted. As has been said, the Tribunal is constituted under two statutes, one of the Commonwealth and one of the State of New South Wales. Those statutes are, to use the words of Dixon C.J. in Australian Iron & Steel Ltd. v. Dobb [1958] HCA 26; (1958) 98 CLR 586, at p 596. , "corresponding enactments of the two legislatures setting up joint or combined authorities by the concurrent exercise of their respective constitutional powers". In that case Dixon C.J. went on to say that it was "not the occasion to inquire into the extent constitutionally to which such a legislative conflation may succeed" [1958] HCA 26; (1958) 98 CLR 586, at p 596. The prosecutor submits that this is the occasion to make such an inquiry and that the Tribunal is a hybrid body whose formation the Commonwealth Parliament could not validly authorize. (at p549)

16. The relevant provisions of the Commonwealth Coal Industry Act and the State Coal Industry Act closely correspond. The preamble to the Commonwealth Coal Industry Act records that it has been agreed between the Government of the Commonwealth and the Government of the State that they shall jointly establish authorities vested with power to take action designed to attain the objectives set out in the preamble, which include the taking of measures for securing and maintaining adequate supplies of coal to meet the need for the commodity throughout Australia and in trade with other countries, and for providing for the regulation and improvement of the coal industry in the State of New South Wales. By s. 30(1) of the Commonwealth Coal Industry Act it is provided as follows:

"The Governor-General may enter into an arrangement with
the Governor of the state for the constitution, subject to this
Act, of a Coal Industry Tribunal and for the appointment of a
person to constitute that Tribunal."

"(1) In pursuance of agreement between the Government of the
Commonwealth and of the State it is declared that any
authority constituted under this Part is to have all the powers
and functions specified in this Part in relation to that authority.
(2) Subject to the Constitution those powers and functions 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."

"(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;
(b) an industrial dispute in the 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.
. . .
(7) 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."

"(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."

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

"An award, order or determination of the Tribunal or a
decision of a Local Coal Authority under this Act shall not be
challenged, appealed against, quashed or called into question, or
be subject to prohibition, mandamus or injunction, in any court
on any account whatever."

"During the currency of any award or order made by the
Tribunal or of a decision of any Local Coal Authority under
this Act, no award or order made by any tribunal having
jurisdiction in industrial matters in the Coal Mining Industry
dealing with the same subject-matter and inconsistent with the
award or order made by the Tribunal or Local Coal Authority
(except an award, order or decision made under this Act or the
State Act) shall be effective." (at p551)

17. The preamble to the State Coal Industry Act is in the same terms as that of the Commonwealth Coal Industry Act. The definitions of "industrial dispute" and "industrial matters" in s. 4 of the State Act are the same as those in the Commonwealth Act. Section 36(1) of the State Act provides as follows:

"The Governor may enter into an arrangement with the
Governor-General of the Commonwealth for the constitution,
subject to this Act, of a Coal Industry Tribunal and for the
appointment of a person to constitute that Tribunal."

18. In the argument on behalf of the prosecutor a challenge was made to the legislative competence of the Commonwealth to create an authority jointly with a State, or at least an authority which derives from a State power which the Commonwealth itself could not confer upon it. It does not seem to me to matter whether the effect of the statutes of the Commonwealth and the State was to create one tribunal which derived power from two sources, or two tribunals, deriving power from different sources, but constituted by one person. In my opinion, it was within the power of the Commonwealth Parliament to follow either course. The Constitution effects a division of powers between the Commonwealth and the States but it nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in cooperation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s. 92 of the Constitution, a uniform and complete legislative scheme. Examples of co-operative action of that kind, which this Court has assumed to be valid, are to be found discussed in such cases as Wilcox Mofflin Ltd. v. State of N.S.W. [1952] HCA 17; (1952) 85 CLR 488, at pp 508-511, 526-528. Airlines of N.S.W. Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1, at pp 40, 42, 48, 51-52. and Clark King & Co. Pty. Ltd. v. Australian Wheat Board [1978] HCA 34; (1978) 140 CLR 120, at p 179. Further, no reason is provided by constitutional enactment or constutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction. In one instance the Constitution has expressly recognized the possibility of co-operation of that kind when it enables the Parliament to invest a court of a State with federal jurisdiction: Constitution, ss. 71, 77(iii). It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes. There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power. The position of an administrative body such as the Tribunal is no different; legislation of the Commonwealth Parliament, otherwise within power, is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth. (at p553)

19. Although, as I have indicated, it is not necessary to decide the question, it seems to me that the intention of the two legislatures was to constitute one Tribunal whose authority depended on the combined exercise of Commonwealth and State powers. The Tribunal is constituted by the statutes, rather than by the arrangement between the Governor-General and the Governor. The terms of the arrangement can have nothing to say as to the powers of the Tribunal, since, once an arrangement is made, and a person has been appointed to constitute the Tribunal, the powers and functions of the Tribunal will depend entirely on the provisions of the statutes. I incline to the view that the Tribunal, once constituted, can exercise any of the powers validly conferred on it either by the Commonwealth or by the State Act. In other words, it can exercise both Commonwealth and State powers in the one case. If this is so, it would appear unnecessary in the present case to find the existence of an industrial dispute extending beyond the limits of any one State, even though the awards applicable to the members of the respondent unions which were registered under the Conciliation and Arbitration Act purported to have been made under the Commonwealth Coal Industry Act. As at present advised, I can see no reason why a body which derives power from two sources cannot exercise whichever power appears available and appropriate in any particular case. If, in settlement of an interstate dispute, the Tribunal made an award under powers which it derived from the Commonwealth Coal Industry Act, the Tribunal might later amend that award in the exercise of powers which derived from the State Coal Industry Act for the purpose of settling a purely intrastate dispute. The inconsistency between the original award and the amendment would be resolved in favour of the amendment, since that would be later in time. Section 109 of the Constitution would have no operation, because, on the view which I am suggesting, the relevant law of the Commonwealth, i.e., the Commonwealth Coal Industry Act, reveals the intention that the Tribunal may use powers given to it by the State Coal Industry Act for the purpose of varying an award which it has made in the exercise of power given by the Commonwealth Coal Industry Act. If this view is correct, the prosecutor must fail. However, I shall discuss the case on the assumption that the Tribunal needed to resort to the powers conferred by the Commonwealth Coal Industry Act when it made the orders which it did in the present case. (at p554)

20. A further objection raised to the validity of the provisions constituting the Tribunal was that s. 32(1) and s. 34(1) of the Commonwealth Coal Industry Act attempted to confer on the Tribunal powers which it was beyond the legislative competence of the Parliament to bestow. This argument depends on a view of the construction of s. 32 which cannot be accepted. The argument was that notwithstanding the provisions of s. 32(2), the intention of s. 32(1) was to confer on the Tribunal all the powers specified in s. 34(1) in their full generality. The powers conferred in the later subsection may in some circumstances be within legislative competence, but they will in other circumstances be beyond Commonwealth power. For example, the legislative power of the Commonwealth will in some cases extend to enable it to legislate with regard to industrial disputes within a State (e.g., where the dispute is likely to affect trade with other countries or among the States) but there will be other cases of intrastate disputes which will not attract any of the legislative powers of the Commonwealth. Therefore, it was said, s. 32(1) is too wide and therefore invalid, and it is not possible to sever or divide its provisions, since s. 30 envisages the constitution of a Tribunal which has all the powers and functions which s. 32(1) declares that it shall have. It is a sufficient answer to this argument to say that, according to ordinary principles of construction, s. 32(1) must be read together with s. 32(2). The words "specified in this Part" in s. 32(1) do not simply mean "specified in s. 34(1)", since s. 32(2) appears in the same part of the Act and modifies the effect of s. 34(1). It is clear that the intention of the Parliament was that the powers mentioned in s. 34(1) should only be vested in the Tribunal to the extent to which they are not in excess of the legislative power of the Commonwealth. That this was the intention of the legislature was recognized in Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19; (1960) 103 CLR 15, at p 20. , where the Court said: "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." (at p555)

21. For these reasons I hold that the Tribunal was validly constituted. (at p555)

22. It was then argued that the orders were beyond the power of the Tribunal because they were not made in settlement of or in relation to an interstate industrial dispute. This argument can have no application to the order made on 27 October 1982, which related only to members of the Deputies' Association, so that on any view the powers conferred by the State Coal Industry Act were available. The argument that the orders made on 29 October and 12 November in relation to the other respondent unions will be valid only if they relate to an interstate industrial dispute proceeds on an assumption which, as I have already indicated, I am not prepared to make without further examination. However, assuming that it was necessary to the validity of those orders that they should have been made in relation to an interstate dispute, they were so made in the present case. In Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at p 624. , Mason J. said:

"It has long been established that Parliament may legislate so as
to give the Commission power to vary its awards, even in cases
where the proposed variation does not immediately or directly
arise out of a fresh industrial dispute extending beyond the
limits of a single State."

" . . . 'to maintain a settlement made by award of an industrial
dispute in an expedient and satisfactory form adjusted to
changing conditions' is incidental to the subject described in
s. 51(XXXV) of the Constitution. The Commission may be
invested with power to make a variation whether or not a new
dispute has arisen, but if there is no new dispute the variation
of the award cannot go beyond the limits of the original
dispute."

"Where the distinction between the unions party to the one
award brought about by the terms of the application is so fine I
believe that if the occasion is appropriate I should exercise the
powers conferred on the Tribunal on my own motion."

23. I therefore conclude that the Tribunal had power to consider and determine the applications made on 22 and 27 October, although in the case of ETU the power was limited to a claim for six weeks' severance pay. (at p557)

24. The final question in the case is whether the orders made by the Tribunal were within its powers. No difficulty arises as to the order made on 27 October 1982 in respect of the members of the Deputies' Association. The powers conferred by the State Coal Industry Act were available and ample to enable the Tribunal to deal with the application for an interim order that the prosecutor should extend the period of the notices which it had given, or should reinstate its employees. Such an application was clearly within both the opening words and par. (k) of the definition of "industrial matters": see Australian Iron & Steel Ltd. v. Dobb (1958) 98 CLR, at pp 597-598. Since it was not necessary to establish that the application made by the Deputies' Association was within the ambit of an interstate dispute the Tribunal clearly had jurisdiction to entertain it. In the case of the other respondents, the ambit of the interstate disputes was defined by the logs of claims. The interim orders which were made were not, in terms, in settlement of a dispute raised by the logs. They did not provide for a period of notice of dismissal, or for serverance pay or long service leave, and those were the relevant matters claimed by the logs. However, there can be no doubt that the intention of the Tribunal in making the orders was to preserve things in statu quo until the dispute had been resolved. The question is whether the Tribunal had power to make orders of that kind for that purpose. By s. 34(1A) of the Commonwealth Coal Industry Act, the Tribunal is to have all the powers given by the Conciliation and Arbitration Act to the Commonwealth Conciliation and Arbitration Commission in relation to industrial disputes before it under that Act. By s. 41(1)(b) of the Conciliation and Arbitration Act, the Commission may, in relation to an industrial dispute, "make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination". By s.4 of that Act "award" includes an order. The orders made in the present case were clearly interim orders. The question is whether they related to the matters in dispute. When a claim is made to vary an award by providing that an employee shall be given notice before he is dismissed on the ground of redundancy, or shall, if so dismissed, be entitled to severance pay, an order which protects the position of existing employees until the dispute arising out of the claims can be determined is related to the matters in dispute. The relationship consists in the fact that the order ensures that if the matters in dispute are decided favourably to the employees, persons presently in employment, but under threat of dismissal, will not be deprived of the benefit of the resulting award. In other words, the order is intended to ensure that a settlement of the matters in dispute, when made, will be effective, and is reasonably adapted for that purpose. It goes without saying that an order that an employee should be kept in employment for the purpose of ensuring that he has notice of dismissal or receives severance pay on dismissal would not be sufficiently related to the matters in dispute if the period for which the employee was kept in employment exceeded the period of notice, or the period of weeks of severance pay, claimed in the dispute, and that the fact that the interim order was made should be given due consideration in the making of the final award. In the present case the employees were kept in employment for three weeks as a result of the interim orders. That result was no different in substance from giving them three weeks' notice of dismissal, or giving them three weeks' severance pay. In other words, the interim orders did not produce a result substantially different from that sought by the logs. (at p558)

25. It was submitted on behalf of the prosecutor that an award, when made, could be given a retrospective operation, and that the interim orders were accordingly unnecessary. It was pointed out that the Tribunal did not extend the employment of the employees concerned after 19 November 1982 notwithstanding that the dispute had not then been determined, and this, it was suggested, showed that the Tribunal eventually acknowledged that the interim orders were unnecessary. When it is said that an award has a retrospective operation, what is meant is that the award imposes a present obligation to pay increased amounts in respect of a past time (cf. Federated Engine Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. [1920] HCA 18; [1920] HCA 18; (1920) 28 CLR 1, at pp 9-11.). The question whether it is possible to vary an award so as to oblige an employer to give notice of dismissal for an increased period to persons formerly employed but no longer in employment was not fully argued and I need not discuss it. Even if the Tribunal was in error in thinking that the orders that it made were necessary to protect the position of the employees, that does not mean that the orders were not related to the matters in dispute. (at p558)

26. The third order, made on 12 November 1982, was objectionable in form. The Tribunal could order the prosecutor to extend the period of employment of its employees, but it could not itself alter notices which had already been given by the prosecutor. However the intention of the Tribunal was clear - namely, to effect a further extention of the period of employment of those affected. Prohibition will not go to correct a mere error of form. (at p559)

27. For these reasons I consider that the Tribunal had power to make the interim orders which it did. It is unnecessary to decide whether the orders were necessary, since the wisdom or expediency of making them does not fall for decision on an application for prohibition. In the view that I take it becomes unnecessary to consider the privative provisions of s. 44 of the Commonwealth Coal Industry Act or the corresponding provisions of s. 50 of the State Coal Industry Act. (at p559)

28. I would discharge the orders nisi. (at p559)

MASON J. In my opinion the Coal Industry Tribunal was validly established by the Coal Industry Act 1946 (Cth), as amended, (the Commonwealth Act) and the Coal Industry Act 1946 (N.S.W.), as amended, and by the appointment pursuant to an arrangement between the Commonwealth and the State of a person to constitute the Tribunal. The joint legislation was enacted pursuant to an agreement between the Commonwealth and the State, the substance of which is recited in the preamble to the two statues. The object of the agreement and of the joint legislation is adequately summarized in the long title of the Commonwealth Act:

"An Act to provide means for Securing and Maintaining
adequate Supplies of Coal throughout Australia and for
providing
for the Regulation and Improvement of the Coal Industry
in the State of New South Wales, and for other purposes." (at p559)

2. It is obvious that neither the Commonwealth nor the State could validly empower the Tribunal to undertake all the functions or equip it with all the powers with which the joint legislation seeks to entrust it. By way of example, the powers conferred by s. 34(1)(b) and (f) of the Commonwealth Act could not be sustained as an exercise of Commonwealth legislative power alone, unless the provisions were drastically read down. It is equally obvious that the joint legislation is designed to overcome the shortfall in the respective legislative powers of the Commonwealth and the State by combining the exercise of those powers so far as they are relevant. (at p559)

3. There is nothing in the prosecutor's argument that the executive power of the Commonwealth does not extend to the making of the agreement recited in the preamble or to the making of an arrangement for the appointment of a person to constitute the Tribunal. The executive power of the Commonwealth is not, as the prosecutor would have it, limited to heads of power which correspond with enumerated heads of Commonwealth legislative power under the Constitution. Victoria v. The Commonwealth and Hayden (the AAP Case) [1975] HCA 52; (1975) 134 CLR 338 did not decide that the executive power was so limited, though Gibbs J. (1975) 134 CLR, at p 379 said "that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth". The scope of the executive power is to be ascertained, as I indicated in the AAP Case (1975) 134 CLR, at pp 396-397, from the distribution of the legislative powers effected by the Constitution and the character and status of the Commonwealth as a national government. Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers between the Parliaments of the constitutent elements in the federation. It is beyond question that it extends to entry into governmental agreements between Commonwealth and State on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution. A federal constitution which divides legislative powers between the central legislature and the constitutent legislatures necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the powers of any single legislature. Accordingly, the agreement recited in the statutes was within the executive power of the Commonwealth. (at p560)

4. In any event it is the validity of the Commonwealth Act that is in question, rather than the validity of the agreement. If the Commonwealth Act be valid, then it is difficult to perceive any ground for concluding that the agreement is invalid. And it is equally difficult to suppose that the invalidity of the agreement would affect the Commonwealth Act, assuming it to be otherwise within power (cf. PJ. Magennis Pty. Ltd. v. The Commonwealth [1949] HCA 66; (1949) 80 CLR 382). (at p560)

5. The substance and effect of Pt V of the Commonwealth Act so far as it relates to the establishment of the Tribunal is, first, to authorize the Governor-General to enter into an arrangement with the Government of a State for the constitution of the Tribunal and for the appointment of a person to constitute it (s. 30(1)) and then, once that arrangement has been made, to arm the Tribunal with specified powers and functions (s. 34). It is expressly declared that these powers and functions are by s. 32(2), but not otherwise, vested in the Tribunal to the extent to which they are not in excess of the legislative powers of the Commonwealth. This provision, read in conjunction with its associated provisions, indicates that the statutory design was to create a single office in the form of the Tribunal which was to exercise specified powers and functions sustained as far as constitutionally possible by the Commonwealth's powers and by State legislative power to the extent to which Commonwealth legislative power fell short. (at p561)

6. It seems to me that Pt V is quite inconsistent with a notion that two statutes created two separate tribunals, one a Commonwealth tribunal, the other a State tribunal, each exercising powers and functions derived from its statute. The remarks of Dixon C.J. in Australian Iron & Steel Ltd. v. Dobb [1958] HCA 26; (1958) 98 CLR 586, at p 596 do not suggest otherwise. They merely raise the general question as it affected the Local Coal Authority, another tribunal set up by the Commonwealth and State Acts, established by the Commonwealth Act in the context of s. 38(e) of the Judiciary Act 1903, as amended. Likewise, the comments of the Court in Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19; (1960) 103 CLR 15, at p 21 related to the jurisdiction of this Court to grant "prohibition to a Commonwealth officer on whom State power as well as federal power is conferred when he acts outside all his powers". However, the Court's judgment in Lydon is important for another reason. It proceeds on the footing that the joint legislation validly sets up the Local Coal Authority. In discussing the joint legislation the Court said (1960) 103 CLR, at p 20.

"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."

7. There have been other cases in which the Court has assumed that Commonwealth and State Parliaments have the capacity by joint legislation to create and confer powers on an authority or to create a combined legislative scheme - see Wilcox Mofflin Ltd. v. State of N.S.W. [1952] HCA 17; (1952) 85 CLR 488, at pp 508-511, 526-528; Airlines of N.S.W. Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1; Clark King & Co. Pty. Ltd. v. Australian Wheat Board [1978] HCA 34; [1978] HCA 34; (1978) 140 CLR 120. (at p562)

8. In Lydon the Court did not direct its attention to an argument based on ss. 32(1) and 34(1) which is raised before us. The prosecutor says that when these provisions are read together they evince an intention that the Tribunal may exercise all its powers, derived from both sources, Commonwealth and State, in the determination of any industrial dispute, industrial matter or other matter in which it has jurisdiction. This, so the argument runs, is beyond the Commonwealth's legislative power because an award made in the exercise of power conferred by the Commonwealth Parliament cannot be displaced, varied or modified in the exercise of power conferred by a State Parliament. (at p562)

9. Section 34(1A) lends weight to the submission that the Tribunal was intended to have the capacity to exercise all or any of its powers, irrespective of the source from which they are derived, in the determination of a dispute which comes before it. On the other hand, s. 36(1) provides that an award or order made by the Tribunal by virtue of the powers and functions vested by s. 36(2) has effect as if it were an award of the Commission and is binding on the parties and other persons on whom it is expressed to be binding so that the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended, in relation to enforcement apply to it. This may suggest that powers conferred on the Tribunal by State legislation were not intended to be exercised so as to vary an award made in the exercise of powers conferred by s. 36(2), although I am not inclined to think that there is much force in this argument. (at p562)

10. It is, I think, unnecessary to decide whether the Commonwealth Act evinces an intention that the Tribunal may exercise all its powers, derived from both sources, in the determination of any industrial dispute, industrial matter or other matter. Even if this be the correct construction it nevertheless does not entail invalidity. First, if it be beyond power to confer authority on the Tribunal to exercise powers of State origin in this way, then the result is that the attempt to confer that authority would fail, rather than that the constitution of the Tribunal would fail. (at p562)

11. Secondly, as at present advised, I see no strong reason why the Commonwealth Parliament in the exercise of the conciliation and arbitration power (s. 51(xxxv)) and the trade and commerce power (s. 51(i)) cannot establish a tribunal with powers and functions appropriate to the exercise of those powers and declare that the tribunal has the capacity to exercise such conciliation and arbitration powers and functions as may be given to it by a State Parliament, so that powers derived from both sources may be exercised in relation to the one dispute or matter. (at p563)

12. As I indicated in discussing the executive power, the Constitution, when it divides legislative powers between the Parliaments of the Commonwealth and the States, necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the competence of any single legislature. As with an exercise of the executive power for a co-operative purpose, Commonwealth legislative action for such a purpose is subject to the limitation that the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution. It is an integral element in joint legislation for a co-operative purpose that a legislature, whether Commonwealth or State, can give its authority or office holder a capacity to receive additional powers and functions as may be conferred by another legislature. (at p563)

13. One potential problem which the qualification mentioned calls forth is that of an inconsistency between Commonwealth and State laws bringing into operation s. 109 of the Constitution. This problem can be alleviated, if not eliminated, by a manifestation of intention in the Commonwealth law that it is not intended to occupy the field to the exclusion of State law. Indeed, the potential for inconsistency and the need to avoid it in co-operative legislative action is perhaps another reason for saying that the Commonwealth Parliament can give its authority or the joint authority (one in whose creation it has participated) the capacity to receive additional power from a State, though in the context of inconsistency it is intention, rather than capacity, that in important. But if the Commonwealth statute reflects an intention that the authority is to have capacity to receive powers conferred by State legislation, then generally speaking this will be indicative of an intention not to cover the field to the exclusion of State law. As the Court observed in Aberdare Collieries Pty. Ltd. v. The Commonwealth [1952] HCA 13; (1952) 86 CLR 12, at p 30, "in combined legislation of this type . . . the Federal statute should be interpreted as not meaning to occupy the field to the exclusion of the State legislation". (at p563)

14. And if the Commonwealth Act evinces an intention that the Tribunal may exercise all its powers, derived from both sources, in the determination of any dispute in which it has jurisdiction, the Tribunal will be entitled, if it thinks fit, to modify or displace an award previously made by it in the exercise of powers conferred by the Commonwealth. Whether the Tribunal's authority to modify or displace the award should be ascribed to the State statute on the footing that the Commonwealth Act has made the operation of the award subject to such orders as may be made by the Tribunal in the exercise of powers conferred by the State Act or whether the Tribunal's authority stems from a positive conferment of power by the Commonwealth to modify or displace the award does not much matter. (at p564)

15. If for these reasons the problem of inconsistency can be put aside, as I am inclined to think it can, then the difficulty that is said to arise in the exercise of power conferred by the States for the purpose of varying an award made in the exercise of the power conferred by the Commonwealth Parliament seems to disappear. Apart from the doctrine of inconsistency, there is no principle of constitutional law which preserves or protects an award made in the exercise of Commonwealth power from alteration in the exercise of State power by a Tribunal which is intended to exercise any or all of its powers, irrespective of the source of the power. Accordingly, once the issue of inconsistency is set to rest, the only serious objection to invalidity is overcome. (at p564)

16. Nevertheless, because this question was not fully argued I would not base my decision in this case on the ground that the Tribunal is authorized to exercise all or any of its powers irrespective of the source of the power. I prefer to say that the Commonwealth Act conferred jurisdiction on the Tribunal to make the orders made on 29 October and 12 November and to entertain the application made on 22 October for a variation of the federal awards by including in them the "Retrenchment and Redundancy" clause. As the Chief Justice has pointed out, the first order, that made on 27 October, related to men covered by a State award so that its validity is beyond question. (at p564)

17. I reject the argument that the Commonwealth Act confers no power on the Tribunal to vary an award which it has made. By s. 34(1A) the Tribunal is given all the powers which are given by the Conciliation and Arbitration Act to the Commission or a member of the Commission in relation to industrial disputes before it. By s. 59(1) and (2) of that Act the Commission is authorized, for any reason it considers it desirable to do so, to set aside an award or vary its terms. Plainly, despite the prosecutor's argument, the Commission's power to vary the terms of an award is exercisable in relation to an industrial dispute. Indeed, the existence of an industrial dispute is usually the occasion for exercising the power. (at p564)

18. It is well settled that the Commission has power to vary an award, so long at any rate as the variation is made to prevent or settle an interstate industrial dispute, whether the dispute is a fresh dispute or the initial dispute in settlement of which the award was made (Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at pp 619, 624). The variation will be a valid exercise of the power, at least when the variation is within the ambit of the initial dispute. For the reasons expressed by the Chief Justice in his judgment, except in the case of the log of claims delivered by the Electrical Trades Union there was ambit in the original logs of claims delivered by the federal unions to consider and determine a claim for three months' notification of cessation of employment due to redundancy, and severance pay. In the case of the Electrical Trades Union the Tribunal had jurisdiction to vary the relevant award by providing for up to six weeks' severance pay. (at p565)

19. As the Cheif Justice has pointed out, the Tribunal is given power to make interim orders by s. 34(1A) of the Commonwealth Act which picks up s. 41(1)(b) of the Conciliation and Arbitration Act. For the reasons which the Chief Justice has stated, the interim orders made on 29 October and 12 November were made in relation to the matters in dispute, that is, the issues presented by the applications to vary the federal awards. Although the order made on 12 November was objectionable in form, it should be understood as an order directing the prosecutor to extend the employment of the relevant employees for a further week. (at p565)

20. I would merely add that the decision in Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots [1971] HCA 58; (1971) 127 CLR 11 has no application. There the definition of "Industrial matters" in s. 88H of the Conciliation and Arbitration Act was restricted. Here the definition of that expression in s. 4 of the Commonwealth Act is relevantly wider, including par. (k) which is in these terms:

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

21. In other respects, and they include the validity of the order made on 27 October, I agree with the reasons of the Chief Justice. (at p565)

22. In the result I would discharge the orders nisi for prohibition. (at p565)

MURPHY J. I agree generally with the reasons for judgment given by the Chief Justice, but will deal briefly with some aspects of the constitutional validity of the Coal Industry Tribunal and its powers. (at p566)

2. The Coal Industry Tribunal was validly constituted under the Coal Industry Act 1946 (Cth), as amended (the Act) and the Coal Industry Act 1946 (N.S.W.), as amended (the State Act). The legislation is presumed valid (see The Commonwealth v. Tasmania (the Tasmanian Dam Case) Ante, p 161) and the presumption was not in any way displaced. The Act reveals an intention that an award made under its powers can be varied by the Tribunal using powers under the State Act (see s. 32(1) of the Act and s. 38(1) of the State Act); no inconsistency arises. (at p566)

3. Co-operative legislative arrangements such as this are valid (see Wilcox Mofflin Ltd. v. N.S.W. [1952] HCA 17; (1952) 85 CLR 488, at pp 508-511, 526-528; Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19; (1960) 103 CLR 15 at p 20; Airlines of N.S.W. Pty. Ltd. v. New South Wales [1964] HCA 2; (1964) 113 CLR 1, at pp 40, 42, 48, 51-52; Clark King & Co. Pty. Ltd. v. Australian Wheat Board [1978] HCA 34; [1978] HCA 34; (1978) 140 CLR 120, at p 179). However, the Commonwealth does not have to enter into an arrangement with a State or States in order that power such as those of the Coal Industry Tribunal may be vested in such a body. The Commonwealth Parliament's legislative powers are sufficient to authorize all the powers conferred on the Tribunal. The Act is amply justified by the commerce power (s. 51(i)) of the Constitution, the corporations power (s. 51(xx)) and the conciliation and arbitration power (s. 51(xxxv)). The Commerce Power. (at p566)

4. Regulation of the coal industry including its industrial relations is inextricably linked with trade and commerce with other countries, and among the States. Australia's export and interstate trade in coal are the most obvious links, but its foreign and interstate commerce generally are also dependent for their prosperity upon the efficient management of the Australian coal industry. The commerce power authorizes regulation of whatever affects interstate or foreign commerce, provided that the effect is not insubstantial. If the regulation of any particular industry is necessary or desirable for the advancement of foreign or interstate commerce then the Parliament may regulate that industry. The Parliament may thus legislate to encourage or require efficient technology and procedures and to set wages and conditions of employment. Regulation of industrial relations which might affect interstate or foreign commerce is within the scope of the power. The authority vested in the tribunal is justified by the commerce power alone. The Corporations Power. (at p567)

5. All the employers are trading corporations and regulation of their industrial relations, wages and the terms and conditions of the employment of their workers is within the Parliament's legislative power with respect to trading corporations (see Actors and Announcers Equity Association of Australia v. Fontana Films Pty. Ltd. [1982] HCA 23; (1982) 150 CLR 169, at p 207; Reg. v. Federal Court of Australia; Ex parte W.A. National Football League [1979] HCA 6; (1979) 143 CLR 190, at p 240; the Tasmanian Dam Case Ante, p 1.). The Parliament can legislate directly or indirectly to determine wages and conditions of employment by trading corporations as well as wages and conditions of employees in foreign and interstate commerce. The Conciliation and Arbitration Power. (at p567)

6. This power authorizes legislation with respect to conciliation and arbitration not only for the settlement of industrial disputes extending beyond one State but also for the prevention of such disputes (see Reg. v. Heagney; Ex parte A.C.T. Employers Federation [1976] HCA 32; (1976) 137 CLR 86, at p 105; Reg. v. Moore; Ex parte Graham [1977] HCA 20; (1976) 138 CLR 164, at p 180; Reg. v. Turbet; Ex parte Australian Building Construction Employees and Building Labourers' Federation [1980] HCA 47; [1980] HCA 47; (1980) 144 CLR 335, at p 354). The power thus extends to authorize conciliation and arbitration for the settlement of intrastate disputes which might, unless settled, extend beyond the limits of the State. It aso extends to authorize measures for conciliation or arbitration to deal with any situation which otherwise might give rise to an industrial dispute extending beyond one State. (at p567)

WILSON AND DAWSON JJ. We have had the advantage of reading the reasons for judgment of the Chief Justice. We agree with the conclusions of his Honour and substantially with the reasoning which leads to those conclusions. We would, however, wish to make the following observations. (at p567)

2. Upon the assumption made by the Chief Justice that the Tribunal needed to use the powers conferred by the Coal Industry Act 1946 (Cth), as amended, in making its orders (other than the order affecting only the New South Wales Colliery Officials' Association, Illawarra District) it was, as he points out, necessary for the validity of those orders that they be within the ambit of the interstate dispute in settlement of which each of the various awards was made. (at p568)

3. The ambit of that dispute was, in the case of each union, defined by the log of claims served by it and each log of claims contained demands relating to the rights of employees upon termination of employment or retrenchment including a special period of notice of termination of employment. (at p568)

4. Upon the same assumption, the relevant orders were made, if they were validly made at all, using s. 34(1A) of the Commonwealth Act which confers upon the Tribunal the powers which are given by the Conciliation and Arbitration Act 1904 (Cth), as amended, to the Conciliation and Arbitration Commission or a member of that Commission in relation to industrial disputes before it under that Act. Those powers include, under s. 41(1)(b) of the Conciliation and Arbitration Act, the power to "make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination". It is clear that the orders in question were made by way of interim award in exercise of this power, an order being included in the definition of an award by s. 4(1) of the Conciliation and Arbitration Act. They must then, to have been validly made, have related to "any or all of the matters in dispute". (at p568)

5. Before turning to the relationship between the relevant orders and the matters in dispute, it is necessary to determine the true nature of the orders. The order made on 29 October 1982 purported to extend the employment of employees under notice at the relevant collieries for a period of two weeks. The order made on 12 November 1982 was that the notices the subject of the existing interim award be further extended for a period of one week. (at p568)

6. Notwithstanding the wording of the earlier of the two orders, we think it apparent that the Tribunal was intending to increase the period of notice of termination of employment to which the employees under notice were already entitled under the various awards. Such an intention appears clearly enough from the second of the two orders, although even there the wording is inappropriate because the Tribunal could not itself have extended the period of the notices whatever its powers might have been to affect the entitlement of the employees to notice. However, we think that the effect of the orders is as we have said and, having regard to the type of relief sought in these proceedings, it is to substance rather than form that regard should be had. (at p568)

7. So construed, the orders relate to the period of notice required upon the termination of employment rather than to entitlement to employment or to the continuation of employment. These are different things. Although an employer may bind himself contractually not to terminate an employee's employment without giving a specified period of notice, summary dismissal will nevertheless be effective leaving the employee to his remedy in damages for failure to give the requisite notice. See Vine v. National Dock Labour Board (1957) AC 488, esp. at p 507; Automatic Fire Sprinklers Pty. Ltd. v. Watson [1946] HCA 25; (1946) 72 CLR 435, at pp 463-465. Where, however, there is some statutory right to the continuation of employment, the position at common law may be displaced so that a purported dismissal may be a nullity. See Howes v. Gosford Shire Council (1961) 78 WN (NSW) 981, at pp 984, 986-987, per Jacobs J.; Vine v. National Dock Labour Board. (at p569)

8. There is nothing in any of the logs of claim in this case which could be said to seek to affect in any relevant way the common law right of the employer to dismiss employees although there are, as we have said, demands for specified periods of notice to be given if employment is to be terminated. The distinction is observed between the right to employment or continuation of employment - from the employer's point of view, the right to hire and fire - and the right to notice of termination of employment. It was the latter, not the former, which was in dispute and had the Tribunal ordered that the prosecutor continue in its employment any of its employees, then in our view its order could not have been supported because it would not have related to any of the matters in dispute as required by s. 41(1) of the Conciliation and Arbitration Act. But the orders which the Tribunal made, taking the view of them which we do, relate to the right to notice of termination of employment which is a matter in dispute. Moreover, the orders are within ambit except in the case of the Electrical Trades Union of Australia (ETU), because the relevant logs of claim seek a period of notice of three months and the extra notice required by the orders, even when added to the period of notice already given by the prosecutor, was well within that period. The log of claims served by the ETU claimed only one week's notice or two weeks' wages in lieu of notice and it is apparent, therefore, that the orders which were made were beyond ambit in so far as they purported to confer any entitlement upon members of the ETU. We shall return to the position of the ETU shortly. (at p569)

9. It was also submitted that the orders did not relate to any of the matters in dispute because they were directed to specified employees, namely, those who had received notice of termination of employment, whereas the relevant matter in dispute was a claim for an increased period of notice as a term or condition of employment, i.e., for employees generally. In our view this is also a matter of form only. If the orders made by the Tribunal had, by way of interim award, varied the relevant clause in the applicable awards so as to increase generally the period of notice required upon termination of employment, the same result would have been achieved in relation to those employees who had in fact received notices. That the orders were limited in their application does not in our opinion mean that they were not related to a matter in dispute, namely, the period of notice required upon termination of employment. (at p570)

10. The fact that the orders of the Tribunal, in so far as they sought to affect members of the ETU, were beyond ambit makes it necessary to examine further the assumption that the jurisdiction of the Tribunal to make those orders involved the exercise of the powers conferred upon it by the Commonwealth Coal Industry Act and so was dependent upon the existence of an interstate dispute. This was said to be the consequence of the existence of an award dealing with the same subject-matter, which had been made in settlement of an interstate dispute. The relevant interstate dispute was that created by service of the original logs of claims and the ETU's log of claims did not provide the necessary ambit in relation to the orders made by the Tribunal so far as it was concerned. Nevertheless, the Tribunal found that there was a fresh interstate dispute, although it is not clear how it arrived at that conclusion. Assuming however, in the case of the ETU, that there was no interstate dispute relating to notice of termination of employment, whether because of lack of ambit or otherwise, there was clearly an intrastate dispute relating to that matter and the Tribunal had ample power to make the orders which it did in respect of the ETU under the provisions of the Coal Industry Act 1946 (N.S.W.), as amended, without regard to ambit. The objection which was raised to the Tribunal's exercising its powers under the New South Wales Act was that in doing so it would be varying an existing award, even if only in an interim way, which had been made pursuant to its powers under the Commonwealth Act and that this would produce a situation of inconsistency in which the provisions of the award made under the Commonwealth legislation must prevail under s. 109 of the Constitution. We are unable to see the validity of this objection. (at p570)

11. No doubt the orders which the Tribunal made by way of interim award were inconsistent with the existing award: they provided for a different period of notice of termination of employment. But it has often been pointed out that it is in the legislation upon which an award depends for its efficacy and not the award itself that inconsistency with State laws for the purposes of s. 109 must, if any inconsistency exists, ultimately be found. Section 109 is concerned with inconsistency between laws, not with what is done pursuant to laws. (at p571)

12. There is a clear intention which emerges from the Conciliation and Arbitration Act that awards made pursuant to the powers which it confers should have an exclusive operation in relation to the matters for which they provide. The original awards in this case were not, however, made pursuant to provisions of the Conciliation and Arbitration Act. They were, so it is said, made in exercise of the power conferred by the Commonwealth Coal Industry Act upon the Coal Industry Tribunal because they were made in settlement of interstate industrial disputes. Although that Act gives to the Tribunal the powers which are given by the Conciliation and Arbitration Act to the Conciliation and Arbitration Commission or a member of the Commission (see s. 34(1A)), it evinces no intention that any award made in exercise of those powers should have an operation which would exclude the exercise of any powers which the Tribunal might have under the laws of the State. (at p571)

13. It is true that s. 36(1) of the Commonwealth Coal Industry Act declares that an award or order made by the Tribunal by virtue of the powers and functions vested in the Tribunal by s. 32(2) of that Act has effect in all respects as if it were an award of the Commission. But when this provision is construed in the context of the Act it does not, in our opinion, import the quality of exclusivity that the Conciliation and Arbitration Act confers upon awards made under that Act. Indeed, if s. 36(1) were given that wide construction it would be a denial of the clear legislative intent which is to be found in s. 32(1) and s. 34(1) of the Commonwealth Coal Industry Act. (at p571)

14. Section 36(1) is concerned with the enforcement of awards and agreements made in the exercise of the powers and functions vested in the Tribunal by the Act. It is not directed to raising any limitation on the exercise by the Tribunal of those powers and functions which it derives from the State Act. On the contrary, in the Coal Industry Tribunal Acts, both Commonwealth and State, there is a clear expression of intention that the Tribunal should be able to exercise the powers which it derives from the Commonwealth legislation and the powers which it derives from the State legislation, not so that the exercise of the one set of powers excludes the exercise of the other, but so that its powers from both sources should remain available to it to be exercised from time to time and notwithstanding that the exercise of the powers given under the Commonwealth Act might supersede an earlier exercise of the powers under the State Act or vice versa. (at p572)

15. Although s. 32(1) of the Commonwealth Act does not operate to vest powers in the Tribunal, the declaration which it contains that the Tribunal is to have all the powers and functions specified in Pt V of the Act must indicate an intention that the exercise of some of those powers should not operate to the exclusion of others. The powers to which the sub-section refers are principally those listed in s. 34(1), some of which clearly extend beyond the legislative competence of the Commonwealth Parliament. This is recognized by s. 32(2) which vests those powers in the Tribunal only to the extent that it is within the competence of the Parliament to do so. It is manifest that if all the powers referred to in s. 34(1) are to be vested in the Tribunal, then there must be a source other than the Commonwealth Act and it is plain from the provisions of that Act, including the preamble, that it is intended that the Tribunal should have powers derived from State legislation. (at p572)

16. There is nothing in the Act which would indicate that the exercise of powers from one source should operate to exclude the exercise of powers derived from the other. Concurrent or parallel powers derived from Commonwealth and State legislation do not necessarily give rise to any inconsistency provided that the Commonwealth legislation does not deal with its subject matter to the exclusion of the State. It may be that the same thing cannot always be done simultaneously in the exercise of powers given by both Commonwealth and State legislation (perhaps only where there are different persons purporting to act in different capacities). The manner in which the powers are exercised may produce a situation of conflict in which the Commonwealth legislation must be said to prevail. See Victoria v. The Commonwealth (the "Kakariki") [1937] HCA 82; (1937) 58 CLR 618. In the present context that would seem to be of theoretical significance only, without any practical conequences. What at least is apparent from the Commonwealth Act is an intention that the powers derived from both the Commonwealth and State legislation should be exercisable by the Tribunal in a single hearing or successively so as to produce different results. We can, therefore, see no reason why the Tribunal should not, in the exercise of its powers under the State Act, vary the terms of an award previously made in the exercise of its powers under the Commonwealth Act. (at p572)

17. It is, perhaps, necessary to make the final observation that there is nothing in s. 65 of the Conciliation and Arbitration Act which would alter the conclusion which we have reached. That section provides:

"Where a State law, or an order, award, decision or
determination of a State Industrial Authority, is inconsistent
with, or deals with a matter dealt with in, an award, the latter
prevails and the former, to the extent of the inconsistency or in
relation to the matter dealt with, is invalid."

18. For these reasons it is our view that the existence of an award made pursuant to the provisions of the Commonwealth Coal Industry Act in settlement of an interstate industrial dispute placed no inhibition upon the Tribunal in the exercise of its powers under the New South Wales Coal Industry Act in settlement of a subsequent intrastate dispute involving a matter dealt with by the existing award. (at p573)

19. It is our view, therefore, that the prosecutor must fail. (at p573)

BRENNAN J. The steel industry has suffered in the present recession and, in consequence, the coal industry in New South Wales has suffered too. On 23 September 1982, The Broken Hill Proprietary Co. Ltd. (BHP) announced that the stage had been reached where significant reductions had to be made in coal output from the collieries in the Wollongong area owned by BHP's subsidiary Australian Iron and Steel Pty. Ltd. (AIS). There would be loss of employment. On 30 September it was announced that 384 employees were to be retrenched, but preference would be given to retrenched employees in the filling of vacancies that existed in some other collieries. On 1 October letters of dismissal were sent out. Omitting formal parts the letters were in the following terms:

"Owing to the severe downturn in the steel industry and an
inability to secure markets for our coal it has become necessary
to reduce our mining operations. We regret to advise that as a
consequence of the abovementioned factors it is necessary to
terminate your services from Friday, 29th October, 1982."

2. On 1 October the unions other than ACSA applied to the Coal Industry Tribunal, constituted by Mr. D.A. Duncan, for a variation of their respective awards to preserve employment temporarily. The New South Wales branch of ACSA subsequently joined in that application. On 22 October, the unions other than the Deputies' Association made a fresh application for the inclusion in the appropriate awards of a new clause relating to retrenchment and redundancy. In time, the earlier application lapsed. The fresh application was in these terms:

"APPLICATION IS HEREBY MADE to vary or insert into the
approp(r)iate awards the following clause:

RETRENCHMENT AND REDUNDANCY.
An employee may only be retrenched or deemed redundant
after it has been established by the employer, to the
satisfaction of the employee and of the union, that no other
alternative exists.
Where an employee is retrenched or deemed redundant he or
she shall be entitled to -
(a) Three months' notification of the cessation of his or her
services, and
(b) 12 weeks' pay, at the rate which would have been paid if
at work, for each year of service, and
(c) All Long Service Leave entitlements.
We wish also, to request that if no determination has been
made by Wednesday afternoon, that the Tribunal issue orders
extending the terminating date of those members of all unions
on threat from Australian Iron and Steel until after this
application has been finalised."

3. On 29 October, the AIS advocate informed the Tribunal that the company would comply "under protest" with the order with respect to the Deputies' Association, but not with the recommendations as to other employees whose notices of dismissal were to expire that day. AIS contended that the Tribunal's decision and recommendation were made without jurisdiction. Except in the case of ACSA, which had failed to serve its claim, the Tribunal did not accept that contention. It made an interim order in these terms:

"(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."

4. 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. (at p576)

5. 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."

6. 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 [1958] HCA 26; (1958) 98 CLR 586, at p 596, 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". (at p577)

7. 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."

8. 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

(a) an industrial dispute extending beyong the limits of any
one State;
(b) an industrial dispute in the 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."

"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 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."

9. 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 appointment 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 constitued 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. [1939] HCA 27; (1939) 61 CLR 735, at p 774, 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." (at p580)

10. 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
(b) is binding on -
(i) the parties; or
(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."

"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."

11. 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. (at p581)

12. 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 [1957] HCA 76; [1957] HCA 76; (1957) 97 CLR 177, at p 182.

"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."

"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."

13. 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 [1930] HCA 12; (1930) 43 CLR 472, at p 484, and Reg. v. Winneke; Ex parte Gallagher [1982] HCA 77; (1982) 152 CLR 211, at pp 215-216). 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. (at p583)

14. 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. (at p583)

15. 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. (at p584)

16. 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. (at p585)

17. 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. [1931] HCA 37; (1931) 46 CLR 284). 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 [1946] HCA 25; (1946) 72 CLR 435. 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. (at p586)

18. 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. (at p586)

19. For the reasons stated by the Chief Justice, I agree that the grounds relating to the alleged bias of the Tribunal should be rejected. (at p586)

20. For these reasons, I concurred in discharging the orders nisi. (at p586)

DEANE J. 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. (at p586)

2. In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19; (1960) 103 CLR 15, at pp 19-20., 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. (at p587)

3. 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 [1901] UKHL 1; (1901) AC 426, at p 429; Chaff and Hay Acquisition Committee v. J.A. Hemphill and Sons Pty. Ltd. [1947] HCA 20; [1947] HCA 20; (1947) 74 CLR 375, at pp 384-386, 389, 391, 393). 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)). (at p587)

4. 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."

"(b) the privileges, rights and duties of employers and
employees;
. . .
(h) the mode, terms and conditions of employment;
. . .
(k) the right to dismiss or to refuse to employ, or the duty to
reinstate in employment, a particular person or class of
persons."

5. 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 (1960) 103 CLR, at p. 20 , 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 [1958] HCA 26; [1958] HCA 26; (1958) 98 CLR 586, at p 596). 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. (at p588)

6. 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. (at p589)

7. 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. (at p589)

8. 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 America 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 [1816] USSC 34; (1816) 1 Wheat. 304, at p 325 (4 Law Ed 97, at p 102); New York v. Miln [1837] USSC 10; (1837) 11 Pet. 102, at p 153a (9 Law Ed 648, at p 668). (at p590)

9. In Attorney-General (Ontario) v. Attorney-General (Canada) (1912) AC 571, at pp 583-584. 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." (at p590)

10. The applicability of these remarks to the Australian Constitution was immediately recognized (see Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) [1912] HCA 94; (1912) 15 CLR 182, at pp 214-215 ). In Smith v. Oldham [1912] HCA 61; (1912) 15 CLR 355., 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 (1912) 15 CLR, at pp 360-361.

". . . 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."

of another Statute (R. v. Barger
[1908] HCA 43; (1908) 6 CLR 41, at p 101): - "The power to pass
such an Act must reside somewhere." Recently in the Colonial
Sugar Refining Co. v. Attorney-General (Cth)
(1912) 15 CLR, at p 214. I quoted the words of Lord Loreburn L.C. in

Attorney-General (Canada)
(1912) AC, at pp. 583-584,
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

appertaining to the self-government conferred is contained
somewhere within it." (at p591)

11. 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 exercising 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. (at p592)

12. 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. (at p593)

13. 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 [1953] HCA 97; (1953) 90 CLR 320, at p 330). 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. (at p594)

14. 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)). (at p594)

15. 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. (at p595)

16. It was for the above reasons that I concurred in the discharge of the orders nisi. (at p595)

ORDER