Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 (2 December 1943)

Fullagar K.C. (with him Dean), for the respondent, at the instance of the Court presented argument at this stage.

Case stated by his Honour Judge Kelly under the Commonwealth Conciliation and Arbitration Act 1904-1934, s. 31, sub-s. 2. This case raises questions as to the validity of the National Security (Industrial Peace) Regulations and of certain National Security (Supplementary) Regulations, and as to the applicability of the regulations, if they are valid, to certain claims made in the Arbitration Court by employees of the Government of Victoria for payment for work done on days which would normally have been holidays, but which, under the regulations, were working days in respect of which the regulations provided that extra payment could be awarded by industrial authorities.

The Industrial Peace Regulations are Statutory Rules 1940 No. 290 as subsequently amended. The validity of the Regulations was discussed but not decided in Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd.[1], and R. v. Commonwealth Court of Conciliation and Arbitration (Public Service Case)[2].

In the Industrial Peace Regulations "the Act" means the Commonwealth Conciliation and Arbitration Act 1904-1934 (reg. 2).

The regulations quoted are sufficient to show that they are designed to exercise Commonwealth legislative power in relation to industrial matters and industrial disputes without regard to the limitations which arise from the terms of s. 51 (xxxv.) of the Constitution, which confers power upon the Federal Parliament to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." It has been held that under this provision the Commonwealth Parliament is limited to making laws for the prevention and settlement of industrial disputes (not for the direct regulation of industrial matters) and only of inter-State industrial disputes, and for the prevention and settlement of such disputes only by the methods of conciliation and arbitration. The Industrial Peace Regulations do not limit authorities acting thereunder to methods of conciliation and arbitration, or to the subject matter of inter-State industrial disputes, or to disputes.

The Regulations were made under the National Security Act 1939-1940, and the question is whether they can be supported under that Act as necessary or convenient to be prescribed for the more effectual prosecution of any war in which His Majesty is engaged (s. 5). They apply to any industrial matter, provided either (1) that the Court is satisfied or the Minister certifies that it is proper to be dealt with in the interests of industrial peace and national security (reg. 5 (a)); or (2) that a conciliation commissioner is of opinion that an industrial dispute has arisen or is threatened or impending (regs. 5 (b) and 15); or (3) that the Minister is of opinion that the industrial matter has led or is likely to lead to industrial unrest (reg. 9); or (4) that the Arbitration Court thinks it desirable in the interests of industrial peace or national security to exercise its powers under the Regulations (reg. 11). The Regulations, therefore, do not deal with industrial matters generally, but only with industrial matters which in the opinion of the Court or of the Minister or of a conciliation commissioner are actual or probable sources of industrial disturbance, or in the opinion of the Court should be dealt with in the interests of national security. The Regulations do not relate to industrial matters irrespective of the possibility of industrial disputes or of relation to national security. They are, therefore, in my opinion, distinguishable in this essential particular from the regulations considered in the Victorian Chamber of Manufactures v. The Commonwealth (Industrial Lighting Regulations)[3]. Those Regulations were not limited in any way by reference to possible industrial disturbance or to possible effect upon national security.

An industrial matter which in the opinion of the Arbitration Court may affect national security is, I think, very plainly a matter affecting the effectual prosecution of the war. But jurisdiction in respect of other matters under the regulations mentioned depends upon the opinion of the Minister as to the actuality or probability of industrial unrest or upon the opinion of the Arbitration Court or a conciliation commissioner as to the preservation of industrial peace. The fact that jurisdiction depends upon the opinion of the Court or the Minister or a conciliation commissioner does not constitute an obstacle to the validity of the Regulations: See Lloyd v. Wallach[4], and Ex parte Walsh[5]. The opinion of the Minister or a commissioner has only the same effect in bringing a matter before the Court as a certificate of the Registrar of the Court under s. 19 (a) of the Commonwealth Conciliation and Arbitration Act 1904-1934. The question which arises, therefore, is that of the relation of industrial unrest (or, obversely viewed, industrial peace) to the effectual prosecution of the war.

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

The next question is whether, if the making of the Industrial Peace Regulations is not prohibited by an implication based upon s. 51 (xxxv.) of the Constitution, the Regulations can be justified under the National Security Act, s. 5.

It is contended that the assumption of the degree of control of industrial matters which is involved in the Regulations cannot be so related to the defence of the country and the prosecution of the war as to justify the making of the Regulations under the Act.

It is argued that there are some industrial matters such, for example, as the growing of ornamental flowers, which cannot possibly be regarded as having any real relation to the successful prosecution of the war. But the question which now arises is not whether the growing of ornamental flowers or some such occupation can be so regarded, but whether industrial peace and industrial war have a real connection with the war effort. The question is whether a system of dealing with all industrial disputes and all industrial matters which have led or may lead to such disputes or to industrial unrest, as distinguished from a system of dealing only with inter-State industrial disputes by means of conciliation and arbitration, can be sufficiently connected with defence and the war. In my opinion the answer to this question should be in the affirmative. In such a war as the present the authority responsible for defence must be able to organize and control the working capacity of the people and to assist the smooth working of the industrial system by preventing the friction and waste of time and energy which are inevitably involved in any industrial dispute. Industrial matters which may lead to an industrial dispute are possible, though not yet actual, sources of such waste and friction. With the present organization of employers and employees and of capital and labour, any industrial matter, however small (even a matter relating to the growing of flowers), may lead to an industrial dispute which may develop into an obstacle to the war-efficiency of the community. The defence power, in my opinion, authorizes the Commonwealth Parliament to provide a system of dealing with all industrial matters which fall within the terms of the challenged regulations 4, 5, 9 and 11.

It should be observed that the Industrial Peace Regulations deal only with industry and industrial matters, and not with the governmental activities of States: See the Public Service Case[6]. In my opinion the objections to the validity of the Industrial Peace Regulations fail. This opinion is in accordance with the principles which were stated by the majority of the Court in the Women's Employment Case—Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regulations)[7].

The next question which arises is as to the validity of certain National Security (Supplementary) Regulations, Statutory Rules 1941 No. 297 as amended. The regulations in question are Nos. 19, 29, 29a and 44.

Reg. 19 limits days which may be observed as holidays in the Christmas-New Year season 1941-1942 and expressly applies to State Departments and authorities, but it is limited to "business premises." The word "premises" is defined as follows:—

In so far as the regulation applies to State Departments irrespective of whether or not those Departments are engaged in industry and therefore to purely governmental work, the regulation must, in my opinion, be held to be ineffective in accordance with the decision in the Public Service Case[8]. But the word "State" in the definition of premises is clearly severable, and, if this word is struck out, the regulation would apply to limit holidays in industries, whether they were carried on by a private employer or by a State Department or authority. The fact that an industry is carried on by a State does not exclude the application of Commonwealth legislative power in respect of that industry. If a Commonwealth legislative power, upon its true construction, extends to a particular subject matter, a law which is a law with respect to that subject matter may validly apply to a State "in the absence of any special provision to the contrary" in the Constitution. There is no implied constitutional prohibition against Commonwealth legislation binding a State (Engineers' Case[9]), which established the proposition which I have stated—see p. 149—quotation from R. v. Burah[10]; p. 153, Commonwealth laws may validly bind the "political organisms called States":—rejection of any a priori contention that the grant of legislative power to the Commonwealth Parliament should not bind the States and their agencies; p. 154—a power generally expressed may extend to the States "subject to any special provision to the contrary elsewhere in the Constitution"; p. 155—States are subject to Commonwealth legislation passed under a general power containing no exceptions relating to States, if such legislation on its true construction applies to them; and p. 144—the principles upon which the Engineers' Case[11] was determined "apply generally to all powers" contained in s. 51 of the Constitution. Thus, if the Commonwealth Parliament can, under the defence power, limit the days to be observed as holidays in industry, general legislation of this character may be made applicable to industry carried on by States.

The continuity of industrial production in time of war is a matter which has a very close connection with defence. Maximum industrial production is, or obviously may be, of the greatest importance for the purposes of war. Thus the limitation of the number of holidays to be enjoyed by men and women who are engaged in industry is a subject which falls within the defence power. (As I prepare this judgment it is announced that in Germany there are to be no Christmas holidays this year.) The applications made to the Arbitration Court to which this case refers are stated in the case (par. 31) to be applications in respect of an industrial dispute. So far as reg. 19 is concerned, I am of opinion that it validly applies to industries even though those industries are carried on by a State. I now proceed to consider the other regulations the validity of which is challenged.

Reg. 29 (1) is as follows:—"29.—(1) The employer, manager, or occupier of every establishment, factory, mine, dockyard, or workshop, which is engaged wholly or partly in production for war or defence purposes, or in the repair or overhaul of munitions of war, and every Commonwealth or State Department, or authority of the Commonwealth or of a State engaged on work associated with the prosecution of the war, shall, on every day to which this regulation applies, carry on such production, repair, overhaul or work in the same manner and to the same extent as would be the case if that day were an ordinary working day."

Further provisions of reg. 29 are stated in the report of the Public Service Case[12]. Reg. 29 (1) is limited to what may be described as work associated with the war, but sub-regs. 8, 9 and 10, added by amendment, relate to any work whatever. They are set out in the report of the Public Service Case[13], and they relate to Royal Agricultural Show Day in Victoria and to the day which ordinarily is Melbourne Cup Day in Victoria. Sub-reg. 8 expressly applies to State Departments and employees.

Reg. 44 required employers to keep their premises open on the days to which the regulation applied, which were days which would normally have been observed as holidays, and gave a right to employees including State employees (sub-reg. 3) to get additional payment if awarded by a tribunal or authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work of the employee. Reg. 44 has been repealed, but the rights under the regulation are preserved by reg. 29A.

Reg. 29A provides that where an employee has worked on any day which under reg. 19 was not observed as a holiday, or on any day to which reg. 44 applied, and the employee was not entitled to additional payment for so working under an existing law, industrial award, &c., any tribunal or authority with jurisdiction described as in reg. 44 already quoted may, upon application of the employee, determine that the employee shall be entitled to additional payment.

The applicants worked on various of the days to which these regulations apply, and have made application to the Arbitration Court for additional payment under the regulations.

The application cannot succeed unless the Arbitration Court is a "tribunal ... having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work on which the employee is employed" (reg. 29 (3) and reg. 29A (1)). If the Industrial Peace Regulations are invalid there might be room for doubt whether a tribunal having jurisdiction to deal only with inter-State disputes, and then only by means of conciliation and arbitration, was a tribunal falling within the general description quoted. But if the Regulations are valid (as in my opinion they are for reasons already stated) the Arbitration Court is plainly such a tribunal.

In the Public Service Case[14], it was held that sub-regs. 8, 9 and 10 of reg. 29, in so far as they purported to control holidays and remuneration of members of the public service who were engaged in ordinary State governmental work, were not authorized under the power of the Commonwealth Parliament to legislate with respect to defence. These sub-regulations were held to be invalid in their application to such public servants. Similar reasoning would apply in such cases to the right given to such State servants by reg. 29A in respect of days not observed as holidays by reason of reg. 19 and to the right created by reg. 44 as preserved by reg. 29A. Accordingly, the applicants and the Commonwealth (intervening) submit two arguments to the Court in these proceedings. In the first place they ask the Court to reconsider the decision in the Public Service Case[15] and to hold that the regulations in question are valid in their application to all State servants whatever the nature of their work may be, and, secondly, they contend that, even if the regulations are invalid in relation to employees engaged in what may be called the strictly governmental service of the State, reg. 29 (1), limited to war work but applying to State servants engaged in such work, is valid, and that sub-regs. 8, 9 and 10 of reg. 29 should be read down by virtue of the Acts Interpretation Act 1901-1941, s. 46 (b), so as to apply only to State public servants engaged in work described in reg. 29 (1). On the other hand it was contended for the State of Victoria that the Court should follow its decision in the Public Service Case[16] and that the regulations cannot be read down, but are invalid in toto.

No arguments have been presented in the present proceedings which lead me to think it necessary or proper to reconsider the decision in the Public Service Case[17]. I venture to repeat what I said in that case after stating[18] that the question involved was whether the Federal control of State public servants sought to be exercised by the regulations without reference to the character of their work could be shown to be a measure which was really a defence measure:—"If, under the defence power, the Commonwealth can control the pay, hours and duties of all State public servants, it is obvious that the Commonwealth can take complete control of all governmental administration within Australia. The result would be the abolition, in all but name, of the Federal system of government which it is the object of the Constitution to establish—preamble and clause 3 of the covering clauses of the Constitution"[19].

The question stated was fully argued in the Public Service Case[20]. The Justices agreed in the decision. To hold otherwise would, in my opinion, involve the practical abolition of State Governments in any time of war. Such a result should not be brought about by a decision of this Court unless it is inescapable. In my opinion the reasons given for judgment in the Public Service Case[21] are right and the case should be followed as a binding authority. I mention that the case has no reference to the emergencies and urgencies of actual military operations.

As I indicated in my reasons for judgment in the Public Service Case[22], in my opinion reg. 29 (1) is valid in relation to State public servants employed in State Departments or by State authorities in work of the kind to which reg. 29 (1) applies: see the report[23]. Reg. 29 (1) is limited in its application to "production for war or defence purposes," "the repair or overhaul of munitions of war" and "work associated with the prosecution of the war." A further question which now arises is whether the general provisions of reg. 29 (8), (9) and (10) and reg. 44, which relate to any work whatever, and of reg. 29A so far as it purports to give rights to persons who worked on days to which reg. 19 and reg. 44 applied, can be read down so as to be limited to certain work or to certain employees so as to be valid in relation to State employees engaged in such work.

The answer to this question depends upon the application to the regulations of s. 46 (b) of the Acts Interpretation Act 1901-1941. Section 46 (b) is in the following terms:—

This provision applies to regulations. A similar provision applying to statutes is to be found in s. 15A. I propose for the purpose of this judgment to refer to these provisions as the Acts Interpretation Act, and to refer to statutes and regulations as laws, using the term "law" for the purpose of describing statutes in fact passed and regulations in fact promulgated, without reference to any question of their validity.

In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co.[24], attention was given to the question of severability in its relation to the possible invalidity of statutes. Isaacs J. in particular examined the two cases of (1) separate words or expressions, some of which as enactments separately considered were valid and others invalid, and (2) a general word or expression which included both good and bad provisions. The relevant provisions of the Acts Interpretation Act were passed subsequently to this and a number of other decisions in which the question of severability arose. It is a fair construction of the Act to say that Parliament has in the Act indicated its general intention that all Federal laws shall be held to be valid so far as possible. But it may be that the provisions of a particular law show that it was the intention of the Parliament that, if the law did not have a full and complete application in all cases according to its terms, it should not apply in any case. The whole question is one of the intention of Parliament.

Mr. Phillips, in an interesting argument, submitted to the Court that the Act was not directed to the construction of laws for the purpose of determining their meaning, but to the operation of all laws. The Act applies only when the law, construed according to its terms, is beyond power. One view of the section is that if it appears that Parliament intended it to operate under certain conditions, even though it could not operate fully as expressed, and if this intention can be ascertained from an examination of the law itself (taking the Acts Interpretation Act into account), then it is valid in relation to those conditions. This view treats the Act as prescribing a rule of construction, as stated by Evatt J. in R. v. Poole; Ex parte Henry [No. 2][25]. Upon this view, where, to use the words of Isaacs J. in Whybrow's Case[26], good and bad provisions are contained in separate words and expressions, then it will be possible to strike out the invalid parts, provided that the operation of the remaining parts of the law remains unchanged. But if, either in such a case or in the case of "general words or expressions" the Court is of opinion that the law was intended to operate fully and completely according to its terms, or not at all, then the law would be either completely valid, or completely invalid. The opposing view, for which the applicants contend, is that the Act should be read as affecting the operation of all laws in the sense that all laws are to be held to be valid in all cases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases: that is, that the Act in effect says that all laws are to be construed as validly applying wherever they could by suitable limitations have been made validly applicable. Upon this view no legislation would ever be completely invalid if a case could be discovered to which it could have been validly applied. This argument may be illustrated by an example. Let it be supposed that the Commonwealth Parliament passes a general statute dealing with larceny which, according to its terms, is plainly beyond Commonwealth legislative power because the Parliament has no power to make general criminal laws. Prima facie the law is invalid. But the Commonwealth has full powers of legislative control, e.g., in relation to all the territories of the Commonwealth, in relation to acts and defaults of postal, customs and other Commonwealth officers, and in relation to acts which constitute parts of inter-State and foreign trade and commerce. Then, it is said, the statute should be treated as valid in relation to such cases as those mentioned, that is, to all larcenies in the Federal Capital Territory, the Northern Territory, Norfolk Island, &c., in relation to larcenies by postal, customs and other Commonwealth officers, and in relation to people who, in the course of transactions in inter-State trade and commerce, are guilty of the acts which are penalized by the statute. When any person was charged with an offence under the statute the inquiry would be, not whether the statute in its general terms was within Commonwealth power, but whether such a statute could have been passed with some limitation or limitations which would have resulted in the statute being valid and applicable to the person who was on that particular occasion charged with an offence. If this question could be answered in the affirmative, it is said that the effect of the Acts Interpretation Act is that the statute must be held to be valid in its operation in relation to that person. It would be left to the Court to discover and prescribe an appropriate limitation as various cases presented themselves. One person A could be convicted under the statute because he committed larceny in the Northern Territory, another person B because he was a customs officer, C for some other reason, while D, E and F, whose acts fell within the precise words of the statute, could not be convicted because the courts which dealt with D and E and F found themselves unable to think of a category which, if specified in the statute, would have validly included them within the scope of Commonwealth legislative power.

Such an application of the Acts Interpretation Act appears to me to require the Court to perform a feat which is in essence "legislative and not judicial" (R. v. Burgess; Ex parte Henry[27]. To recur to the illustration given, the view suggested should, in my opinion, be rejected for the reason that it could not reasonably be supposed that it was the intention of Parliament, as disclosed in the statute, taken together with the Acts Interpretation Act, to produce such a hotch-potch of irregularly and partially operating law with respect to larceny: Compare Attorney-General for Manitoba v. Attorney-General for Canada[28].

Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different. Thus where a law is clearly made with the intention of exercising the power to make laws with respect to trade and commerce, it is not difficult to read it down so as to limit its application to inter-State and foreign trade and commerce, with which alone the Commonwealth Parliament has power to deal (Constitution, s. 51 (i.)). In such a case the subject matter of the legislation itself is such as to provide a test for limiting the law by construction so as to treat it as applying only to that part of a definite subject matter which is within power and with which Parliament clearly intended to deal so far as it could lawfully do so. Examples are to be found in Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth[29] and Huddart Parker Ltd. v. The Commonwealth[30]. If the laws in question in those cases were treated as applying to all trade and commerce, they were invalid. But construed as applying only to foreign and inter-State trade and commerce they were held to be valid.

But in the absence of any indication in a law of the nature of the standard or test to be applied for the purpose of reading down a general expression contained in the law, the court is left to guesswork. Where the application of a law which is prima facie invalid depends upon the co-existence of a number of conditions, e.g., upon the character of the work performed by certain employees, or by all employees, of certain or all employers, at certain places or at all places, it might be possible to reconstruct the legislation upon a valid basis by limiting it to a narrower class of work, or to narrower classes of employees or of employers, or to a narrower class of places. In the absence of any guide to legislative intention, the court would be quite unable to determine, except in an arbitrary manner, whether to apply one possible limitation to the exclusion of the others, or two or three possible limitations, or all possible limitations. Any selection among these possibilities would result in the content of the law depending upon the mere choice of the court, not based upon any principle. In my opinion the Acts Interpretation Act does not authorize a court to adopt such a method of promulgating a law under the guise of ascertaining it.

Thus in my opinion the provisions of the Acts Interpretation Act have provided a rule of construction and not a rule of law. The words of the sections expressly refer to the manner in which laws are to be construed. In the case of separable words and expressions, the application of the sections does not raise as many difficulties as in the case of general words and expressions. If a law is stated to apply to cases A, B and C in express terms and the application of the law to B and C is beyond power, then the law may validly apply to A unless the striking out of the provisions with respect to B and C results in the law having a different policy or operation in relation to A. In other cases, where there are not separate words, but where there are general words or expressions which apply both to cases within power and to cases beyond power, then if an intention of Parliament that there should be a partial operation of the law based upon some particular standard criterion or test can be discovered from the terms of the law itself or from the nature of the subject matter with which the law deals, it can be read down so as to give valid operation of a partial character. In such a case also it would be necessary to consider whether such reading down would alter the policy or operation of the statute with respect to the cases which, after the reading down, would still remain within its terms But if a law can be reduced to validity by adopting any one or more of a number of several possible limitations, and no reason based upon the law itself can be stated for selecting one limitation rather than another, the law should be held to be invalid. In such a case the law cannot be saved by the Acts Interpretation Act.

These views are in my opinion consistent with what has been held in Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth[31] (though this case, decided in 1921, should not be regarded as a direct authority upon the meaning of s. 15A of the Acts Interpretation Act, introduced in 1930, or s. 46 of the Act, introduced in 1937); Huddart Parker Ltd. v. The Commonwealth[32]; R. v. Burgess; Ex parte Henry[33]; and R. v. Poole; Ex parte Henry [No. 2][34]. For these reasons I adhere to the view which I expressed in the Lighting Restrictions Case—Victorian Chamber of Manufactures v. The Commonwealth[35], and in R. v. Burgess; Ex parte Henry[36], that the Acts Interpretation Act does not authorize the Court, by adopting a standard criterion or test merely selected by itself, to redraft a statute or regulation so as to bring it within power and so preserve its validity.

It is contended that certain of the regulations, if held to be invalid on the ground that they extend to work of State employees which is governmental as distinguished from industrial, or which is not work associated with the war, should be read down so as to be limited either to work such as the industrial work mentioned in reg. 19, or to work of the kind mentioned in reg. 29 (1) and, so far as State employees are concerned, to such employees engaged upon one or other or both of such kinds of work; and that, so read down, they should be held to be valid.

Reg. 19 prohibits the observance of certain days as holidays in the Christmas-New Year period 1941-1942. It expressly applies to State Departments and State authorities. I have already stated my opinion that reg. 19 is valid in such application. Reg. 29A (1) is relied upon as giving a right to additional payment for working on any of the days which under reg. 19 were not observed as a public holiday. The only day in respect of which an application for additional payment is made which falls within the Christmas-New Year period mentioned is the twenty-seventh of December, and in my opinion the Arbitration Court has jurisdiction to deal with an application in respect of work performed by State servants on that day in any industry carried on by a State.

Reg. 29A purports also to give a right to additional payment in respect of the days to which reg. 44 applied, and applications are made in respect of such days. Reg. 44 applied to Labour Day, 16th March 1942, and to Easter Monday and Easter Tuesday 1942. Reg. 44 applied, with certain exceptions which are not material, to all employment or business and is expressed to apply to State employees generally. Sub-reg. 3 is in the following terms:—

As applied to all State employees, it was, for the reasons given in the Public Service Case[37], invalid. The first question is whether the provision which introduced employees of a State (sub-reg. 3) can be read down by introducing a limitation based upon reference to kind of work or description of persons, and if not, whether the whole of reg. 44 was invalid, or whether the provisions of sub-reg. 3 as to State servants can be severed and struck out.

Reg. 44 or, alternatively, sub-reg. 3, might be read down by limiting it to work on business premises as described in reg. 19 or to war work of the character mentioned in reg. 29 (1). But there is no reason for choosing one rather than the other of these alternatives. For this reason I am of opinion that the regulation cannot be so read down as to preserve its validity.

There is another reason for refusing to use reg. 29 (1) for the purpose of ascertaining a limitation which, by construction, could be introduced into reg. 44. Reg. 44 was made on 12th March 1942 and was repealed on 28th May 1942. Reg. 29 (1) was made on 28th May 1942 by the same statutory rule as that which repealed reg. 44. Thus reg. 44 and reg. 29 (1) never co-existed. In these circumstances reg. 29 (1) cannot be relied upon for the purpose of discovering a standard criterion or test for the purpose of reading down reg. 44 or any part thereof so as to give it a valid operation by limiting it to work connected with the war of the description specified in reg. 29 (1).

A further question arises as to reg. 44. For the reasons stated it appears to me that it should not be read down by introducing a limitation relating to the work done by the persons to whom it is made applicable. But it may be urged that it should be read down by striking out in sub-reg. 3 the separate words relating to State servants so that it should be held to be valid at least with respect to employees of the Commonwealth and employees under any authority of the Commonwealth and employees under the Administration of the Northern Territory—who are all expressly separately mentioned in sub-reg. 3. This particular point was not argued, as all the employees concerned in the applications before the Arbitration Court were State employees. It is therefore not necessary to decide in this case whether reg. 44 was valid in its application to the Commonwealth and Territory employees mentioned. As at present advised I see no reason why it should not be validly so applicable, as the provisions in sub-reg. 3 relating to State employees are separately expressed and the operation and policy of the rest of the regulation in relation to other persons would not be altered if those provisions were struck out. Similar reasoning applies to reg. 29 (8), which also refers to separate classes of employees, including State servants.

Claims are also made in respect of Royal Agricultural Show Day in Victoria (24th September 1942), which is a public holiday under the Public Service Act 1928 Vict., s. 187, but which was, by reason of the regulations, not observed as such a holiday in 1942. Reg. 29 (8) applies to Show Day. Reg. 29 (9) applies to the day which normally would have been appointed by proclamation as the Cup Day holiday, and applications are made in respect of this day. Reg. 29 (8) and (9) and (10) apply to all work. They are not limited to industry and in terms extend to work of any kind, including governmental work and to work whether associated with the war or not. In the Public Service Case[38] it was held that they did not validly apply to State servants employed in governmental as distinguished from industrial work. The Court is now asked to apply s. 46 (b) of the Acts Interpretation Act and to read these regulations down in some manner so as to bring them within power.

It is argued that these regulations can and should be read down by reference to one of the descriptions of work contained in reg. 19 or in reg. 29 (1). But there is no reason for choosing one limitation rather than the other, and, for reasons already stated, I am of opinion that these regulations cannot be read down in the manner suggested.

There are no relevant separate and severable words in these regulations so far as the work to which they are applicable is concerned. Sub-reg. 8 may be valid in respect of Commonwealth and Territory employees, as already indicated, but otherwise these sub-regs. 8, 9 and 10 are invalid.

The result, therefore, is that reg. 29, sub-regs. 8, 9 and 10, should be held to be invalid in their application to State employees. Reg. 29 (1) by virtue of sub-reg. 7 validly applies to 24th September 1942 (Show Day) in respect of work of the character described in sub-reg. 1. Reg. 29A (1) is valid so far as it relates to applications founded upon reg. 19, such applications being applications relating to industrial work. But reg. 44 does not validly apply to State servants and therefore does not give any right to which the procedure provided by reg. 29A can be applied in respect of the applications made to the Arbitration Court.

Question (1). Are the National Security (Industrial Peace) Regulations and in particular regs. 3, 4, 5 and 11 thereof a valid exercise of the powers conferred upon the Governor-General by the National Security Act 1939-1940, so as to give the said Court cognizance of the said dispute and empower the said Court to exercise any jurisdiction under the Commonwealth Conciliation and Arbitration Act 1904-1934, or the said Regulations?

Question (2). Are any of the regs. 19, 29, 29A and 44 of the National Security (Supplementary) Regulations and in particular such portions of them as are recited in pars. 5, 6, 7 and 8 respectively of this case and in pursuance of which the said employees have purported to make their said application, and, if so, which of them, a valid exercise of the powers conferred upon the Governor-General by the National Security Act 1939-1940 so as to empower the said Court to entertain and determine all or any, and, if only one or some, which, of the said applications?

Answer. Regs. 19, 29 (1) to (3) and (7), 29A, are valid so as to empower the said Court to entertain and determine the said applications in respect of industrial work on 27th December 1941, and of work described in reg. 29 (1) performed on 24th September 1942 but the regulations specified in the question do not empower the said Court to entertain or determine any others of the said applications.

Each party has succeeded in part and has failed in part. In my opinion there should be no order as to costs.

I have had the advantage of reading the judgments of the Chief Justice and Williams J. and as I am in substantial agreement with their reasons I concur in the answers to the questions proposed by the Chief Justice.

Case stated by a judge of the Commonwealth Court of Conciliation and Arbitration pursuant to s. 31 of the Commonwealth Conciliation and Arbitration Act 1904-1934.

The proceedings before the Arbitration Court in the present cases were applications on the part of several permanent members of the public service of the State of Victoria appointed by and employed by the State subject to the provisions of the Public Service Act of the State for holiday rates of pay or compensation under various clauses of the Commonwealth Industrial Peace and Supplementary Regulations. It has already been decided in this Court that these Regulations do not cover public servants of a State engaged in its ordinary governmental departments (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria; Victoria v. The Commonwealth[39]). But it is said that the State of Victoria employed the public servants concerned in this case in industrial activities. So far as the facts are stated it appears that these servants loaded explosives from an explosives depot in the State of Victoria on to lighters and into ships standing in Port Phillip Bay and performed some maintenance work in connection with the lighters. And they were employed in the Public Works Department of the State. It does not appear from the case whether the State of Victoria manufactures explosives, but at all events the case states that it stores and lighters explosives.

This activity is not specially related to the war, for it was carried on before the outbreak of war and is still carried on and the explosives appear to be used for any purpose for which explosives are normally required. And the case states that substantially they are not used for the manufacture of munitions of war such as shells, torpedoes and so forth. Let it be assumed that the case finds and states as a fact that the activity of the State and of these servants is an industrial activity, still the question arises whether the Commonwealth has any authority under the Constitution to compel the States as such to pay its officers and servants such sums as the Commonwealth prescribes. It was argued that the Commonwealth has plenary legislative power over the States as such in respect of the powers conferred upon the Parliament by the Constitution unless the same be clearly denied and particularly so in relation to the defence power.

The Engineers' Case[40] does not, I think, for reasons which I have stated in Victoria v. The Commonwealth[41], warrant any such proposition. Nor can I find any such proposition maintained by a majority of this Court in the judgments in Victoria v. The Commonwealth[42], nor in the Case of the Women's Employment Board[43]. And in my judgment the proposition is subversive of the Constitution and, as I think, of all constitutional principle, but I shall not again repeat my reasons for rejecting the argument, for these may be found at large in South Australia v. The Commonwealth[44] and Victoria v. The Commonwealth[45]. Consequently, in my opinion, the Commonwealth Court of Conciliation and Arbitration has no jurisdiction over the State of Victoria in the proceedings now before it and any regulations purporting to give it such jurisdiction are therefore invalid. And from my point of view no other pronouncement is necessary. The function and the duty of this Court is to determine questions of law that arise in proceedings before the Arbitration Court but not to write essays upon the Industrial Peace Regulations or to give opinions upon hypothetical questions of law that do not arise in the proceedings (Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. [No. 1][46]; Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[47]).

But there are also, I think, other objections to the validity of the Industrial Peace Regulations. Reg. 3 standing alone is innocuous. It is a mere interpretation section. But reg. 4 is, I think, bad. It provides that during the continuance of the Regulations the Arbitration Act shall be applied and construed as if from the definition of in s. 4 of the Commonwealth Conciliation and Arbitration Act the words "extending beyond the limits of any one State" were omitted and the jurisdiction of the Commonwealth Court of Conciliation and Arbitration were extended accordingly. The Commonwealth thus takes complete control of all industrial disputes whatever throughout Australia. Such disputes may be only threatened, impending or probable, but the Commonwealth nevertheless takes control of them. And, further, by reg. 10, where any organization or employer is aware of any industrial matter which may lead to the occurrence of a strike, a stop-work meeting or any other interruption of work the Court may by appropriate procedure hear and determine the matter or cause another tribunal to hear and determine the matter as if it were an industrial dispute. And this jurisdiction is assumed over the whole field whether the disputes or matters have or have not any relation to national security or to defence. The greatest and the most trivial industrial disputes and matters are all alike brought under Commonwealth power. It is difficult, I think, to justify the validity of regulations in this form, having regard to the decisions of this Court in the Lighting Restrictions Case[48] and R. v. University of Sydney; Ex parte Drummond[49]. And it is equally difficult to justify the Regulations on the ground that they are a system of dealing with all industrial disputes and matters and so connected with defence and war. Such a proposition would be equally true at any time. And it is merely asserting that all matters, particularly industrial matters, affecting the well-being of the community have such a relation, which I understood was a proposition denied in the Lighting Restrictions Case[50]. Again, in Victoria v. The Commonwealth[51] it is recognized that the defence power is not without limit, and yet with regard to industrial disputes and matters that power is apparently without any limit whatever. And this is apparently so because otherwise it would be difficult to keep within power and much litigation would result. But I may point out that this difficulty is not apparent in the National Security Act itself, for it confines the power to make regulations to those securing the public safety and defence of the Commonwealth, nor in various regulations which have similar restrictions: Cf. Supplementary reg. 29. In my opinion reg. 4 transcends the limits of the National Security Act and the defence power in the Constitution, and it brings down in its train regs. 5 and 11.

There are also other objections to various Supplementary regulations mentioned in the case. Supplementary reg. 29, sub-clauses 8 and 9 and 10, were held invalid in the Public Service Case[52], and the invalidity of Supplementary reg. 44 follows, I think, for much the same reason. It was said during argument that my statement in the Public Service Case[53] is inaccurate because Show Day was a holiday under the Public Service Act 1928 Vict., s. 187, and was never cancelled, but the fact is not material to the decision.

Supplementary reg. 19 is also, I think, invalid. "Premises" in that regulation, it will be observed, refers to any premises whatever at which any industry is carried on. And, if reg. 44 is bad because it covers "any business," so reg. 19 is equally bad because it covers "any industry."

Supplementary reg. 29, sub-clauses 1 to 7, both inclusive.—This regulation is limited to work wholly or partly in production for war or defence purposes or in repair or overhaul of munitions of war or work associated with the prosecution of the war. Now this regulation illustrates a proper limitation of Federal regulation in respect of defence, and, except in so far as it purports to bind the States and directs them to make payments from their revenues as the Commonwealth prescribes, the regulation seems within power and valid; but the only question this Court should decide is whether it binds the States as such. In my opinion the regulation is bad in so far as it purports to direct the States as such to make the payment in the regulation prescribed.

Supplementary reg. 29A falls within Supplementary regs. 19 and 44. It relates to the matters provided for in those regulations.

It was sought to save the invalid regulations by reference to the Acts Interpretation Act 1901-1941, s. 46 (b). The section is a legislative declaration of the intent of Parliament that if valid and invalid provisions are found in regulations, however interwoven together, no provision within the power of the regulation-making authority shall fall by reason of such conjunction but the regulation shall operate on so much of its subject matter as the authority might lawfully have dealt with (Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth[54]). The section provides a rule of construction "but not an inexorable command." Notwithstanding the presumption in favour of divisibility which arises from the legislative declaration the Court cannot rewrite a regulation and give it an effect altogether different from that sought by the regulation viewed as a whole. These useful observations on the effect of such a provision as is contained in the Acts Interpretation Act I take from the opinion delivered by the Supreme Court of the United States in Railroad Retirement Board v. Alton Railroad Co.[55]. And this view has been acted upon in this Court on more than one occasion (Australian Railways Union v. Victorian Railways Commissioners[56]; R. v. Burgess; Ex parte Henry[57]; R. v. Poole; Ex parte Henry [No. 2][58]), and is applicable to the regulations now under consideration.

It is quite impossible to gather from the regulations themselves the extent to which the regulation-making authority intended that the regulations should operate in case of invalidity without reframing them and making clear and definite the limits of their operation.

Lastly I would add that the limits of the defence power are so vague and ill defined and so overshadowed by war and political considerations that constitutional principles and implications are apt to be overlooked or neglected. Therefore I would answer the questions stated in the case in a manner sufficient to dispose of the cases actually before the Arbitration Court without any general declaration of validity of the Industrial Peace Regulations, many of which were not discussed in the present case.

The questions stated should be answered that regs. 4, 5 and 11 mentioned in the case and Supplementary regulations 19, 29, 29A and 44 mentioned in the case give the Commonwealth Court of Conciliation and Arbitration no authority or jurisdiction to make any award or order against, or to exercise any jurisdiction over, the State of Victoria in respect of the permanent members of the public service of Victoria mentioned in the case.

The Executive of the Commonwealth used the powers conferred upon it by the National Security Act 1939-1940 to make regulations prohibiting employers and their employees from observing various days as holidays at the places of employment mentioned in the regulations respectively, notwithstanding that any Commonwealth or State law required that such days should be observed as holidays at those places of employment. These regulations include 19, 29, 29a and 44 of the National Security (Supplementary) Regulations. Their effect was that on the days to which the regulations respectively applied, the employers were bound to keep open and their employees to work at any places, which came within the scope of the regulations respectively, as if such days were ordinary working days. The regulations entitled the employees to receive payment in addition to that paid for an ordinary day's work. If they were entitled under any industrial law, award or agreement to additional payment for working on a holiday, they were to be paid at that rate: if there was no such right, the regulations remitted the question whether they should receive additional payment, and the amount, to any tribunal or authority having jurisdiction to determine disputes or claims in respect of the rates of pay which the employee should receive for the work done by him.

The present case arises out of applications which a number of employees of the State of Victoria respectively made to the Commonwealth Court of Conciliation and Arbitration for orders entitling them to additional payment for working on days which, but for the intervention of the Commonwealth, would have been observed as holidays at their place of employment.

The jurisdiction of the Commonwealth Court of Conciliation and Arbitration under the statute, pursuant to which it discharged its functions before the making of the National Security (Industrial Peace) Regulations, was to make an award appropriate to the prevention or settlement of an inter-State dispute. The National Security (Industrial Peace) Regulations have transformed it, for the period they remain in force, into a tribunal for the preservation of industrial peace generally in the Commonwealth, and it may act for this purpose whether the dispute or unrest which threatens or disturbs industrial peace extends beyond the limits of a State or not (regs. 3 and 4). By the provisions which these Regulations add to the statute, the Court is given cognizance of all industrial disputes, which it is satisfied, or which the Minister certifies to the Court, are proper to be dealt with in the interests of industrial peace and national security (reg. 5). The Court may also, in any case where the Court deems it desirable in the interests of industrial peace or national security, exercise any jurisdiction under the statute or the Industrial Peace Regulations of its own motion. But the only disputes of which the Court is given cognizance are disputes arising in industry (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[59]).

His Honour Judge Kelly, sitting as a judge of the Commonwealth Court of Conciliation and Arbitration, was satisfied that the applications made by these employees of the State of Victoria are in respect of an industrial dispute, within the meaning of the Industrial Peace Regulations, which is proper to be dealt with in the interests of industrial peace and national security (reg. 5). It is to be assumed therefore, for the purposes of this case, that the applicants were employed in an industrial undertaking of the State and not in connection with its governmental functions. His Honour accordingly took cognizance of the industrial dispute and deemed it desirable in the interests of industrial peace and national security to exercise jurisdiction under the statute and the Regulations on his own motion.

The questions in the present case, which his Honour stated under s. 31 (2) of the statute, are whether the Governor-General exceeded the powers conferred on him by the National Security Act 1939-1940 in making the National Security (Industrial Peace) Regulations, particularly regs. 3, 4, 5 and 11, pursuant to which the Court has taken cognizance of the foregoing industrial dispute; and in making regs. 19, 29, 29A and 44 of the National Security (Supplementary) Regulations, on which the applications giving rise to the industrial dispute are based.

The question to be resolved is whether either set of Regulations exceeds the powers conferred on the Governor-General to make regulations for securing the public safety and the defence of the Commonwealth, and the Territories of the Commonwealth, or for prescribing all matters which are necessary or convenient to be prescribed for the more effectual prosecution of the war (National Security Act 1939-1940, s. 5). A shorter way of stating the question to be decided is whether the Regulations are within the defence power of the Commonwealth.

In Farey v. Burvett[60] the defence power was the subject of this observation: "It is complete in itself and there can be no implied reservation of any State power to abridge the express grant of a power to the Commonwealth"—See also South Australia v. The Commonwealth[61]; R. v. Commonwealth Court of Conciliation and Arbitration[62]. In the latter case I said that "In the Engineers' Case4(1920) [1920] HCA 54; 28 C.L.R. 129. the Court said that the principles upon which it determined that case apply generally to all the powers contained in s. 51 of the Constitution of the Commonwealth. One of the principles upon which the Court decided that case is stated in these words: Laws validly made by authority of the Constitution bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called States—in other words, bind both Crown and subjects5(1920) 28 C.L.R., at p. 153.". The Commonwealth's defence power is a power to make all laws which are capable of conducing to the protection of the Commonwealth and the waging of war against its enemies. The words of Chief Justice Marshall in Gibbons v. Ogden[65], which were spoken in relation to the power of Congress to regulate inter-State commerce, may be applied to the defence power of the Commonwealth: "This power ... is complete in itself, may be exercised to its utmost extent and acknowledges no limitations other than are prescribed in the Constitution." It follows that if the Regulations which are in question in the present case are a valid exercise of the powers which the Parliament delegated to the Governor-General, the Regulations are binding on the State of Victoria: and it also follows that the State was bound, notwithstanding its own laws with respect to holidays, to keep open on the days to which the National Security (Supplementary) Regulations applied, such of its establishments as came within the Regulations, and to pay the employees who worked there on those days according to any determination made by the Court of Conciliation and Arbitration in accordance with those Regulations and the National Security (Industrial Peace) Regulations.

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

Reg. 4 removes from the definition of the industrial disputes, with which the Commonwealth industrial tribunals could deal, the limitation confining their jurisdiction to industrial disputes extending beyond the limits of a State. The validity of reg. 4 arises in this case, as the applications which the employees have made do not give rise to an inter-State dispute. Industrial peace is a necessary condition for the efficient prosecution of the war; and to preserve peace in an industry that is carried on in one State only is no less conducive to that end than to preserve peace in an industry that is carried on in more than one State. The mere technical distinction between an industrial dispute confined within a State and an industrial dispute extending beyond its limits is irrelevant to the question whether the dispute is an impediment to the prosecution of the war. The relevant consideration is whether the preservation of industrial peace everywhere within the limits of the Commonwealth may conduce to the more efficient prosecution of the war. There is no doubt that it may do so.

The question of the validity of reg. 5 (a) and reg. 11 also arises in this case. It is clearly appropriate to the end which the Executive has in view in making the Regulations, the efficient prosecution of the war, for the Court, therein mentioned, to have cognizance of all industrial disputes which that Court is satisfied, or the Minister certifies to it are proper to be dealt with in the interests of industrial peace and national security (reg. 5 (a)); and also to give it jurisdiction to exercise its powers under the Act and the Regulations for the prevention and settlement of industrial disputes in any case where the Court deems it desirable in the interests of industrial peace and national security (reg. 11). If there are industries in which disputes and unrest would not be detrimental to the efficient prosecution of the war this Court has no information which would enable it to say what they are. In any case, it is not necessarily untrue that industrial unrest outside the particular industries which are directly concerned with things needed in the war, could lead to industrial unrest within those industries.

This Court cannot, in my opinion, hold that it is not conducive or incidental to the plan of the Regulations, which is to preserve industrial peace in the Commonwealth as a condition necessary to the efficient prosecution of the war, for the Commonwealth to authorize its industrial tribunals to deal with industrial disputes occurring in any branch of industry.

Section 51, pl. xxxv., of the Constitution being subject to the limitations which have been described, it follows that the powers of the States to make laws for the prevention and settlement of intra-State disputes are saved by s. 107 of the Constitution. But it does not follow that the National Security (Industrial Peace) Regulations invade those State powers. These Regulations are an exercise of the Commonwealth's defence power, not an invasion of a field of State legislative power which is saved by the Constitution. The defence power is not limited by s. 51, pl. xxxv.

In my opinion regs. 3, 4, 5 (a) and 11 of the National Security (Industrial Peace) Regulations are a valid exercise of the powers conferred on the Governor-General by the National Security Act 1939-1940.

Reg. 19 of the National Security (Supplementary) Regulations provides that certain days shall not be observed as holidays at the employer's "business premises" and the regulation says that "premises" means bank, office, shop, factory or any premises at which any industry is carried on and includes any Department of the Commonwealth and any place at which the business of any authority of the Commonwealth or of a State or Territory of the Commonwealth or any local governing body is carried on. The places at which reg. 29 (1) of those Regulations provides that the days to which the regulation is applicable shall not be observed as holidays are every establishment, factory, mine, or workshop, which is engaged wholly or partly in production for war or defence purposes, or in the repair or overhaul of munitions of war, and every Commonwealth or State Department or authority of the Commonwealth or of a State engaged on work associated with the prosecution of the war. Reg. 29 (8) extended the provisions of reg. 29 to another day which was a holiday in Victoria only, and made it apply to employers and bankers (being persons engaged in the business of banking and insurance) and to every Commonwealth or State Department or authority of the Commonwealth or of a State engaged on any work whatsoever. Reg. 44 provides that the days to which it applies shall not be observed as holidays at the place at which the employer is engaged in business, and the regulation was expressed to extend to Commonwealth and State employees.

It is a proposition, which I think is indisputable, that the National Security Act 1939-1940 confers power on the Executive to prohibit the observance of any day as a holiday if such observance could possibly interfere with the efficient prosecution of the war. The National Security (Supplementary) Regulations prohibit the observance of certain days as holidays in particular fields of private enterprise and in Commonwealth and State Departments.

The Court has no information which would enable it to say, so far as regards those fields of private enterprise, that the cessation of work on any of those days would not appreciably interfere with the nation's war effort. Such parts of private enterprise which the Regulations affect are either industrial or business operations or services incidental to such operations. The important relationship of industry to the war effort and the obvious need of a continuity of work in industry are sufficient ground for saying that the elimination of holidays within the fields of private enterprise mentioned in the Regulations respectively is a step which is capable of aiding the prosecution of the war.

In Victoria v. The Commonwealth[66] it was decided, however, that reg. 29 (8), (9) and (10) are not within the ambit of the defence power in so far as they purport to control the holidays and remuneration of members of the public service of Victoria who are not engaged in work associated with the war. It has been shown by the foregoing references to the Regulations that 29 (1) was expressed to apply to every Commonwealth or State Department engaged on work associated with the prosecution of the war, whereas 29 (8), (9) and (10) explicitly rejected that criterion and purported to lay down a rule to be observed by every Commonwealth and State Department engaged on any work whatsoever. It was plain on the face of the Regulations that 29 (8), (9) and (10) were intended to have a more extensive operation than 29 (1). The words "engaged on work associated with the prosecution of the war" limited a wide field. It could not be predicated that any part of industry could be excluded from that field: but the words used in reg. 29 (8) "engaged on any work whatsoever" gave a reasonably plain indication that the Executive itself did not consider that all the work which would have been carried on in Government Departments, if the holidays had not been observed therein, would have been associated with the prosecution of the war. Hence other considerations than some association, which could be presumed to exist between the work of employees in the State Departments and the prosecution of the war, were advanced in the last-mentioned case to support reg. 29 (8), (9) and (10). These considerations did not find favour with the Court. In the present case we are asked to reconsider the question whether these sub-regulations are invalid. I think that task should not be undertaken.

The employers and employees to whom the above-mentioned National Security (Supplementary) Regulations (i.e., those other than reg. 29 (1)) are expressed to apply may be divided into two classes, those engaged in industry and those engaged in occupations not falling within industry. It could clearly conduce to the more efficient prosecution of the war to prohibit the interruption of industrial work by the observance of holidays. As regards State employees, those engaged in industrial work and those engaged in ordinary governmental work are two distinct and separate classes. In so far as these regulations apply to these two classes they are good in part and bad in part. But the regulations are expressed to apply generally to the whole class of State employees and accordingly if the regulations are to be held valid to any extent, that result can be achieved only by giving them an artificial construction according to the rule in s. 46 (b) of the Acts Interpretation Act 1901-1941. The rule has been described as a rule of construction in R. v. Poole[67] and in Victorian Chamber of Manufactures v. The Commonwealth (Industrial Lighting Regulations)[68]. See also R. v. Burgess[69].

This rule of construction can be properly applied "in relation to words which, merely because they describe too widely certain classes of persons, places or things, extend beyond the limits of Commonwealth power but which are capable of being read down so as not to trespass beyond such limits" (R. v. Burgess[70]). Where the provision to be construed according to the section is of that nature the question is whether the authority making it intended the provision to have "a distributive operation or effect. That is to say, did it intend that the particular command or requirement expressed in the provision should apply to or be fulfilled by each and every person within the class independently of the application of the provision to the others; or were all to go free unless all were bound" (R. v. Poole[71]).

It seems to me that the substance and policy of these regulations make it reasonable to presume that it was not intended to forbid such State Departments and their employees as were engaged in industrial work to observe the holidays only if the Regulations also required and bound the State Departments and their employees, whose work had no connection with the prosecution of the war, to give up those holidays.

The above analysis does not of course apply to reg. 29 (1), which is expressly limited to Departments associated with the prosecution of the war, that is to say, in industry.

In my opinion the first question should be answered: Yes, as to regs. 3, 4, 5 (a) and 11; and the second question: Yes, to the extent to which they apply to employees engaged in industry.

Question 1. The Industrial Peace Regulations were enacted by the Governor-General, which means the Federal Executive Council, pursuant to the powers conferred upon the Governor-General by the National Security Act 1939-1940. That Act, as I have ventured to point out in previous cases, delegates to the Executive the right to exercise the legislative powers conferred upon the Commonwealth Parliament by s. 51 (vi.) of the Constitution.

The Regulations enlarge the jurisdiction of the Commonwealth Court of Conciliation and Arbitration and of the conciliation commissioners appointed under the Commonwealth Conciliation and Arbitration Act 1904-1934 in two main ways: (1) they extend the jurisdiction of the Court and of the conciliation commissioners to all industrial disputes whether extending beyond the limits of any one State or not, and (2) they provide for the settlement of industrial unrest with respect to industrial matters although an industrial dispute with respect to those matters does not exist (Australian Coal and Shale Employees Federation v. Aberfield[72]). The Regulations purport, therefore, to enact on behalf of the Commonwealth Parliament legislation in excess of the express power conferred upon the Commonwealth Parliament by s. 51 (xxxv.) of the Constitution and to invade a legislative domain which in normal times is reserved to the States by s. 106 of the Constitution.

The Regulations can only be upheld, therefore, if they are a valid exercise of the defence power.

In previous cases, and particularly in that relating to the validity of the Women's Employment Act[73], I have ventured to state the tests which should, in my opinion, be applied in order to determine whether legislation is or is not within that power. It follows from that decision that the fact that there is an express power to legislate under placitum xxxv. with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State does not deprive the Commonwealth Parliament of its power under placitum vi. to legislate with respect to intra-State disputes where that legislation can be justified as legislation capable of aiding in the prosecution of the war.

It is not contested that there are many intra-State industries in which industrial disputes and industrial unrest can seriously prejudice the successful prosecution of the war; but it is contended that many intra-State industries have no connection with the prosecution of the war, so that an extension of the power of the Commonwealth Parliament to take control of industrial disputes and industrial unrest in these industries is not justified because it would not aid even incidentally in the defence of the Commonwealth. It is contended, therefore, that the extension of Commonwealth legislation into the domain of intra-State industries in order to be valid should be confined to industries which are associated with the successful prosecution of the war. If it were possible to draw a line between those industries which are and those which are not associated with the prosecution of the war there might be considerable substance in this contention. But in the modern industrial world all its component parts are so interlocked that it would be impossible artificially to create such a separation, or to anticipate what effect industrial disputes or industrial unrest in one industry which, taken in isolation, might not appear to have any association with the prosecution of the war, would have upon other industries which are associated with its prosecution. Moreover, the objective in war-time is to confine production to industries which assist the war effort and to achieve a maximum output in these industries by concentrating all available man power on this work. It is essential to keep the industrial machine running smoothly if this output is to be achieved and maintained. Legislation which sets up some national machinery to deal with industrial disputes and industrial unrest on a uniform basis throughout the Commonwealth is more likely to attain this end than legislation by each State, which would probably take different forms. The amount of industry which possibly has no connection with the war must be so small when compared with industry which has some connection that, in view of the general interlocking, it is, in my opinion, reasonably capable of aiding the war effort for the Commonwealth to legislate to maintain industrial peace in the whole of industry, even if it is open to dispute in the case of some industries whether they have any connection with the prosecution of the war. War does not brook delay and to confine the Regulations to industries having some general classification such as industries associated with the prosecution of the war would invite litigation and therefore delay and expense in order to decide whether such an association existed or not. It is like price fixing. It can be urged that some goods and services are not essential to the maintenance of the armed or civilian population, so that it cannot aid the prosecution of the war to fix their prices. But it has been held by this Court that the Commonwealth Parliament can, in time of war, control the prices of all goods and services. It has been established by previous decisions of this Court and by the statements of Lord Haldane and of the Supreme Court of the United States of America which I cited in the case of the Women's Employment Act[74] that the Commonwealth Parliament, charged with the responsibility for the defence of the realm, and the Executive which it controls must be given considerable latitude to decide what means are required to make that defence effective. Looking at the matter in this way it cannot be said to be beyond the defence power for the Commonwealth to exercise control over all industrial disputes and industrial unrest in war-time. For these reasons I am of opinion that the National Security (Industrial Peace) regs. 3, 4, 5 and 11 are a valid exercise of power and that the first question should be answered in the affirmative.

Question 2. The first regulation mentioned in the case in chronological order is reg. 19, gazetted on 16th December 1941. Shortly stated, it provided that during the period 25th December 1941 to 3rd January 1942 the only holidays were to be on 25th and 26th December 1941 and on 1st January 1942, and that, except on these days, all employers and employees, including those employed in any department of a State, at any premises at which any industry was carried on, were to work on the other days in this period which would ordinarily have been observed as holidays. No means of applying for additional pay for work on the cancelled holidays was provided in the regulation.

The next regulation is reg. 44, gazetted on 12th March 1942, amended on 31st March 1942 and repealed on 28th May 1942. Shortly stated, it provided that between 12th March 1942 and 30th June 1942, except on 3rd, 4th and 25th April 1942, all employees, including employees of any State, and all employers actively engaged in the conduct or control of any business, were to go to work on days which would ordinarily be observed as holidays. Sub-reg. 2A provided means of applying for additional pay.

The history with respect to the next regulation, reg. 29, which was gazetted on the same day that reg. 44 was repealed, is set out in the report of the Public Service Case[75] and need not be repeated. I wish, however, to correct an error in my judgment in that case when I stated that the holiday on the day which would have been Show Day if the show had been held was cancelled, but I also wish to state that this error does not affect my judgment in that case in any way.

The next regulation is reg. 29A, gazetted on 25th June 1942. Shortly stated, it provided that where any employee had worked on any day which under regs. 19 or 44 was not observed as a holiday and he was not entitled to additional pay for such work, he could apply for additional pay to any tribunal or authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work in which he was employed.

It will be seen, therefore, that the provisions of reg. 19 were confined to industrial undertakings, that the provisions of reg. 44 embraced every kind of business, that the provisions of reg. 29, sub-regs. 1-3 and 7 were confined, in the case of the States, to work associated with the prosecution of the war, while the provisions of reg. 29, sub-regs. 8 and 9 were confined to the State or part of the State of Victoria. The provisions of sub-reg. 8 related to all officers or employees of the State, engaged in any work whatsoever, while those of sub-reg. 9 related to all such officers or employees engaged in any work in those parts of the State in which the first Tuesday in November would have been gazetted as a holiday if the Melbourne Cup had been run on its ordinary date. It follows from what I have said in this judgment and from the Public Service Case[76] that regs. 19 and 29, sub-regs. 1-3 and 7 were within power, so that any officer or employee of the State who was engaged in industry within the meaning of reg. 19 or in work associated with the prosecution of the war within the meaning of reg. 29 (1) and worked on days which would ordinarily have been holidays in Victoria during the periods to which they applied would be entitled to apply for additional pay under reg. 29A or reg. 29 (3). The only days to which these regulations would apply would be 27th December 1941 and 24th September 1942. But it also follows that reg. 44 and reg. 29, sub-regs. 8 and 9, which were not confined to industrial undertakings or to work associated with the prosecution of the war, were beyond power. They are therefore wholly invalid unless they can be brought partly within power under the provisions of the Acts Interpretatiion Act 1901-1941, s. 46 (b).

Section 46 (b), so far as material, provides that where an Act confers upon any authority power to make any instrument (including regulations) "any instrument so made, granted or issued shall be read and construed subject to the Act under which it was made, and so as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power."

The sub-section requires, therefore, that if on the true construction of an instrument it has an operation which is in excess of power, then the Court is to read down the instrument by a process of construction so that it will have an operation which is not in excess of power. The previous decisions of this Court to which we were referred, and particularly the statements in the joint judgment of five Justices in Newcastle and Hunter River Steamship Co. v. Attorney-General for the Commonwealth[77] and in the judgment of my brother Dixon in R. v. Poole; Ex parte Henry [No. 2][78], appear to me to establish that, in order to be capable of being subjected to such a process, the instrument must either contain independent provisions within power which are severable and will continue to operate in the same manner as they would have done if the instrument as a whole had been valid, or it must appear from the provisions of the instrument, read in the light of the power which it purports to exercise, that it is intended to operate in a distributive manner with respect to each and every part of the subject matter to which it relates, and therefore to operate with respect to those parts of the subject matter which are within power although it has failed to be effective with respect to the whole subject matter.

Regs. 44 (1) and 29 (8) and (9) do not contain any severable provisions some of which are within and some beyond power, so that the only possible manner of reading them down by construction would be to give them a distributive effect and to hold that, although as a whole they were ineffective, they were nevertheless intended to apply to all employees engaged upon work with respect to which the Executive had power to legislate. The regulations must be within the power to make regulations conferred upon the Executive by the National Security Act. This is a power to make regulations for securing the public safety and defence of the Commonwealth and for the effectual prosecution of the war. But this power which, as I have already said, corresponds to s. 51 (vi.) of the Constitution, is a power of an indefinite ambit. So far as the regulations with respect to holidays are concerned the Executive has exercised the power in a valid manner by legislating with respect to holidays in all industries (reg. 19); and with respect to particular industries and to all work associated with the prosecution of the war (reg. 29, sub-regs. 1-3 and 7); and in an invalid manner by legislating with respect to holidays in all business (reg. 44 (1)); and with respect to holidays in all employment in Victoria, reg. 29, sub-regs. 8 and 9. There is no certain indication, therefore, either in the ambit of the power itself or in the regulations made under the power relating to holidays, of the extent to which the regulations which are beyond power should be read down so as to bring them within power.

I am unable to find any indication in reg. 44 (1) that it was intended to be construed distributively. Its operation was deliberately enlarged beyond that of reg. 19 so as to include any business, whether of an industrial character or not, so that the indications are all to the contrary. Even if it was intended to have a distributive effect it is uncertain whether it should be construed to apply to all industrial businesses as in reg. 19, or to certain industrial businesses or to all work associated with the prosecution of the war as in reg. 29 (1). Moreover, it would be difficult to read reg. 44 down in the light of regulations, the operation of one of which was exhausted before it came into force, while the other only came into force when reg. 44 was repealed. The same remarks apply to reg. 29, sub-regs. 8 and 9. In both these sub-regulations the Executive deliberately enlarged the scope of the work beyond that included in sub-regs. 1-3 and 7. It is also uncertain what narrower construction should be adopted. To attempt, therefore, to read down regs. 44 (1) and 29, sub-regs. 8 and 9, would, as the Chief Justice said in the Lighting Restrictions Case[79], "be re-writing the regulations and would in effect be engaging in legislation."

It may well be that reg. 44 (1) could be read down so as to be applicable to employees in the service of the Commonwealth or any authority of the Commonwealth or of the Administration of the Northern Territory and that reg. 29 (8) and (9) could be read down so as to be applicable to employees in the service of the Commonwealth or any authority of the Commonwealth, but this question does not arise in the present proceedings.

For these reasons I am of opinion that question 2 should be answered that regs. 19 and 29, sub-regs. 1-3 and 7 are, but that regs. 44 and 29, sub-regs. 8 and 9 (and sub-reg. 10 must fall with 9) are not, in relation to State servants, a valid exercise of power; and in consequence that reg. 29A is a valid exercise of power for the purpose of applications by such servants under reg. 19 but not for the purpose of applications by them under reg. 44.

Solicitor for the intervener, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

[1] [1942] HCA 23; (1942) 66 C.L.R. 161.

[2] [1942] HCA 39; (1942) 66 C.L.R. 488.

[3] [1943] HCA 22; (1943) 67 C.L.R. 413.

[4] [1915] HCA 60; (1915) 20 C.L.R. 299.

[5] (1942) A.L.R. 359.

[6] [1942] HCA 39; (1942) 66 C.L.R. 488.

[7] [1943] HCA 21; (1943) 67 C.L.R. 347.

[8] [1942] HCA 39; (1942) 66 C.L.R. 488.

[9] [1920] HCA 54; (1920) 28 C.L.R. 129.

[10] (1878) 3 App. Cas. 904, 905.

[11] [1920] HCA 54; (1920) 28 C.L.R. 129.

[12] (1942) 66 C.L.R., at pp. 503, 504.

[13] (1942) 66 C.L.R., at p. 504.

[14] [1942] HCA 39; (1942) 66 C.L.R. 488.

[15] [1942] HCA 39; (1942) 66 C.L.R. 488.

[16] [1942] HCA 39; (1942) 66 C.L.R. 488.

[17] [1942] HCA 39; (1942) 66 C.L.R. 488.

[18] (1942) 66 C.L.R., at p. 506.

[19] (1942) 66 C.L.R., at p. 507.

[20] [1942] HCA 39; (1942) 66 C.L.R. 488.

[21] [1942] HCA 39; (1942) 66 C.L.R. 488.

[22] [1942] HCA 39; (1942) 66 C.L.R. 488.

[23] (1942) 66 C.L.R., at p. 508.

[24] [1910] HCA 33; (1910) 11 C.L.R. 1.

[25] (1939) 61 C.L.R., at p. 656.

[26] [1910] HCA 33; (1910) 11 C.L.R. 1.

[27] [1936] HCA 52; (1936) 55 C.L.R. 608, at p. 676.

[28] (1925) A.C. 561, at p. 568.

[29] [1921] HCA 31; (1921) 29 C.L.R. 357.

[30] [1931] HCA 1; (1931) 44 C.L.R. 492.

[31] [1921] HCA 31; (1921) 29 C.L.R. 357.

[32] [1931] HCA 1; (1931) 44 C.L.R. 492.

[33] [1936] HCA 52; (1936) 55 C.L.R. 608.

[34] [1939] HCA 19; (1939) 61 C.L.R. 634, in particular at pp. 651, 652 and 656.

[35] [1943] HCA 22; (1943) 67 C.L.R. 413.

[36] [1936] HCA 52; (1936) 55 C.L.R. 608, at p. 655.

[37] [1942] HCA 39; (1942) 66 C.L.R. 488.

[38] [1942] HCA 39; (1942) 66 C.L.R. 488.

[39] [1942] HCA 39; (1942) 66 C.L.R. 488.

[40] [1920] HCA 54; (1920) 28 C.L.R. 129.

[41] (1942) 66 C.L.R., at p. 513.

[42] [1942] HCA 39; (1942) 66 C.L.R. 488.

[43] [1943] HCA 21; (1943) 67 C.L.R. 347.

[44] [1942] HCA 14; (1942) 65 C.L.R. 373, at pp. 445, 446.

[45] (1943) 66 C.L.R., at pp. 515, 516.

[46] [1913] HCA 76; (1913) 16 C.L.R. 591.

[47] [1925] HCA 27; (1925) 36 C.L.R. 442.

[48] [1943] HCA 22; (1943) 67 C.L.R. 413.

[49] [1943] HCA 11; (1943) 67 C.L.R. 95.

[50] [1943] HCA 22; (1943) 67 C.L.R. 413.

[51] [1942] HCA 39; (1943) 66 C.L.R. 488.

[52] [1942] HCA 39; (1943) 66 C.L.R. 488.

[53] (1943) 66 C.L.R., at p. 515.

[54] [1921] HCA 31; (1921) 29 C.L.R. 357.

[55] [1935] USSC 107; (1935) 295 U.S. 330, at pp. 361, 362 [1935] USSC 107; [79 Law. Ed. 1468, at p. 1482].

[56] [1930] HCA 52; (1930) 44 C.L.R. 319, at pp. 385, 386.

[57] [1936] HCA 52; (1936) 55 C.L.R. 608, at p. 659.

[58] [1939] HCA 19; (1939) 61 C.L.R. 634.

[59] [1942] HCA 39; (1942) 66 C.L.R. 488.

[60] (1916) 21 C.L.R., at pp. 453, 454.

[61] [1942] HCA 14; (1942) 65 C.L.R. 373.

[62] (1942) 66 C.L.R., at p. 522.

[63] [1920] HCA 54; (1920) 28 C.L.R. 129.

[64] (1920) 28 C.L.R., at p. 153.

[65] [1824] USSC 18; (1824) 22 U.S. 1 [6 Law. Ed. 1].

[66] [1942] HCA 39; (1942) 66 C.L.R. 488.

[67] (1939) 61 C.L.R., at pp. 652, 656.

[68] [1943] HCA 22; (1943) 67 C.L.R. 413.

[69] (1936) 55 C.L.R., at p. 672.

[70] (1936) 55 C.L.R., at p. 676.

[71] (1939) 61 C.L.R., at p. 652.

[72] (1942) 66 C.L.R., at pp. 190, 191.

[73] [1943] HCA 21; (1943) 67 C.L.R. 347.

[74] [1943] HCA 21; (1943) 67 C.L.R. 347.

[75] [1942] HCA 39; (1942) 66 C.L.R. 488, at pp. 531, 532.

[76] [1942] HCA 39; (1942) 66 C.L.R. 488.

[77] [1921] HCA 31; (1921) 29 C.L.R. 357, at pp. 369, 370.

[78] [1939] HCA 19; (1939) 61 C.L.R. 634, at pp. 652, 653.

[79] [1943] HCA 22; (1943) 67 C.L.R. 413, at p. 419.

High Court of Australia

Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 (2 December 1943)

HIGH COURT OF AUSTRALIA