R v Connell [1944] HCA 42; (1944) 69 CLR 407 (3 October 1944)

HIGH COURT OF AUSTRALIA

H C of A

3 October 1944

Latham C.J., Rich, Starke, McTiernan and Williams JJ.

Kitto K.C. (with him Ashburner), for the prosecutors.

Weston K.C. (with him Conybeare), for the respondent Australasian Coal and Shale Employees' Federation.

Watt K.C. (with him E. J. Hooke), for the respondent Connell, and Sugerman K.C. (with him Dignam), for the Commonwealth (intervening), adopted the argument of Weston K.C. and had nothing to add.

Kitto K.C., in reply.

The following written judgments on the preliminary question were delivered:?

Aug. 17

Latham C.J.,

Rich and Williams JJ.

In this matter the Court has heard argument upon the question whether regs. 16 and 17 of the National Security (Economic Organization) Regulations (Statutory Rules 1942 No. 76 as amended) apply to a Local Industrial Authority constituted under the Coal Production (War-time) Act 1944.

Regulation 16 of the Economic Organization Regulations is as follows:?"Subject to this Part, an Industrial Authority shall not, after the commencement of these Regulations, include in any award, order or determination any provision altering, in respect of any employment, the rate of remuneration applicable to that employment (whether in pursuance of any award, order or determination or otherwise) on the tenth day of February, One thousand nine hundred and forty-two." Reg. 17 provides certain exceptions to the general rule contained in reg. 16.

"Industrial Authority" is defined in reg. 4 so as to include "any ... tribunal or person constituted by or under any law of the Commonwealth for the purpose of hearing and determining industrial disputes and making awards or orders in settlement thereof."

At the time when the Economic Organization Regulations were made (19th February 1942) the National Security (Coal Mining Industry Employment) Regulations were in operation. Under those Regulations a Central Reference Board and Local Reference Boards were established which had powers under reg. 7 and reg. 14 to hear and determine certain industrial disputes and to make awards or orders in settlement thereof. Those bodies accordingly were industrial authorities within the meaning of the Economic Organization Regulations.

Statutory rule No. 295 of 1943, made on 10th December 1943, amended the Coal Mining Industry Employment Regulations in certain respects, introducing a Central Coal Authority upon which were conferred powers to settle disputes in which the Australasian Coal and Shale Employees' Federation (one of the respondents to these proceedings) was concerned. Other amendments related to the powers of Local Reference Boards with respect to such disputes.

The Coal Mining Industry Employment Regulations included a provision in reg. 18 which prevented the operation of any award of the Commonwealth Court of Conciliation and Arbitration which was inconsistent with an award or order made under the Regulations.

The Coal Production (War-time) Act came into operation on 8th March 1944. (Statutory Rules 1944 No. 48 made on 10th March 1944 made amendments in the Coal Mining Industry Employment Regulations designed to remove from the operation of those Regulations the matters for which the Act made special provision.) The Act provided for the appointment of a Commissioner charged with the duty of securing an increase in the production of coal and with wide powers of regulating and controlling the production, handling, marketing, &c., of coal. The Commissioner was given a specific power to fix the prices of coal. This power, it is said, can be effective only if the fixation of the price of coal by the Commissioner supersedes any fixation of prices under the more general National Security (Prices) Regulations. It was contended for the respondents that this provision with respect to prices indicates an intention that the Act shall supersede in relation to coal any prior legislation as to prices which applied to coal, and that similar reasoning applies to the powers of Industrial Authorities under the Act. But this proposition can be accepted only in relation to prior legislation which is inconsistent with the Act. In the case of the fixation of prices it may be that effect could not be given to the later Act conferring price-fixing powers upon the Coal Commissioner appointed under the Act unless his power prevailed over the power of the Prices Commissioner appointed under the earlier Prices Regulations. There cannot be at one and the same time two different fixed maximum prices for the same commodity. The later legislation in this case may be inconsistent, in relation to coal, with the earlier Prices regulation. But, even if this should be so, there is no necessary inconsistency in regarding the prohibition contained in reg. 16 of the Economic Organization Regulations as applying to the Industrial Authorities set up under the later statute. They can discharge their functions, subject to the prohibition, in the same way as other Industrial Authorities discharge their functions, subject to the same prohibition.

Section 29 of the Act provides for the appointment of a Central Industrial Authority and s. 30 provides that that Authority shall have cognizance of industrial disputes between the Australasian Coal and Shale Employees' Federation and employers or associations of employers referred to him by the Federation or the employers or associations parties thereto or by the Commissioner. "Industrial dispute" is defined in s. 5 as meaning any dispute as to industrial matters in relation to, inter alia, wages or rates of pay. The Central Industrial Authority also has cognizance of other industrial matters mentioned in s. 30, including any matter affecting industrial relations in the coal-mining industry which the Commissioner declares is, in the public interest, proper to be dealt with under the Act.

Section 31 provides that the Central Industrial Authority shall have power to consider and determine any industrial dispute or any matter of which he has cognizance, and for that purpose shall have (in addition to any other powers conferred on him by the Act) all powers which are given to the Court or the Chief Judge of the Court as regards an industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance. Section 32 provides that the award or order made by the Central Industrial Authority shall be binding on the parties, shall be filed in the Court and shall thereupon have effect as if it were an award or order of the Court.

Section 33 provides for the appointment of persons to be Local Industrial Authorities. Mr. James Connell, one of the respondents to these proceedings, has been appointed as a Local Industrial Authority. Section 34 (1) provides that, subject to the Act, a Local Industrial Authority may?"(a) settle disputes as to any local industrial matters likely to affect the amicable relations of employers in the Coal Mining Industry and their employees who are members of the Federation (other than those employees who are excepted by the Commissioner by order); (b) investigate and report upon any industrial dispute or matter or part thereof referred to him by the Central Industrial Authority; (c) settle any local industrial dispute or matter or part thereof referred to him by the Central Industrial Authority for settlement; and (d) inquire into and report to the Central Industrial Authority on industrial matters not covered by any award of the Court or award or order of the Central Industrial Authority."

Section 35 provides that, subject to the Act, the provisions of ss. 31 and 32 of the Act shall, so far as applicable, apply, with such alterations as are necessary, in relation to matters before a Local Industrial Authority in pursuance of s. 34 (1). Section 41 provides that, during the currency of an award or order made by the Central Industrial Authority or a decision of any Local Industrial Authority, no award or order made by the Arbitration Court or any tribunal having jurisdiction in industrial matters in the coal-mining industry dealing with the same subject matter and inconsistent with such award or order shall be effective.

It is contended for the prosecutors in these proceedings that a Local Industrial Authority under the Act falls within the definition of in the Economic Organization Regulations and that therefore it is subject to the prohibition contained in reg. 16, which, to use the ordinary phrase, pegs wages at the rates payable on 10th February 1942, subject to the exceptions provided in the Regulations. This argument is supported by reference to s. 31, which, it is said, confers on the Central Industrial Authority (and accordingly upon a Local Industrial Authority?s. 35) the powers, but only the powers, of the Arbitration Court or the Chief Judge of the Court. Those powers are admittedly subject to reg. 16 of the Economic Organization Regulations, and therefore it is said there is, by virtue of s. 31, an incorporation in the Coal Production (War-time) Act of the limitation of the powers of Industrial Authorities contained in reg. 16 of the Economic Organization Regulations.

On the other hand, it is argued that the Coal Production (War-time) Act is special legislation relating to certain disputes and industrial matters in the coal-mining industry which confers on the Industrial Authorities appointed thereunder a power to settle those disputes in such way (as to, inter alia, wages and rates of pay) as those authorities think proper, irrespective of any limitations created by the Economic Organization Regulations. The argument depends upon the words of s. 31 and s. 34. Section 31, it is pointed out, is introduced by the words "The Central Industrial Authority shall have power to consider and determine" certain industrial disputes. Those words contain the grant of power which, it is said, should be given full operation.

The respondents meet the particular argument based upon the second part of s. 31 by urging that the words which provide that "for that purpose" , i.e., for the purpose of considering and determining industrial disputes, the Authority shall have the powers of the Arbitration Court, are ancillary only to the main power granted in the introductory words. They should not (it is argued) be used to import, in relation to the coal Industrial Authorities, a limitation imposed by the Economic Organization Regulations upon the power of the Arbitration Court to consider and determine industrial disputes. A similar argument is submitted with respect to s. 34, which contains a positive provision that a Local Industrial Authority may settle local industrial disputes referred by the Central Industrial Authority and other similar provisions. Here again, it is said, there is a general grant of power which should be allowed to operate fully according to its terms so as to enable the Authority to settle a dispute in such way as it thinks proper, without any limitation upon that power derived from any other legislation.

The particular argument that the latter part of s. 31 confers upon an Industrial Authority the powers of the Arbitration Court as limited by the Economic Organization Regulations does not appear to us to be well founded. There is in the Act (s. 34 combined with s. 31) a grant of power to settle disputes and it is for that purpose that the powers of the Arbitration Court are given to the Industrial Authority. The power of the Authority to settle disputes is derived from the Coal Production (War-time) Act and not from the specification in the Arbitration Act or elsewhere of the powers of the Arbitration Court.

But this conclusion is not decisive of the question before the Court. The argument for the respondents really amounts to an argument that regs. 16 and 17 of the Economic Organization Regulations are impliedly repealed by the Coal Production (War-time) Act in relation to the Authorities constituted under that Act. There is no express repeal of the regulations, and there is no provision that the regulations, though continuing in existence, shall not apply to the Industrial Authorities set up under the Act. The regulations are general in terms, applying to all Industrial Authorities, and the words of the regulations plainly include in terms the Industrial Authorities set up under the Coal Production (War-time) Act. Therefore the regulations apply to those Authorities unless, there being no express repeal, there is an indication in the Act that it was intended that they should not so apply. Such an indication must be clear, because repeal by implication is never favoured: See the cases cited in Halsbury's Laws of England, 2nd ed., vol. 31, p. 561; Flannagan v. Shaw[1] . In the present case the contention that the Economic Organization Regulations do not apply to the Industrial Authorities constituted under the Act depends upon what can be described as only more or less dubious inference. There is no inconsistency sistency between the Regulations and the Act. The Authorities constituted under the Act can perform their functions in relation to wages and rates of pay completely if they are subject to the Regulations, just as all other Industrial Authorities can perform such functions committed to them subject to the limitation imposed by the Regulations. It would have been easy for Parliament to exclude, in the case of the new coal Industrial Authorities under the Act, the application of the Regulations. Parliament has not adopted that course, and the Court should not readily impute to Parliament an intention to exclude the application of a provision which in terms is precisely applicable to these Authorities.

For these reasons we are of opinion that the Authorities constituted under the Coal Production (War-time) Act are Industrial Authorities within the meaning of the Economic Organization Regulations and are bound by regs. 16 and 17 thereof.

Further hearing of this matter will be adjourned until Tuesday, 22nd August, in order to permit the filing of further affidavits, if desired.

Starke J.

The National Security (Economic Organization) Regulations prohibited Industrial Authorities?except in cases immaterial here?from altering the rate of wages applicable to employment on 10th February 1942. The regulation, I take it, was necessary to suppress inflation and other evils arising from conditions brought about by the war, and, adapting a passage in Dr. Foster's Case[2] , for as much as the Regulations were established with such gravity and wisdom for the advancement of the Commonwealth they ought not by any constrained construction out of the general and ambiguous words of a subsequent statute to be abrogated. It is not surprising that the Coal Production (War-time) Act 1944 No. 1 does not expressly exempt the coal-mining industry from the terms of the regulation, for that would give that industry a more favourable position than other industries and weaken the remedy for the mischief which the regulation was designed to suppress. And further, if the Parliament did not in its wisdom explicitly exempt the coal-mining industry from the regulation, then an exemption by implication is difficult to sustain unless the provisions of the Coal Production (War-time) Act 1944 be so inconsistent with or repugnant to the provisions of the regulation that the two cannot stand together, which is far from being the case.

In conclusion I would add that I agree with the reasoning of, and the conclusion reached by, the Chief Justice in the opinion prepared by him.

McTiernan J.

In my opinion the question which has been argued at this first stage of the application should be answered by saying that the Central Industrial Authority and the Local Industrial Authorities appointed under the Coal Production (War-time) Act 1944 are bound by reg. 16 of the National Security (Economic Organization) Regulations. I state my reasons without going over again the provisions of the Act, the above-mentioned Regulations and the other statutory provisions and regulations read in argument.

The Central Industrial Authority and a Local Industrial Authority each satisfies completely the description of an Industrial Authority as defined in reg. 4, to which reg. 16 is expressed to apply. The terms of reg. 16 plainly extend to the rates of pay of the employees who come within the jurisdiction of the Central Industrial Authority or a Local Industrial Authority. Parliament has transferred to the jurisdiction of these Authorities a group of employees, consisting of members of the respondent Federation, without expressing the intention in the present Act or elsewhere that the determination of their rates of pay should not be fettered as it was while they were under the jurisdiction of the existing Industrial Authorities by reg. 16. It becomes a question, therefore, whether reg. 16 is excluded by necessary implication. To reach the conclusion that reg. 16 does not bind the Central or any Local Industrial Authority it is necessary to hold that the provisions of the regulation on the one hand and of the present Act on the other are repugnant and inconsistent provisions.

It seems to me that the constitution and powers of these bodies are not so different in principle or in any material respect from the constitution and powers of the Industrial Authorities which previously had jurisdiction to determine the rates of pay of members of the Federation, as to afford any substantial reason for presuming that the Parliament intended that the new Industrial Authorities should not be bound by reg. 16. It is obvious that the provisions of this regulation and the provisions under which the rates of pay of members of the Federation had been determined before the passing of the present Act did march together. The provisions of the present Act raise no necessary implication that the Industrial Authorities for which it provides should not be bound by the principle which reg. 16 imposes generally on all Industrial Authorities which fulfil the description of an Industrial Authority contained in reg. 4. The Act does not by necessary implication work any modification or partial repeal of reg. 16. The answer to the question whether any such modification or repeal as would exempt the Central or Local Industrial Authority from reg. 16 is made by the provisions of the Act, is governed by the principle which is expressed in Maxwell on the Interpretation of Statutes, 7th ed., (1929), p. 144, in these terms: "Repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the statute-book, or, on the other hand, to effect so important a measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reasonable construction which offers an escape from it is more likely to be in consonance with the real intention."

Judging the matter by this principle it is clear, I think, that no modification or partial repeal of reg. 16 is made by the Act. It follows that the rate of remuneration payable on 10th February 1942 to employees coming within the scope of the Act cannot be lawfully altered by an award or order made by the Central Industrial Authority or any Local Industrial Authority except subject to the provisions of reg. 16 and regs. 17 and 18 of the National Security (Economic Organization) Regulations.

Order absolute. Costs of prosecutors to be paid by respondent Federation.

Solicitors for the prosecutors, Sparke & Helmore, Newcastle, by Gill, Oxlade & Broad.

Solicitors for the respondent Federation, W. C. Taylor & Scott.

Solicitor for the respondent Connell and for the Commonwealth (intervening), H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

1. (1920) 3 K.B. 96, at p. 101.

2. (1614) 11 Co. Rep. 56b, at p. 63a.