R v Taylor [1949] HCA 24; (1949) 79 CLR 333 (6 July 1949)

HIGH COURT OF AUSTRALIA

THE KING v. TAYLOR [1949] HCA 24; (1949) 79 CLR 333

Constitutional Law (Cth.)

High Court of Australia
Rich(1), McTiernan(1) and Williams(1) JJ.

CATCHWORDS

Constitutional Law (Cth.) - Conciliation and arbitration - Industrial dispute - Coal-mining industry - Strike - Financial assistance - Prohibition - Funds drawn from bank accounts by industrial unions - Order directing payment thereof into Court - Statute - Order - Validity - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxi.), (xxxv.), (xxxix.) - National Emergency (Coal Strike) Act 1949 (No. 20 of 1949), s. 9* - Coal Industry Act 1946 (No. 40 of 1946).

HEARING

Sydney, 1949, July 5, 6. 6:7:1949
PROHIBITION.

DECISION

July 6.
The following written judgment of the COURT was delivered by:-
RICH J. These are applications for orders nisi for writs of prohibition Conciliation and Arbitration, the Industrial Registrar of that Court and the Commonwealth of Australia from further proceeding under the provisions of the National Emergency (Coal Strike) Act 1949 with the hearing of the application of the Industrial Registrar and the Commonwealth of Australia for certain orders and from making certain orders. The first applicant is the Federated Ironworkers' Association of Australia and three of its officers and the orders already made by his Honour complained of are two orders purporting to have been made under the provisions of s. 9 of the National Emergency (Coal Strike) Act 1949, one in effect prohibiting that organization from making contributions to assist the strike which is at present being engaged in by members of the Australasian Coal and Shale Employees' Federation, and the second an order directing the applicant to pay into court the sum of 25,000 pounds withdrawn from its bank account immediately before the Act came into force. The applicants in the second application are the Australasian Coal and Shale Employees' Federation and some of its officers and the order complained of in their case is an order directing them to pay into court the sum of 15,000 pounds withdrawn from its bank account immediately before the Act came into operation. The orders nisi were originally sought on three grounds that can be summarized as follows: (1) that the National Emergency (Coal Strike) Act is ultra vires the Commonwealth Constitution; (2) that if the Act is intra vires the orders made by the Chief Judge under s. 9 of that Act are beyond his jurisdiction under that section; (3) that the National Emergency (Coal Strike) Act is an amendment of the Coal Industry Act 1946, and that Act is a joint Act with a similar Act of the New South Wales Parliament and the former Act provides that each of the two Governments has undertaken not to take action without the prior concurrence of the other to repeal or amend any legislation covered by the agreement. The third ground can be disposed of immediately because it has no substance. It is quite clear that one Commonwealth Parliament cannot prevent a subsequent Parliament from passing any Act within its constitutional powers amending or repealing any earlier Act. We are also of opinion that there is no substance in the two earlier points. It appears from the recitals to the National Emergency (Coal Strike) Act to which we are entitled to attach importance, and it is a notorious public fact of which we are entitled to take judicial notice, that a general strike in the coal-mining industry was decided upon on 16th June and commenced on 27th June 1949, and that in the words of one of the recitals that strike is prejudicing or interfering with the maintenance of supplies and services essential to the life of the community and has caused a grave national emergency. Section 51, par. (xxxv.) of the Constitution provides that the Commonwealth Parliament shall have power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. Section 51, par. (xxxix.) provides that the Commonwealth Parliament shall have power to make laws with respect to matters incidental to the execution of any power vested by this Constitution in the Parliament. The purpose of the National Emergency (Coal Strike) Act, to be gathered from its provisions, is to prevent the organization which is participating in the strike, in this case the Australasian Coal and Shale Employees' Federation, making payments to its members to assist the strike; and also to prevent other organizations such as the Federated Ironworkers' Association of Australasia assisting the members of the participating organization by providing financial assistance to carry on the strike. The Act defines "organization" to mean an organization registered under the Commonwealth Conciliation and Arbitration Act 1904-1948. In our opinion it is within s. 51, par. (xxxv.) of the Constitution; or if it is not within this power, then it is within s. 51, par. (xxxix.) of the Constitution as plainly incidental to the exercise of the former power that the Commonwealth Parliament should be able to enact legislation preventing financial assistance being given to members of any union who refuse to accept conciliation and arbitration and prefer to go on strike. The Act carries this purpose into effect by providing penal sanctions for those persons and organizations who make and receive payments in breach of its provisions, but it also includes means to prevent payments being made and received contrary to the Act. Accordingly s. 9 provides that the court shall have jurisdiction to make such orders for injunctions as it thinks necessary for the purpose of ensuring compliance with the provisions of this Act. The jurisdiction of the court under this section may be exercised by a single judge. We are of opinion that the orders for injunctions made by his Honour were authorized by this section. The section is couched in wide terms and authorizes the court to make any injunction of a negative or positive nature necessary for the purpose stated. In the present case it is plainly a reasonable inference, and indeed it does not appear to be contested, that the applicant organizations each withdrew from their bank accounts the funds, which they have been ordered to pay into court, for the purpose of defeating the provisions of the Act. These orders are intended to restore in substance the status quo at the time the Act came into force. We are not concerned with the question whether it was advisable for his Honour in the exercise of his statutory power to order these moneys to be paid into court instead of into the previous bank accounts. We are only concerned with the question of his jurisdiction to grant them. We have no doubt that the orders made were orders for injunctions within the meaning of and for the purpose stated in the section. (at p339)

2. At a late stage of the argument two further grounds were raised in support of the applications: (1) that the orders were acquisitions of property and did not comply with the requirements of s. 51 par. (xxxi.) of the Constitution; (2) that there were no proper applicants before his Honour. We are of opinion that there is no substance in either of these grounds. As to (1) the case in no way resembles Minister of State for the Army v. Dalziel [1944] HCA 4; (1944) 68 CLR 261 relied upon in argument because the Commonwealth did not acquire any proprietary interest in the moneys paid into court. The submission made in the argument that the orders confiscated the moneys of the applicants is absurd. As to (2) the Act carries a plain and necessary implication that the registrar is a proper person to move the court for an injunction. It is therefore unnecessary to consider whether the Commonwealth of Australia could made the application. (at p340)

3. For these reasons we refuse the applications. (at p340)

4. At a late stage of the hearing a similar order nisi was applied for on behalf of the Amalgamated Engineering Union (Australian Section) and some of its officers. The same grounds were relied upon and for the same reasons we refuse this application. (at p340)

ORDER

Applications refused.