Aberdare Collieries Pty Ltd v Commonwealth [1952] HCA 13; (1952) 86 CLR 12 (17 March 1952)

HIGH COURT OF AUSTRALIA

ABERDARE COLLIERIES PTY. LTD. v. THE COMMONWEALTH OF AUSTRALIA [1952] HCA 13; (1952) 86 CLR 12

Constitutional Law (Cth.)

High Court of Australia
Dixon(1), McTiernan(1), Williams(1), Webb(1), Fullagar(1) and Kitto(1) JJ.

CATCHWORDS

Constitutional Law (Cth.) - Industrial Arbitration - Defence power - War-time legislation and regulations - Validity - Coal industry - Reference boards constituted under regulations - Awards, orders, determinations and decisions - Continuance in force - The Constitution (63 & 64 Vict. c. 12), s. 51 (vi.), (xxxv.) - Defence (Transitional Provisions) Act 1946-1951 (No. 77 of 1946 - No. 43 of 1951), s. 8 (3) - Defence (Transitional Provisions) Act 1950-1951 (No. 78 of 1950 - No. 43 of 1951), s. 4 - Coal Industry Act 1946-1951 (No. 40 of 1946 - No. 61 of 1951), ss. 3 (2), 4 - Coal Industry (Amendment) Act 1951 (N.S.W.) (No. 47 of 1951), s. 3 (2) - National Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25 - S.R. 1950 No. 25).

HEARING

Sydney, 1951, December 13, 14;
Melbourne, 1952, March 17. 17:3:1952
DEMURRER.

DECISION

March 17, 1952.
THE COURT delivered the following written judgment:-
This is a demurrer by the defendants to the whole of a statement of claim. declarations of right and such further or other relief as to the Court may seem fit. The first three of these declarations are directed against the present validity of the National Security (Coal Mining Industry Employment) Regulations, which the Defence (Transitional Provisions) Act 1946-1951 purports to continue in force, or alternatively against Parts II and III of such regulations. The fourth declaration is to the effect that all awards and orders still current made by the Central Reference Board set up by these regulations are invalid. The fifth, that all current decisions made by the Local Reference Board for the State of Queensland, a board also owing its existence to the regulations, are invalid. To found a title to such relief the plaintiffs allege in their statement of claim that they are companies, incorporated under the laws of Queensland, carrying on business as colliery proprietors and owners and operators of coal mines in that State; that the Central Reference Board has made awards and orders, now purporting to be in force and to bind employers in the coal mining industry in New South Wales, Victoria, Queensland and Tasmania including the plaintiffs in respect of the wages and conditions of employees other than members of the Australian Coal and Shale Employees Federation; and that the Local Reference Board for Queensland has given decisions now purporting to be in force and to bind employers in the coal mining industry in Queensland including the plaintiffs in respect of matters lawfully specified for the exercise of its powers. (at p23)

2. A final paragraph in the pleading puts forward the contention that the Defence (Transitional Provisions) Act 1946-1950 (now 1946-1951) in so far as it purports to continue the National Security (Coal Mining Industry Employment) Regulations is beyond the powers of the Parliament of the Commonwealth and void. It is not easy to see how the constitutional correctness of this proposition could be denied and counsel for the defendants did not deny it. The regulations were originally made in 1941 as a war measure, the validity of which could be sustained only under the legislative power with respect to defence. The defence power would not suffice to continue them in force up to the present time, unless, by their nature, their continuance in force formed a reasonably necessary incident of the transition from the organization of the country for war to the forms of control available to the Commonwealth in peace or to the States independently of war or peace. Plainly this condition could not be fulfilled as at this date. Since the statement of claim discloses sufficient interest in the plaintiffs and the Commonwealth itself is included among the defendants it follows that the statement of claim makes out a title to relief, that is to say in respect of the first three declarations. The demurrer is to the whole statement of claim and therefore it must necessarily be overruled. This disposes of the proceeding but it does so upon a ground which was not in contest between the parties at the hearing of the demurrer. What was in contest was the continued validity of the awards, orders, determinations and decisions of the Central Reference Board and the Local Reference Board of Queensland. If the defendants had been able to sustain the regulations as still operative, it would necessarily follow that the awards, orders, determinations and decisions made in pursuance of the regulations could be sustained. But once it appeared that they could no longer sustain the regulation as continuing in operation two things logically followed. First it followed that the continuance in operation of the awards, orders, determinations and decisions must depend on other statutory provisions the validity of which must be supported on different grounds. Secondly it followed that to show that all the awards, orders and decisions still current remained of full force and validity could be of no help in sustaining the demurrer. The first of these consequences the defendants, as the demurring parties, recognized, the second they did not. Accordingly the question whether all or any of such awards, orders, determinations and decisions now have force was argued. In all the circumstances it seems better to express an opinion upon this question even if it cannot form any part of the ratio decidendi of the demurrer. It is a question which depends upon the effect of a succession of statutory provisions the purpose of which is to take up awards, orders, determinations and decisions depending upon the National Security (Coal Mining Industry Employment) Regulations and continue them in force or give them a valid future operation. (at p24)

3. The history of the statutory provisions relating to employment in coal mining during and since the war is a little involved and for an understanding of the matter in question some explanation is necessary. The National Security (Coal Mining Industry Employment) Regulations at first set up bodies to deal with disputes and matters affecting employees in the whole coal and shale mining industry without distinction. The bodies consisted of two kinds. First there was a Central Reference Board with power to consider and determine industrial disputes referred to it by any of the parties or the Minister, all matters arising under an award, if so referred, a dispute or matter referred to it by a Local Reference Board and any matter affecting industrial relations, if the chairman declared it proper to be dealt with. Secondly there were Local Reference Boards whose power was exercisable within limits as to locality or otherwise specified sometimes by the chairman of the Central Reference Board and sometimes by some other authority. Local Reference Boards were to settle disputes as to local matters and industrial disputes and matters referred to it by the Central Board. The authority of these bodies was not obtained under, and no part of it could be referred to, the legislative power with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond any one State. It was independent of almost every one of the elements upon which that power depends, arbitration, the existence of an industrial dispute and the extension of the dispute beyond one State. But for the purpose of considering and determining any dispute or matter the boards were given, by reference, the powers of the Commonwealth Court of Conciliation and Arbitration under the Commonwealth Conciliation and Arbitration Act and the National Security (Industrial Peace) Regulations. Further a board's awards and orders upon being filed in the Court were to have the same effect as, and to be enforceable as if they were, awards and orders of the Court. They thus were given the quality, which is characteristic of instruments of industrial regulation, of continuing in force until a new award or order was made. (at p25)

4. At the end of the year 1943 a change was made in the uniform character of the authority which these boards had possessed over the industry without any distinction between industrial organizations. By S.R. 1943, No. 295, coming into force on 10th December 1943, a new Part called Part 1A was introduced into the regulations setting up a parallel authority, parallel to the Central Reference Board, to deal only with industrial disputes and matters affecting the employment of members of the Australian Coal and Shale Employees Federation, called "the Federation". The new body was called the Central Coal Authority. On matters concerning members of the Federation references to the Local Reference Board were to be made by the Central Coal Authority. (at p26)

5. In March 1944, Part V of the Coal Production (War-time) Act of that year established a Central Industrial Authority consisting of one person and Local Industrial Authorities, equipping them with powers in relation to the Federation corresponding with those formerly possessed in relation to the whole industry by the Central Reference Board and Local Reference Boards, whose powers thereafter were confined to disputes and matters affecting others than members of the Federation. Part 1A of the regulations was repealed and consequential amendments were made: S.R. 1944 No. 48. The Statutory Rule contained in reg. 2 (2) a saving clause as follows:- "2. (2) Notwithstanding the repeal effected by this regulation, every award or order made by the Central Coal Authority appointed under the National Security (Coal Mining Industry Employment) Regulations and in force immediately prior to the commencement of this regulation shall continue in force subject to the Coal Production (War-time) Act 1944." (at p26)

6. The same Statutory Rule (reg. 4) excluded the power of the Central Reference and Local Reference Boards with respect to members of the Federation, subject to any exception made by the Commonwealth Coal Commissioner with respect to members or with respect to parts of Australia. (at p26)

7. Part V of the Coal Production (War-time) Act 1944, was repealed by s. 28 of the Coal Industry Act 1946. Part V of the latter Act deals with "Industrial Matters" and contains the provisions enabling the Governor-General to enter into an arrangement with the Governor of the State of New South Wales for the constitution of a Coal Industry Tribunal and for the appointment of a person to constitute the tribunal: s. 30. The disputes and matters of which this tribunal has cognizance are those concerning the Federation. Unlike the previous Act and the regulations, this Act in conferring power makes a separate category for disputes extending beyond the limits of any one State, though whether the powers conferred are arbitral may be a question. The plan, however, depends on the combined or co-ordinated exercise of Federal and State power in New South Wales, the legislature of which passed the Coal Industry Act 1946 (No. 44 of 1946) in corresponding terms. (at p26)

8. The plan included the establishment of local coal authorities appointed by the tribunal: s. 37. This demurrer turns in no way upon the Acts of 1946, subject to one not very important qualification. The qualification relates to s. 29 of the Coal Industry Act 1946 (Cth.) which provides that any award, order or determination made or given under Part V of the Coal Production (War-time) Act 1944 and in force immediately prior to the commencement of this section shall continue in force until rescinded by competent authority and, while it so remains in force, may be varied by such authority. The statutory provision was repeated in the regulations as reg. 4A, introduced by S.R. 1947 No. 42. It is not easy to say what is the scope of the expression "competent authority" used by s. 29 and reg. 4A. But it appears clear enough that the tribunal and local coal authorities would be within its intended application. Yet it can hardly be supposed that, except in so far as the tribunal or local coal authorities may be considered State authorities, the expression was meant to enable a State industrial authority to rescind the awards or orders of the former Federal central industrial authority. The relevance of this observation is to the interpretation of the expression in later Federal legislation where it reappears. (at p27)

9. From the commencement of Part V of the Coal Industry Act 1946 (1st March 1947) the tribunal and local coal authorities have dealt with disputes and matters affecting members of the Federation; the Central Reference Board and Local Reference Boards, purporting to act under the regulations, have dealt with other disputes and matters in the industry. The Defence (Transitional Provisions) Acts, No. 77 of 1946, No. 78 of 1947, No. 88 of 1948, No. 70 of 1949, No. 78 of 1950 and No. 43 of 1951, have purported annually to renew the operation of the regulations for each ensuing twelve months. It is not material to the decision of the case to determine up to what exact point these successive attempts to keep the regulations alive continued to find support under the necessarily contracting application of the defence power. Clearly enough they no longer do so. All that is necessary is to classify the descriptions of de facto awards, orders, determinations and decisions of the Central Reference Board and Local Reference Boards and other authorities which must have derived their force from or have depended upon the regulations. This classification must be in the abstract. For the statement of claim sets none of the instruments out and refers to none of them so as to make it part of the record. As it is a demurrer we must deal with the matter on the footing of the possible exercises of the powers of the boards amounting to awards, orders or decisions within the pleading. In effect this means such instruments as may have come into existence during various periods and, considered apart from the validity of the regulations, may not yet have expired or been ended. There are first the possible awards, orders, determinations and decisions of the Central and Local reference boards made before the commencement of the Defence (Transitional Provisions) Act 1946 came into force on 1st January 1947. Secondly there are the possible awards, orders, determinations and decisions of the same bodies made after that date and before the regulations went out of force because no longer was there legislative power to continue them. Thirdly there is the possibility that awards, orders, determinations or decisions have been made de facto since that time. Fourthly there are the possible awards, orders, determinations and decisions which were made by the central coal authority under Part 1A of the regulations before that Part was repealed but are continued by reg. 2 (2) of S.R. 1944 No. 48. Fifthly there are possible awards &c. made under Part V of the Coal Production (War-time) Act 1944 which reg. 4A purports to continue as does s. 29 of the Coal Industry Act 1946 (Cth.). (at p28)

10. Now s. 8(3) of the Defence (Transitional Provisions) Act 1946-
1951 contains a general provision purporting to continue in force awards &c. of industrial authorities under any National Security regulation, but it applies only to awards &c. made before the commencement of that Act, e.g. before 1st January, 1947. The provision is as follows: "8.(3.) Each award, order and determination in force or subsisting immediately prior to the commencement of this Act and made or given by any industrial authority having power to fix rates of pay or conditions of employment under any regulation under the National Security Act, shall remain in force or subsisting until revoked by competent authority." In terms this sub-section is wide enough to embrace the first and fourth of the foregoing classifications of awards &c. but not the second, third, or fifth. (at p28)

11. It will be seen that again the expression "competent authority" is used, this time with the word "revoke". (at p28)

12. Then s. 4(1) of the Defence (Transitional Provisions) Act 1950 (No. 78 of 1950) provides that the instruments to which the Defence (Transitional Provisions) Act 1946-1949 purported to give force or subsistence immediately before the date of commencement of this Act shall, by force of this Act, be in force or subsisting until the 31st day of December 1951. Sub-section (3) defines "instruments" to include regulations, orders, awards and determinations. The year "1951" mentioned in s. 4(1) becomes "1952" by a specific amendment made by s. 4 of the Defence (Transitional Provisions) Act 1951 (No. 43 of 1951). (at p28)

13. The provision appears to relate to the instruments referred to in sub-ss. (1), (2) and (3) of s. 8 of the Defence (Transitional Provisions) Act 1946-1949, but it may also cover other instruments. One effect which it seems to have is to provide for the continuance of the awards, orders and determinations mentioned in sub-s. (3) of s. 8 until 31st December 1952. Probably as a result of sub-s. (2) of s. 4 of the Act of 1950, a sub-section which it is unnecessary to set out, they may be revoked in the meantime by a "competent authority", whatever that expression may cover. (at p29)

14. The next and latest step in the legislative history of the matter is the enactment in December 1951, just before the hearing of this demurrer, of a Federal and a State statute, the one called the Coal Industry Act 1951 (No. 61 of 1951) and the other the Coal Industry (Amendment) Act 1951 (N.S.W.). These statutes contain amendments of the respective Coal Industry Acts 1946 of Commonwealth and State and are evidently pieces of combined or co-ordinated legislation, as those Acts were. The substantial purposes of the amendments, which are similarly expressed, is to bring all disputes and matters within the authority of the tribunal, whether or not they affect members of the Federation, to re-define and enlarge the ambit of the tribunal's authority and, by consequence, of the authority of the local coal authorities, and to strengthen and amplify the powers conferred. So far as the State of New South Wales is concerned all this rests alike on an exertion of State and of Commonwealth legislative power. All that is important however, in the case before us is a provision which occurs in both Acts as sub-s. (2) of s. 3. (at p29)

15. It is expressed as follows:- "(2). An award, order or determination made or given, or purporting to have been made or given, under the National Security (Coal Mining Industry Employment) Regulations or otherwise in operation or purporting to be in operation, by virtue of those Regulations, and an agreement in writing filed in the Commonwealth Court of Conciliation and Arbitration under those Regulations, being an award, order, determination or agreement in force, or purporting to be in force, immediately before the commencement of this section, shall continue in force until revoked by competent authority, and, if varied by competent authority, as so varied." In the Commonwealth Act this is followed by a provision (sub-s. (3)) for enforcement under the Conciliation and Arbitration Act 1904-1951, while in the State the corresponding provision is for enforcement under the Industrial Arbitration Act 1940-1951 (N.S.W.). The expression National Security (Coal Mining Industry Employment) Regulations is defined so as to cover those regulations as in force under the National Security Act or the Defence (Transitional Provisions) Act. It follows from this and from the terms of sub-s. (2) that it is wide enough to embrace all five of the foregoing classifications of awards, orders and determinations. We would treat the word "determinations" as including decisions of a Local Reference Board. In so far as s. 3 (2) of the Coal Industry Act 1951 (Cth.) is valid, we would take it to be a provision covering part of the same ground as s. 8(3) of the Defence (Transitional Provisions) Act 1946-1951 and s. 4 of the Defence (Transitional Provisions) Act 1950-1951. We doubt if there is any inconsistency between the provisions, but if there were, the Coal Industry Act 1951 is the later enactment. Again to the extent of the validity of s. 3(2) of the Coal Industry Act 1951 (Cth.) it might be said that it is inconsistent with s. 3(2) of the Coal Industry (Amendment) Act 1951 (N.S.W.) which pro tanto becomes inoperative under s. 109 of the Constitution: cf. Hume v. Palmer [1926] HCA 50; (1926) 38 CLR 441 . But in combined legislation of this type we think that the Federal statute should be interpreted as not meaning to occupy the field to the exclusion of the State legislation. (at p30)

16. We see no reason as at present advised for thinking that s. 3(2) of the State Act is constitutionally inefficacious in its attempt to give force and valid effect to the instruments which it covers so far as they purport to operate in New South Wales. But it cannot give them any effect outside New South Wales. The plaintiffs have alleged facts showing an interest by virtue of business and of operations in Queensland. In the case of decisions of the Local Reference Board the declaration claimed is confined to the decisions of the Queensland board, although it is true there is no territorial restriction in the relief claimed in connection with the awards &c. of the Central Reference Board. But in the circumstances we ought not to deal with the situation as it exists in New South Wales. But so far as Queensland is concerned, where there is no State Act, we are of opinion that neither s. 3(2) of the Coal Industry Act 1951 (No. 61 of 1951) nor s. 4 of the Defence (Transitional Provisions) Act 1950-1951, nor s. 8(3) of the Defence (Transitional Provisions) Act 1946-1951 validly operates to keep any of the awards, orders, determinations or decisions of the Central Reference Board or of the Queensland Local Reference Board in force or effect in that State. (at p30)

17. There are only two Federal legislative powers in virtue of which such an operation could be given to these provisions. One is s. 51 (xxxv.) and the other is s. 51(vi.). (at p30)

18. It is convenient to deal with them in that order. (at p30)

19. It is impossible to find in s. 51(xxxv.), that is the power to legislate with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, any basis for the provisions. It is true that the power covers matters incidental to the subject matter: cf. Stemp v. Australian Glass Manufacturers Co. Ltd. [1917] HCA 29; (1917) 23 CLR 226 . It was urged accordingly that in so far as the awards, orders and determinations were the outcome of the settlement of two-State disputes legislation to continue them in force was within s. 51(xxxv.). The answer is that none of them can be regarded as an outcome of arbitration for the settlement of a two-State industrial dispute. The regulations under which they were made did not include any exercise of that power and did not conform with the conditions it imposes. They did not require arbitration. It was enough that the body "considered" and "determined". The second of these two words does not require an arbitral determination and the first requires nothing in the nature of a hearing or any analogous process. A dispute was not made indispensable. A "matter" was enough. Of course it was not required that the dispute or matter should extend beyond one State. (at p31)

20. If the argument had any foundation to build from, it would still be necessary to make a severance of or distributive application of s. 3(2) of the Coal Industry Act 1951 by the use of s. 15A of the Acts Interpretation Act 1901-1950. But there is nothing to work such a severance or distribution. For award by arbitration to prevent or settle a two-State industrial dispute is not any necessary part of the subject matter of the provision. The attributes of such a procedure are not present in any part of the connotation of the words "awards orders or determinations" to which s. 3(2) refers as those words are employed. This is likewise true of s. 4 of the Defence (Transitional Provisions) Act 1950-1951 and of s. 8(3) of the Defence (Transitional Provisions) Act 1946-1951 in so far as they relate to the awards, orders and determinations of the Central and Local Reference Boards. (at p31)

21. The contention that these three several provisions in relation to such awards, orders and determinations are to be supported as valid exercises of the legislative power with respect to defence is based partly on a view of the intention or nature of the provisions and partly on a conception of what may be incidental to the power. The provisions are treated by the argument as fulfilling the purpose of holding in operation awards, orders and determinations made as a matter of war-time industrial regulation pending their replacement by valid regulations made either under the Commonwealth power with respect to arbitration for the settlement of two-State disputes or else State law. It is said that the expressions "until revoked by competent authority" contemplate authority established under State law, that is where Federal authority is absent or does not suffice. In s. 3(2) of the Coal Industry Act 1951 we do not doubt that "competent authority" includes the tribunal and the local coal authorities which depend on the legislation of Commonwealth and State and in that sense covers State authority. But there is no warrant for supposing that any other State industrial authority is contemplated by s. 3(2). More than the vague phrase "until revoked by competent authority" would be required as an expression of intention that a State authority should revoke or recall an exercise of power by a Federal body. (at p32)

22. The truth is that s. 3(2) is an attempt to carry over the prior awards, orders and determinations until an industrial authority established either under the law of the Commonwealth or by a combination of Commonwealth and State law, should vary or revoke them. Now in Queensland, to take one example, no combined authority exists and no Federal industrial authority can act except by arbitration to settle a two-State dispute. In the interpretation of s. 8(3) of the Defence (Transitional Provisions) Act 1946-1951, there is no foothold for applying it to revocation by State authority. Sub-section (2) of s. 4 of the Defence (Transitional Provisions) Act 1946-1950 refers back to the provisions of the principal Act and so has no wider effect than, in s. 8(3), the words "until revoked by competent authority" produce. It is therefore impossible to treat these provisions as so to speak handing the awards &c. over to the States to be dealt with as a system still operative. (at p32)

23. So far as the argument depends on a conception of what is incidental to the legislative power with respect to defence it is less open to challenge in principle than in its application. (at p32)

24. In principle, as we understand it, the basis of the argument is simply that it is competent to the Commonwealth Parliament under the defence power to maintain in force after the close of hostilities any existing war-time regulations for a time reasonably sufficient in the circumstances to enable the appropriate legislature or legislatures or appropriate authority or authorities to determine what course should be followed whether by way of continuance, variation, replacement or discontinuance of the regulation and that this is especially true in the case of a complex of industrial awards or determinations forming part of a general system of industrial regulation which according to recognized practice keeps every award or determination in operation until a new one is made. (at p32)

25. The difficulty is to justify under this doctrine what has been done. It is over six years since hostilities stopped. In the meantime it is to be assumed that the boards have not been idle. Section 3(2) of the Coal Industry Act 1951 includes and necessarily includes instruments that purport to be and yet may not be, and in truth are not, in force, that is to say awards, orders and determinations of the third of the classifications we enumerated. There is no terminating date unless s. 4 of the Defence (Transitional Provisions) Act 1950-1951 is to be considered as fixing 31st December 1952 effectively notwithstanding s. 3(2) of the Coal Industry Act 1951. If it were to be so considered how could it be supported as a reasonable period from the surrender of the enemy and from the beginning of the process of restoring the country to a peace-time footing? It is impossible to treat the provisions in question as an exercise of that part of the defence power which enables legislation for winding up a war organization of the community. (at p33)

26. The question was raised from the bench whether it was possible to treat the dangers to our security which are now apprehended as giving an application to the defence power sufficiently wide to support the validity of s. 3(2) of the Coal Industry Act 1951 or s. 4 of the Defence (Transitional Provisions) Act 1950-1951. The question was prompted in part by the third recital in Acts No. 78 of 1950 and No. 43 of 1951. But reliance on any such contention was disclaimed, as indeed, having regard to the character of the provisions actually in question and the substantive arguments advanced to support them, might be expected. (at p33)

27. There is a curious point about the awards, orders and determinations mentioned in reg. 4A inserted by S.R. 1947 No. 42. They are covered by s. 29 of the Coal Industry Act 1946, a section not in question upon this demurrer. But because of reg. 4A they fall within the description of s. 3(2) of the Coal Industry Act 1951. It can however have no greater validity in relation to these awards &c. than in relation to others. Nor can the awards and orders within reg. 2(2) of S.R. 1944 No. 48 fare any better. (at p33)

28. For the foregoing reasons we think that in Queensland the awards, orders, determinations and decisions made by the central reference board and the local reference board no longer have any binding force. But on this demurrer we think it is enough simply to order that the demurrer be overruled. (at p33)

ORDER

Demurrer overruled with costs.