Toowoomba Foundry Pty Ltd v Commonwealth [1945] HCA 15; (1945) 71 CLR 545 (3 August 1945)

Toowoomba Foundry Proprietary Limited Plaintiff; and The Commonwealth and Others Defendants.

Maughan K.C. (with him Dignam), for the defendant Commonwealth of Australia in support of the demurrer.

This is a demurrer to a statement of claim in an action in which Toowoomba Foundry Pty. Ltd. is the plaintiff and the defendants are the Commonwealth of Australia, the Chairman and members of the Women's Employment Board (established under Regulations under the Women's Employment Act 1942), the Federated Ironworkers' Association of Australia and the Sheet Metal Workers' Industrial Union of Australia.

The Commonwealth demurred to the whole of the plaintiff's claim, contending that the statement of claim discloses no cause of action and no ground for the relief sought, that the Women's Employment Act and the Regulations are valid, and that the acts which the defendants are alleged to have done were authorized by the said Act or Regulations.

The Women's Employment Board made a decision fixing rates of pay for women engaged in work specified in a schedule to the decision, and the decision was made to apply in express terms to the plaintiff company in respect of all such work.

The first question which arises is whether the demurrer should be upheld as to the claim that reg. 6 (1) (b) of the Women's Employment Regulations is invalid.

It has already been held by this Court that the Women's Employment Regulations are valid: Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Case)[1]. But reg. 6 (1) (b) as it now exists is not the same in form as the corresponding regulations with which the Court, at least in part of its judgment, dealt in that case. Regulation 6 (1) is now in the following terms:—

When the decision in the Women's Employment Case[2] was given, reg. 6 (1) (alleged to be in operation by virtue of Statutory Rules 1943 No. 92) was in the same terms as at the present time. But, in one of what may be called the various editions of reg. 6 (1), the words corresponding to what is now par. (b) were—(work) "which was, during the period from the third day of September, 1939, to the date of the employment of, or proposal to employ, females, performed by males in the establishment of the employer." (See[3]; for another "edition" see[4]). Under these earlier provisions, the necessity of making an application to the Women's Employment Board and the power of the Board to make an order in relation to the employment of females depended upon whether, since a specified date, a particular employer had employed, was employing, or proposed to employ females in substitution for males, because the provision related to work which, prior to the actual or proposed employment of females, had been performed by males in that employer's establishment. But under the present reg. 6 (1) (b) the relevant attribute of the work is not that females have been substituted in doing it for males, but that the work was within the establishment of the employer performed by males at any time since the outbreak of the present war—whatever those words may mean. It is argued, therefore, that it is sufficient, in order to make this provision applicable, that in a particular establishment the following conditions are found to exist—(1) certain "work" has since the outbreak of war at any time been "performed by males"; (2) females are or were (since 2nd March 1942) employed or are proposed to be employed upon that "work." Thus, even if the work had habitually been done by females, if that work at any time since the outbreak of war is "performed by males," the Board can act under reg. 6 (1) (b). Under the previous regulation, it was the substitution of females for males which brought the work within the scope of the regulation. But the present regulation, it is argued, covers states of fact brought about by the substitution of males for females.

It was argued that the decision in the Women's Employment Case[5] was based only upon the opinion that the defence power extended to the subject of the replacement during the war of male labour by female labour, and that therefore that decision did not cover the new regulation, which applied in some cases where there was no such replacement.

It is quite true that, in the Women's Employment Case[6], where the part of the regulations mentioned (as well as the provisions corresponding to the present reg. 6 (1) (a) and (c)) dealt specifically with the replacement of men by women, particular attention was devoted to that aspect of employment problems during war-time. But, in the subsequent cases of Reid v. Sinderberry[7], and Australian Woollen Mills Ltd. v. The Commonwealth[8], it has been held that the Commonwealth Parliament has, under the defence power, an extensive power of dealing with the allocation of manpower and womanpower in industry and of providing for the determination of rates of pay, conditions of work &c. In my opinion, these decisions show that the power of the Commonwealth Parliament extends to making provision for the determination of rates of pay, &c., during time of war in all industries. Thus, even if the contention of the plaintiff is right, so that the new regulation goes beyond providing for cases of replacement of males by females, the regulation would not be invalid.

Argument was heard upon the question whether the regulations as they stand at present were or were not limited to employment in industry. In my opinion, they are valid, even if not so limited. I refer to what I have said on this matter in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[9]. But, independently of this view, in my opinion Statutory Rules 1944 No. 109, together with Statutory Rules 1944 No. 149, have the effect of limiting the operation of the Regulations and of all decisions (past and future) thereunder, to employment in industry. My brother Dixon, in his reasons for judgment, deals in detail with this aspect of the case, and I am content to state my agreement with his reasoning and conclusions upon this matter.

I am therefore of opinion that the Court should reject the contention that reg. 6 (1) (b) is a regulation which cannot be made by an exercise of the power of the Commonwealth Parliament to legislate with respect to defence.

It is further argued, however, that this regulation, which was made under the Women's Employment Act 1942, is beyond the powers of the Governor-General under the Act. The Act is in an unusual form. It provides in s. 3 that the provisions in the schedule relating to the employment of women shall, by virtue of the Act, have and continue to have the force of law and be deemed to have had the force of law from 23rd September 1942. Other provisions are validating or saving clauses. Section 6 is as follows:—"The Governor-General may make regulations prescribing all matters which are necessary or convenient to be prescribed for carrying out or giving effect to this Act, and in particular for—(a) the encouragement and regulation of the employment of women for the purpose of aiding the prosecution of the present war; and (b) the repeal or alteration of, or addition to, any of the provisions, in the Schedule to this Act, relating to the employment of women."

The Regulations, as they originally appeared in the schedule to the Act, related to the replacement of men by women: See reg. 6 (1) as appearing in the schedule. Regulation 6 (1) (b)) in its present form is not limited to this subject. It is argued that the present regulation therefore cannot be validly made under the power conferred by s. 6 of the Act.

In my opinion, the answer to this argument is to be found in the terms of s. 6. The section authorizes the making of regulations for the repeal or alteration of any of the provisions in the schedule relating to the employment of women, and it further authorizes the making of regulations for the encouragement and regulation of the employment of women for the purpose of aiding the prosecution of the war. The original reg. 6 was repealed. This repeal was authorized by s. 6 (b). The present regulation is a regulation for the encouragement and regulation of the employment of women for the purposes stated in the section and is authorized by s. 6 (a). The section expressly authorizes the making of new and different regulations with respect to the encouragement and regulation of the employment of women. Therefore this objection should be overruled. The result is that, in my opinion, the demurrer should be allowed in respect of the first declaration claimed by the plaintiff.

The second claim made by the plaintiff is for a declaration that a decision of the Women's Employment Board given on 30th May 1944 is void and of no effect. This decision was given in eight applications made by two of the defendants—the Federated Ironworkers' Association and the Sheet Metal Workers' Industrial Union of Australia. The applications were made under reg. 7B of the Women's Employment Regulations, which provides that:—"Any organization of employees to which any female employed on work specified in sub-regulation (1) of regulation 6 of these Regulations belongs, may make application to the Board for a determination of the rate of payment to be made to, or the hours and conditions of employment to be observed in respect of, females employed on that work, and the Board shall forthwith deal with the application as if it were an application under regulation 6 of these Regulations."

Regulation 7C (1) is as follows:—"The Board may, of its own motion, or on the application of any organization of employers or employees, give in respect of any work specified in sub-regulation (1) of regulation 6 of these Regulations any decision which it would be required to give under these Regulations if an application were made under that sub-regulation in respect of that work."

The decision given by the Board in the present case was stated by the Board to be given in pursuance of reg. 7C.

The power of the Board when acting, whether of its own motion or upon an application, under reg. 7C is expressly limited by reference to the powers of the Board if an application were made under sub-reg. 1 of reg. 6 in respect of that work—i.e. an application by an employer being an application in respect to work falling within reg. 6 (1) under one or other of the heads (a), (b) or (c) in that regulation. The powers and duties of the Board upon such an application are stated in reg. 6 (4) and 6 (5). Regulation 6 (4) is as follows:—"The Board shall decide—(a) whether the work specified in the application is work specified in sub-regulation (1) of this regulation; and (b) if so, whether females may be employed or continue to be employed on the work."

Regulation 6 (5) (6) and (7) provide that if the Board decides that females may be employed or continue to be employed on the work, it shall decide hours, special conditions, probation, rates of pay &c.

Thus the authority of the Board depends upon whether an employer proposes to employ, is employing or has at any time since the specified date employed females on work falling within the heads (a), (b) or (c) of reg. 6 (1). If the work is in fact work of that description, the Board then has authority to act, but if in fact the work is not work of that description, the Board has no authority to act: R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd.[10].

Before the Board can make an order, the Board must make the decisions required by reg. 6 (4). That regulation is imperative in terms, providing that the Board shall decide the two matters therein mentioned; reg. 6 (5) enables the Board to make an order as to hours, conditions, &c. only "if the Board decides that females may be employed or continue to be employed on the work"; and reg. 6 (7) relating to rates of pay, is made subject to the same conditions by virtue of the words "subject to this regulation". Thus these powers can be exercised only if the Board makes the decision mentioned in reg. 6 (4) (b), which can only be made if there has been a decision in the terms of reg. 6 (4) (a), namely, that the work specified in the application is work specified in reg. 6 (1).

The decision of the Board in the present case is formally set out, so far as material, in the following terms:—

Further provisions of the decision are that the rates of payment to be made to females shall, during the period of probation, be 66.6 per cent, and thereafter shall be 90 per cent of the rate of payment prescribed by the appropriate award &c. for adult males doing substantially similar work. Another provision of the decision which was given on 30th May 1944 makes the rates of payment applicable in respect of work done by any female covered by the decision as on and from the commencement of the first pay period after 1st July 1943. It was suggested that the decision was invalid because it was made retrospective, but I can see no reason to support this objection.

The work specified in schedule A was described under 80 headings, such as, e.g.—

The Board purported to exercise the power conferred upon it by reg. 7C, and, upon the basis of the eight applications made by the two unions, purported to make its decision binding upon the employers mentioned in schedule B of the decision. The employers were divided into three classes. The first class consisted of named employers, including the plaintiff company. The second class consisted of all organizations of employers and employees bound by certain awards—a particular Federal award and a particular State award—if those organizations existed in the State of Queensland. The third class consisted of all other employers and employees in Queensland who were bound by either of those awards "and all others who employ females within the jurisdiction of the Board upon work included within the classifications in Schedule A to this decision."

It is not easy to interpret either the initial words of the decision "in respect of females covered by and included within the jurisdiction of the Board," or the words last quoted "all others who employ females within the jurisdiction of the Board upon work included within the classifications of Schedule A to this decision." Apparently it was the intention of the Board to bind all employers in Queensland in respect of any females employed upon any of the 80 varieties of work set forth in schedule A if those females were "within the jurisdiction of the Board," the Board not deciding whether or not any such females were within its jurisdiction. In the absence of such a decision, it is at least doubtful whether the Board can be said to have made the decision required by reg. 6 (4) as a condition of the Board proceeding to fix rates of wages &c., viz., a decision that specified work falls within (a), (b) or (c) of reg. 6 (1) and is work upon which an employer proposes to employ, is employing, or, since 2nd March 1942, has employed females. But there are other matters affecting the decision which make it unnecessary to determine the case upon this particular point.

The statement of claim contains allegations that certain of the work specified in schedule A of the decision is and at all material times was work which was not included within reg. 6 (1) (a) (work usually performed by males) nor work included within reg. 6 (1) (c) (work which, immediately prior to the outbreak of the war, was not performed in Australia by any person). Upon the basis that these allegations are true (which is the necessary assumption in proceedings in demurrer), it follows that the decision of the Board was made without authority unless it can be justified under reg. 6 (1) (b). Regulation 6 (1) (b), however, refers only to particular work within the establishments of particular employers. It is alleged in the statement of claim that the work specified in schedule A was not work which, within all the establishments of the employers named in schedule B, was at any time since the outbreak of the war performed by males (and, therefore, in respect of some of the employers was not work in respect of which any application could have been made by virtue of reg. 6 (1) (b)). It is specifically alleged in par. 8 of the statement of claim that the plaintiff was, prior to 30th May 1944, and still was employing females on work of a kind specified in schedule A which, within its establishment, had at some time since the outbreak of the war been performed by males (i.e. work as to which, if an application in respect of it had been made to the Board, a decision might have been given by the Board by virtue of reg. 6 (1) (b)). But it is also alleged that "The plaintiff has at no time proposed to employ or employed females on any work which is usually performed by males nor on any work which, immediately prior to the outbreak of the present war, was not performed in Australia by any person." Thus the position, as alleged, is that a decision might have been given by the Board under reg. 6 (1) (b) binding upon the plaintiff as to some of the work specified in schedule A, but that no decision binding upon the plaintiff could have been given upon an application by the plaintiff under reg. 6 (1) (a) or 6 (1) (c).

The decision of the Board, however, is not a decision that any of the specified work falls within reg. 6 (1) (a) or within 6 (1) (b) or within 6 (1) (c) respectively, but only that the specified work is work specified in sub-reg. 1 of reg. 6. If the same order could be made whether work fell within (a) or within (b) or within (c), the failure of the Board to specify whether work fell within (a) or (b) or (c) respectively might perhaps be held to be immaterial: Cf. Welsbach Light Co. of Australasia Ltd. v. The Commonwealth[11]. See per Higgins J.:—"The Attorney-General has not declared his opinion as to any definite fact. But inasmuch as the same consequences follow whichever of the alternative facts be found"[12], his Honour found it possible to support the proclamation in question. But, upon the allegations in the statement of claim, the decision of the Board can be justified only if the work in fact falls within reg. 6 (1) (b), and, further, if there is a decision of the Board to that effect. There is no decision of the Board to that effect, and if there were a decision of the Board to that effect it would not justify, even with the extensive powers conferred by reg. 7C, an order applying to all employers in whose establishments any work of the specified descriptions was done, irrespectively of whether that work in those establishments had at any time been done by males. Where an application is made in respect of work covered by reg. 6 (1) (a) or (c), a decision can be given as to that work, describing it by its characteristics as work. Such a decision can be generalized under reg. 7C—i.e. can be applied to that work wherever that work is done. But the possibility of making a decision in relation to work covered by reg. 6 (1) (b) depends upon the conditions existing in a particular establishment of a particular employer. Such a decision cannot be generalized under reg. 7C. It is, I think, clear that, if an application were made by virtue of reg. 6 (1) (b) in respect of females in a particular establishment employed upon particular work, the only decision that could be made upon that application would be a decision with respect to females employed upon the work in question in the establishment of that employer. The decision of the Board which is challenged is not so limited, and, subject to the effect of certain validating provisions to which I shall refer, should be held to have been made without jurisdiction.

It was evidently thought that some decisions of the Board might be invalid, and accordingly Statutory Rules 1944 No. 149 was made on 11th October 1944. This statutory rule (which in effect dissolved the Board and transferred its functions to the Arbitration Court) purported to validate all past decisions of the Board (including therefore the decision in question) "according to their tenor." Thus the decisions of the Board are validated according to their precise terms. That means, in the case of the present decision, that it is validated retrospectively to 1st July 1943.

This provision was considered in Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd.[13] where it was held that the section did not avoid a provision in a regulation merely because it affected existing rights prejudicially; a regulation which was not expressed to take effect from a prior date was not affected by the section, even though it deprived a person of existing rights—or, by parity of reasoning, though it imposed new liabilities upon him in respect of past acts or omissions. In that case, it was held that a regulation which terminated a right of appeal as from a particular date took effect only as from that date, and did not take effect at any past date. Nothing can alter the past, but a law may be said to take effect from a past date if the operation of the law is such as to destroy as at a past date rights which then existed or to impose as at a past date liabilities which did not then exist. In the Aberfield Case[14], the regulation in question did neither of these things. In the present case, however, the position is different. The decisions are given legislative effect by the regulation "according to their tenor." A meaning should be ascribed to the words "according to their tenor." In the case of the decision now under consideration, the effect of the regulation is to provide that the decision shall take effect as from 1st July 1943. In my opinion, it should be held that such a provision falls within s. 48 (2) because the words of the regulation express an intention that it shall impose as at a past date liabilities which did not then exist. The effect of the regulation can be ascertained only when the actual terms of the past decisions to which it applies are read into it. When this particular decision is so read in, the regulation is seen to be a regulation which is expressed to take effect from a date (1st July 1943) before the date of notification of the regulation in the Gazette (12th October 1944). Unless it were held that s. 48 avoids such a provision, a regulation could be passed which would give effect to provisions contained in other documents referred to, but not reproduced in, the regulation, and the regulation would be valid even though, if those documents had been repeated in the regulations, the regulation would clearly have been invalid. In my opinion, Statutory Rules 1944 No. 149 does not operate to make the decision valid so as to impose liabilities in respect of anything done or omitted to be done before 12th October 1944 if, apart from that statutory rule, it was invalid (as, in my opinion, it was for reasons already stated).

But this conclusion still leaves the decision in operation as to the period after that date. I read s. 48 (2) of the Acts Interpretation Act (combined with s. 46 (b)) as producing the effect that a provision made in contravention of s. 48 (2) is void only in so far as it is in contravention thereof. Accordingly, the claim of the plaintiff that the decision is bad in toto, as to the future as well as to the past, should not, in my opinion, be upheld. Prima facie, the result would be that the demurrer, in so far as it applies to the decision of the Board, should be allowed, but that the plaintiff should be given liberty to amend so as to allege invalidity of the decision in respect of the period before 12th October 1944.

But the demurrer, so far as it relates to the claim for a declaration that the decision of the Board is invalid, has been supported by a further argument. If this argument is accepted, the demurrer should be allowed without any liberty to the plaintiff to amend. The contention is that the decision cannot be attacked in an action brought merely for the purpose of attacking it, so that, in respect of the decision, the plaintiff has no cause of action, even if it is invalid as a matter of law.

There is no provision for any appeal from a decision of the Women's Employment Board. If the decision was made without jurisdiction, proceedings by way of prohibition (Constitution, s. 75 (v.)) will afford a remedy in an appropriate case: See R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd.[15]. If a person were prosecuted for breach of an invalid decision or sued for the recovery of money alleged to be due under an invalid decision, I can see no reason why he should not be able to rely upon the invalidity of the decision by way of defence: Cf. Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd.[16]. But I am not aware of any authority which entitles any person to bring an action against the Commonwealth or any other defendant merely for a declaration that a decision of such a body as the Women's Employment Board is void.

In the first place, the Women's Employment Board is not an agency of the Commonwealth Government. It has independent functions to perform, and the Commonwealth Government is not liable for what it does. There is no reason for making the Commonwealth a party to any proceedings with respect to the decision of the Board, the Commonwealth not having made that decision, and not being (so far as appears) a party bound by it or entitled to benefits under it.

Next, it has been argued that the Court has jurisdiction to deal with the action against the Commonwealth in so far as the validity of reg. 6 (1) (b) (as distinct from that of the decision) is concerned, and that jurisdiction once so vested is not lost in respect of other matters in the same proceeding, and reference is made to R. v. Bevan; Ex parte Elias and Gordon[17], and cases there cited. But this contention has nothing whatever to do with the existence of a cause of action. The question whether the Court has jurisdiction to entertain a proceeding is quite different from the question whether a plaintiff in a proceeding has any cause of action.

The plaintiff has relied upon the practice of the Court in allowing the constitutional validity of statutes and regulations and orders made thereunder to be challenged by interested persons in actions claiming only declarations of invalidity: See, e.g., Attorney-General for N.S.W. v. Brewery Employés Union of N.S.W.[18]; Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth[19]. More recently, see Victorian Chamber of Manufactures v. The Commonwealth (Prices Regulations)[20] and Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regulations)[21]. It is now, I think, too late to contend that a person who is, or in the immediate future probably will be, affected in his person or property by Commonwealth legislation alleged to be unconstitutional has not a cause of action in this Court for a declaration that the legislation is invalid.

But the cases which have established this practice have never gone so far as to allow the decision of an independent tribunal acting under a statute or a regulation to be challenged in an action claiming only a declaration that the decision is invalid. There may, as I have already said, be proceedings by way of prohibition. But it is quite a different thing to claim in an action a declaration of invalidity. Counsel for the plaintiff relied upon what was said by Greer L.J. in Cooper v. Wilson[22]:—"The case of Andrews v. Mitchell2(1905) A.C. 78. seems to me to support the view that a claim for a declaration that a statutory body acted without jurisdiction can be dealt with by an action for a declaration that the decision in question was null and void." The case of Cooper v. Wilson[24] was an action for money alleged to be payable to a constable who had been dismissed. He alleged that he had been dismissed wrongfully and a question which arose was whether a Watch Committee acted within its jurisdiction in reaching the decision that he should be dismissed. In order to justify his claim, the plaintiff had to show that the decision of the Committee was made without jurisdiction, and the challenge to the decision was plainly incidental to the establishment of the plaintiff's right for the money alleged to be due.

In Andrews v. Mitchell[25], the case referred to in Cooper v. Wilson[26], there was no decision that an action could be brought merely for a declaration that a decision of a statutory body was void as made without jurisdiction. Andrews v. Mitchell[27] was a claim for damages for wrongful expulsion from a friendly society and for an injunction. The question was whether the plaintiff had been rightfully or wrongfully expelled, and the court as a matter of course dealt with that question in determining whether the plaintiff was entitled to damages or an injunction.

Thus, in both of the cases mentioned, it was necessary to rule upon the validity of the action of a statutory body in order to determine whether or not a right of the plaintiff had been infringed. There was a cause of action consisting in the alleged infringement of the right. The present case is quite different. There is no actual or threatened infringement of any right of the plaintiff. In my opinion, the plaintiff has no cause of action in respect of the decision of the Board, even if it be invalid, and the demurrer should for this reason be allowed in respect of the second claim made by the plaintiff.

In reaching this conclusion, I have not ignored reg. 9A, which empowers the Attorney-General of the Commonwealth to sue for sums of money due and payable to females by any employer under a decision of the Board. If the Attorney-General had made a claim against the plaintiff company under this regulation the Court might in its discretion, in proceedings to which the Attorney-General was a party, make a declaration that there was no liability of the company under the decision of the Board to the female in respect of whom the claim had been made—though such a declaration would be made only in very exceptional cases—Guaranty Trust Co. of New York v. Hannay & Co.[28]. But, if the Attorney-General has made no such claim, there is no jurisdiction to make such a declaration—In re Clay; Clay v. Booth[29], and cf. Hume v. Monro [No. 2][30]. There is no allegation in the pleadings that any claim in respect of any person has been made by the Attorney-General. Further, the Attorney-General is not a party to this action, though the Commonwealth is a party. The alleged rights of female employees under the decision of the Board are not public rights such as may be enforced or protected by the Attorney-General acting on behalf of the public. The rights which the Attorney-General could seek to enforce under reg. 9B are purely private rights of individual persons. Any liability to pay wages under the decision of the Board must be a liability to some particular person. In my opinion, this Court has no jurisdiction to make, in this action, a declaration that the plaintiff is not under any liability by reason of the decision of the Board either to any particular person or to any class of persons.

Thus, in my opinion, the demurrer should be allowed in respect of declaration No. 1 claimed in the statement of claim, and should also be allowed in respect of declaration No. 2, but in the latter case only upon the ground that the plaintiff has no cause of action in relation to the decision of the Board.

Regulation 6 (1) of the Women's Employment Regulations has had a somewhat chequered career. It has from time to time been amended and has also been the subject of several decisions of this Court. But I do not propose to trace its course because I consider that the decision of the Board of 30th May 1944 is not void, it having been validated by virtue of the provisions of Statutory Rules 1944 No. 149, reg. 2 of which was notified in the Commonwealth Gazette on 12th October 1944. From that date only, in view of the provisions of the Acts Interpretation Act 1901-1941, would this regulation validate the decision. The demurrer should be allowed.

By the statement of claim, to which the Commonwealth demurs, the plaintiff seeks declarations of right the purpose of which is to obtain relief from the application to the plaintiff of a decision of the Women's Employment Board.

The claim is, first, that the decision is void because it does not pursue the directions contained in the Women's Employment Regulations; secondly, that, however that may be, the regulation which would or might give such an effect to the decision, namely reg. 6 (1) (b), is beyond the power to make regulations conferred upon the Executive by s. 6 of the Women's Employment Act 1942; and, thirdly, that, in any event, the Regulations are no longer confined to industry or to the replacement of men by women and cannot be justified constitutionally.

The decision was given by the Women's Employment Board on 30th May 1944. According to the allegations in the pleading, which, of course, for the purpose of the demurrer, are assumed to be correct, the Board purported to act under reg. 7C, as amended. That regulation enabled the Board, on its own motion, to give, in respect of any work specified in reg. 6 (1), any decision which the Board would be required to give under the Regulations, if an application were made under reg. 6 (1). If such an application were made, the Board would have been required by reg. 6 (4) to decide two questions. They are (a) whether the work specified in the application is work specified in reg. 6 (1); (b) if so, whether females may be employed or continue to be employed on the work. It is, therefore, necessary to see what work reg. 6 (1) specifies and that can best be done by setting out the material part of the sub-regulation. It is as follows:—"Where an employer proposes to employ, is employing, or has at any time since the second day of March, 1942, employed, females on work—(a) which is usually performed by males; (b) which, within the establishment of that employer, was performed by males at any time since the outbreak of the present war; or (c) which, immediately prior to the outbreak of the present war, was not performed in Australia by any person, the employer shall ... forthwith make an application to the Board for a decision in accordance with this regulation."

It would seem from this that it was incumbent upon the Board to decide specifically whether each given employer to be affected did employ females on work falling in one or other of the three foregoing descriptions, that is (a), (b) or (c), in reg. 6 (1). The decision named in a schedule certain employers, including the plaintiff, as parties whom the decision should bind, but the schedule was expressed also to include "all others who employ females within the jurisdiction of the Board upon work" of any of a long list of descriptions or classifications comprised in another schedule. In respect of work within that list and "in respect of females covered by and included within the jurisdiction of the Board," a decision was stated. It was decided in terms (1) "that the said work is work specified in sub-regulation (1) of regulation 6," and (2) "that females may be employed or continue to be employed on the said work." I have some doubt whether it was enough to say, as thus in effect the decision did say, that the work in the list fell within one or other of the three categories without saying which and in respect of what employer, and then simply to name the employers bound. I have more doubt still about two other questions raised by the decision. They are (1) whether the general description "all others who employ females within the jurisdiction of the Board" with which the schedule of persons bound concludes, does not take the decision outside the authority of the Regulations; and (2) whether the introductory restriction of the decision, expressed by the words "in respect of all females covered by and included within the jurisdiction of the Board," does not operate to place in suspense one of the very matters or points that reg. 6 meant to be decided by the Board. But, however much doubt there may have been about the validity of the decision on the ground of failure to follow the course prescribed by the Regulations, a validating regulation has now been made which, unless itself open to objection, takes up all decisions of the Board and gives them legal efficacy. The regulation was made on 11th October 1944, after the writ was issued but before the statement of claim was filed. It is reg. 2 of Statutory Rules 1944 No. 149 and it provides, stating the material part briefly, that instruments purporting to be decisions of the Board shall have full force and effect according to their tenor.

An objection is raised on behalf of the plaintiff to this provision on the ground that, in its application at all events to the Board's decision now in question, it conflicts with s. 48 (2) of the Acts Interpretation Act 1901-1941. Section 48 (2) provides, amongst other things, that regulations shall not be expressed to take effect from a date before the date of notification (as under s. 48 (1) (b) would be possible) in any case where, if the regulations so took effect, liabilities would be imposed in respect of anything done or omitted before the date of notification and that where, in any regulations, any provision is made in contravention of the foregoing that provision shall be void and of no effect. The Board issued the decision complained of on 30th May 1944 and it was expressed to apply in respect substantially of work done after 1st July 1943, that is retrospectively. It is contended that reg. 2 of Statutory Rules 1944 No. 149 must be read as incorporating the Board's decisions to which it applies, so that if it gave in this manner to the decision in question an effectual operation "according to its tenor," you would have a provision obnoxious to s. 48 (2) of the Acts Interpretation Act. Even if this contention were accepted literally, the consequences would only be to exclude so much of the decision as attempted to go back to 1st July 1943 from the effective operation of reg. 2 of Statutory Rules 1944 No. 149. Prospectively as from 12th October 1944, when that regulation took effect, the decision would be established. The relief sought by the statement of claim is confined to declarations of invalidity of the decision or the regulation and the question is not before us whether, as between 1st July 1943 and 12th October 1944, the decision should be considered effectively to have imposed obligations upon the plaintiff in respect of some of its female employees. Nor am I sure that by an amendment of the statement of claim this question could be raised for decision. For I doubt if a suit against the Commonwealth for a declaration of right is an appropriate proceeding for ascertaining the operation of an industrial decision of the character of that now in question. In saying this, I recognize that one step in the reasoning by which its operation should or might be ascertained involves the limitation imposed upon power by s. 48 (2) of the Acts Interpretation Act 1901-1941, but that consideration does not, I think, suffice to justify a proceeding in the present form for such a purpose. In any case, as at present advised, I am not persuaded of the correctness of the substance of the contention based upon s. 48 (2). For I am disposed to think that the contention that the decision should be regarded as part of the regulation for the purpose of s. 48 (2) cannot be sustained and, for the rest, it is a question how far the argument is consistent with the interpretation given to s. 48 (2) by Latham C.J., Starke J. and McTiernan J. in Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd.[31]. The result is that, in my opinion, the objection to the decision of the Board that it does not conform to the requirements of reg. 6, as made applicable by reg. 7C, fails, because the decision is in that respect validated by reg. 2 of Statutory Rules 1944 No. 149.

But, on the footing that the decision was not bad for failure to comply with the Regulations, its validity was still attacked on the ground that material parts of reg. 6 could not be supported as an exercise of the power conferred by s. 6 of the Women's Employment Act and that, in any case, they went beyond the defence power. Reasoning by which this contention is supported begins from an interpretation of reg. 6 (1) (b) that I am not prepared to accept. In the form in which reg. 6 (1) stood in the Women's Employment Act, it required an employer to apply to the Board for a decision on certain conditions arising which it expressed as follows:—"Where an employer has, since the second day of March 1942 employed, is employing, or proposes to employ, females on work which is usually performed by males or work which was, prior to that employment of females, or is, performed by males in the establishment of that employer, or is work which, prior to that employment or proposed employment of females, was not being performed in Australia by any person." If this version of the conditions is compared with the present form of the conditions, which already has been set out, it will be seen that, under par. (b), the present version makes it enough that within the establishment of the given employer the work was performed by males at any time since the beginning of the war, while the earlier version made it necessary that "prior to," which probably meant "immediately prior to," the employment in question of females the particular work in the establishment should have been done by males. It is said that the present version covers any case in which since the outbreak of war a male had been employed in doing a class of work and, if that had happened, then, although generally speaking the work had always been done by women, yet their employment upon that class of work would be governed by the Women's Employment Board. An example was given from the cleaning of offices. If, in an establishment, that work was done by women, but on one occasion for some reason a man had been employed on the task, then, in that establishment, the Board would be authorized to regulate the terms and conditions of the employment of women, although, otherwise, it would have been outside the province of the Board to do so.

Beginning with this interpretation of reg. 6, in its present form, the argument proceeded to place upon the Women's Employment Act a meaning which restricted its scope and purpose to regulating the employment of women either in replacement of men or upon kinds of work not before done in Australia, a scope and purpose outside which reg. 6 would fall, if so interpreted. It was said that this interpretation flowed from a consideration of the terms of the Act with the schedule and moreover that the validity of the legislation had been upheld in Victorian Chamber of Manufactures v. The Commonwealth[32] upon this footing: R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[33] was also referred to and also Australian Woollen Mills Ltd. v. The Commonwealth[34]. I do not desire that it should be supposed that I assent to the view of the Acts contended for, but it is a question into which I find it unnecessary to enter. For, in my opinion, the somewhat irrational operation ascribed to par. (b) of reg. 6 (1) is not in accordance with its true meaning. It is indefinitely expressed, but I think that the paragraph means to describe work which was usually done by males in the particular establishment during some substantial interval of time occurring since the outbreak of war. Work means a class or description of work: Cf. R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd.[35]. "Performed," though indefinite as to the extent or degree of performance, should be understood as meaning ordinarily, usually, habitually, or substantially, performed by males. The words "by males" do not refer to one man on one occasion, but the words are almost equivalent to the expression "by the male sex." On this interpretation of the paragraph, the attack upon the validity of reg. 6 (1) fails in its initial step.

A further attack was made upon the Women's Employment Regulations in the form they took between the repeal of reg. 5A on 21st April 1944 by Statutory Rules 1944 No. 70 and 19th July 1944, when Statutory Rules 1944 No. 109 introduced a definition of the word "employ" and its cognates, the period during which the decision was given. The attack was based upon the view that the removal of reg. 5A had extended the operation of the Regulations beyond the employment of women in industry so that they covered all forms of female employment. One essential link in the chain constituting the nexus upon which the Court had relied for supporting the validity of the Regulations was said to be the fact that they related to industry. Reference was made to R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[36]. As this link in the chain is destroyed, another nexus must be found, it was said, or else the Regulations had lost their validity. Without confessing the soundness of this train of reasoning, it is enough to say that I think that its consequence is avoided by a proper understanding of reg. 2 of Statutory Rules 1944 No. 149 and the relation to it of Statutory Rules 1944 No. 109. The latter regulation inserts in the principal regulations the following definition:—"employ (except in relation to the Commonwealth or to any instrumentality or authority of or under the Commonwealth) means employ in industry, and employing, employed and employment have corresponding meanings." This was done after the decision in R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[37] and its evident purpose was to confine the operation of the Regulations to employment in industry, the reason doubtless being to meet the decision in that case that in so far as, since the removal of reg. 5A, they purport to apply to females employed by a State in purely governmental activities, the Regulations were beyond the defence power of the Commonwealth. It is clear that from 19th July 1944, when Statutory Rules 1944 No. 109 took effect, the Regulations were no longer open to the objection, whether a tenable objection or not, that they covered female employment of all kinds. But that in itself would not be enough to confine the decision now in question within the same limits; for it had already been given. Regulation 2 of Statutory Rules 1944 No. 149 at this point assumes another importance. After providing that instruments purporting to be decisions or variations shall have full force and effect for all purposes according to their tenor, reg. 2 (1) proceeds—"and, subject to this regulation, the provisions of those Regulations, as amended by these Regulations, shall apply to and in relation to those instruments in like manner as they apply to and in relation to decisions and variations given or made under those Regulations, and for that purpose these instruments shall be deemed to be decisions within the meaning of those Regulations." The need for this part of reg. 2 (1) arose from the fact that Statutory Rules 1944 No. 149 contains provisions transferring the authority of the Board under the Women's Employment Regulations to the Court of Conciliation and Arbitration. "These Regulations" in the expression "as amended by these Regulations" means Statutory Rules 1944 No. 149 itself, replacing the Board by the Court. "Those Regulations," however, refers to all the antecedent Women's Employment Regulations in force, including Statutory Rules 1944 No. 109. Consequently the validation of the decision is not done simpliciter; it is a validation on the footing that the decision operates according to the Regulations as then existing, that is subject to the restriction on their scope re-introduced by Statutory Rules 1944 No. 109. To do this was desirable, if not necessary, after R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria[38]. For otherwise the purported operation of the validated decision might exceed power. But it follows that, for the future, the decision is governed by the definition of "employ" and "employment" to the same extent as it would be if it had been given after the introduction of that definition in the Regulations.

For these reasons, I think that the plaintiff's contentions must fail and that the demurrer should be allowed.

In my opinion, the demurrer should be allowed. I agree with the reasons of the Chief Justice.

This is a demurrer by the defendant, the Commonwealth of Australia, to a statement of claim in an action commenced on 4th August 1944 in which the plaintiff seeks (1) a declaration that reg. 6 (1) (b) of the Women's Employment Regulations is beyond the powers of the Parliament of the Commonwealth or alternatively of the Governor-General under the Women's Employment Act and is void and of no effect; (2) a declaration that the decision of the Women's Employment Board of 30th May 1944 is void and of no effect.

It appears that this decision, which is set out verbatim in the statement of claim, had its origin in five applications by the Federated Ironworkers' Association and three applications by the Sheet Metal Workers' Industrial Union of Australia, each made under reg. 7B, in respect of the employment of females on a number of classifications of work in the metal industry in Queensland. The Board proceeded to deal with these applications under reg. 7C as amended by Statutory Rules 1944 No. 42. This regulation enabled the Board, of its own motion, or on the application of any organization of employers or employees, to give in respect of any work specified in reg. 6 (1) any decision which it would be required to give under the Regulations if an application were made under that sub-regulation in respect of that work. It enabled the Board, before giving a decision, to publish a proposed decision and to give such notification to employers and employees likely to be affected by such decision as to the Board seemed proper and to fix a time and place for the hearing of the matter. This procedure was carried out by the Board before giving the present decision, which, it was stated, was intended to be a common rule decision in the Queensland metal trade.

The decision has two schedules: A, containing classifications of work, and B, specifying the parties bound by the decision. Schedule B has three parts. Part (a) contains the names of certain employers, including that of the plaintiff, and certain organizations of employees, part (b) comprises all organizations of employers and employees bound by either the metal trades award of the Commonwealth Court of Conciliation and Arbitration, No. 4655 as varied, or the mechanical engineering award of the State of Queensland which exists in the State of Queensland; and part (c) comprises all other employers and employees in Queensland who are bound by either the metal trades award No. 4655 or the mechanical engineering award of the State of Queensland and all others who employ females within the jurisdiction of the Board upon work included within the classifications in schedule A. The concluding words of part (c) in their context must refer, I think, to employers in Queensland.

The decision states that, in respect of work covered by the eight applications and the work specified in schedule A and in respect of females covered by and included within the jurisdiction of the Board, the Board decides that the said work is work specified in sub-reg. 1 of reg. 6 of the Women's Employment Regulations.

The plaintiff is, therefore, one of the employers on whom the decision, if valid, is binding, and the object of the action, although two separate declarations are sought, is to obtain a declaration that the decision is invalid. The reason why a separate declaration is sought with respect to reg. 6 (1) (b) of the Women's Employment Regulations is because the plaintiff alleges in the statement of claim, and these allegations must be taken to be admitted for the purposes of the demurrer, that it was, prior to 30th May 1944, and is now employing females on work of a kind specified in schedule A which within its establishment has at some time since the outbreak of the present war been performed by males, and that it has at no time proposed to employ or employed females on any work which is usually performed by males, nor on any work which immediately prior to the outbreak of the present war was not performed in Australia by any person; so that, if this sub-regulation is invalid, the whole basis of the finding with respect to the plaintiff vanishes. But, in case the sub-regulation is held to be valid, the plaintiff also seeks a declaration that the decision is void on three other grounds which are: (i) that the Board did not decide that the work in respect of which it purported to give a decision was work specified in reg. 6 (1); (ii) that the Board did not decide that any and if so which of the classifications of work specified in schedule A was or were within reg. 6 (1) (a) or 6 (1) (b) or 6 (1) (c) respectively; and (iii) that there was no evidence before the Board that all the work specified in schedule A fell within one of these three categories.

Since the passing of the Women's Employment Act on 6th October 1942, sub-reg. 6 (1) has been frequently amended. Its various forms down to 8th April 1943 are set out in the judgments of this Court in Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regulations)[39] (hereinafter referred to as the previous case) and need not be repeated. At the date of the present decision, the sub-regulation was in the form introduced by Statutory Rules 1943 No. 251 gazetted on 30th September 1943, and, so far as material, read as follows:—

At the time of the previous case, the regulations contained reg. 5A which provided that, without prejudice to anything contained in these regulations, the functions of the Board should be to fix the remuneration, hours and conditions of employment of certain women employed in industry during the emergency created by the present war. This regulation was repealed by Statutory Rules 1944 No. 70, gazetted on 21st April 1944. Doubts having been expressed by some members of this Court in Victoria v. Foster[40], in which judgment was delivered on 8th June 1944, whether the repeal of this regulation might not have destroyed the validity of the Women's Employment Regulations as a whole, the Executive proceeded to enact two further amendments of the Regulations. By Statutory Rules 1944 No. 109, gazetted on 19th July 1944, reg. 4 was amended by inserting the following definition: "employ (except in relation to the Commonwealth or to any instrumentality or authority of or under the Commonwealth) means employ in industry and employing, employed and employment have corresponding meanings." By Statutory Rules 1944 No. 149, gazetted on 12th October 1944, it was provided that: 1. In these Regulations "Women's Employment Regulations" means the provisions in the Schedule to the Women's Employment Act 1942 relating to the employment of women, as subsequently amended. 2. (1) All instruments relating to the employment of women which the Women's Employment Board, constituted under the Women's Employment Regulations, has issued or purported to issue as its decisions or variations of its decisions at any time on or after the thirtieth day of September, 1943, shall, by virtue of this regulation, have full force and effect for all purposes, according to their tenor, in respect of all work to which the instruments respectively apply or purport to apply and, subject to this regulation, the provisions of those Regulations, as amended by these Regulations, shall apply to and in relation to those instruments in like manner as they apply to and in relation to decisions and variations given or made under those Regulations, and for that purpose those instruments shall be deemed to be decisions within the meaning of those Regulations. (2) Nothing in the last preceding sub-regulation shall affect the rights of any person under a judgment obtained by him prior to the commencement of this regulation.

The first question is whether reg. 6 (1) (b) is invalid because it is beyond the ambit of the power of legislation conferred upon the Commonwealth Parliament by s. 51 (vi.) of the Constitution and therefore beyond the power of that Parliament to delegate to the Executive by the Women's Employment Act. Mr. Barwick contended that the sub-regulation has a wider operation than the corresponding provisions of reg. 6 in the schedule which were upheld as valid in the previous case. But it is immaterial to consider this contention or the effect of Statutory Rules 1944 No. 109 if the scope of the Regulations has at all times been confined to employment in industry, because subsequent decisions, and particularly that in Australian Woollen Mills Ltd. v. The Commonwealth[41] have established that control of the terms and conditions of employment in industry is within the defence power in war-time. A majority of the Court has decided that the Regulations, whilst they contained reg. 5A, were so confined. As appears in Victoria v. Foster[42], I found it unnecessary to express an opinion whether the repeal of this regulation on 21st April 1944 had the effect of extending this scope beyond industry, but the point now arises for determination, and I have reached the conclusion that the considerations adverted to in the previous case[43] and the further indications of intention to the same effect contained in regs. 5C, 7B and 7D which have since been introduced, show that the Regulations on their true construction should still be confined to industry even without the presence of reg. 5A. Regulation 6 (1) (b) is, therefore, in my opinion, within the ambit of the defence power.

It is also authorized by s. 6 of the Women's Employment Act, the provisions of which seem to be plainly intended to delegate to the Executive a power as wide as the defence power itself to legislate in relation to the regulation of the employment of women during the war.

For these reasons, I am of opinion that the plaintiff is not entitled to the first declaration.

Mr. Maughan's main objection to a declaration that the decision is invalid on any of the other three grounds was that it is not open to the plaintiff to challenge the validity of a decision of the Board except by an application, like that made in R. v. Foster; Ex parte Crown Crystal Glass Pty. Ltd.[44], for a prohibition under s. 75 (v.) of the Constitution. In answer to this objection, the plaintiffs sought to rely on the principle stated in the decisions of this Court of which R. v. Bevan; Ex parte Elias and Golden[45] and Carter v. Egg and Egg Pulp Marketing Board (Vict.)[46] are the most recent examples, that under s. 76 of the Constitution and s. 30 of the Judiciary Act, this Court has original jurisdiction in all matters arising under the Constitution or involving its interpretation, and this jurisdiction, when once vested, is not lost by reason of the rejection of the constitutional issue. It was submitted that the first declaration involved the interpretation of the Constitution, so that the Court was invested with jurisdiction to determine the questions involved in the second declaration, although the plaintiff failed to obtain the first declaration. But this principle could only apply to give the Court such jurisdiction as it could exercise in the particular form of proceedings before the Court. If, therefore, the finding of the Board that the work covered by the applications and specified in schedule A is work within the meaning of reg. 6 (1) could only be challenged by an application for a prohibition, the principle could not give the Court jurisdiction to avoid the decision in an action. I have already expressed the opinion that a decision of the Board is of an executive quasi-judicial character[47]. A body exercising such functions, which acts in excess of its legal authority, is subject to the controlling jurisdiction of a superior court exercised by the prerogative writs of certiorari or prohibition: R. v. Electricity Commissioners[48]. But the issue of these writs is discretionary, and a subject is not entitled in an action instituted as of right to obtain a declaration which would have the same effect. I can see no distinction in principle between the question whether an action for a declaration can be substituted for the relief which can be obtained by the issue of these writs and whether such an action can be substituted for any other prerogative writ, and it has been held that a declaratory judgment cannot be given where the only proper remedy open to the plaintiff is an application for a writ of mandamus (Baxter v. London County Council[49]) or for an information in the nature of a quo warranto (Everett v. Griffiths[50]).

The plaintiff relied on the statement of Greer L.J. in Cooper v. Wilson[51] that "The case of Andrews v. Mitchell8(1905) A.C. 78. seems to me to support the view that a claim for a declaration that a statutory body acted without jurisdiction can be dealt with by an action for a declaration that the decision in question was null and void." But this statement must, I think, be read in the light of the facts of that particular case. These were that the plaintiff sought to resign from the Liverpool Police by giving a month's notice. If he resigned in this way, he was entitled to be repaid certain deductions that had been made from his pay by the Watch Committee. After he had sent in his resignation, but before the notice had expired, charges were preferred against him of offences against discipline, and the Chief Constable, after an inquiry, purported to dismiss him. A few days after the notice had expired, the Watch Committee purported to dismiss his appeal from the Chief Constable's sentence of dismissal and refused to repay the deductions. The action was therefore to recover these moneys from the persons liable to repay them, and the question whether the plaintiff had resigned or had been dismissed was the substantial issue in the action, just as the question whether the decision of the Board was valid would be a substantial issue in an action brought by an employee against an employer to recover the wages thereby awarded. If some person other than the Watch Committee had been liable to repay the deductions, I do not think that this statement would be any authority for the proposition that, independently of any claim for repayment, the plaintiff could have sued the Chief Constable and the members of the Watch Committee in an action for a declaration that they had acted in excess of jurisdiction. But, if a person entitled to the benefit of a decision of a statutory body sues a person bound by the decision, the latter can set up the invalidity of the decision by way of defence, and the power of the Court to entertain actions for declarations of right is now so wide that it has jurisdiction to entertain an action where the person bound, instead of waiting to be sued, takes the initiative and sues the person entitled for a declaration that the decision is void: Guaranty Trust Co. of New York v. Hannay & Co.[53].

Regulation 9A enables the Attorney-General on behalf of females who are or have been employed by any employer, to sue, in any court of competent jurisdiction, for the sums of money due and payable to them under a decision. The Attorney-General representing the Commonwealth is therefore placed in the same position as though he was a person entitled to the benefit of a decision. An employer who was sued by the Attorney-General could plead the invalidity of the decision, and it must follow, I think, for the reasons already stated, that an employer could take the initiative and sue the Commonwealth for a declaration that the decision is void (Dyson v. Attorney-General[54]; Burghes v. Attorney-General[55]). And this Court would have jurisdiction to entertain the action under s. 75 (iii.) of the Constitution. Whether such a declaration should be made would be a matter for the discretion of the trial judge, but the cause of action would not be demurrable.

It is necessary, therefore, to consider whether the plaintiff is entitled to the second declaration on any of these grounds, and, as they all relate to the same finding, they can, I think, be dealt with together. The finding is that the work covered by the applications and that specified in schedule A in respect of females covered by and included within the jurisdiction of the Board is work specified in reg. 6 (1). Schedule A classifies the work under eleven headings, several of which contain sub-headings, the last heading containing the vague classification of "employee directly assisting an employee whose margin above the basic wage is 14s. or more." The Board has not stated under which of the three categories of reg. 6 (1) any of the work referred to in any of these headings falls. As at present advised, it appears to me that, in order to comply with reg. 6 (4), it is necessary for the Board to state specifically under which category or categories the work, the subject matter of an application, falls. At any rate, as at present advised, I am unable to see how the Board, in the case of a decision in the nature of a common rule, could make a general finding that the work was work within reg. 6 (1), except where the work was in fact work which fell within category 6 (1) (a) or 6 (1) (c). In these two categories, the work, in whatever establishments it was being performed, would be the work of females subject to the jurisdiction of the Board. But in the application of category of 6 (1) (b), each case would depend upon the particular circumstances in an establishment. The present decision must be taken to include work outside categories 6 (1) (a) and 6 (1) (c), because the statement of claim alleges that certain of the work specified in schedule A of the decision was neither work which is usually performed by males nor work which immediately prior to the outbreak of the present war was not performed in Australia by any person. The finding refers to all work covered by the applications and specified in the schedule (it does not appear to what extent it is the same), but it is governed by the words "in respect of females covered by and included within the jurisdiction of the Board." These words would be unnecessary if all the work fell within category 6 (1) (a) or 6 (1) (c), so that they must have been introduced, it seems to me, in order to include work done by females which was not work in either of these categories, but work done by females which in some establishments would, and in others would not, be work within the meaning of the Regulations, or in other words, to work in category 6 (1) (b). But the words govern the whole finding, so that all that the Board has done is to state that where, in an establishment of an employer bound by the award, there are females subject to its jurisdiction, that is to say females employed on any of the classifications of work in fact falling within any of the three categories in reg. 6 (1), then they are employed on work specified in that sub-regulation. But that leaves the finding of fact to be made by the employer and not by the Board, whereas reg. 6 (4) requires that the finding should be made by the Board. The same attempt to delegate to employers the work that the Board is enjoined to do by reg. 6 appears in schedule B, where it includes in part (c) among the employers bound by the award all persons who employ females within the jurisdiction of the Board upon work included within the classifications of schedule A to the decision. On account of the difficulties of construing reg. 6 (1) (b), to which my brother Dixon has adverted, it was particularly important that the Board should decide in what establishments females were being employed on work which, within those establishments, was performed by males at any time since the outbreak of the present war. For these reasons, as at present advised, it appears to me that the decision on its face does not contain a finding that complies with reg. 6 (4), whether that sub-regulation requires the Board to state specifically in every case within which category any particular work falls or not, so that the decision was void at the date that it was given.

But the effect of reg. 2 (1) of Statutory Rules 1944 No. 149 remains for consideration, as the present decision is included in its terms. This regulation provides that a decision to which it refers shall have full force and effect for all purposes according to its tenor in respect of all work to which it applies or purports to apply, that is to say, in the present case, to the work covered by the eight applications and that specified in schedule A. The present decision was given on 30th May 1944, and was made retrospective to 1st July 1943. But reg. 2 is not expressed to take effect before the date of notification. On the contrary, it expressly states that the instruments to which it relates shall have effect, that is future effect, by virtue of the regulation. It therefore operates to validate decisions prospectively. If it was expressed to take effect before the date of notification it would offend against the Acts Interpretation Act 1901-1941, s. 48 (2), which prohibits a regulation imposing a liability on any person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done before the date of notification. This provision is directly in point in relation to wages earned for work done prior to 12th October 1944, and expressly prohibits the regulation from imposing a liability on the plaintiff to pay these wages or any liability other than a liability to pay wages for work done after that date. This construction is, to my mind, not only entirely consistent with the decision of the majority of the Court in Australian Coal and Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd.[56], but is also entirely consistent with the reasoning of the Chief Justice and McTiernan J., who were two of the majority, by which that decision was reached. In that case, the respondents had appealed to the Commonwealth Court of Conciliation and Arbitration against a decision of a Conciliation Commissioner. After the appeal had been duly instituted, but before it had been heard, a regulation was made providing that no decision given before or after its commencement should be varied or set aside by any tribunal except in pursuance of an application made to the tribunal with the consent of the Minister. The majority of the Court held that the effect of this regulation was to prevent the further prosecution of the appeal to the Commonwealth Court of Conciliation and Arbitration. The Chief Justice said: "The date of notification" (that is, of the regulation) "was 16th December 1941. The regulation does not in terms purport to take effect as at any earlier date. It applies, it is true, to awards and orders made before 16th December 1941, but only as from 16th December. It does not either in form or in fact take effect, it does not produce any effect, at any date earlier than 16th December"[57]. I understand these words to mean that the regulation did not affect the institution of the appeal or anything done to prosecute the appeal prior to the date of notification, but merely destroyed the right of appeal as from that date. But if the effect of the present regulation is to make the plaintiff liable for wages for work done prior to 12th October 1944, then it does produce an effect, and a very substantial effect, prior to that date and it does the very thing, namely it imposes a liability on the plaintiff in respect of something done before the date of notification, which the Acts Interpretation Act in clear and explicit terms states that it cannot do. To that extent, the regulation would be void and of no effect. The same question arose in the previous case with respect to reg. 3 of Statutory Rules 1943 No. 75, in relation to the period 16th to 25th March 1943, where I formed the same view[58] as to the effect of the decision in the Aberfield Case[59], and it appears[60] that this view agreed with those of Rich J. and McTiernan J. (one of the majority in the Aberfield Case[61]). Further, the Chief Justice said that the regulation, if valid, would have "preserved in full future operation everything that had been preserved by or done by virtue of the disallowed regulation"[62]. (The italics are mine.)

But the only question that arises at present is whether the allegations in the statement of claim are sufficient to entitle the plaintiff to a declaration that the decision of 30th May 1944 is void. As the decision acquired statutory validity from 12th October 1944, that question should be answered in the negative, and the demurrer upheld, but the plaintiff, if so advised, should be allowed to claim a declaration that the decision was invalid prior to that date, and given liberty to amend.

Solicitor for the defendant Commonwealth of Australia, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

[1] [1943] HCA 21; (1943) 67 C.L.R. 347.

[2] [1943] HCA 21; (1943) 67 C.L.R. 347.

[3] (1943) 67 C.L.R., at p. 366.

[4] (1943) 67 C.L.R., at p. 396.

[5] [1943] HCA 21; (1943) 67 C.L.R. 347.

[6] [1943] HCA 21; (1943) 67 C.L.R. 347.

[7] [1944] HCA 15; (1944) 68 C.L.R. 504.

[8] [1944] HCA 37; (1944) 69 C.L.R. 476.

[9] [1944] HCA 16; (1944) 68 C.L.R. 485.

[10] [1944] HCA 22; (1944) 69 C.L.R. 299.

[11] [1916] HCA 59; (1916) 22 C.L.R. 268.

[12] (1916) 22 C.L.R., at p. 284.

[13] [1942] HCA 23; (1942) 66 C.L.R. 161.

[14] [1942] HCA 23; (1942) 66 C.L.R. 161.

[15] [1944] HCA 22; (1944) 69 C.L.R. 299.

[16] (1942) 66 C.L.R., at p. 177.

[17] (1942) 66 C.L.R., at pp. 465, 480.

[18] [1908] HCA 94; (1908) 6 C.L.R. 469.

[19] [1912] HCA 94; (1912) 15 C.L.R. 182.

[20] [1943] HCA 19; (1943) 67 C.L.R. 335.

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

[22] (1937) 2 K.B., at p. 324.

[23] (1905) A.C. 78.

[24] (1937) 2 K.B. 309.

[25] (1905) A.C. 78.

[26] (1937) 2 K.B. 309.

[27] (1905) A.C. 78.

[28] (1915) 2 K.B. 536, at p. 565.

[29] (1919) 1 Ch. 66.

[30] [1943] HCA 7; (1943) 67 C.L.R. 461.

[31] (1942) 66 C.L.R., at pp. 175, 176, 184, 185, 186.

[32] [1943] HCA 21; (1943) 67 C.L.R. 347.

[33] (1944) 68 C.L.R., at pp. 494, 500.

[34] [1944] HCA 37; (1944) 69 C.L.R. 476.

[35] [1944] HCA 22; (1944) 69 C.L.R. 299.

[36] (1944) 68 C.L.R., particularly at pp. 496, 497, 501, 502.

[37] [1944] HCA 16; (1944) 68 C.L.R. 485.

[38] [1944] HCA 16; (1944) 68 C.L.R. 485.

[39] [1943] HCA 21; (1943) 67 C.L.R. 347.

[40] [1944] HCA 16; (1944) 68 C.L.R. 485.

[41] [1944] HCA 37; (1944) 69 C.L.R. 476.

[42] (1944) 68 C.L.R., at p. 502.

[43] (1943) 67 C.L.R., at p. 399.

[44] [1944] HCA 22; (1944) 69 C.L.R. 299.

[45] [1942] HCA 12; (1942) 66 C.L.R. 452.

[46] [1942] HCA 30; (1942) 66 C.L.R. 557.

[47] (1943) 67 C.L.R., at p. 412.

[48] (1924) 1 K.B. 171, at pp. 204-207.

[49] (1890) 63 L.T. 767.

[50] (1924) 1 K.B. 941.

[51] (1937) 2 K.B., at p. 324.

[52] (1905) A.C. 78.

[53] (1915) 2 K.B., at p. 562.

[54] (1911) 1 K.B. 410; (1912) 1 Ch. 158.

[55] (1912) 1 Ch. 173.

[56] [1942] HCA 23; (1942) 66 C.L.R. 161.

[57] (1942) 66 C.L.R., at p. 176.

[58] (1943) 67 C.L.R., at pp. 406, 408.

[59] [1942] HCA 23; (1942) 66 C.L.R. 161.

[60] (1943) 67 C.L.R., at pp. 377, 393.

[61] [1942] HCA 23; (1942) 66 C.L.R. 161.

[62] (1943) 67 C.L.R., at p. 374.

High Court of Australia

Toowoomba Foundry Pty Ltd v Commonwealth [1945] HCA 15; (1945) 71 CLR 545 (3 August 1945)

HIGH COURT OF AUSTRALIA