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High Court of Australia |
Matter No M46 of 1994
THE STATE OF VICTORIA V THE COMMONWEALTH
Matter No A18 of 1994
THE STATE OF SOUTH AUSTRALIA V THE COMMONWEALTH
Matter No P16 of 1994
THE STATE OF WESTERN AUSTRALIA V THE COMMONWEALTH
F.C. 96/024
Number of pages - 107
Constitutional Law ("Industrial Relations Act Case")
(1996) 187 CLR 416
HIGH COURT OF AUSTRALIA
BRENNAN CJ(1), DAWSON(2), TOOHEY(1), GAUDRON(1), McHUGH(1) AND GUMMOW(1) JJ
CATCHWORDS
Constitutional law - Legislative power of the Commonwealth Parliament with respect to external affairs - Executive power of the Commonwealth with respect to external affairs - International Labour Organisation Conventions - International Labour Organisation Recommendations - Implementation by statute - Industrial Relations Act 1988 (Cth) - Industrial Relations Reform Act 1993 (Cth) - Industrial Relations Amendment Act (No 2) 1994 (Cth) - Whether reasonably capable of being considered to be appropriate and adapted to achieving the purpose or object of the treaty - Partial implementation of treaty obligations.
Constitutional law - Legislative power of the Commonwealth Parliament with
respect to conciliation and arbitration - Power extends
to situations likely
to give rise to an industrial dispute - Terms of award and any variation
thereof must have relevant connection
to prevention or settlement of
interstate industrial disputes - Ambit doctrine.
Constitutional law - Legislative power of the Commonwealth Parliament with
respect to conciliation and arbitration - Agreements
reached in settlement or
prevention of dispute - Whether third party involvement - Must have relevant
connection with interstate
industrial dispute - Incidental to settlement and
prevention of industrial disputes.
Constitutional law - Legislative power of the Commonwealth Parliament with
respect to conciliation and arbitration - Includes provisions
which are
appropriate, but unnecessary, to effect purpose of power - Conferral of
immunity in certain circumstances is appropriate
especially when regulated by
Commission.
Constitutional law - Legislative power of the Commonwealth Parliament with
respect to trading corporations - Power extends to laws
specifying the rights
and obligations of persons employed by constitutional corporations by
reference to a particular event - Power
extends to laws forbidding any or all
conduct engaged in for the purpose of causing loss or damage to constitutional
corporations
and the consequences to attach to such conduct - Power extends to
laws preventing third parties from interfering with trading activities
of
constitutional corporations - Provisions may be exclusive of those imposed by
State laws.
Constitutional law - Legislative power of the Commonwealth Parliament -
Acquisition of property other than on just terms - Chose
in action -
Prohibition on extinguishment of vested causes of action - Prospective
provisions - No acquisition where extinguishment
or modification of a right or
interest not yet accrued - No acquisition where provision to pay employee on
strike does not require
payment beyond that otherwise required by law.
Constitutional law - Commonwealth power - Implied prohibitions - Prohibition
against laws of general application which inhibit
the continuing existence of
the States or their capacity to function as governments - Precludes exercise
of powers to "control" the
States - Precludes laws which prevent States from
determining the number and identity of persons whom it wishes to employ, term
of
appointment and the number and identity of those whom it wishes to dismiss
on redundancy grounds - Precludes laws preventing States
from determining
terms and conditions on which those at higher levels of government will be
engaged - Reading down of provision applying
Act to the States, s 6.
The Constitution, ss 51(xx), 51(xxix), 51(xxxi), 51(xxxv).
Industrial Relations Act 1988 (Cth), ss 3(g), 6, 7A, 150A, 152, 164, 166,
2; Pt VIB, Div 3; Pt VIB, Div 4; s 334A.
Acts Interpretation Act 1901 (Cth), s 15A.
The Freedom of Association and Protection of the Right to Organise
Convention 1948, The Right to Organise and Collective Bargaining
Convention
1949, Equal Remuneration Convention 1951, Equal Remuneration Recommendation
1951, Discrimination (Employment and Occupation)
Convention 1958,
Discrimination (Employment and Occupation) Recommendation 1958, Minimum Wage
Fixing Convention 1970, Workers with
Family Responsibilities Convention 1981,
Workers with Family Responsibilities Recommendation 1981, Termination of
Employment Convention
1982, Termination of Employment Recommendation 1982,
International Covenant on Economic, Social and Cultural Rights, Convention on
the Elimination of all Forms of Discrimination against Women, and The
Constitution of the International Labour Organisation.
HEARING
CANBERRA, 5 - 8 September 1995ORDER
1. Answer the questions in the case stated as follows:Matter No M46 of 1994
(a) Division 1 of Part VIA;VIA, are invalid. See also the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170BC and 170BI, which are in Div 2 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; ss 170KA, 170KB and 170KC, which are in Div 5 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A. No answer is given with respect to the term "mental disability" in s 170DF(1)(f).
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 4 of Part VIB;
(g) section 334A;
(h) section 152 in its application to enterprise flexibility
agreements;
(i) section 164;
(j) section 166; and
(k) section 166A?
Answer: Yes. Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt
(a) Division 1 of Part VIA;are invalid. The other provisions are valid. However, see the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A.
(b) Division 3 of Part VIA;
(c) Division 2 of Part VIB;
(d) Division 4 of Part VIB; and
(e) section 334A?
Answer: Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA,
(3) Are the provisions of Division 1 of Part VIA of the Act, or any of them,
beyond the legislative powers of the Commonwealth
and invalid in their
application to the State of Victoria?
Answer: No. However, see the answer to Q 4 with respect to ss 170AE and
170AH which are in Div 1 of Pt VIA.
(4) If any such provision or provisions of the Act is or are invalid, is it
or are they severable and, if so, to what extent?
Answer: Sections 170DE(2) and 170EDA(1)(b) are severable. Section 6 of the
Act is to be read down so as to bind the States only
to the extent that the
provisions of the Act do not prevent them from determining the number of
persons they wish to employ, the
term of their appointment, the number and
identity
of those they wish to dismiss on redundancy grounds and the terms and
conditions
of those employed at the higher levels of government.
Consequently,
ss 170AE, 170AH, 170BC, 170BI, 170DB, 170DC, 170DE(1), 170DF,
170KA, 170KB,
170KC and 334A do not bind the States with
respect to persons employed at the
higher levels of government and s 170PM(3)
does not apply to action, which
would otherwise be
protected action for the purposes of s 170PG, by and
against those employed at
the higher levels of government. When s 6 is read
down in the manner indicated, s 170FA does not apply to the States and s
170DE(1)
does not operate to prevent the States
from determining the number
and identity of those they wish to dismiss on redundancy grounds.
Matter No A18 of 1994
(5) Are any of the following provisions of the Industrial Relations Act 1988
(Cth) ("the Act"), or any part of such provisions,
beyond the legislative
powers of the Commonwealth and invalid - (a) Division
1 of Part VIA;
(b) Division 3 of Part VIA;
(c) Division 5 of Part VIA;
(d) Division 2 of Part VIB;
(e) Division 4 of Part VIB;
(f) section 334A;
(g) section 152 in its application to enterprise flexibility
agreements;
(h) section 164;
(i) section 166; and
(j) section 166A?
Answer: See the answer to Q 1.
(6) Are the provisions of Division 2 of Part VIB of the Act, or any part of
them, beyond the legislative powers of the Commonwealth
and invalid in so far
as they purport to apply to the States?
Answer: No.provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of South Australia in relation to persons employed to enable the State to continue to exist and function as such -
(7) Are any of the following provisions of the Act, or any part of such
(a) Division 1 of Part VIA;The other provisions are valid, however see the answer to Q 4.
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA; and
(d) Division 5 of Part VIA?
Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid.
Answer: See the answer to Q 4.(Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid -
Matter No P16 of 1994
(9) Are any of the following provisions of the Industrial Relations Act 1988
(a) Division 1 of Part VIA;operations save that, with respect to its operation with s 170DF(1)(f), no answer is provided as to the phrase "mental disability". As to s 150A, see the answer to Q 13. Otherwise, see the answer to Q 1.
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB;
(h) section 3(g);
(i) section 150A;
(j) section 152 in its application to enterprise flexibility
agreements;
(k) section 164;
(l) section 166;
(m) section 166A; and
(n) section 334A?
Answer: Division 3 of Pt VIB is valid. Section 3(g) is valid in all its
(10) Are the provisions of Division 1 of Part VIA of the Act, or any part of
them, beyond the legislative powers of the Commonwealth
and invalid in so far
as they purport to apply to the State
of Western Australia?
Answer: No. However, see the answer to Q 4 with respect to ss 170AE and
170AH which are in Div 1 of Pt VIA.
(11) Are the provisions of Division 2 of Part VIB of the Act, or any part of
them, beyond the legislative powers of the Commonwealth
and invalid in so far
as they purport to apply to the States?
Answer: No.provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Western Australia in relation to persons employed to enable the State to continue to exist and function as such -
(12) Are any of the following provisions of the Act, or any part of such
(a) Division 1 of Part VIA;All other provisions are valid. As to Qs 12(a), (b), (c), (d), (g) and (h), however, see the answer to Q 4.
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB; and
(h) section 334A?
Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid.
DECISION
BRENNAN CJ, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ. The States of Victoria, South Australia and Western Australia have each brought proceedings against the Commonwealth seeking declarations that certain provisions of the Industrial Relations Act 1988 (Cth) ("the Act") are invalid. By consent, an order was made that the proceedings be heard together and a case was stated in respect of all three matters by Dawson J for the consideration of the Full Court. The questions in the case stated, together with the answers we propose, appear at the end of these reasons.
2. The Act is expressed to bind the States (1). It will later be necessary
to refer in detail to the challenged provisions. For
the moment,
it is
sufficient to note that they were inserted into the Act by the Industrial
Relations Reform Act 1993 (Cth) ("the
Amending Act") and the Industrial
Relations Amendment Act (No 2) 1994 (Cth) ("the Second Amending Act"). The
relevant provisions
of the Amending Act commenced on 30 March 1994 and those
of the Second
Amending Act on 30 June 1994. Since these cases were argued,
additional amendments have been made by the Industrial Relations and
other
Legislation
Amendment Act 1995 (Cth) ("the 1995 Act").
These amendments
commenced on 15 January 1996. There has been no application
to re-open
and to
amend so as to challenge the validity
of changes made by the 1995 Act.
Accordingly, we will consider the submissions
upon
validity as directed to the
Act as it stood before
the commencement of the 1995 Act.
3. In general terms, the provisions of the Act which are challenged in these
proceedings allow for the imposition of, or impose,
obligations on employers
with respect to minimum wages, equal pay, termination of employment,
discrimination in employment and family
leave, and provide as well for
collective bargaining and the right to strike.
4. The Commonwealth claims that many of the provisions in question were
enacted pursuant to its power with respect to external affairs
(2). This is
because a number of these matters are the subject of Conventions which have
been adopted by the General Conference
of the International Labour
Organisation ("the ILO") and ratified by Australia (3). Some matters are the
subject of Recommendations
adopted by the General Conference of the ILO (4).
Freedom of association and the right to strike are said to be the subject of
customary
international law. However, the plaintiff States argue that,
contrary to what was said in the judgments of the majority in The Commonwealth
v Tasmania (The Tasmanian Dam Case) (5), the power to legislate with respect
to external affairs does not extend to the implementation
of treaty
obligations unless the subject-matter of the treaty is one of international
concern. According to their argument, the
ILO Conventions and Recommendations
on which the provisions in question are based are not concerned with matters
of that kind. As
well, they argue that the ILO Conventions and
Recommendations do not impose obligations or, if they do, the provisions in
question
are not capable of being viewed as appropriate or adapted to their
implementation. In some instances, they say, the provisions are
simply not
directed to any relevant external affair.
5. The Commonwealth claims that some of the above provisions and other
provisions of the legislation were enacted pursuant either
to its power with
respect to conciliation and arbitration (6) or its power with respect to
corporations (7). The plaintiff States
argue to the contrary. As well, they
contend that some of the provisions effect an acquisition of property other
than on just terms,
in breach of that requirement in s 51(xxxi) of the
Constitution. Finally, they contend that some provisions are invalid in their
application to the States by reason that they infringe the implied
constitutional prohibition against legislation which discriminates against the
States or prevents them from functioning as such.
6. In their submissions the States placed much emphasis upon what were said
to be the limits of the external affairs power and,
in essence they sought to
disturb what appear to be settled aspects of the scope of that power. As to
the other grounds of challenge
(save, perhaps, those denying the support of
the certified agreement provisions by the conciliation and arbitration power),
the parties
were more in dispute as to the particular application of settled
principle.
7. Accordingly, assessment of the specific submissions of the plaintiff
States will be assisted by reference to some particular
aspects of the
executive and legislative power of the Commonwealth with respect to external
affairs. Thereafter, it will be convenient
to outline the framework of the
legislation and, then, to turn to the particular provisions which are
challenged in these proceedings.
The External Affairs Power
8. The powers of the Commonwealth in relation to external affairs are of two
kinds: executive and legislative. The executive power
conferred by s 61 of
the Constitution is of the same character as, and is no narrower in scope
than, the prerogative power of the Crown in relation to the same subject.
The
executive power extends to the signing and ratification of treaties. The
legislative power conferred by s 51(xxix) on the Parliament is to be
distinguished from the executive power. The former extends to the enactment
of laws implementing the
provisions of treaties entered into by the Executive
so as to bind the Commonwealth (8).
(i) Executive power
9. In 1900, the self-governing colonies had no power to enter into treaties,
declare war or peace, or send or receive ambassadors;
it was no answer by
Britain to a complaint to it by a foreign state that the conduct complained of
had been committed by a self-governing
colony (9).
10. In 1895, as a result of discussions the year before at a Colonial
Conference at Ottawa, the Colonial Secretary and former Viceroy
of India, Lord
Ripon, reaffirmed as a fundamental principle that any agreement entered into
with a foreign power, affecting any part
of the dominions of the Crown, was an
agreement between the Crown and a foreign state, and that the power to make
treaties was vested
solely in the Imperial Government (10). That power might
be delegated, with legislative approval, to subsidiary authorities. This
had
been done in the previous century in the case of the East India Company (11).
What the Colonial Secretary did in 1895 was to
emphasise that there was no
such general delegation in favour of the self-governing colonies.
11. However, from about 1880 the Imperial Government had instituted a
practice of consultation with those colonies that had advanced
towards
constitutional independence before concluding commercial treaties which
applied to them. There also developed a practice
of including in such
treaties a clause providing for voluntary adherence by those colonies who
wished to do so. Before 1900, some
17 treaties had been adhered to or acceded
to independently by one or more of the colonies in Australia pursuant to the
procedure
for separate adhesion or accession made in the treaties themselves
(12). In addition, Todd, writing in 1894, stated that the legislature
in any
colony was free to determine whether or not the passing of a law was necessary
to give effect to a treaty entered into between
the Imperial Government and
any foreign power in which such colony had a direct interest (13).
12. As the result of developments after federation, in which Deakin played a
significant part, it was to the Commonwealth that the
Imperial authorities
turned for consultation with regard to proposed international agreements which
might affect or concern Australia.
On 3 January 1908, the Secretary of State
for the Colonies wrote as follows to the Australian Governor-General (14):
"His Majesty's Government are pledged to the view that, sofar as the relations of Australia with foreign nations are concerned, the Government of the Commonwealth alone can speak, and that for everything affecting external communities the Government of the Commonwealth alone are responsible to the Crown. It follows from this that adherence to no treaty or convention with a foreign Power, whatever its subject matter, can be notified for which the Commonwealth has not made itself responsible; in other words, which is not made on behalf of the Commonwealth."
13. In a passage in R v Burgess; Ex parte Henry (18), which was repeated by
Mason J in Barton v The Commonwealth (19), Latham CJ
referred to the object
"which must have been in contemplation when the Constitution was enacted", and
continued:
"Australia was established as a new political entity andAustralia was to be given control of her own external affairs. Under s 61 of the Constitution the Executive Government of the Commonwealth can deal administratively with the external affairs of the Commonwealth ... The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane. The most obvious example of such action is to be found in the negotiation and making of treaties with foreign countries."
14. As things stood in 1900, the subjects of treaties were various. This is
significant for the present case, because it indicates
that the limited view
of the scope of federal legislative power, urged by the plaintiff States, does
not proceed from an accurate
understanding of the range of subject-matter to
which s 51(xxix) applied as it stood as long ago as federation.
15. It was recognised by 1900 that there was a continual expansion in the
range of the subject-matter of treaties entered into between
Great Britain and
other states. This was acknowledged in the contemporary Australian writings
of Professor Pitt Cobbett (20). And,
Oppenheim, writing in the first edition
of his work in 1905 (21), declared:
"(E)xperience has shown that the different States have alsomany non-political interests in common which can better be satisfied and fostered by a general treaty between a great number of States than by special treaties singly concluded between the different parties. Such general treaties have, therefore, since the second half of the nineteenth century, more and more come into being, and it is certain that their number will in time increase."
16. The "oldest international organization in the world", the International
Telecommunication Union, was established in 1865 as
the International
Telegraph Union (22). By the turn of the century about thirty states were
members (23). The Universal Postal
Union was inaugurated in 1874 (24). India
and Canada obtained separate votes in the Universal Postal Union and, in 1885,
the Australian
colonies collectively obtained one vote (25). Berne was the
seat of the administration of both the International Telegraph Union
and the
Universal Postal Union. The International Convention for the Protection of
Industrial Property was signed at Paris in 1883
and it provided for the
establishment at Berne of the office of the International Union for the
Protection of Industrial Property.
The result was to provide international
recognition for the rights of inventors. The rights of authors of literary and
artistic
works were given similar recognition by the Berne Convention of 1886
(26).
17. Before 1900, modern international arbitration had developed, beginning
with the Alabama Award of 1872; bilateral treaties greatly
extended state
submission of future disputes. This process was further advanced with the
Hague Convention for the Pacific Settlement
of International Disputes of 1899,
which established the Permanent Court of International Arbitration (27).
18. There was activity also in the fields of what now would be called
international human rights, world health and environmental
protection. The
Geneva Convention of 1864 laid the foundations of the International Red Cross
(28). The General Act for dealing
with the Suppression of Slavery in Africa,
signed at Brussels in 1890, provided for the maintenance of a bureau to
collect all information
on measures connected with matters dealt with under
the General Act (29). Abuses against inhabitants of the Pacific Islands were
a major concern of the Imperial Government. This had been reflected in the
Pacific Islanders Protection Acts of 1872 (30) and 1875
(31) (UK) and the
establishment of the High Commissioner for the Pacific.
19. Conventions were negotiated affecting health and the environment. The
Convention of London, signed by the African colonial
powers in 1900, sought to
preserve the native fauna of that continent (32); a convention signed at Berne
in 1878 sought to prevent
recurrence of the damage done to the wine industry
by the phylloxera epidemics of the preceding decade (33); and several
conventions
dealt with the threat to public health by the spread of cholera
and the plague (34).
20. These developments in the conclusion of general treaties between a great
number of states, with provision for permanent secretariats,
continued after
World War I with the foundation of the ILO. By that time, the responsibility
for treaty-making had been transferred,
at least in substantial measure, to
the Executive Government of the Commonwealth.
21. Thereafter, there was growth in the number of Australia's international
engagements which, rather than being concluded in the
name of the Sovereign as
contracting party in respect of Australia and passed under the Sovereign's
Sign Manual and the Great Seal
of the Realm, were concluded in the name of the
respective governments and the instrument of ratification passed under the
Great
Seal of the Commonwealth, signed by the Governor-General and
countersigned by the Minister for External Affairs. In the six years
after
1931, approximately two-thirds of Australia's international engagements were
made in the form of agreements between governments
(35).
(ii) Legislative power - s 51(xxix)
22. As a general proposition (36), under the common law, entry by the
Executive into a treaty is insufficient, without legislation
to implement it,
to modify the domestic or municipal legal order by creating or changing public
and private legal rights and obligations.
In 1892, in argument before the
Judicial Committee in Walker v Baird (37), the British Attorney-General had
conceded that he could
not maintain the proposition that the Crown could
sanction an invasion by its officers of the rights of private individuals
whenever
it was necessary to compel obedience to the provisions of a treaty.
In the first edition of Halsbury's Laws of England, which stated
the law in
1909 (38), the prevailing view stated by contributors, who included the future
Sir William Holdsworth, was:
"Treaties ... are in general binding upon the subjectwithout express parliamentary sanction; but the previous consent of, or subsequent ratification by, the legislature is legally necessary to their validity in certain cases.
Thus, though treaties relating to war and peace, the cessionof territory, or concluding alliances with foreign powers are generally conceded to be binding upon the nation without express parliamentary sanction, it is deemed safer to obtain such sanction in the case of an important cession of territory. And where taxation is imposed or a grant from the public funds rendered necessary, or where the existing laws of trade and navigation are affected, or where the private rights of the subject are interfered with by a treaty concluded in time of peace, it is apprehended that the previous or subsequent consent of Parliament is in all cases required to render the treaty binding upon the subject and enforceable by officers of the Crown."
23. Thus, as matters stand in Australia, and as they stood in 1900, the
conduct of external affairs by the Executive may produce
agreements which the
Executive wishes to translate into the domestic or municipal legal order. To
do so, it must procure the passage
of legislation implementing those
agreements if it wishes to create individual rights and obligations or change
existing rights and
obligations under that legal order (41). Of course, the
pursuit of some aspects of external affairs by the Executive Government
does
not require enabling legislation. In Barton, Mason J concluded (42) that the
making of a request to a foreign state for the
surrender of a fugitive
offender alleged to have committed an offence against the laws of Australia
falls within the executive power
of the Commonwealth, unless the prerogative
be displaced by legislation. Another example is the preservation of friendly
relations
with other countries, including the sending or receiving of
diplomatic representatives. This is "an important part of the management
of
the external affairs of the Commonwealth" (43).
24. Where, as in the present case, the Executive ratifies a Convention which
calls for action affecting powers and relationships
governed by the domestic
legal order, legislation is needed to implement the Convention. The question
then arises whether the law
is supported by the legislative power with respect
to external affairs. The spare text of s 51(xxix) must be construed to
ascertain
its scope.
25. The phrase "External affairs" was adopted in s 51(xxix) of the
Constitution in preference to "foreign affairs" so as to make it clear that
the power comprehended both the relationship between the Commonwealth
of
Australia and other parts of the then British Empire and the relationship with
foreign countries (44). As we have indicated earlier
in these reasons, the
Commonwealth of Australia was established at a time of evolving law and
practice in the external relations
between sovereign powers and between the
self-governing units of the Empire. It would be a serious error to construe
par (xxix)
as though the subject-matter of those relations to which it applied
in 1900 were not continually expanding. Rather, the external
relations of the
Australian colonies were in a condition of continuing evolution and, at that
time, were regarded as such. Accordingly,
it is difficult to see any
justification for treating the content of the phrase "external affairs" as
crystallised at the commencement
of federation, or as denying it a particular
application on the ground that the application was not foreseen or could not
have been
foreseen a century ago.
26. From the foundation of the Commonwealth, and consistently with the
earlier writings of Todd and Dicey to which we have referred
(45), informed
observers took the view that the power to legislate with respect to external
affairs included power to legislate with
respect to treaties, in so far as
they affected Australia, which had been concluded by the Imperial Government.
Thus, in McKelvey
v Meagher (46), Barton J said that it was probable that the
external affairs power "includes power to legislate as to the observance
of
treaties between Great Britain and foreign nations". Writing as
Attorney-General in 1902 (47), Deakin dealt as follows with the
omission of
the words "and treaties" from s 51(xxix):
"The omission, as appears from the debates, was solely toprevent any assumption arising that the Commonwealth claimed an independent power of making treaties. Legislation with respect to the enforcement of treaty obligations is clearly within the scope of 'external affairs'."
27. There was some suggestion in the submissions of the plaintiff States in
the present case that what has come to pass with the
legislation they seek to
impugn is something beyond contemplation at the time of the adoption of the
Constitution. Any such proposition is, as we have endeavoured shortly to
illustrate, too widely stated. The treaties which were part of the
subject-matter
of foreign relations in 1900, and the treaties that have since
been made, embrace an ever-expanding range of topics.
28. The content of the relevant executive power of the Commonwealth under s
61, and the legislative power of the Parliament under s 51(xxix), are to be
understood accordingly. Thus, as long ago as 1936, Evatt and McTiernan JJ said
(48):
"But it is not to be assumed that the legislative power over'external affairs' is limited to the execution of treaties or conventions; and ... the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations."
"(A) consequence of the closer connection between thenations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement."
29. The present case is said to be one in which the law of the Commonwealth
enters upon a field which previously was the preserve
of State legislative
power. To preclude the supersession of State law by Commonwealth law, the
States sought to confine the scope
of Commonwealth power under s 51(xxix) by
reference to what Stephen J said in Koowarta v Bjelke-Petersen (50). Stephen
J joined with Mason, Murphy and Brennan JJ in reliance
upon the external
affairs power to support the validity of the impugned provisions of the Racial
Discrimination Act 1975 (Cth). But his reasoning indicated a narrower view of
federal legislative competence. In particular, Stephen J said (51) that a
treaty with another country on a topic neither of special concern to the
relationship between Australia and that other country nor
of general
international concern would be unlikely to attract the external affairs power.
The plaintiff States rely upon that circumstance
as a ground for narrowing the
proposition for which Koowarta is authority. From that foundation the
plaintiff States then seek to
attack the validity of the legislation now in
question. In particular, the Solicitor-General for Victoria contended for a
criterion
of validity which resembled that adopted by Stephen J or
alternatively that of the minority judges in Koowarta. He submitted that,
even upon this limited footing, the result in The Tasmanian Dam Case (52)
would have been the same. Therefore, the submission proceeded,
there was no
occasion to seek leave to reopen the correctness of The Tasmanian Dam Case.
30. The difficulty in the path of these submissions is that subsequently the
majority in The Tasmanian Dam Case adopted the broader
view. It is not to the
point that the same result might have been achieved by application of the view
previously taken by Stephen
J. It is to seek to distort the principles of
stare decisis and of ratio decidendi (53) to contend that a decision lacks
authority
because it might have been reached upon a different path of legal
reasoning to that which was actually followed. That would be to
replace what
was decided by that which might have been decided. According to basic
constitutional principle, and with qualifications
not presently relevant, the
intrusion of Commonwealth law into a field that has hitherto been the preserve
of State law is not a
reason to deny validity to the Commonwealth law provided
it is, in truth, a law with respect to external affairs.
31. Of course the scope of the legislative power is not confined to the
implementation of treaties. The modern doctrine as to the
scope of the power
conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth (54).
Dawson J expressed the doctrine in
these terms (55):
"(T)he power extends to places, persons, matters or thingsphysically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'."
32. In accordance with the principles of constitutional interpretation, the
phrase "external affairs" is to be construed with all
the generality which the
words admit (60). And, as Brennan J pointed out in The Tasmanian Dam Case
(61):
"The application of that canon of construction to theaffirmative grants of paramount legislative powers gives the Constitution a dynamic force which is incompatible with a static constitutional balance. The complexity of modern commercial, economic, social and political activities increases the connexions between particular aspects of those activities and the heads of Commonwealth power and carries an expanding range of those activities into the sphere of Commonwealth legislative competence. This phenomenon is nowhere more manifest than in the field of external affairs."
(iii) The legislative implementation of a treaty
33. There may be some treaties which do not enliven the legislative power
conferred by s 51(xxix) even though their subject-matter is of international
concern. For example, Professor Zines has suggested that a treaty expressed
in terms of aspiration (for example "to promote full employment") cannot
support a law which adopts one of a variety of possibly
contradictory ways
that might be selected to fulfil the aspiration. He writes (62):
"Accepting ... that the agreement by nations to take commonaction in pursuit of a common objective amounts to a matter of external affairs, the objective must, nonetheless, be one in relation to which common action can be taken. Admittedly, this raises questions of degree; but a broad objective with little precise content and permitting widely divergent policies by parties does not meet the description."
"(A)bsence of precision does not, however, mean any absenceof international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law."
34. Where the legislative power is said to be enlivened by a treaty binding
on the Commonwealth of Australia, and the law prescribes
a regime affecting a
domestic subject-matter, a question arises as to the connection which must
exist between the law and the treaty.
To be a law with respect to "external
affairs", the law must be reasonably capable of being considered appropriate
and adapted to
implementing the treaty. Thus, it is for the legislature to
choose the means by which it carries into or gives effect to the treaty
provided that the means chosen are reasonably capable of being considered
appropriate and adapted to that end (65). But that is
not to say that an
obligation imposed by treaty provides the outer limits of a law enacted to
implement it (66). The term "purpose"
has been used to identify the object
for the advancement or attainment of which a law was enacted. Hence, the
statement by Brennan
J in Cunliffe v The Commonwealth (67) that the external
affairs power has "a purposive aspect". As this phrase indicates, care is
required in relevant analysis. Where a treaty relating to a domestic
subject-matter is relied on to enliven the legislative power
conferred by s
51(xxix) the validity of the law depends on whether its purpose or object is
to implement the treaty. This was explained, in a passage with
which we
respectfully agree, by Dawson J in Richardson v Forestry Commission (68):
"The power to make laws with respect to external affairscontains no expression of purpose and in that respect it is like most of the other powers contained in s 51 of the Constitution. It is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing international treaties. The implementation of treaties falls within the power because it is a subject-matter covered by the expression 'external affairs'. And the purpose of legislation which purports to implement a treaty is considered not to see whether it answers a requirement of purpose to be found in the head of power itself, but to see whether the legislation operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs."
35. It has been said that a law will not be capable of being seen as
appropriate and adapted in the necessary sense unless it appears
that there is
"reasonable proportionality" between that purpose or object and the means
adapted by the law to pursue it (69). The
notion of "reasonable
proportionality" will not always be particularly helpful. The notion of
proportion suggests a comparative
relation of one thing to another as respects
magnitude, quantity or degree; to ask of the legislation whether it may
reasonably be
seen as bearing a relationship of reasonable proportionality to
the provisions of the treaty in question appears to restate the basic
question. This is whether the law selects means which are reasonably capable
of being considered appropriate and adapted to achieving
the purpose or object
of giving effect to the treaty, so that the law is one upon a subject which is
an aspect of external affairs.
36. It would be a tenable proposition that legislation purporting to
implement a treaty does not operate upon the subject which
is an aspect of
external affairs unless the legislation complies with all the obligations
assumed under the treaty. That appears
to have been the view taken by Evatt
and McTiernan JJ in R v Burgess; Ex parte Henry (70). But The Tasmanian Dam
Case and later
authorities confirm that this is not an essential requirement
of validity (71).
37. In The Tasmanian Dam Case, the Wilderness Regulations that were under
attack implemented only in part the supporting Convention.
They were
nevertheless upheld. A criterion of validity expressed in R v Burgess; Ex
parte Henry namely, whether the Regulations
could fairly be regarded as
"sufficiently stamped with the purpose of carrying out the terms of the
convention" (72), was applied
by Brennan J (73). Deane J dealt as follows
with "partial" legislative implementation (74):
"It is competent for the Parliament, in a law under s51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed. On the other hand, if the relevant law 'partially' implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty."
38. Deficiency in implementation of a supporting Convention is not
necessarily fatal to the validity of a law; but a law will be
held invalid if
the deficiency is so substantial as to deny the law the character of a measure
implementing the Convention or it
is a deficiency which, when coupled with
other provisions of the law, make it substantially inconsistent with the
Convention. The
Conventions with which we are concerned in this case are
mostly Conventions of the General Conference of the ILO.
(iv) The International Labour Organisation
39. Article 387 in Pt XIII of the Treaty of Versailles established a
"permanent organisation", now the ILO, to promote objects which
were stated as
including the following (75):
"And whereas conditions of labour exist involving suchinjustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures".
40. Australia was a foundation member. The Constitution of the ILO was
amended by the General Conference of the ILO in 1922, 1945 and 1946. As so
amended, the Constitution was approved for Australia by statute in 1947 (76).
Further amendments made to the Constitution of the ILO pursuant to Art 36
thereof were approved by the International Labour Organisation Act 1973 (Cth).
The Constitution of the ILO is reproduced as a schedule to that Act and to the
Act of 1947.
41. The organs of the ILO are the General Conference, the Governing Body and
the International Labour Office (Art 2). The General
Conference comprises
four delegates from each of the members of the ILO, two representing the
government and two representing respectively
employers and "workpeople" (Art
3(1)). The General Conference acts by voting on the adoption of International
Conventions or Recommendations.
A majority of two-thirds of the votes cast by
the delegates present must be in favour of the Convention or Recommendation
for it
to be adopted (Art 19(2)). Neither Conventions nor Recommendations are
binding merely as a result of their being adopted by the
General Conference.
Both Conventions and Recommendations are communicated to members; in the case
of Conventions for ratification,
in the case of Recommendations for
"consideration with a view to effect being given to (them) by national
legislation or otherwise"
(Art 19(5)(a), 19(6)(a)). Once a member
communicates its ratification of a Convention to the Director-General, it must
then "take
such action as may be necessary to make effective the provisions"
of that Convention (Art 19(5)(d)). In contrast, in the case of
Recommendations, the only obligation upon members is to bring Recommendations
before the authorities which are competent to legislate
or take other action
to implement them (Art 19(6)(b), 19(6)(d)).
42. Any member of the ILO has the right to file a complaint with the
International Labour Office if "it is not satisfied that any
other Member is
securing the effective observance of any Convention which both have ratified"
(Art 26(1)). These complaints are
investigated by a Commission of Inquiry
established by the Governing Body which prepares a report containing findings
of fact and
recommendations as to the steps to be taken to meet the complaint
(Art 28). A party which does not accept the recommendations of
the Commission
of Inquiry may refer the matter to the International Court of Justice for a
final decision (Arts 29, 31). The Court
may affirm, vary or reverse a finding
of fact or recommendation of a Commission of Inquiry (Art 32). If a member
fails to implement
a recommendation of a Commission of Inquiry or the
International Court of Justice, the Governing Body may recommend to the
General
Conference "such action as it may deem wise and expedient to secure
compliance" with the recommendation (Art 33).
43. The establishment of the ILO continued a development, well in hand at the
time of the establishment of the Commonwealth of Australia,
whereby
contracting parties established specific international legal institutions to
deal with matters affecting economic and commercial
rights and obligations,
including human rights, and agreed upon the taking of steps which would
necessitate change to the domestic
or municipal legal orders operating in
their territories. The changes agreed upon called for the creation of new
public and private
rights and obligations and the modification of existing
public and private rights and obligations.
The Framework of the Legislation
44. Part 2 of the Amending Act comprises ss 3 and 4 and is headed "OBJECTS".
Section 4 thereof repeals s 3 of the Act and substitutes
a new s 3. This
states as the principal object of the legislation the provision of
a framework
for the prevention and settlement
of industrial disputes which promotes the
economic prosperity and welfare of the people
of Australia. The new s 3 goes
on in pars
(a)-(g) to identify the means by which the framework is provided.
Of particular importance
for immediate purposes is par (b)(ii)
which
identifies the provision of the means for "ensuring that labour standards meet
Australia's
international obligations" and par
(g) which states, as one of the
Act's objects, the aim of:
"helping to prevent and eliminate discrimination on thebasis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin".
45. Part 4 of the Amending Act comprises ss 18-24 and is headed "MINIMUM
ENTITLEMENTS OF EMPLOYEES". The Commonwealth contends
that these provisions
meet or implement Australia's
international obligations in such a manner as to
obtain legislative support in
the external affairs power. Section 19 of the
Amending Act inserts in s 4(1) of the Act definitions of, respectively, the
"Anti-Discrimination
Conventions", the "Equal Remuneration Convention",
the
"Family Responsibilities Convention", the "Minimum Wages Convention", and
the
"Termination of Employment Convention". Section 24 of the Amending Act amends
the Act by adding to the four Schedules already
found therein, Scheds 5-16.
These new Schedules are vital for the operation
of s 21 which inserts in the
Act a new Pt VIA, headed
"MINIMUM ENTITLEMENTS OF EMPLOYEES" and comprising,
in the Act, ss 170AA-170KAA.
Certain provisions of the new Pt VIA themselves
were amended by the Second Amending Act. Reference will be made to these
further amendments as appropriate.
46. The new Pt VIA is divided into Divs 1-6. Division 1 (ss 170AA-170AH) is
headed "Minimum wages", Div 2 (ss 170BA-170BI), "Equal
remuneration for
work
of equal value", Div 3 (ss 170CA-170HB), "Termination of employment", Div 4
(ss 170JA-170JH), "Orders and proceedings",
Div
5 (ss 170KA-170KC), "Parental
leave", and Div 6 (s 170KAA), "Leave to care for immediate family". Division
3 is further divided
into Subdivs A-F to which further reference will be made.
No specific challenge is directed to the validity of Divs 4 and 6.
47. Part 5 of the Amending Act comprises ss 25-35 and is headed "PROMOTING
BARGAINING AND FACILITATING AGREEMENTS". Section 31
inserted into the Act a
new Pt VIB, comprising six Divisions. Division 4 thereof (ss 170PA-170PP) is
headed "Immunity from civil
liability" and its validity is challenged.
48. Section 80 of the Amending Act inserted into the Act a new section, s
334A, dealing with dismissal of employees for engaging
in industrial action.
This is said
to be beyond power.
49. Finally, specific challenge is made to particular provisions introduced
by the Amending Act in apparent implementation of the
object specified in the
new s 3(g). We have set out the text of par (g). The plaintiff States
challenge the validity of s 150A(2)(b)
of the Act, inserted by s 17 of the
Amending Act and dealing with review of awards by the Australian Industrial
Relations Commission
("the Commission"), together with provisions
in the new
Pts VIA and VIB, being respectively s 170DF(1)(f), and ss 170MD(5) and
170ND(10).
Section 170MD is in Div 2 of Pt VIB, headed "Certified agreements"
and s 170ND is in Div 3 thereof, headed "Enterprise flexibility
agreements".
Minimum Wages - Pt VIA, Div 1, ss 170AA-170AH
(i) The operation of Div 1 of Pt VIA
50. The object of Div 1 of Pt VIA, as set out in s 170AA, is to give effect,
or further effect, to the ILO Minimum Wage Fixing Convention
1970 ("the
Minimum Wages
Convention"), a copy of the English text of which is set out in
Sched 5 to the Act. Expressions used in
Div 1 which are also used
in the
Minimum Wages Convention have the same meanings as they do in that Convention
(s 170AB).
51. The primary operation of Div 1 is as set out in s 170AC. That section
confers power on the Commission to make orders setting:
"(a) the same minimum wage for all employees in a groupspecified in the order; or
(b) different minimum wages for different categories ofemployees in a group specified in the order".
52. Secondary or additional operation is given to Div 1 by s 170AH of the
Act, in the sense that the Division is also to operate
"(as) if section 170AA
were repealed" (77). It will later be necessary to refer to the provisions of
Div 1 defining the scope of
that operation.
(ii) Questions in the case stated
53. The questions in the case stated which directly relate to Div 1 of Pt VIA
may be paraphrased as follows:
. Are the provisions of Div 1 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid? In this regard the plaintiff States challenge the primary operation of the provisions on the basis that they are not laws with respect to external affairs. There is a further question whether, in their secondary operation, they are laws for the conciliation and arbitration of industrial disputes.
. Are the provisions of Div 1 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
. Are the provisions of Div 1 of Pt VIA of the Act, or anyof them, beyond the legislative powers of the Commonwealth and invalid in their application to the States of Victoria and Western Australia; and to the States of South Australia and Western Australia in relation to persons employed to enable them to continue to exist and function as such?
(iii) The primary operation of the minimum wage provisions and the external
affairs power
54. In its primary operation, Div 1 empowers the Commission to make orders
setting minimum wages upon receipt of an application
in that behalf either
from an employee included in the group to be covered by the order, or from a
trade union whose rules entitle
it to represent the industrial interests of
such employees (s 170AD). Section 170AC empowers the Commission to make an
order, in
respect of a group of employees specified in the order, setting the
same minimum wage for all those employees or different minimum
wages for
different categories of such employees. This power is conditioned by s 170AE.
The Commission must make an order if, and
must not make an order unless, it is
satisfied that the terms of employment of the group of employees to be covered
by the order
are such that coverage by a system of minimum wages is
appropriate (s 170AE(1)(a)). Before deciding what group an order should
cover,
and whether the Commission is satisfied as to the conditions provided
in s 170AE(1)(a) being met, the Commission must give to each
trade union whose
rules entitle it to represent the industrial interests of any of the employees
concerned, and to each organisation
or association representing employers of
any of those employees, an opportunity to express their respective views and
must take into
account the views expressed (s 170AE(4)).
55. Further, before making an order, the Commission must give an opportunity
to be heard to the person who applied for it and each
employer of employees to
be covered by it (s 170AE(5)).
56. Section 170AE(2) requires an order to specify, and exclude from its
operation, such of the employees in the group covered by
the order as are
"ineligible", a term expounded in sub-s (3). This specifies that an employee
is ineligible if, and only if, any
one of four circumstances applies. One is
that minimum wages for the relevant employee are set by an award within the
meaning of
the Act, and another is that there are proceedings under Pt VI of
the Act that relate to the setting, or adjusting from time to time,
of minimum
wages for that employee (sub-s (3)(b), (c)). An employee is also ineligible
if minimum wages can be set and adjusted
from time to time by a State
industrial authority which has the power to set minimum wages by compulsory
arbitration (par (a)).
Finally, an employee is ineligible if minimum wages
are set by an agreement entered into under a State law (i) which sets minimum
wages that, if the agreement had not been entered into, could have been set by
a State arbitrator by compulsory arbitration, (ii)
which prevails over any
inconsistent order, award, decision or determination of a State industrial
authority, and (iii) which, during
a particular period, but only during that
period, prevents those minimum wages from being set or adjusted by a State
arbitrator by
compulsory arbitration (sub-ss (3)(d) and (6)).
57. The Division is not intended to limit any right that a person or trade
union otherwise may have to establish minimum wages (s
170AG).
58. Section 170AF specifies matters to which the Commission must have regard
in setting the level of minimum wages under Div 1.
The section states:
"In setting the level of minimum wages under this Division,the Commission must have regard to the principles it would apply in setting the level of those minimum wages in performing its functions under Part VI, but must also have regard, so far as possible and appropriate in relation to Australian practice and conditions, to:
(a) the needs of workers and their families, taking intoaccount the general level of wages in Australia, the cost of living, social security benefits and the relative living standards of other social groups; and
(b) economic factors, including the requirements of economicdevelopment, levels of productivity and the desirability of attaining and maintaining a high level of employment."
59. It is appropriate now to turn to the relevant provisions of the Minimum
Wages Convention. The purpose of the Convention is
indicated in the recitals
to the Convention, two of which provide:
"Considering that these (previous) Convention(s) have playeda valuable part in protecting disadvantaged groups of wage earners, and
Paragraphs 1 and 2 of Art 1 state:
"1. Each member of the (ILO) which ratifies this Conventionundertakes to establish a system of minimum wages which covers all groups of wage earners whose terms of employment are such that coverage would be appropriate.
2. The competent authority in each country shall, inagreement or after full consultation with the representative organisations of employers and workers concerned, where such exist, determine the groups of wage earners to be covered."
60. Article 3 is reflected in the terms of s 170AF. The Article states that
the elements to be taken into consideration in determining
the level of
minimum wages shall, as far as possible and appropriate in relation to
national practice and conditions, include the
matters set out in pars (a) and
(b) thereof, the terms of which are adopted in pars (a) and (b) of s 170AF.
61. Article 2 specifies that the minimum wages shall have the force of law
and shall not be subject to abatement. Paragraph 1 of
Art 4 obliges members
of the ILO which ratify the Convention to create or maintain machinery adapted
to national conditions and requirements
whereby minimum wages for groups of
wage earners can be fixed and adjusted from time to time. Paragraph 2
requires in connection
with the establishment, operation and modification of
such machinery provision for full consultation with representative
organisations
of employers and workers concerned or, where no such
organisations exist, representatives of employers and workers concerned.
Finally,
par 3 of Art 4 states:
"Wherever it is appropriate to the nature of the minimumwage fixing machinery, provision shall also be made for the direct participation in its operation of-
(a) representatives of organisations of employers andworkers concerned or, where no such organisations exist, representatives of employers and workers concerned, on a basis of equality;
(b) persons having recognised competence for representingthe general interests of the country and appointed after full consultation with representative organisations of employers and workers concerned, where such organisations exist and such consultation is in accordance with national law or practice."
62. Both the terms of the Convention and the terms of the legislation are
general. However, as has been indicated, and as the plaintiff
States
conceded, the terms of the legislation closely follow the requirements of the
Convention. For example, the Convention requires
consultation with worker and
employer groups concerning the scope of the group of workers that the minimum
wages should cover, and
the direct participation of those groups in the wage
fixing process where "it is appropriate to the nature of the minimum wage
fixing
machinery". These requirements are mirrored in provisions of the Act
which require the Commission to give trade unions and employer
organisations
an opportunity to "express their respective views to the Commission" on the
group to be covered (s 170AE(4)) and an
opportunity for the applicant and
employers of employees to be covered to be heard in determining the wages to
be fixed (s 170AE(5)).
63. Excluded from the jurisdiction of the Commission are groups for whom the
Commission is not satisfied that the terms of employment
of employees make the
coverage by a system of minimum wages appropriate, or groups where all of the
employees are covered by other
means for setting minimum wages such as State
arbitrators, or an employment agreement setting minimum wages under State law,
or a
federal award (s 170AE(3) and (6)). These provisions can reasonably be
considered as appropriate and adapted to the implementation
of obligations
under the Convention. The exclusions from the jurisdiction of the Commission
mean that, where other satisfactory
provisions for the setting of minimum
wages exist, those provisions will not be displaced by the scheme implementing
the Convention.
That is consistent with the Convention. It removes the
potential for an argument that the legislation is not reasonably capable
of
being considered appropriate and adapted to fulfilling Australia's obligation
under the Convention to provide a system of minimum
wage fixing because it
displaces satisfactory schemes for minimum wage fixing already in existence
under State law. That the obligations
of the Convention are expressed in
broad general terms does not deny them the character of obligations,
enforceable by way of complaint
pursuant to Art 26 of the Constitution of the
ILO and susceptible to implementation by a law of the Commonwealth. The
validity of such a law falls for determination not
by the ILO but by this
Court, the criterion being whether the law can reasonably be considered to be
appropriate and adapted to the
implementation of the Convention. Subject to
consideration of the question whether it discriminates against the States, Div
1 of
Pt VIA is valid in its primary operation.
(iv) The secondary operation of the minimum wage provisions and the
conciliation and arbitration power
64. In its secondary operation, Div 1 of Pt VIA authorises the Commission to
determine applications for the setting of minimum wages by arbitration if, but
only if:
"(a) it considers that the order is necessary to prevent anindustrial dispute about minimum wages for employees; and
(b) it has given to each organisation or other person who,in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order" (s 170AH(3)).
65. In their Statements of Claim, the plaintiff States challenge the
secondary or additional operation given to Div 1, Pt VIA of the Act and this
is reflected in the questions asked in the case stated. However, it was not
argued that the provisions which
give secondary or additional operation to Div
1 are invalid on any basis other than that they discriminate against the
States. Rather,
it was conceded in the written submissions for South
Australia, which were expressly adopted in the written submissions for
Victoria
and for Western Australia, that, subject only to the question of
discrimination, the provisions are not beyond legislative power.
That
concession was correct. We shall indicate briefly why that is so.
66. The secondary or additional effect given to Div 1 by s 170AH is clearly
intended to be an exercise of the power conferred on
the Parliament by s
51(xxxv) of the Constitution to legislate with respect to conciliation and
arbitration for the prevention and settlement of interstate industrial
disputes. So
much emerges from the fact that it is a power to be exercised by
arbitration to prevent an "industrial dispute" which is defined
in s 4 of the
Act in terms which echo the constitutional grant of power (78).
67. The power conferred by s 51(xxxv) of the Constitution is a power to
legislate with respect to conciliation and arbitration for the prevention, as
well as for the settlement of interstate
industrial disputes. Thus, as is
well settled, it extends to a situation that is likely to give rise to an
interstate industrial
dispute (79).
68. The question whether a situation is likely to give rise to an interstate
industrial dispute is one that can be answered only
by making a judgment or
forming an opinion in that regard. Once it is accepted, as it must be, that
the power conferred by s 51(xxxv) of the Constitution extends to a situation
likely to give rise to an interstate industrial dispute, it follows that it
extends to a situation in which
a body entrusted with the power of
conciliation and arbitration, as the Commission is, forms the opinion that
there is a situation
of that kind. Certainly, it extends to a law authorising
the Commission to arbitrate claims for minimum wages if it considers that
that
is necessary to prevent an industrial dispute, which is the effect of s 170AH
of the Act.
(v) Minimum wage provisions and discrimination against the States
69. The plaintiff States submit that the provisions of Div 1 of Pt VIA of the
Act offend against the implied constitutional prohibition
first identified in
Melbourne Corporation v The Commonwealth (80) and since expounded in a number
of cases (81). The prohibition
was most recently considered in Re Australian
Education Union; Ex parte Victoria (82). The majority in that case identified
the
scope and content of the prohibition as follows (83):
"The limitation consists of two elements: (1) theprohibition against discrimination which involves the placing on the States of special burdens or disabilities ('the limitation against discrimination') and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments."
70. The arguments for the plaintiff States with respect to the minimum wage
provisions in Div 1 of Pt VIA were put in two different
ways, reflecting the
two elements of the prohibition as stated in Re Australian Education Union.
First, they argued that, in their
primary operation, the provisions
discriminate against those States which do not have or, perhaps, elect not to
maintain a system
of compulsory arbitration for the resolution of industrial
disputes. Second, they contended that the provisions of Div 1 of Pt VIA
infringe the second element of the prohibition in that they purport to apply
to persons employed by the States at the higher levels
of government. In this
last regard, the argument was made by reference to the primary operation of
Div 1, but applies mutatis mutandis
to its secondary operation.
71. As already indicated, the first argument was made by reference to s
170AE, which sets out the limits of the primary operation
of the Division. As
previously described, by s 170AE(1), the Commission is required to make an
order setting minimum wages if, and
is required not to make an order unless,
satisfied:
"(a) that the terms of employment of the group of employeesto be covered by the order are such that coverage by a system of minimum wages is appropriate; and
(b) at least some of the employees in the group are notineligible under subsection (3)".
72. In general terms, the effect of the definitions of "State arbitrator"
(89) and "State employment agreement" (90) in s 170AE(6)
is that a minimum
wages order cannot be made for employees for whom a minimum wage can be set by
compulsory arbitration by a State
industrial tribunal or in respect of whom
minimum wages which could have been arbitrated but have, instead, been agreed
under a State
law which allows that agreement to prevail over awards. It is
common ground that, when Div 1 of Pt VIA came into operation, some
States had
legislated for a system of compulsory arbitration and some had not. Western
Australia still has not. It is put that
the provisions of Div 1 single out
and, thus, discriminate against Western Australia and any other State which
elects not to maintain
a system of compulsory arbitration.
73. The provisions of Div 1 of Pt VIA are of general application and do not
distinguish between employees of a State and other employees.
And there is no
suggestion that, in their practical operation, they operate upon States and
their employees differently from other
employers and employees. Rather, the
argument that the provisions are discriminatory was put on the basis that "if
a particular
State does not maintain a compulsory arbitration system for its
employees, the State and its employees are subjected to the power
of the
Commission to impose a common rule which fixes minimum wages for those
employees" while other States are not. That argument
mistakes the nature and
effect of the provisions in question.
74. The provisions of Div 1 of Pt VIA are directed to ensuring that persons
whose wages are not protected by an award (whether State
or Federal) or by an
agreement which prevails over awards may obtain the benefit of a minimum wages
order under s 170AE. The class
of persons in respect of whom an order may be
made is selected, not by reference to employment by or in a State, but by
reference
to practical criteria which take account of the general pattern of
industrial regulation and of the way in which the rights of wage
earners are
generally protected in Australia.
75. Moreover, the criteria which determine those for whom an order may be
made under Div 1 of Pt VIA do not necessarily entail the
consequence that
proportionately more employees who work in Western Australia will be covered
by orders under Div 1 of Pt VIA than
those who work in other States. Nor do
they necessarily entail the consequence that proportionately more employees of
the State
of Western Australia will be covered than employees of other States.
Coverage will depend on a range of factors, including, significantly,
the
pattern of federal award coverage.
76. The question whether a provision is discriminatory is to be determined
from the purpose of the enactment ascertained "by reference
to the substance
and actual operation of the law in the circumstances to which it applies"
(91). Given that, first, the criteria
selected to determine those for whom an
order may be made under s 170AE bear a real and rational relationship with the
general system
of wage fixation as it has developed in this country and,
second, that it cannot be said that the provisions of Div 1 of Pt VIA
necessarily
operate with different impact on or in Western Australia, there is
no basis for holding that the provisions in question discriminate
against that
State or, indeed, any other State which elects not to maintain an industrial
system involving compulsory arbitration
(92).
77. The second argument with respect to the provisions of Div 1 of Pt VIA of
the Act is based on the holding in Re Australian Education
Union that the
Commonwealth may not legislate to prevent a State from determining the rights
and conditions of those employed at
the higher levels of government.
According to the argument, the power conferred on the Commission by ss 170AE
and 170AH is conferred
in terms wide enough to include such employees and,
thus, the provisions of Div 1 of Pt VIA are, to that extent, invalid.
78. As already indicated, s 6 specifies that the Act binds the Crown in
various capacities, including "in right of ... each of the
States" (93). That
provision governs the application of the substantive provisions of the Act.
In so far as the substantive provisions
are expressed in general terms or in
terms wide enough to apply to or permit of orders regulating the terms and
conditions of those
employed at the higher levels of government, the question
is not whether, on that account, those provisions are invalid in their
application to the States, but whether s 6 is invalid in its specification
that the Act and, thus, those provisions bind the States.
79. Section 6 of the Act is not, in terms, subject to any limitation or
prohibition. More particularly, it is not, in terms, made
subject to those
matters pertaining to State employees which were identified in Re Australian
Education Union (94) as falling within
the scope and content of the implied
limitation recognised in the Melbourne Corporation Case (95). The question
thus arises whether,
pursuant to s 7A(1) (96) of the Act or s 15A of the Acts
Interpretation Act 1901 (Cth) ("the Interpretation Act"), s 6 can be read as
not binding the States with respect to those matters, particularly as not
binding
them with respect to the terms and
conditions of those employed at the
higher levels of government.
80. It is convenient first to consider s 15A of the Interpretation Act which
provides:
"Every Act shall be read and construed subject to theConstitution and so as not to exceed the legislative power of the Commonwealth, to the intent that where any enactment thereof would but for this section have been construed as in excess of that power, it shall nevertheless be a valid enactment to the extent to which it is not in excess of that power."
81. Section 15A of the Interpretation Act may fall for application in two
distinct situations. It may fall for application in relation
to "particular
clauses, provisos and
qualifications, separately expressed, which are beyond
legislative power" (97). It may also
fall for application in relation to
general
words or expressions (98). It is well settled that s 15A cannot be
applied to effect
a partial validation of a provision which extends beyond
power unless "the operation of the remaining
parts of the law remains
unchanged"
(99). Nor can it be applied to a law expressed in general terms if
it appears that "the law
was intended to operate fully and completely
according to its terms, or not at all" (100).
82. Where a law is expressed in general terms, it may be more difficult to
determine whether Parliament intended that it should,
nonetheless, have a
partial operation. And there is an additional difficulty if it "can be
reduced to validity by adopting any one
or more of a number of several
possible limitations" (101). It has been said that if, in a case of that
kind, "no reason based upon
the law itself can be stated for selecting one
limitation rather than another, the law should be held to be invalid" (102).
83. The limitation by reference to which a law is to be read down may appear
from the terms of the law or from its subject-matter
(103). Thus, a law which
is "clearly made with the intention of exercising the power to make laws with
respect to trade and commerce"
can be read down "so as to limit its
application to inter-State and foreign trade and commerce" (104). Similarly,
where a law is
intended to operate in an area where Parliament's legislative
power is subject to a clear limitation, it can be read as subject to
that
limitation.
84. In the present case, s 6 purports to subject the States to a regime which
specifies certain terms and conditions with respect
to employment generally
and
which, in relation to other matters, permits the Commission to regulate
the terms and conditions on which
persons are employed.
That is an area in
which the legislative power of the Parliament is limited in the manner
explained in Re
Australian Education Union.
The nature and subject-matter of
the Act suggest the limitation by which s 6 may be read down within
constitutional power if its
provisions would otherwise infringe that
limitation. In other words, s 6 can be read as binding the
States to the
extent that the
provisions of the Act do not prevent them from determining the
number of persons they wish to employ,
the term of their appointment,
the
number and identity of those they wish to dismiss on redundancy grounds and
the terms and conditions
of those employed at the
higher levels of government.
85. If s 6 is read down as indicated, the operation of the substantive
provisions of the Act is correspondingly limited but their
operation is
otherwise unaffected. Thus, if any provision of the Act would otherwise
operate to prevent the States from determining
for themselves any of those
matters which were held in Re Australian Education Union to be beyond the
legislative power of the Commonwealth,
the reading down of s 6 precludes
invalidity for infringing the limitation on Commonwealth legislative power.
That being so, it is
unnecessary to consider the effect of s 7A of the Act.
86. It is necessary now to consider s 170AE which confers power on the
Commission to make orders setting minimum wages for those
for whom it "is
satisfied ... that coverage by a system of minimum wages is appropriate". The
terms of s 170AE are wide enough to
authorise orders with respect to those
employed at the higher levels of government. That being so, s 6 is to be read
down as earlier
indicated. And when so read down, s 170AE does not authorise
orders of that kind. The same is true of s 170AH(3)(a) which, in terms,
allows that "(t)he Commission may make an order ... only if ... it considers
that the order is necessary to prevent an industrial
dispute". Thus, neither
s 170AE nor s 170AH infringes the implied constitutional limitation identified
in Melbourne Corporation
and more fully explained in Re Australian Education
Union.
(vi) Conclusion with respect to the minimum wage provisions
87. The provisions of Div 1 of Pt VIA are valid in their entirety. However,
by reason of the reading down of s 6, ss 170AE and 170AH
do not bind the
States with respect to persons employed at the higher levels of government.
Equal Remuneration for Work of Equal Value -
Pt VIA, Div 2, ss 170BA-170BI
(i) The operation of Div 2 of Pt VIA
88. Division 2 of Pt VIA is in similar form to Div 1. The object of the
Division is to give effect, or further effect, to no less
than six
international instruments (s 170BA). The first four are defined in s 4(1) as
the "Anti-Discrimination Conventions". They
are (a) the Equal Remuneration
Convention 1951, the English text of which is set out in Sched 6 to the Act
("the Equal Remuneration
Convention"), (b) the Convention on the Elimination
of all Forms of Discrimination against Women, the English text of which is set
out in the Schedule to the Sex Discrimination Act 1984 (Cth) ("the Sex
Discrimination Act"), (c) the Convention concerning Discrimination in respect
of Employment and Occupation, the English
text of which is set out in Sched 1
to the Human Rights and Equal Opportunity Commission Act 1986 (Cth) ("the
Human Rights Act"), and (d) Arts 3 and 7 of the International Covenant on
Economic, Social and Cultural Rights, the English
text of which is set out
in
Sched 8 to the Act.
89. The fifth and sixth of these international instruments are identified in
pars (b) and (c) of s 170BA by reference to the English
text set out
respectively in Sched 7 and Sched 9 of the Act. Each is a Recommendation
adopted by the General Conference of the ILO.
The former is the Equal
Remuneration Recommendation 1951, also known as Recommendation No 90. The
latter is the Discrimination
(Employment and Occupation) Recommendation 1958,
also known as Recommendation No 111.
90. By s 170BB(1), a reference in Div 2 to "equal remuneration for work of
equal value" is a reference to "equal remuneration for
men and women workers
for work of equal value". This expression is given by s 170BB(2) the same
meaning as it has in the Equal Remuneration
Convention adopted by the General
Conference of the ILO on 29 June 1951. The relevant term is, by Art 1, said
to refer to "rates
of remuneration established without discrimination based on
sex".
91. Division 2 of Pt VIA also has a primary and a secondary operation. Its
primary operation is effected by s 170BC(1) which provides,
subject to the
Division, that "the Commission may make such orders as it considers
appropriate to ensure that, for employees covered
by the orders, there will be
equal remuneration for work of equal value". The secondary or additional
operation of the Division
is effected by s 170BI(3)(a) which authorises the
Commission to make an order only if it considers "the order is necessary to
prevent
an industrial dispute about equal remuneration for work of equal
value". The power to make an order under s 170BI(3)(a) is subject
to the same
limitations and requirements referable to the conciliation and arbitration
power as those which attend the power to make
an order under s 170AH with
respect to minimum wages.
(ii) Questions in the case stated
92. The questions in the case stated which bear directly on the provisions
with respect to equal remuneration may be paraphrased
as follows:
. Are the provisions of Div 2 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid? The plaintiff States challenge the Division on the basis that its primary operation is not supported by the external affairs power. There is a further question whether, in its secondary operation, it is supported by the conciliation and arbitration power.
. Are the provisions of Div 2 of Pt VIA of the Act, or anypart of such provisions, invalid in their application to the States of South Australia and Western Australia in relation to persons employed to enable those States to continue to exist and function as such?
93. It should be noted that, in its primary operation, in reliance upon the
external affairs power, Div 2 does not limit the Commission
to making an order
thereunder only if it considers that this is necessary to prevent an
industrial dispute about equal remuneration
for work of equal value. Nor is
Div 2 intended to limit any rights that a person or trade union otherwise may
have to secure equal
remuneration for work of equal value (s 170BH).
94. Under s 170BD, the Commission must only make an order under the Division
if it has received an application therefor from an
employee to be covered by
the order or a trade union whose rules entitle it to represent the industrial
interests of such employees,
or from the Sex Discrimination Commissioner,
holding office under the Sex Discrimination Act. Furthermore, the Commission
must refrain
from considering the application or from determining it if it is
satisfied that there
is available to the applicant, or to the employees
represented by the applicant, an adequate alternative remedy under a law of
the
Commonwealth (other than Div 2), or under a law of
a State or Territory
which will ensure, for the employees concerned, equal remuneration
for work of
equal value (s 170BE).
95. The crucial provisions are in ss 170BC, 170BF and 170BG. The first and
third of these refer in terms to one or more of the
international instruments
listed in s 170BA to which it is the object of the Division to give effect or
further effect.
96. Section 170BC empowers the Commission to make orders requiring equal
remuneration. It states:
"(1) Subject to this Division, the Commission may make suchorders as it considers appropriate to ensure that, for employees covered by the orders, there will be equal remuneration for work of equal value.
(2) Without limiting subsection (1), an order under thisDivision may provide for such increases in rates (including minimum rates) of remuneration (within the meaning of the Equal Remuneration Convention) as the Commission considers appropriate to ensure that, for employees covered by the order, there will be equal remuneration for work of equal value.
(3) However, the Commission may make an order under thisDivision only if:
(a) the Commission is satisfied that, for the employees tobe covered by the order, there is not equal remuneration for work of equal value; and
(b) the order CAN REASONABLY BE REGARDED AS APPROPRIATE ANDADAPTED TO GIVING EFFECT TO:
(i) one or more of the Anti-Discrimination Conventions; orRecommendation No 111)" (emphasis added).
(ii) the provisions of ... (Recommendation No 90 or
97. Section 170BF deals with immediate and progressive introduction of equal
remuneration. It states:
"The order may implement equal remuneration for work ofequal value when the order takes effect. However, if it is not deemed feasible to implement it immediately, the order may implement it in stages (as provided in the order)."
98. Finally, s 170BG deals with reduction of remuneration by stating:
"(1) An employer must not reduce an employee's remuneration(within the meaning of the Equal Remuneration Convention) for the reason, or for reasons including the reason, that an application or order has been made under this Division.
(2) If subsection (1) is contravened, the purportedreduction is of no effect."
99. Both s 170BC(2) and s 170BG(1) turn upon the meaning given to the term
"remuneration" by the Equal Remuneration Convention.
Paragraph (a) of Art 1
thereof states that, for the purposes of that Convention:
"the term 'remuneration' includes the ordinary, basic orminimum wage or salary and any additional emoluments whatsoever payable directly or indirectly, whether in cash or in kind, by the employer to the worker and arising out of the worker's employment".
100. Article 2 of the Equal Remuneration Convention states as follows:
"1. Each Member (of the ILO) shall, by means appropriate tothe methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.
2. This principle may be applied by means of-determination;
(a) national laws or regulations;
(b) legally established or recognised machinery for wage
(c) collective agreements between employers and workers; or
(d) a combination of these various means."
101. Recommendation No 90 recites that it is desirable to indicate certain
procedures for the progressive application of the principles
laid down in the
Equal Remuneration Convention, and goes on to "recommend" that each member of
the ILO should, subject to the provisions
of Art 2 of that Convention, apply
the provisions which follow and report to the International Labour Office as
requested by the
Governing Body of the ILO on measures taken to give effect to
them.
102. Paragraph 3 of that Recommendation states:
"(1) Where appropriate in the light of the methods inoperation for the determination of rates of remuneration, provision should be made by legal enactment for the general application of the principle of equal remuneration for men and women for work of equal value.
(2) The competent public authority should take all necessaryand appropriate measures to ensure that employers and workers are fully informed as to such legal requirements and, where appropriate, advised on their application."
103. Paragraph 4 provides for the progressive application of the principle of
equal remuneration for men and women for work of equal
value where it has not
been feasible to implement that principle immediately. It states that
appropriate provision should be made
or caused to be made, as soon as
possible, for progressive application of this principle by such measures as
decreasing the differential
between rates of remuneration for men and women
for work of equal value and that, where a system of increments is in force, by
providing
equal increments for men and women performing work of equal value.
Paragraph 4 may be compared with s 170BF.
104. The Discrimination (Employment and Occupation) Convention 1958 is more
general in its terms. Article 1 defines "discrimination"
for the purposes of
the Convention as including:
"(a) any distinction, exclusion or preference made on thebasis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b) such other distinction, exclusion or preference whichhas the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer's and worker's organisations, where such exist, and with other appropriate bodies".
105. Articles 2 and 3 relevantly provide:
"Article 2Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
Article 3Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice -
...
(b) to enact such legislation and to promote sucheducational programmes as may be calculated to secure the acceptance and observance of the policy".
106. The provisions of the International Covenant on Economic, Social and
Cultural Rights relied upon are as follows:
"Article 3The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all economic, social and cultural rights set forth in the present Covenant.
...
Article 7The States Parties to the present Covenant recognise the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum,with:
(i) Fair wages and equal remuneration for work of equalvalue without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work".
107. The plaintiff States do not dispute that the legislation follows the
terms of the various Conventions. The issues that arise
are in relation to s
170BC(3). They are (a) whether the power of the Commission may be limited in
the manner attempted by the section
and (b) the effect of the reliance on the
ILO Recommendations.
108. The power of the Commission in s 170BC(3) to make an order is
conditional upon the requirement that the order "can reasonably
be regarded as
appropriate and adapted to giving effect to" one of the Conventions or
Recommendations referred to. That wording
plainly reflects the criterion for
validity of a law enacted in reliance on s 51(xxix) to implement a treaty. It
was supported by
a number of members of this Court in The Tasmanian Dam Case
(105). If the broad provisions of the Division had the effect that they
allowed the Commission to make orders that were not so limited, arguably the
section would be beyond power. The limitation has the
effect that the general
nature of the provision is confined in effect by the constitutional limit on
the power of the Parliament
to enact such legislation. It is not the case
that the Commission is given the power to determine the constitutionality of
its own
order as might be the case if the words of par (b) were preceded by
the words that appear in par (a), "the Commission is satisfied
that". Rather,
the test is an objective one, and is subject to judicial review by this Court
or the Industrial Relations Court of
Australia ("the Industrial Relations
Court").
109. The section refers separately to a measure being reasonably regarded as
appropriate and adapted for giving effect to Recommendation
No 90 or
Recommendation No 111. That provision can be supported under s 51(xxix) if,
but only if, the terms of these Recommendations
themselves can reasonably be
regarded as appropriate and adapted to giving effect to the terms of the
Conventions to which they relate.
In our view, they can be so regarded.
Hence measures that fall within the terms of s 170BC(1) and implement the
terms of the Recommendations
will fall within the terms of s 170BC(3)(b)(i).
On this line of reasoning, the words "can reasonably be regarded as
appropriate and
adapted to" in s 170BC(3)(b) may be superfluous in relation to
the Recommendations but are obviously designed to cover the situation
where
the Recommendations are relied upon of themselves to support an exercise of
the external affairs power. This is a point which,
at this stage, it is not
necessary to decide.
110. Subject to a consideration of the question whether it discriminates
against the States, the Division is valid in its primary
operation. (iv) The
secondary operation of the equal remuneration provisions and the conciliation
and arbitration power
111. As with the minimum wage provisions, the secondary operation of the
equal pay provisions is challenged in the Statements of
Claim but, subject
only to the question whether the provisions discriminate against the States,
is conceded to be valid in the written
submissions for South Australia which
were adopted by counsel for the other plaintiff States. For the reasons given
with respect
to the secondary operation of the minimum wage provisions, the
provisions which give Div 2 of Pt VIA its secondary operation are,
subject
only to the question of discrimination against the States, valid laws with
respect to conciliation
and arbitration for the
prevention of interstate
industrial disputes.
(v) Equal remuneration provisions and discrimination against the States
112. As with the provisions of Div 1, the provisions of Div 2 of Pt VIA are
challenged on the basis that they permit of orders with
respect to persons
employed by the States at the higher levels of government.
In its primary
operation, Div 2 allows, in s 170BC(1),
that, subject to the Division "the
Commission may make such orders as it
considers appropriate to ensure that,
for employees covered
by the orders, there will be equal remuneration for work
of equal value".
In its secondary operation, it allows, in s 170BI(3)(a),
that "the Commission may make an order ... if ... it considers that the
order
is necessary to prevent an industrial dispute about
equal remuneration for
work of equal value". Given that s 6 of the Act
is to be read down in the
manner earlier indicated, neither
s 170BC(1) nor s 170BI(3) authorises orders
with respect to persons employed
by the States at the higher levels of
government.
(vi) Conclusion with respect to the equal remuneration provisions
113. The provisions of Div 2 of Pt VIA are valid in their entirety. However,
by reason of the reading down of s 6, ss 170BC(1) and
170BI(3) do not bind the
States with respect to persons employed at the higher levels of government.
Termination of Employment - Pt VIA, Div 3, ss 170CA-170HB
(i) The legislative provisions
114. These provisions, inserted by the Amending Act, have, in various
respects, been amended first by the Second Amending Act, and
now by the 1995
Act. For the reasons earlier given, the latter amendments will not be taken
into account here.
115. Division 3 is subdivided into seven Subdivisions. Subdivision A (ss
170CA-170CD) is headed "Object and interpretation". Subdivision
B (ss
170DA-170DG) contains the central provisions of the Division and is headed
"Requirements for lawful termination of employment".
116. The significance of the obligations imposed upon employers in respect of
termination of employment by Div 3 can be gauged by
the remedies given by
Subdiv C (ss 170EA-170EH) in respect of unlawful termination. In particular,
application may be made to the
Industrial Relations Court by an employee (s
170EA(1)) for a remedy in respect of a termination of that person's employment
and in
certain cases now provided for by s 170EE (inserted by s 8 of the
Second Amending Act), the Industrial Relations Court may order
reinstatement
and payment of compensation. These remedies are available in cases of
termination
in contravention of s 170DC (denial
of opportunity to respond to
allegations), s 170DE (harsh, unjust or unreasonable termination)
and breach
of s 170DF (termination
on impermissible grounds). It will be necessary to
refer more particularly to s 170EDA, dealing
with onus of proof in certain of
these applications to the Industrial Relations Court.
117. Subdivision CA (s 170EI) was inserted by s 9 of the Second Amending Act.
It empowers the prescription by regulations of a formula
for annual indexation
of certain amounts for which provision is made in
ss 170CD and 170EE.
Subdivision D (ss 170FA-170FE) empowers
the Commission to make orders for the
purpose of giving effect to certain
requirements of Arts 12 and 13 of the
Termination of Employment
Convention 1982 ("the Termination of Employment
Convention"). The
English text of that Convention is set out in Sched 10 of
the
Act and it recites its adoption on 22 June 1982 by the General Conference
of the ILO. Subdivision E (ss 170GA-170GD) authorises
the Commission to make
remedial orders where an employer has failed to consult
the relevant trade
unions in relation to the termination
of employment of 15 or more employees
for reasons of an economic, technological,
structural or similar nature.
Finally, Subdiv F
(ss 170HA-170HB) deals with miscellaneous matters, in
particular by providing in
s 170HA that, after the Termination of Employment
Convention takes effect (on 26 February 1994), any award or order of the
Commission
which is inconsistent with the requirements of
that Convention is
not to have effect to the extent of that inconsistency.
(ii) Questions in the case stated
118. Leaving aside questions relating to s 170DF(1)(f) and (g), the questions
in the case stated relating to the provisions dealing
with termination of
employment may be summarised as follows:
. Are the provisions of Div 3 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth? In this regard the plaintiff States deny and the Commonwealth asserts that the provisions are authorised by the power to legislate with respect to external affairs.
. Are the provisions of Div 3 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
. Are the provisions of Div 3 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the States of South Australia or Western Australia in relation to persons employed to enable those States to continue to exist and function as such?
(iii) Termination of employment provisions and the external affairs power
119. To determine whether Div 3 of Pt VIA is authorised by the power to
legislate with respect to external affairs, it is necessary
to refer in more
detail to the provisions of Subdiv A and Subdiv B.
120. Section 170CA(1) states that the object of Div 3 is to give effect or to
give further effect to the Termination of Employment
Convention and to the
Termination of Employment Recommendation 1982, also known as Recommendation No
166 adopted by the General Conference
of the ILO on 22 June 1982. A copy of
the English text of that Recommendation is set out in Sched 11 to the Act. An
expression
in Div 3 has the same meaning as in the Termination of Employment
Convention (s 170CB). In particular, Art 3(4) of the Convention
states that,
for its purposes, the terms "termination" and "termination of employment" mean
"termination of employment at the initiative
of the employer".
121. Article 11 of the Termination of Employment Convention states:
"A worker whose employment is to be terminated shall beentitled to a reasonable period of notice or compensation in lieu thereof, unless he is guilty of serious misconduct, that is, misconduct of such a nature that it would be unreasonable to require the employer to continue his employment during the notice period."
122. Article 7 of the Termination of Employment Convention states:
"The employment of a worker shall not be terminated forreasons related to the worker's conduct or performance before he is provided an opportunity to defend himself against the allegations made, unless the employer cannot reasonably be expected to provide this opportunity."
"An employer must not terminate an employee's employment forreasons related to the employee's conduct or performance unless:
(a) the employee has been given the opportunity to defendhimself or herself against the allegations made; or
(b) the employer could not reasonably be expected to givethe employee that opportunity."
123. Section 170DD is designed to implement Art 14 of the Termination of
Employment Convention. That section states:
"(1) This section applies if, on or after 26 February 1994,an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.
(2) As soon as practicable after so deciding, the employermust give to the Commonwealth Employment Service (106) a written notice of the intended terminations that sets out:
(a) the reasons for the terminations; and
(b) the number and categories of employees likely to beaffected; and
(c) the time when, or the period over which, the employerintends to carry out the terminations.
(3) The employer must not terminate an employee's employmentpursuant to the decision unless the employer has complied with subsection (2)."
124. Article 14 provides:
"1. When the employer contemplates terminations for reasonsof an economic, technological, structural or similar nature, he shall notify, in accordance with national law and practice, the competent authority thereof as early as possible, giving relevant information, including a written statement of the reasons for the terminations, the number and categories of workers likely to be affected and the period over which the terminations are intended to be carried out.
2. National laws or regulations may limit the applicabilityof paragraph 1 of this Article to cases in which the number of workers whose termination of employment is contemplated is at least a specified number or percentage of the workforce.
3. The employer shall notify the competent authority of theterminations referred to in paragraph 1 of this Article a minimum period of time before carrying out the terminations, such period to be specified by national laws or regulations."
125. Articles 4-6 of the Termination of Employment Convention comprise Div A
(headed "JUSTIFICATION FOR TERMINATION") in Pt II (headed
"STANDARDS OF
GENERAL APPLICATION") of the Convention. They should be taken together, as
should ss 170DE and 170DF, along with one
provision from Subdiv C, s 170EDA,
which was added by the Second Amending Act. The validity of the whole of the
Division is challenged.
However, the plaintiff States' submissions focussed
only on s 170DE(2)
(which provides that a reason for termination will not be
a
valid one if the termination is harsh, unjust or unreasonable), on its
associated provision, s 170EDA(1)(b) (relating to onus of
proof as leading to
invalidity), and on s 170DF(1)(f) and (g) (107).
126. The text of s 170DE is as follows; the italicised expression in sub-s
(2) was added by the 1995 Act and is to be disregarded
for the purposes of
this litigation:
"(1) An employer must not terminate an employee's employmentunless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
(2) A reason is not valid if, having regard to all thecircumstances of the case, including the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid."
"(1) If an application under section 170EA alleges that atermination of employment of an employee contravened subsection 170DE(1):
(a) the termination is taken to have contravened subsection170DE(1) unless the employer proves that, apart from subsection 170DE(2), there was a valid reason, or valid reasons, of a kind referred to in subsection 170DE(1); and
(b) if the employer so proves, the termination isnevertheless taken to have contravened subsection 170DE(1) if the applicant proves that, because of subsection 170DE(2), the reason or reasons proved by the employer were not valid."
127. Section 170DF(1) states:
"An employer must not terminate an employee's employment forany one or more of the following reasons, or for reasons including any one or more of the following reasons:
(a) temporary absence from work because of illness orinjury;
(b) union membership or participation in union activitiesoutside working hours or, with the employer's consent, during working hours;
(c) non-membership of a union or of an association that hasapplied to be registered as a union under the provisions of this Act;
(d) seeking office as, or acting or having acted in thecapacity of, a representative of employees;
(e) the filing of a complaint, or the participation inproceedings, against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(f) race, colour, sex, sexual preference, age, physical ormental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(g) absence from work during maternity leave or otherparental leave."
"If an application under section 170EA alleges that atermination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a) was for a particular reason or reasons referred to inthat subsection that were stated in the application; or
(b) was for reasons stated in the application that includeda particular reason or reasons referred to in that subsection;
(c) the employment was not terminated for the particularreason or reasons or for reasons that included the particular reason or reasons; or
(d) the particular reason was a reason, or the particularreasons were reasons, to which subsection 170DF(2) or (3) applied."
128. Articles 4, 5, 6 and 8 and pars 1 and 2 of Art 9 of the Termination of
Employment Convention bear an evident relationship to
s 170DE(1) and s
170DF(1)(a)-(e). These Articles state:
"Article 4there is a valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
The employment of a worker shall not be terminated unless
Article 5
The following, inter alia, shall not constitute validreasons for termination:
(a) union membership or participation in union activitiesoutside working hours or, with the consent of the employer, within working hours;
(b) seeking office as, or acting or having acted in thecapacity of, a workers' representative;
(c) the filing of a complaint or the participation inproceedings against an employer involving alleged violation of laws or regulations or recourse to competent administrative authorities;
(d) race, colour, sex, marital status, familyresponsibilities, pregnancy, religion, political opinion, national extraction or social origin;
(e) absence from work during maternity leave.
Article 6
1. Temporary absence from work because of illness or injuryshall not constitute a valid reason for termination.
2. The definition of what constitutes temporary absence fromwork, the extent to which medical certification shall be required and possible limitations to the application of paragraph 1 of this Article shall be determined in accordance with the methods of implementation referred to in Article 1 of this Convention.
...
Article 8
1. A worker who considers that his employment has beenunjustifiably terminated shall be entitled to appeal against that termination to an impartial body, such as a court, labour tribunal, arbitration committee or arbitrator.
2. Where termination has been authorised by a competentauthority the application of paragraph 1 of this Article may be varied according to national law and practice.
3. A worker may be deemed to have waived his right to appealagainst the termination of his employment if he has not exercised that right within a reasonable period of time after termination.
Article 9
1. The bodies referred to in Article 8 of this Conventionshall be empowered to examine the reasons given for the termination and the other circumstances relating to the case and to render a decision on whether the termination was justified.
2. In order for the worker not to have to bear alone theburden of proving that the termination was not justified, the methods of implementation referred to in Article 1 of this Convention shall provide for one or the other or both of the following possibilities:
(a) the burden of proving the existence of a valid reasonfor the termination as defined in Article 4 of this Convention shall rest on the employer;
(b) the bodies referred to in Article 8 of this Conventionshall be empowered to reach a conclusion on the reason for the termination having regard to the evidence provided by the parties and according to procedures provided for by national law and practice.
3. ..."
129. Article 1 states that the provisions of the Convention shall be given
effect by laws or regulations in so far as they are not
otherwise made
effective by means of collective agreements, arbitration awards or court
decisions or in such other manner as may
be consistent with national practice.
130. Section 170DE(2) goes beyond the terms of the Convention because Art 4
of the Convention only requires the employer to comply
with the equivalent of
s 170DE(1). The question, therefore, is whether the selection of the criteria
of harsh, unjust or unreasonable
termination is an expression of the manner of
the implementation of the Convention which, as we have indicated (108), is a
matter
for the Parliament, or whether s 170DE(2) is not reasonably capable of
being considered appropriate and adapted to implementing the
Convention
obligations.
131. Article 4 of the Convention requires that employment not be terminated
without a valid reason. Article 5 provides that a number
of grounds "inter
alia, shall not constitute valid reasons for termination". Those grounds,
even if they would otherwise have constituted
valid reasons for termination,
are deemed not to be valid reasons. The use of the words "inter alia"
recognises that the list in
Art 5 is not an exhaustive one. There obviously
will be other reasons for termination which, having regard to the capacity and
conduct
of the employee and the operational requirements of the employer, are
not valid. However, the Convention does not specify in detail
what those
reasons are. It leaves the general word "valid" as the cornerstone of Art 4.
132. Section 170EDA(1) provides for a shifting onus of proof. Where an
application alleges that a termination was not for a valid
reason, the onus
lies on the employer to prove that there was a valid reason (par (a) of s
170EDA(1)) but, even if the employer does
so, the employee may still prove
that the termination was harsh, unjust or unreasonable (par (b) of s
170EDA(1)). Paragraph (a)
is clearly supported by Art 9(2) of the Convention
which provides that the methods of implementation of the Convention in
relation
to "the burden of proving the existence of a valid reason for the
termination as defined in Article 4 of this Convention shall rest
on the
employer" or an alternative method detailed in the Article. There is no
indication in the Convention that the onus might
be a shifting one, requiring
the employer to prove valid reasons for termination in some cases and the
employee to prove that the
reasons were not valid in other cases.
133. It is this shifting onus in s 170EDA(1) which indicates that the
inclusion of the "harsh, unjust or unreasonable" test is an
additional ground
of unlawful termination that goes beyond the requirement for the reason for
termination to be valid. The terms
"harsh, unjust or unreasonable" are not
merely a synonym for "valid". Had the Parliament recognised the terms as
being synonyms,
or even the harsh, unjust or unreasonable test as being a
subset of grounds that were not "valid", then there would be no reason
for
changing the onus from employer to employee between pars (a) and (b) of s
170EDA(1).
134. The changing onus in s 170EDA(1) indicates that the harsh, unjust or
unreasonable criterion is broader than what otherwise
would be the test for
validity. This is reinforced by the nature of s 170DE(2) which, in contrast
to s 170DE(1) and Art 4 of the
Convention, goes not to the reason for
termination but to the overall effects of the termination. It recognises
that, whilst a reason
for termination might be a valid one, the overall effect
of the termination in the circumstances might be harsh, unjust or
unreasonable.
This supports the conclusion that the inclusion of the "harsh,
unjust or unreasonable" criterion does not implement the terms of
the
Convention but goes beyond its requirements and adds an alternative ground for
making terminations unlawful. For these reasons,
ss 170DE(2) and 170EDA(1)
are, at least in part, invalid.
135. The provisions in ss 170DE and 170EDA creating the "harsh, unjust or
unreasonable" criterion go beyond the terms of the Convention
to a
constitutionally impermissible degree. However, they are structurally
severable from the remainder of the Division. The operation
of the remainder
of the provisions of the Division will not be affected by their severance.
Section 170DE(1), which accords with
the Convention, can operate unaffected by
the invalidity of s 170DE(2), which does not. Similarly, s 170EDA(1)(a), read
down to exclude
references to s 170DE(2), will implement the terms of Art 9 of
the Convention despite the invalidity of par (b) in that sub-section.
Hence
the stated purpose of the Parliament in enacting the Division will not be
affected.
136. Leaving aside s 170DF(1)(f) and (g) (which will be considered
separately) and subject to a consideration of their application
to employees
of the States, the provisions of Div 3 other than ss 170DE(2) and 170EDA(1)(b)
are valid.
(iv) Termination of employment provisions and their application to the States
137. The challenge to the termination of employment provisions, as they
affect the States, is made compendiously by reference to
the holding in Re
Australian Education Union that the Commonwealth cannot legislate to prevent a
State from exercising its "right
to determine the number and identity of the
persons whom it wishes to employ, the term of appointment of such persons and
... the
number and identity of the persons whom it wishes to dismiss with or
without notice from its employment on redundancy grounds" (109).
The
plaintiff States claim that that is what the termination of employment
provisions do. In the alternative, they argue that the
provisions apply to
persons employed by the States at the higher levels of government and are, to
that extent, invalid. It is convenient
to consider the arguments of the
plaintiff States first in relation to the general prohibitions on termination
and, then, in relation
to the provisions specifically dealing with redundancy.
138. The non-redundancy provisions called into question by the primary
argument of the plaintiff States are ss 170DB, 170DC, 170DE(1)
and 170DF.
Section 170DE(2) can be disregarded as, in our view, it is not authorised by
the external affairs power and is invalid
on that account. And, as already
indicated, s 170DF(1)(f) and (g) will be considered later in these reasons.
Thus, the prohibitions
presently in issue are the restrictions on termination
without notice, or, payment in lieu (which prohibition does not apply in the
case of serious misconduct) (s 170DB(1)); the prohibition on termination for
reasons related to conduct or performance unless the
employee has first been
given a chance "to defend himself or herself against the allegations made"
(which prohibition does not apply
if the employer could not reasonably be
expected to provide that opportunity) (s 170DC); the prohibition on
termination other than
for a valid reason, or valid reasons, connected with
the employee's capacity or conduct or the employer's operational requirements
(s 170DE(1)); and the prohibition on termination for the reasons set out in s
170DF(1)(a)-(e) inclusive. In general terms, those
reasons consist of
temporary absence because of illness or injury, union membership,
participation in union activities, non-membership
of a union, standing for
election to or holding a union position, and complaining or participating in
proceedings against the employer
for alleged breach of its legal obligations.
139. The prohibitions in ss 170DB, 170DC, 170DE(1) and 170DF apply only to
employees already in employment. They thus do not prevent
the States from
determining "the number and identity of the persons whom (they wish) to
employ" (110). And apart from the prohibition
in s 170DB on termination
without notice and that aspect of s 170DE(1) concerned with dismissal for
reasons connected with operational
requirements, none is concerned with
termination on redundancy grounds. To the extent that s 170DB is concerned
with redundancy,
it prescribes the steps to be taken before or in association
with termination, namely notice or payment in lieu. It is not concerned
with
"the number and identity of the persons whom (the States wish) to dismiss ...
on redundancy grounds" (111). However, if s 170DE(1)
is read according to its
terms, that aspect of it which requires that there be a valid reason for
termination connected with operational
requirements would operate to prevent a
State from determining the number and identity of those to be made redundant.
This operation
is, nonetheless, avoided by reason that s 6 of the Act is to be
read down in the manner earlier indicated.
140. It is also necessary to consider whether, in terms, the prohibitions in
ss 170DB, 170DC, 170DE(1) and 170DF impair the right
of the States to
determine "the term of appointment (of those whom they wish to employ)" (112).
The relevant words of each prohibition
are that "(a)n employer must not
terminate an employee's employment". In the case of s 170DC, the prohibition
is elaborated by reference
to a specific reason and, in the case of ss
170DE(1) and 170DF, by reference to specific reasons. As a matter of ordinary
language,
an employer does not terminate an employee's employment when his or
her term of employment expires. Rather, employment comes to
an end by
agreement, or, where the term is fixed by award or statute, by operation of
law.
141. There is nothing in the Act to suggest that the words "(a)n employer
must not terminate an employee's employment" are to be
construed other than in
accordance with their ordinary meaning. So construed, they do not apply to the
situation where employment
comes to an end because its term has expired. To
put the matter another way, the prohibitions are concerned with termination
for
reasons unconnected with the term of employment. And that is manifestly
clear when regard is had to ss 170DC, 170DE(1) and 170DF.
The prohibitions
effected by those sections are directed, respectively, to termination for a
specified reason and termination for
one or more specified reasons, none of
which includes the expiry of the employee's term of appointment.
142. If read according to their terms, the prohibitions in ss 170DB, 170DC,
170DE(1) and 170DF leave the States free to determine
the number and identity
of those whom they wish to employ, the term of their employment and, save for
s 170DE(1), the number and
identity of those whom they wish to dismiss on
redundancy grounds. However, in this last regard, the effect of reading down
s 6
is that the States are not bound by s 170DE(1) to the extent that it would
otherwise operate to prevent them determining the identity
and number of those
they wish to make redundant.
143. So far as concerns the argument of the plaintiff States with respect to
those employed at the higher levels of government,
it is to be noted that, as
a matter of ordinary language, the prohibitions in ss 170DB, 170DC, 170DE(1)
and 170DF are directed to
employers generally and operate with respect to
employees generally. And there is nothing to suggest that they should be
construed
otherwise. And so construed they would apply to those employed at
the higher levels of government, but for a reading down of s 6
in the manner
indicated.
144. The prohibitions in Div 3 of Pt VIA specifically concerned with
redundancy are in ss 170DD and 170DG. It is convenient to
deal first with s
170DD which, as already indicated, requires an employer who decides to
terminate 15 or more employees "for reasons
of an economic, technological,
structural or similar nature" to give written notice of that fact to the
Commonwealth Employment Service
("the CES"), specifying the reasons for the
terminations, the numbers and categories of employees likely to be affected
and the period
over which the terminations are to be carried out. As with s
170DB, which requires notice or payment in lieu, s 170DD merely prescribes
a
step to be taken if more than 15 employees are to be made redundant. It does
not in any way impair the right of the States to
determine "the number and
identity of the persons whom (they wish) to dismiss with or without notice ...
on redundancy grounds" (113).
145. Nor does s 170DD affect the terms and conditions of employment of those
employed at the higher levels of government. It merely
requires that, if they
are to be made redundant, relevant particulars be included in the notice to be
given to the CES. Thus, s 170DD
does not infringe the implied constitutional
prohibition on any of the bases identified in Re Australian Education Union
and relied
upon by the plaintiff States.
146. The other prohibition which operates specifically with respect to
terminations for redundancy is in s 170DG. That section
provides that "(a)n
employer must not terminate an employee's employment in contravention of an
order in force under section 170FA."
The latter section provides that,
subject to Pt VIA, "the Commission may ... make an order for the purpose of
giving effect to ...
Article 12 (in so far as it relates to a severance
allowance or other separation benefits) or 13 of the Termination of Employment
Convention". As already indicated, Art 12 is concerned with severance pay and
Art 13 with union consultation.
147. An order for the payment of severance pay and orders requiring union
consultation clearly impair a State's right to "determine
the number and
identity of (those) whom it wishes to dismiss ... on redundancy grounds".
However, the effect of the reading down
of s 6 is that s 170FA does not apply
to the States. It follows that the prohibition in s 170DG has no operation
with respect to
the States.
(v) Conclusions with respect to the termination of employment provisions
148. Sections 170DE(2) and 170EDA(1)(b) are invalid. Leaving aside pars (f)
and (g) of s 170DF(1) (which will be considered later),
the other provisions
of Div 3 of Pt VIA are valid. However, the reading down of s 6 has the result
that ss 170DB, 170DC, 170DE(1)
and 170DF(1)(a), (b), (c), (d) and (e) are
limited in their application and s 170FA does not apply to the States.
Parental Leave - Pt VIA, Div 5, ss 170KA-170KC
(i) Legislative provisions
149. Part VIA, Div 5 relates to parental leave. The stated intention of the
Division is to give effect to the Workers with Family
Responsibilities
Convention 1981 (Sched 12 to the Act) ("the Family Responsibilities
Convention") and the Workers with Family Responsibilities
Recommendation 1981
(Sched 13) ("the Family Responsibilities Recommendation") (s 170KA(1)(a)-(b)).
The principal operative provision
in the body of the Act is s 170KA(3) which
provides that a mother is entitled to maternity leave and her spouse is
entitled to paternity
leave totalling up to 52 weeks following the birth of a
child, a maximum of one week of their leave being taken concurrently at the
time of the birth of the child. Section 170KB declares that Sched 14 has
effect as if it were contained within the Division. Schedule
14 provides for
a detailed code outlining the entitlement to and procedural requirements for
obtaining maternity or paternity leave.
Sections 170KA(5) and 170KC provide
for the making of regulations in relation to an analogous system of unpaid
adoption leave.
(ii) Questions in the case stated
150. The questions in the case stated which relate to the parental leave
provisions may be summarised as follows:
. Are the provisions of Div 5 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth? In this regard the Commonwealth claims and the plaintiff States deny that the Division was validly enacted pursuant to the legislative power with respect to external affairs.
. Are the provisions of Div 5 of Pt VIA of the Act, or anypart of such provisions, beyond the legislative power of the Commonwealth and invalid in their application to the States of South Australia or Western Australia in relation to persons employed to enable those States to continue to exist and function as such?
(iii) Parental leave provisions and the external affairs power
151. The Family Responsibilities Convention itself does not refer to
maternity, paternity or parental leave. It rises no higher
than Arts 1, 3 and
4 which relevantly provide:
"Article 1
1. This Convention applies to men and women workers withresponsibilities in relation to their dependent children, where such responsibilities restrict their possibilities of preparing for, entering, participating in or advancing in economic activity.
...
Article 3
1. With a view to creating effective equality of opportunityand treatment for men and women workers, each Member shall make it an aim of national policy to enable persons with family responsibilities who are engaged or wish to engage in employment to exercise their right to do so without being subject to discrimination and, to the extent possible, without conflict between their employment and family responsibilities.
2. For the purposes of paragraph 1 of this Article, the term'discrimination' means discrimination in employment and occupation as defined in Articles 1 and 5 of the Discrimination (Employment and Occupation) Convention, 1958.
Article 4
With a view to creating effective equality of opportunityand treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken -
(a) to enable workers with family responsibilities toexercise their right to free choice of employment; and
(b) to take account of their needs in terms and conditionsof employment and in social security."
152. Further, Art 7 provides:
"All measures compatible with national conditions andpossibilities, including measures in the field of vocational guidance and training, shall be taken to enable workers with family responsibilities to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to those responsibilities."
153. Also relevant are the terms of the Family Responsibilities
Recommendation referred to in s 170KA(1)(b). Paragraph 22 of that
Recommendation provides:
"(1) Either parent should have the possibility, within aperiod immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded.
(2) The length of the period following maternity leave andthe duration and conditions of the leave of absence referred to in subparagraph (1) of this Paragraph should be determined in each country by one of the means referred to in Paragraph 3 of this Recommendation.
(3) The leave of absence referred to in subparagraph (1) ofthis Paragraph may be introduced gradually."
154. Paragraph 3 of the Recommendation refers to applying the provisions of
the Recommendation by "laws or regulations, collective
agreements, work rules,
arbitration awards, court decisions or a combination of these methods, or in
any other manner consistent
with national practice".
155. The quoted Articles of the Family Responsibilities Convention impose
obligations on Australia and, whilst they are expressed
in more than terms of
aspiration, they are set forth in general terms. There is no specific
provision relating to parental leave.
Nevertheless, in the conditions of
society and industrial organisation in this country, an obvious means of
discharging the obligations
imposed by Arts 3, 4 and 7 is to provide for
parental leave.
156. Thus, the challenged provisions are reasonably capable of being
considered appropriate and adapted to fulfilling one element
of Australia's
obligations under the Family Responsibilities Convention. That is because the
law falls within the terms of the obligation
imposed by Arts 4(b) and 7. These
specify that "all measures ... shall be taken ... to take account of their
needs in terms and conditions
of employment" (Art 4(b)) and to enable them to
"become and remain integrated in the labour force" (Art 7). Division 5 can
reasonably
be seen as an attempt to do this. That is reinforced by the
reference to parental leave in the Family Responsibilities Recommendation.
This confirms the appropriateness of a law relating to parental leave to
fulfilling Australia's obligations under the Family Responsibilities
Convention. As we have explained earlier in these reasons, the circumstance
that only part of the broad obligations imposed on Australia
by the Family
Responsibilities Convention is implemented in the Division of itself is no
objection to its validity (114).
157. Subject to a consideration of the question whether it discriminates
against the States, the Division is valid.
(iv) Parental leave provisions and discrimination against the States
158. The provisions of Div 5 of Pt VIA are questioned with respect to
"persons employed to enable (the States) to continue to exist
and function as
such". However, as with other provisions the argument was put by reference to
those employed at the higher levels
of government. As with ss 170DB, 170DC,
170DE(1) and 170DF, ss 170KA, 170KB and 170KC are of general application and,
as a matter
of ordinary language, apply to persons employed at the higher
levels of government. As with ss 170DB, 170DC, 170DE(1) and 170DF,
there is
nothing to indicate that they should be construed as bearing other than their
ordinary meaning. However, as with ss 170DB,
170DC, 170DE(1) and 170DF, the
effect of reading down s 6 is that they do not bind the States to the extent
that they would otherwise
apply to persons employed at the higher levels of
government.
(v) Conclusion with respect to parental leave provisions
159. The provisions of Div 5 of Pt VIA operate validly according to their
terms except for ss 170KA, 170KB and 170KC which, by reason
of the reading
down of s 6, do not bind the States with respect to persons employed at the
higher levels of government.
Parental Leave - s 170DF(1)(g)
160. By s 170DF(1)(g), an employer must not terminate an employee's
employment on the ground or grounds including "absence from
work during
maternity leave or other parental leave". The Termination of Employment
Convention, the relevant terms of which were
reproduced earlier, provides in
Art 5(e) that "absence from work during maternity leave" shall not constitute
a valid reason for
termination. The validity of the section is brought into
question by the questions raised with respect to the termination of employment
provisions in Div 3 of Pt VIA of the Act.
161. Section 170DF(1)(g) implements Art 5(e) of the Termination of Employment
Convention. Further, as with the parental leave provisions
in Div 5 of Pt
VIA, the prohibition effected by s 170DF(1)(g) is reasonably capable of being
considered appropriate and adapted to
the obligation in Art 4(b) of the Family
Responsibilities Convention to take measures "(w)ith a view to creating
effective equality
of opportunity and treatment for men and women workers ...
to take account of their needs in terms and conditions of employment".
162. It remains only to be noted that in its application to the States and
their employees, s 170DF(1)(g) is in no different position
from the other
termination of employment provisions in Div 3 of Pt VIA of the Act. The
effect of the reading down of s 6 of the
Act is that it does not bind the
States with respect to persons employed at the higher levels of government.
Discrimination in Employment - ss 3(g), 150A, 170DF(1)(f), 170MD(5) and
170ND(10)
(i) Legislative provisions
163. The Act contains a number of provisions which are directed to preventing
"discrimination on the basis of race, colour, sex,
sexual preference, age,
physical or mental disability, marital status, family responsibilities,
pregnancy, religion, political opinion,
national extraction or social origin"
(hereafter called "the proscribed grounds"). The first such provision is in s
3 of the Act,
which identifies the principal object of the Act as the
provision of a framework for the prevention and settlement of industrial
disputes by a number of means, including, in par (g), by helping to prevent
and eliminate discrimination on the proscribed grounds.
164. The second provision is in s 150A. By that section, the Commission is
required to conduct a regular review of its awards (115)
(other than certified
agreements or enterprise flexibility agreements (116)) to ascertain if they
are deficient in respect of any
of the matters specified in s 150A(2),
including that specified in par (b), namely, that they contain a provision
which discriminates
against an employee on any of the proscribed grounds.
165. In addition to s 3(g) and s 150A(2)(b), ss 170MD(5) and 170ND(10)
require the Commission to refuse to certify and approve,
respectively,
agreements and enterprise flexibility agreements containing terms which it
considers discriminate on any of the proscribed
grounds. And subject to
sub-ss (2) and (3), s 170DF(1)(f) forbids the termination of employment on any
of those grounds (117).
(ii) Questions in the case stated
. Questions 9(h) and (i) in the case stated ask whether ss3(g) and 150A are invalid. However, the argument with respect to s 150A was conducted by reference only to the power of the Commission to vary awards for the purposes of s 150A(2)(b), it being argued that it is neither authorised by the conciliation and arbitration power nor the external affairs power.
. The validity of ss 170DF(1)(f), 170MD(5) and 170ND(10) isbrought into question by the plaintiff States' challenge to Div 3 of Pt VIA, Div 2 of Pt VIB, and Div 3 of Pt VIB respectively. The provisions are challenged as not being authorised by the external affairs power. In this regard, the plaintiff States point to the inclusion of sexual preference, age and physical or mental disability, none of which is referred to in the various international Conventions and Recommendations upon which they are ostensibly based. Sections 170MD(5) and 170ND(10) are further challenged as being beyond the conciliation and arbitration and the corporations powers respectively.
(iii) Section 150A and the conciliation and arbitration power
166. It is necessary to refer to sub-ss (2) and (3) of s 150A. By s 150A(2),
the Commission is required to remedy any deficiency
identified in the review
process by taking "the steps (if any) prescribed by the regulations". Section
150A(3) authorises the making
of regulations prescribing steps which "may
include varying the award after giving any party to the award who has a
genuine interest
in the matter an opportunity to be heard". Regulations have
in fact been made with the consequence that, if the Commission considers
that
an award is deficient in respect of the matters set out in s 150A(2)(b), it
must allow the parties, the Human Rights and Equal
Opportunity Commission and
interveners, if any, to be heard and, thereafter, must remedy the deficiency
by varying the award or taking
such other action as it considers appropriate
(118).
167. It was argued for the State of Western Australia that the combined
effect of s 150A(2)(b) and (3) is that regulations may be
made requiring the
Commission to vary an award so that it extends beyond the ambit of the
original dispute or includes terms that
are not "relevant", "reasonably
incidental" or "appropriate" (119) to the settlement of that dispute and that,
to that extent, s
150A(2)(b) and (3) is invalid. Counsel for Western
Australia also argued that s 150A(2)(b) is not appropriate or adapted to
achieving
the object of any relevant international obligation and therefore
cannot be supported by s 51(xxix) of the Constitution. On the other hand, the
Commonwealth submitted that s 150A(2)(b) and (3), so far as sub-s (3) relates
to par (b) of sub-s (2), is
a valid exercise of the power to legislate with
respect to external affairs and, also, of the power to legislate with respect
to
conciliation and arbitration.
168. In our view, the context in which s 150A(2)(b) appears makes the
question whether it can be supported as a law with respect
to external affairs
entirely irrelevant. As already indicated, s 150A applies only to awards, not
certified and enterprise flexibility
agreements. It thus applies, and applies
only, to awards made in prevention or settlement of an interstate industrial
dispute.
169. It is well settled that the terms of an award must be "'relevant' or
'reasonably incidental' or 'appropriate' to the settlement
of the differences
constituting the interstate dispute (attracting the Commission's power to
arbitrate) or ... (have) a 'natural
or rational tendency to dispose of the
question at issue'" (120). The "ambit" doctrine (121), which confines the
variation of awards
within the limits of the dispute upon which the award was
based, is an aspect, albeit an important aspect, of that more general rule.
170. It is conceivable (although hardly likely in practice) that the
variation of an award, either by removing or amending a discriminatory
term of
the kind to which s 150A(2)(b) is directed, could result in the award no
longer having the required connection with the dispute
on which it was
founded. Ordinarily, the question asked with respect to the variation of the
award is whether the variation is valid
(122). That is a convenient course
if, as is almost always the case, the variation can be severed from the award.
But the fundamental
question is that of the relationship between the award, as
varied, and the dispute. And because that is the question, it is always
necessary to relate the Commission's power to vary awards to the conciliation
and arbitration power.
171. So far as the validity of s 150A(2)(b) and (3) is concerned, the first
step is to determine whether, as contended for by the
State of Western
Australia, the Commission may be required to vary an award in such a way that
it no longer has a relevant connection
with an interstate industrial dispute.
As already indicated, that would result in invalidity. In itself, that is a
powerful reason
for thinking that s 150A does not operate in that way.
172. Moreover, s 150A must be read in the same light as other provisions of
the Act which confer power on the Commission to vary
awards, particularly s
113(2) which relevantly allows that "(t)he Commission may ... vary an award".
The latter provision, or, more
accurately, its predecessor in the Conciliation
and Arbitration Act 1904 (Cth) has always been construed, or more accurately,
read
down by reference to the limits of the power conferred by s 51(xxxv) of
the Constitution so as to authorise only those variations which have a
relevant connection with the dispute giving rise to the award in question or
which are made for the purpose of preventing an interstate industrial dispute
(123). In the context of the conferral of power to
conciliate and arbitrate
for the prevention and settlement of interstate industrial disputes, it is
difficult to see that it could
have been approached in any other way.
173. Given that s 150A(2) is concerned entirely with awards made in
settlement or prevention of interstate industrial disputes,
s 150A(3) must be
read down so as to authorise the variation of awards only to the extent that
the variation has a relevant connection
with the dispute which attracted the
Commission's award-making power. If the removal or variation of an award
provision containing
the proscribed grounds would deny the connection required
between the award and the dispute in settlement of which the award was
made,
the award could not be considered to be "deficient" by reason of the provision
that contains the proscribed grounds. Indeed,
the need to find a deficiency
in the award confers on the Commission the function of considering the
significance of any of the proscribed
grounds to the matters in dispute
between the parties to the dispute. The fact that an award contains a
provision which discriminates
on any of the grounds specified in s 150A(2)(b)
does not by itself establish a deficiency in the award. If it were otherwise,
no
provision which justifiably discriminates on any of those grounds could be
maintained. There are some areas of employment in which
one or other ground
of discrimination is justifiable: see, for example, ss 150A(4), 170DF(3),
170MD(5A) and (6), 170ND(10A) and
(11). Construing s 150A(2) and (3) in this
way, the foundation for the argument advanced on behalf of Western Australia
disappears.
174. It was not argued that it was beyond the power conferred by s 51(xxxv)
of the Constitution for the Parliament to legislate to require regular
revision and variation of awards to reflect current industrial standards, so
long
as the award as varied retains the required connection with an interstate
industrial dispute. Nor, in our view, is such an argument
open. A law
requiring regular review and variation, within the limits indicated, is
clearly a law with respect to conciliation and
arbitration. And it makes no
difference whether the direction to vary is expressed in terms of industrial
standards generally or,
as here, is directed to some specific matter which may
pertain to the relations of employers and employees.
175. It follows that, when s 150A(3) is read down in the manner indicated, s
150A(2)(b) is valid.
(iv) Sections 170DF(1)(f), 170MD(5) and 170ND(10) -
the external affairs power
176. It is convenient first to consider whether s 170DF(1)(f) is supported by
the external affairs power.
177. As previously mentioned, the Discrimination (Employment and Occupation)
Convention 1958 ("the Discrimination (Employment and
Occupation) Convention")
which forms Sched 1 to the Human Rights Act defines "discrimination", in Art
1, as including:
"(a) any distinction, exclusion or preference made on thebasis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
(b) such other distinction, exclusion or preference whichhas the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer's and worker's organisations, where such exist, and with other appropriate bodies."
178. The definition in s 3 of the Human Rights Act mirrors this definition
and provides:
"'discrimination' means:
(a) any distinction, exclusion or preference made on thebasis of race, colour, sex, religion, political opinion, national extraction or social origin that has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation; and
(b) any other distinction, exclusion or preference that:opportunity or treatment in employment or occupation; and
(i) has the effect of nullifying or impairing equality of
(ii) has been declared by the regulations to constitutediscrimination for the purposes of this Act".
179. By regulations made under s 50 of the Human Rights Act (124) there was
added to the definition of "discrimination" in that
Act any distinction,
exclusion or preference based on, inter alia, age, impairment, mental,
intellectual or psychiatric disability,
physical disability or sexual
preference.
180. The relevant Articles of the Discrimination (Employment and Occupation)
Convention provide:
"Article 2
Each Member for which this Convention is in force undertakesto declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
Article 3
Each Member for which this Convention is in forceundertakes, by methods appropriate to national conditions and practice -
...
(b) to enact such legislation and to promote sucheducational programmes as may be calculated to secure the acceptance and observance of the policy".
181. The international obligation cast upon Australia by Art 2 of the
Discrimination (Employment and Occupation) Convention to pursue
a national
policy to promote equality of opportunity and treatment in respect of
employment and occupation with a view to eliminating
discrimination in respect
thereof, includes the proscription of the grounds of discrimination, exclusion
or preference specified
in Art 1(a) of the Convention and those determined in
accordance with Art 1(b). Article 1(b) requires Australia (i) to consult with
representative employers' and workers' organisations and with other
appropriate bodies in order to identify other grounds of unjustified
discrimination which have the effect of nullifying or impairing equality of
opportunity or treatment in employment or occupation
and which ought to be
proscribed and, pursuant to Art 2, (ii) to proscribe those grounds. The power
conferred by s 51(xxix) will
support legislation which is enacted in discharge
of these obligations. It will not support the proscription of grounds which
are
neither specified in the Convention nor the subject of the consultation
required. There is no obligation on Australia to proscribe
a ground which is
not specified in the Convention and which has not been the subject of the
required consultation. Hence, any law
which proscribes such a ground would
derive no support from s 51(xxix).
182. In s 170DF(1)(f), as in the Regulations made under the Human Rights Act,
the grounds "sexual preference, age, physical or mental
disability" were added
to those specified in the Convention. A challenge
is made to their inclusion,
based on a suggested absence
in the consultative process in which the
Commonwealth was required to engage
pursuant to Art 1(b), before adding
grounds to those
specified in Art 1(a) of the Convention.
183. The Commonwealth relies on the process of consultation which occurred
prior to the making of the Regulations under the Human
Rights Act. It appears
(125) that the Regulations were made in response to a recommendation of a
National Committee on Discrimination
in Employment
and Occupation. That
Committee has since been disbanded. The National Committee, like the
corresponding Committees
for the States
and the Northern Territory, was
constituted by representatives of government, employer and employee
organisations.
They were established
upon ratification of the Convention in
1973 to eliminate discrimination and to promote equality of opportunity
in
employment and,
in particular, to "ensure that there is consultation between
the tripartite partners prior to the Government introducing
special
measures
to overcome past discrimination" (126). Pursuant to Art 1(b) of the
Convention these Committees recognised grounds
of discrimination
including
those of "age", "physical disability" and "sexual preference" (127). There is
no reference to recognition
of, or consultation
with respect to, mental
disability (128). The additional grounds of discrimination recognised by the
Committees
were then determined
to be additional grounds for the purposes of
the Convention by their inclusion in the Human Rights and Equal
Opportunity
Commission
Regulations. Those Regulations were made after the establishment
of the Human Rights and Equal Opportunity
Commission in 1986 to
which the
function of the Committees was transferred (129).
184. Thus, it appears that there was the consultation required by Art 1(b) of
the Convention prior to the determination by Australia
to discharge its
Convention obligations by adding the grounds of "age", "physical disability"
and "sexual preference". The inclusion
of the same grounds in s 3(g), as well
as in s 170DF(1)(f), is supported by the external affairs power. But, so far
as the material
available to the Court reveals, there was no consultation with
respect to the ground of mental disability (130). It follows that
the
inclusion of "mental disability" in the relevant sections is unsupported by s
51(xxix). As at present advised, those words as
they appear in s 170DF(1)(f)
are invalid. However, as the material relating to consultation was not fully
canvassed at the hearing,
the better course is to give no answer in respect of
that ground when disposing of the questions in the case stated. Subject to
that qualification and subject to a consideration of the argument with respect
to discrimination against the States, s 170DF(1)(f),
in so far as it refers to
age, sexual preference and physical disability, is valid.
185. As will become apparent, it is unnecessary to consider whether ss
170MD(5) and 170ND(10) are supported by the external affairs
power.
(v) Section 170DF(1)(f) and discrimination against the States
186. In its application to the States and their employees, s 170DF(1)(f) is
in no different position from the other termination
of employment provisions
in Div 3 of Pt VIA of the Act. Thus the effect of the reading down of s 6 of
the Act is that it does not
bind the States with respect to persons employed
at the higher levels of government.
(vi) Section 3(g)
187. Given that s 150A(2)(b) is valid and given also that s 170DF(1)(f)
operates validly according to its terms, save with respect
to persons employed
by the States at the higher levels of government, there can be no objection to
the terms of s 3(g). And that
is so whether or not ss 170MD(5) and 170ND(10),
which will be considered later, are also valid. However, the phrase "mental
disability",
as it appears in s 170DF(1)(f), stands in the special position
indicated above. Section 3(g) also is linked with ss 150A(2)(b),
170MD(5) and
170ND(10). As has been indicated with respect to s 150A and as will be
indicated with respect to the other two provisions,
they are supported by
other heads of power. Accordingly, in these respects, there is no limitation
or query as to the full operation
of s 3(g).
(vii) Conclusions with respect to provisions relating to discrimination in
employment
188. Sections 3(g), 150A and 170DF are all valid. This is subject to the
qualification that we provide no answer with respect to
the phrase "mental
disability" in s 170DF(1)(f). In addition, s 150A(3) is to be read down so as
to authorise the variation of awards
only to the extent that the variation has
a relevant connection with the dispute which attracted the Commission's
award-making power.
Further, by reason of the reading down of s 6, s
170DF(1)(f) does not bind the States with respect to persons employed at
higher
levels of government.
189. Sections 170MD(5) and 170ND(10) will be considered later.
Collective Bargaining - Certified and Enterprise Flexibility Agreements
(i) Legislative provisions
190. The Act allows that, in certain circumstances and subject to certain
conditions, the Commission may certify industrial agreements
("certified
agreements") between employers and employees who are parties to an industrial
dispute or who are parties to an industrial
situation (ss 170MA(4) and 170MC).
It also allows that, subject to certain conditions, the Commission may approve
industrial agreements
("enterprise flexibility agreements") made with an
employer that is a "constitutional corporation", which is defined in s 4(1) of
the Act to mean:
"(a) a foreign corporation within the meaning of paragraph51 (xx) of the Constitution; or
(b) a body corporate that is, for the purposes of paragraph51 (xx) of the Constitution, a financial corporation formed within the limits of the Commonwealth; or
(c) a body corporate that is, for the purposes of paragraph51 (xx) of the Constitution, a trading corporation formed within the limits of the Commonwealth; or
(d) a body corporate that is incorporated in a Territory; or
(e) a Commonwealth authority" (131).When registered or approved, the agreements take effect as awards of the Commission (132), and by s 152, prevail to the extent of any inconsistency over "State law, or an order, award, decision or determination of a State industrial authority".
191. The provisions governing certified agreements are in Div 2 of Pt VIB of
the Act which confers power on the Commission, subject to conditions, to
certify agreements as specified in s 170MA(1) and (2).
The agreements
specified in s 170MA(1) are agreements between the parties to an industrial
dispute, or any of them, the terms of
which are for "the settlement of all or
any of the matters in dispute; or ... (for) the prevention of further
industrial disputes
between them". The agreements specified in s 170MA(2) are
agreements between the parties to an industrial situation (133), or any
of
them, the terms of which are "for preventing the situation from giving rise to
an industrial dispute between them".
192. The Commission's power to certify agreements is qualified by ss 170MC
and 170MD. By s 170MC, "(t)he Commission must certify
an agreement if, and
must not certify an agreement unless, it is satisfied" of certain matters,
including, under sub-s (c), that
the agreement contains procedures for the
resolution of disputes arising under the agreement. Section 170MC is,
however, subject
to s 170MD which provides that, "(d)espite section 170MC",
the Commission may in certain circumstances and must in certain other
circumstances refuse certification of an agreement. It is necessary to refer
specifically to s 170MD(5). As already mentioned,
that sub-section requires
the Commission, subject to limited qualifications (134), to "refuse to certify
an agreement if it thinks
that a provision of the agreement discriminates
against an employee because of, or for reasons including, race, colour, sex,
sexual
preference, age, physical or mental disability, marital status, family
responsibilities, pregnancy, religion, political opinion,
national extraction
or social origin".
193. The provisions governing the approval of enterprise flexibility
agreements are found in Div 3 of Pt VIB of the Act. Subject
to a number of
conditions, the Commission is empowered to approve an agreement that applies
to an enterprise of a constitutional
corporation (the definition of which is
set out above) and is about matters pertaining to the relationship between
employers and
employees (ss 170NA and 170ND). Mention should again be made of
s 170ND(10), which requires the Commission to refuse approval if
it thinks
that a provision discriminates on any of the grounds earlier referred to in
relation to certified agreements.
(ii) Questions in the case stated
194. The questions in the case stated bearing on certified and enterprise
flexibility agreements may be summarised as follows:
. Are the provisions of Div 2 of Pt VIB of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth? Pursuant to this question, the plaintiff States claim that the provisions of Div 2 are not laws with respect to conciliation and arbitration of interstate industrial disputes. There is a separate challenge to s 170MD(5) on the ground that it is also beyond the external affairs power.
. Are the provisions of Div 3 of Pt VIB of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth? As a result of a concession in argument, the only question that is raised is that of the validity of s 170ND(10).
. Is s 152 of the Act in its application to enterpriseflexibility agreements beyond the legislative powers of the Commonwealth? The plaintiff States claim that s 152 is not authorised by the legislative powers which support the provisions with respect to enterprise flexibility agreements in Div 3 of Pt VIB of the Act.
. Are the provisions of Div 2 of Pt VIB of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
. Are the provisions of Divs 2 and 3 of Pt VIB of the Act,or any part of such provisions, beyond the legislative power of the Commonwealth and invalid in their application to the State of Western Australia in relation to persons employed to enable the State to continue to exist and function as such?
(iii) Certified agreements and the conciliation and arbitration power
195. The central issue raised with respect to Div 2 of Pt VIB is whether the
Parliament may provide that certified agreements have
the same effect as
awards of the Commission. It is not in issue that that question is to be
answered by reference to the legislative
power with respect to conciliation
and arbitration.
196. The plaintiff States base their primary argument with respect to Div 2
of Pt VIB on the ground that it permits certification
and, thus, allows for
agreements to have the same effect as awards, notwithstanding that the
agreements are arrived at without the
intervention of a third party. They
claim this involves neither conciliation nor arbitration, arguing that
"conciliation", as used
in s 51(xxxv) of the Constitution, requires the
interposition of a third party using its good offices to effect a resolution
of the matters in dispute. According to
the argument, if there is no
conciliation or arbitration the Parliament cannot legislate to give the
parties' agreement the same
effect as an award.
197. The question whether Parliament may legislate to give binding effect to
industrial agreements was considered by Griffith CJ
in J C Williamson Ltd v
Musicians' Union of Australia (135). His Honour expressed the minority view
that the Parliament might, "as
ancillary to the prevention and settlement of
industrial disputes by conciliation and arbitration, make provisions
authorising the
parties to come together out of Court and agree to terms of
settlement, and declaring that an agreement so made shall be binding
upon
them" (136). His Honour added that "(t)he coming together ... for such a
purpose followed by such an agreement" was not in
his view "inaptly described
as 'conciliation'" and concluded that the agreement in question in that case
was an industrial agreement
within the meaning of the Conciliation and
Arbitration Act 1904 (Cth) (137). Higgins J later stated, in Federated
Engine-Drivers
and Firemen's Association of Australasia v Broken Hill
Proprietary Co Ltd (No 3) (138), that he was unable to concur in that opinion.
However, it is not clear whether Higgins J disagreed with all that was said on
the subject by the Chief Justice, or simply disagreed
with his conclusion that
the agreement in question in J C Williamson was an industrial agreement.
198. There are difficulties with the notion that the coming together of
disputing employers and employees for the purpose of reaching
agreement,
whether or not with the intention that their agreement should have the same
effect as an award, is properly described
as "conciliation". But even if it
is not properly so described, that does not determine the validity of Div 2 of
Pt VIB. It may
be that its provisions are properly to be regarded as
ancillary or incidental to the exercise of the powers of conciliation or
arbitration
and, thus, validly enacted pursuant to s 51(xxxv) of the
Constitution (139).
199. It is to be remembered that, by s 170MA, the Commission's power to
certify is confined to agreements made by persons or organisations
who are
parties to an industrial dispute or an industrial situation. And by that
section, it is further confined to agreements the
terms of which have been
agreed by parties to an industrial dispute for "the settlement of all or any
of the matters in dispute"
or for "the prevention of further industrial
disputes between them" and, in the case of parties to an industrial situation,
"for
preventing the situation from giving rise to an industrial dispute
between them".
200. As already indicated in relation to s 150A(2)(b), the Commission's
award-making power is dependent on there being a relevant
relationship between
an award and an interstate industrial dispute. And ordinarily, that is
determined by having regard to the term
or provision in question and
considering its relationship with the claim to which it is directed. When s
170MA is construed with
that in mind, it is clear that one consequence of that
section is that the Commission cannot certify an agreement if any of its terms
lacks a relevant connection with the dispute or industrial situation which
would otherwise attract its award-making powers. Or to
put the matter another
way, the Commission can certify an agreement if and only if it could have made
an award in the same terms.
And that is so notwithstanding that its powers of
certification are otherwise circumscribed so that, for example, they must be
exercised
if certain other conditions are fulfilled and must not be exercised
if certain other conditions are not.
201. The power conferred by s 51(xxxv) of the Constitution clearly extends to
authorise the establishment and maintenance of a system of conciliation and
arbitration resulting in legally enforceable
rights and obligations with
respect to matters which are the subject of an interstate industrial dispute.
That being so, it follows
that it also authorises laws defining the features
of a system of that kind. For example, it might validly be provided that, in
relation to certain matters, the parties to an industrial dispute should not
be granted enforceable rights or should only be granted
enforceable rights of
a limited kind (140). Equally, it might validly be provided that, if there is
an interstate industrial dispute,
the legally enforceable rights and
obligations of the parties with respect to the matters in dispute should, and
should only, be
as agreed in conciliation or determined by arbitration by a
specified person.
202. When read in the context of the other provisions of the Act concerned
with the conciliation and arbitration of industrial disputes,
the effect of
Div 2 of Pt VIB is to provide that, except in cases where the Commission
refuses to exercise its powers of conciliation
and arbitration (141), the
future industrial rights and obligations of parties to an interstate
industrial dispute or a situation
likely to give rise to an interstate
industrial dispute shall either be those which result from the processes of
conciliation and
arbitration or those which might have so resulted but which,
instead, have been agreed by the parties or, at least, some of those
who have
entered into the agreement in question.
203. It follows that Div 2 of Pt VIB does no more than allow that, instead of
submitting their differences to conciliation and arbitration,
the parties to
an industrial dispute or an industrial situation may, subject to the matters
specified in that Division, agree on
a settlement of the matters in issue,
conditional upon the terms of their agreement having the same legal effect as
an award of the
Commission (142). In so doing, it marks out a feature of the
system of conciliation and arbitration adopted by the Parliament for
the
prevention and settlement of industrial disputes. And it marks out what well
may be thought to be a necessary or indispensable
feature of any system that
might properly have been adopted pursuant to s 51(xxxv). Whether or not that
is so, the provisions of
Div 2 of Pt VIB are so closely connected with
conciliation and arbitration for the prevention and settlement of interstate
industrial
disputes as to be properly regarded as ancillary or incidental
thereto. They are, thus, validly enacted pursuant to s 51(xxxv) of the
Constitution.
204. One other matter should be noted. Certification of agreements under Div
2 of Pt VIB is conditional upon satisfaction of a number of requirements other
than the central requirements that there be an industrial dispute
or an
industrial situation, that the agreements be made for the settlement or
prevention of industrial disputes and, as a matter
of construction, that the
terms of the agreements be terms that could have been included in an award.
Once it is accepted, as it
must be, that the Parliament can legislate to
provide that, if those conditions are satisfied, the agreements are to have
the same
effect as an award, it follows that the Parliament may attach such
other conditions limiting the circumstances in which agreements
will have that
effect as it sees fit. If the conditions are not satisfied, the consequence
is simply that, if disputes are to result
in legally enforceable rights and
obligations, they must be referred to conciliation and, if that fails,
arbitration. It follows
that the condition imposed by s 170MD(5) with respect
to provisions which discriminate on the grounds specified in that sub-section
is authorised by s 51(xxxv) of the Constitution. Thus, it is unnecessary to
consider whether it is also supported by the external affairs power.
Moreover, there is no issue under
s 51(xxxv) with respect to the inclusion in
s 170MD(5) of the phrase "mental disability".
(iv) Enterprise flexibility agreements and the corporations power
205. Subject to one possible exception, it was conceded in argument by
Western Australia (the only State to challenge the validity
of Div 3 of Pt VIB
in its Statement of Claim) that the Parliament has power to legislate as to
the industrial rights and obligations of constitutional
corporations (as
defined in s 4(1) of the Act) and their employees. That definition embraces
corporations of the kind specified
in s 51(xx) of the Constitution, bodies
incorporated in a Territory and Commonwealth authorities (143). The possible
exception is s 170ND(10) which, as already
mentioned, requires the Commission
to refuse certification of an agreement if it thinks its provisions
discriminate on the grounds
referred to in ss 3(g), 150A(2)(b) and 170MD(5) of
the Act, which grounds include grounds not specified in the
Anti-Discrimination
Conventions.
206. If, as is conceded, the Parliament can legislate pursuant to ss 51(xx)
and 122 of the Constitution as to the industrial rights and obligations of
employees and employer corporations of the kind specified in s 51(xx), and
employee and employer bodies incorporated in a Territory, it can also
legislate pursuant to the same constitutional grants of
power as to the
conditions to attach to those rights and obligations. And the same is true of
its powers which authorise laws regulating
Commonwealth authorities. Thus, s
170ND(10) is valid whether or not it also is authorised by the external
affairs power. Again,
no question arises under s 51(xx) and s 122 of the
validity of the inclusion in s 170ND(10) of the phrase "mental disability".
(v) Section 152 in relation to enterprise flexibility agreements
207. The plaintiff States challenge the validity of s 152 in its application
to enterprise flexibility agreements. Section 152
is as follows:
"Where a State law, or an order, award, decision ordetermination of a State industrial authority, is inconsistent with, or deals with a matter dealt with in, an award, the latter prevails and the former, to the extent of the inconsistency or in relation to the matter dealt with, is invalid."
208. It is not in issue that the Parliament may validly legislate as to the
industrial rights and obligations of persons employed
by constitutional
corporations as defined in s 4(1) of the Act. Clearly, the constitutional
powers which authorise laws in that regard
also authorise laws defining those
rights and obligations by reference to a specified happening or event. And
they authorise laws
specifying that they are exclusive of other rights and
liabilities, whether that specification is express (144) or implied (145).
Section 152 is, thus, valid in its specification that the rights and
obligations which flow from approval of an enterprise flexibility
agreement
are exclusive of those which might otherwise arise under a State law, or an
order, award, decision or determination of
a State industrial authority.
209. The effect of Div 3 of Pt VIB is to provide that, if the Commission so
approves, the industrial rights and obligations of a
constitutional
corporation, as defined in s 4(1) of the Act, and its employees, are those
upon which it and its employees have agreed.
The combined effect of the
definition of "award" in s 4(1) of the Act and s 152, in its application to
enterprise agreements, is
to give those rights and obligations the same
statutory protection as those provided for by an award of the Commission, and
to provide
expressly that they are exclusive of rights and obligations which
might otherwise be imposed by State law or by an order, award,
decision or
determination of a State industrial authority. Section 152 is, therefore,
valid in its application to agreements approved
under Div 3 of Pt VIB of the
Act.
(vi) Certified and enterprise flexibility agreements and discrimination
against the States
210. Although, in its Statement of Claim, the State of Western Australia
challenged both certified and enterprise flexibility agreements
on the grounds
of discrimination, the submissions of all the plaintiff States at the hearing
were confined to certified agreements.
In this regard, it was argued that the
combined effect of the definition of "single business" in s 170LB and of s
170MC(1)(a) and
(g) of the Act is to make it more difficult for the States to
enter into certified agreements with their employees than for other
employers.
211. By s 170LB "single business" is defined to mean:
"(a) a business that is carried on by a single employer; or
(b) a business that is carried on by 2 or more employers asa joint venture or common enterprise; or
(c) a single project or undertaking; or
(d) activities carried on by:for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established
(iii) any other body in which the Commonwealth, a State or aTerritory has a controlling interest".
"(a) wages and conditions of employment of the employeescovered by the agreement are regulated by one or more awards (as defined in subsection (6)) that bind their employer, or their respective employers; and
...
(g) if the agreement applies only to a single business, partof a single business or a single place of work:
(i) subject to subsections (4) and (5), the parties to theagreement include each organisation of employees that is a party to the award, or to one or more of the awards, referred to in paragraph (1)(a); and
(ii) the agreement has been negotiated, on the one hand, byeach employer concerned or a representative of the employer, and, on the other hand, by a single person or group of persons representing all the other parties to the agreement".
212. The conditions in s 170MC(1)(a) and (g) are of general application and
do not distinguish between the States, as employers,
and other employers. Nor
do they distinguish between employees of the States and other employees. If s
170MC(1) operates to make
it more difficult for the States to enter into
agreements with their employees, it can only be because of either that part of
the
definition of "single business" that applies to government undertakings,
the circumstances in which that sub-section operates with
respect to the
States, or a combination of both.
213. The arguments for the plaintiff States did not rely on any particular
circumstance pertaining to their activities as giving
discriminatory operation
to the provisions of Div 2 of Pt VIB. Rather, the argument was put by
reference to the terms of the provisions
in question. It was said that the
definition of the activities of a State as a single business made it more
difficult for a State
to enter into agreements with their employees because of
the need for all employees to be covered by awards and the need for an
agreement
to be negotiated by "a single person or group of persons
representing all the other parties to the agreement". However, that fails
to
take proper account of s 170MC(1)(g) which allows that an agreement may apply
to "a single business, part of a single business
or a single place of work".
It also fails to acknowledge that, by par (d)(ii) of the definition of single
business in s 170LB, the
activities of "a body, association, office or other
entity" are a single enterprise. Moreover, it pays no regard to the
possibility
of State activities falling within other parts of the definition,
including par (c) of the definition which refers to "a single project
or
undertaking".
214. When regard is had to the terms of s 170MC(1)(g), it appears that, in
defining single business to include activities carried
on by the Commonwealth
and the States and Territories, the Act simply ensures that government
employers, as well as non-government
employers, may take advantage of the
provisions of Div 2 of Pt VIB. There is nothing in the definition or in the
terms of s 170MC(1)(g)
which enables it to be concluded that the provisions of
Div 2 of Pt VIB make it more difficult for the States to enter into certified
agreements than for other employers or, in any other way, impose special
burdens or disabilities upon the States.
(vii) Conclusion with respect to certified and enterprise flexibility
agreements
215. The provisions of Divs 2 and 3 of Pt VIB of the Act are valid in their
entirety, as is s 152 in its application to enterprise
flexibility agreements.
The Right to Strike and Engage in Industrial Action
216. The Act contains a number of provisions concerned with what may
conveniently, though perhaps not accurately, be referred to
as the right to
strike and to engage in industrial action. It is convenient to deal
separately with the provisions of Div 4 of Pt
VIB and s 334A, which involve a
consideration of the external affairs power, and ss 164, 166 and 166A, which
do not.
(i) Immunity from civil liability - Pt VIB, Div 4, ss 170PA-170PP;
Non-dismissal - s 334A
217. Division 4 of Pt VIB is entitled "Immunity from civil liability". Part
VIB also provides for "Certified agreements" (Div 2)
and "Enterprise
flexibility agreements" (Div 3). The purpose of Div 4, stated in s 170PA(1),
is to give effect in particular situations
to "Australia's international
obligation to provide for a right to strike". This obligation is stated by
that section to arise from
a number of sources:
(a) Art 8 of the International Covenant on Economic, Socialand Cultural Rights (Sched 8);
(b) the Freedom of Association and Protection of the Rightto Organise Convention 1948 (Sched 15);
(c) the Right to Organise and Collective BargainingConvention 1949 (Sched 16);
(d) the Constitution of the ILO (146);
(e) "customary international law relating to freedom ofassociation and the right to strike".
218. The Division provides for a limited right to strike and a limited right
to lock out workers during negotiation of a certified
agreement under Div 2.
The strike or lock-out is "protected action" (s 170PG) if it occurs during a
"bargaining period" (s 170PF)
and complies with the procedural requirements
set out in the Division (147). If these requirements are met then the action
is protected
from civil liability under any law, written or unwritten, of a
State or Territory so long as it does not involve personal injury,
wilful or
reckless destruction of or damage to property, or the unlawful taking, keeping
or use of property (s 170PM(3)). The immunity
does not apply to an action for
defamation (s 170PM(4)). The Commission has power to suspend or terminate the
bargaining period
in certain circumstances, for example, where a party to the
dispute is not genuinely trying to reach agreement with the other parties
to
settle the dispute (s 170PO).
219. It is necessary to refer also to s 334A. By s 334A(2), it is an offence
for an employer to "dismiss an employee, injure an
employee in his or her
employment, or alter the position of an employee to the employee's prejudice,
merely because the employee
has engaged, or is proposing to engage, in
industrial action in relation to an industrial dispute that has been notified
to the Commission
or that the Commission has found to exist" (148). The
employer may be fined for the commission of such an offence. Further, by
s
334A(7)(b), the Industrial Relations Court may order an employer who is
convicted of an offence under sub-s (2) "to pay, to the
person dismissed,
injured or prejudiced, compensation for loss suffered as a result of the
dismissal, injury or prejudice". Alternatively,
if the offence constituted
dismissing an employee, the Industrial Relations Court may order reinstatement
(s 334A(7)(a)).
(ii) Questions in the case stated
220. The questions in the case stated which bear on Div 4 of Pt VIB and s
334A may be stated as follows:
. Are the provisions of Div 4 of Pt VIB of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid? In this regard, the plaintiff States argue that the provisions in question are supported neither by the power to legislate with respect to external affairs nor that with respect to conciliation and arbitration. They also argue that the provisions effect an acquisition of property other than on just terms.
. Are the provisions of Div 4 of Pt VIB of the Act, or anypart of such provisions, beyond the legislative power of the Commonwealth and invalid in so far as they purport to apply to the States or in their application to the State of Western Australia in relation to persons employed to enable that State to continue to exist and function as such?
. Is s 334A beyond the legislative power of the Commonwealthand invalid? Again the plaintiff States argue that s 334A is neither a law with respect to external affairs nor with respect to conciliation and arbitration. They further contend that s 334A(7)(b) effects an acquisition of property other than on just terms.
. Is s 334A beyond the legislative powers of theCommonwealth and invalid in so far as it purports to apply to the States or in its application to the State of Western Australia in relation to persons employed to enable that State to continue to exist and function as such?
(iii) Pt VIB, Div 4 and the external affairs power
221. Article 8 of the International Covenant on Economic, Social and Cultural
Rights ("the Covenant") is the only international
instrument relied upon that
employs the term "right to strike". It provides:
"1. The States Parties to the present Covenant undertake toensure:
(a) The right of everyone to form trade unions and join thetrade union of his choice ...;
(b) The right of trade unions to establish nationalfederations or confederations ...;
(c) The right of trade unions to function freely ...;
(d) The right to strike, provided that it is exercised inconformity with the laws of the particular country."
222. The Freedom of Association and the Protection of the Right to Organise
Convention 1948 provides generally for the right of
workers and employers to
freely establish or join representative organisations. Further, it requires
(in Art 11) that Members for
whom the Convention is in force take "all
necessary and appropriate measures to ensure that workers and employers may
exercise freely
the right to organise".
223. The closest that the Right to Organise and Collective Bargaining
Convention 1949 comes to providing for a "right to strike"
is in Art 4 which
provides:
"Measures appropriate to national conditions shall be taken,where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers' organisations and workers' organisations, with a view to the regulation of terms and conditions of employment by means of collective agreements."
224. The Constitution of the ILO makes no reference to a right to strike.
The only support for the Division that might come from that Constitution are
the words in the Preamble:
"And whereas conditions of labour exist involving suchinjustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by ... recognition of the principle of freedom of association".
225. There are also references to freedom of association and the right of
collective bargaining in Arts 1 and 3 of the Declaration
Concerning the aims
and purposes of the International Labour Organisation which forms an Annex to
the Constitution of the ILO.
226. The final source of support for the Division is said to be customary
international law. It is difficult to see how this could
be so. Customary
international law requires both uniformity or consistency of state practice149
as well as acceptance by those states
that they are bound to so act. It is
not enough that states act in a uniform manner if in so doing they see
themselves as not acting
out of a sense of legal obligation but from motives
of fairness, courtesy and morality (150). There is no evidence before this
Court
that this is the case. It is only if one accepts a different process
for the formation of customary international law that it would
be possible to
come to the conclusion that there is a rule of customary international law
that requires states to afford a right
to strike. There is no basis, on the
material before this Court, which would allow us to uphold the provisions on
the basis that
they implement a rule of customary international law.
227. As we have stated, the only explicit obligation to provide a "right to
strike" is that in the Covenant. It is unnecessary
to determine, for present
purposes, whether, construed in accordance with Art 31 of the Vienna
Convention on the Law of Treaties
1969, the provisions of other Conventions
referred to are such as to give rise to an obligation to provide a right to
strike. Article
31 requires a treaty to be interpreted in accordance with the
ordinary meaning to be given to its terms "in their context and in
the light
of its object and purpose" (151). Further, it is unnecessary to determine
whether the activities of the agencies of the
ILO such as the Committee on
Freedom of Association are of such a nature or extent as to give rise to the
ability to legislate under
s 51(xxix). The question is best approached
directly, on the basis of Art 8 of the Covenant. That Article gives rise to
an obligation to provide
a right to strike that may be exercised according to
laws regulating that right.
228. The content of the obligation is open to debate. It might be argued
that, even without enacting Div 4 of Pt VIB, Australia has fulfilled its
obligation to provide a right to strike in that there are not generally
applicable criminal sanctions
for undertaking strike action. However, the
absence of criminal penalties does not equate with the provision of a right to
strike.
In our view, it was reasonably open to the Parliament to conclude
that even the existence of common law remedies against strikers
and strike
organisers is inconsistent with the provision of the right to strike. Put
positively, it was open to the Parliament to
conclude that qualifying common
law rights of action against strikers will fulfil, at least in part,
Australia's obligation to provide
a right to strike within the terms of the
Covenant.
229. The provisions of the Division can only represent a partial
implementation of the right referred to in the Covenant. That
is because of
the limited circumstances in which they are applicable, namely, where
employees are covered by an award and an agreement
is being negotiated under
Div 2 (which relates to certified agreements). It has no effect in relation
to (i) workers covered only
by State awards; (ii) workers not covered by
awards; or (iii) workers covered by Commonwealth awards not involved in
negotiating
an agreement under Div 2. However, as we have said, partial
implementation of a Convention is no objection to the validity of a
law under
s 51(xxix).
230. The main effect of Div 4 is to preclude common law action against
members and officials of employee organisations where those
persons are
involved in "protected action" (s 170PG(2)). However, the Division goes
further than protecting and regulating the right
to strike. It also provides
protection for employers who, in breach of their contracts with their
employees, lock out their employees
from their place of employment (s
170PG(3)). This provision is not part of the protection of the right to
strike. Nor is it a qualification
on the right to strike, since it may be
exercised at the initiative of the employer when there is no intention on the
part of the
employees to take strike action (152). In our view, although the
provisions protecting strike action in the Division are reasonably
capable of
being seen as appropriate and adapted to partially implementing the obligation
under Art 8 of the Covenant, those provisions
protecting lock-outs are not.
If they are valid, only the conciliation and arbitration power, s 51(xxxv),
can support them.
(iv) Section 334A and the external affairs power
231. In contrast, s 334A, a provision which operates generally in relation to
industrial disputes, does not go beyond what might
reasonably be regarded as
appropriate and adapted for giving effect to Art 8 of the Covenant. The
section is stated, in sub-s (1),
to be for the purpose of implementing in part
Australia's obligation to provide for a right to strike. Its main provision
(sub-s
(2)) states that an employer "must not dismiss an employee, injure an
employee in his or her employment, or alter the position of
an employee to the
employee's prejudice, merely because the employee has engaged, or is proposing
to engage, in industrial action
in relation to an industrial dispute".
Excluded by s 334A(3) is industrial action causing personal injury or damage
to, or destruction
or misappropriation of, property.
232. Just as the provisions protecting persons taking industrial action would
be supportable, so too is s 334A. Just as the existence
of the right to
strike, subject to the possibility of common law remedies, might reasonably be
seen as no right at all, so too might
the existence of the right be doubted
where its exercise might lead to the loss of employment or punitive action by
the employer
against the employee. In contrast to Div 4, the terms of s 334A
do not go beyond what might reasonably be regarded as implementing
the terms
of the Covenant.
233. Subject to a consideration of the argument that it effects an
acquisition of property other than on just terms, s 334A is valid.
(v) Immunity from civil liability - Pt VIB, Div 4
and the conciliation and arbitration power
234. It is necessary to consider whether the provisions of Div 4 of Pt VIB
are validly enacted pursuant to s 51(xxxv) of the Constitution. In this
regard it may be noted that s 170PA(3) provides that Div 4 has the additional
effect it would have "under the powers conferred
on the Parliament by
paragraph 51(xxxv) of the Constitution".
235. In considering whether the provisions of Div 4 are validly enacted under
s 51(xxxv), it is necessary to emphasise that Div 4 is not of general
application. It applies only if a party to an interstate industrial dispute
wishes to negotiate an agreement to be certified under Div 2 of Pt VIB of the
Act (s 170PD). The Commission must have found the dispute to exist (s
170PC(a)) and certain other conditions must be satisfied
(ss 170PC and 170PD).
Those other conditions, which are not presently relevant, further confine the
circumstances in which the Act
confers immunity from civil suit. If the
various conditions are satisfied, the party wishing to negotiate an agreement
may give
written notice to that effect (ss 170PD and 170PE) with the result
that a "bargaining period" begins seven days later (s 170PF).
As previously
described (153), limited immunity, qualified in the manner discussed above, is
conferred on the employer, with respect
to lock-outs (s 170PG(3)-(6)), and on
the organisation of employees, its officers, members and employees, with
respect to industrial
action (s 170PG(2)), during the bargaining period (154),
provided that certain procedural requirements are satisfied (ss 170PH-170PL).
In general terms, immunity does not extend to action involving or likely to
involve personal injury, wilful or reckless damage or
misappropriation of
property. Nor does it extend to an action for defamation.
236. The immunity conferred by s 170PM is qualified by the Commission's power
under s 170PO to suspend or terminate the bargaining
period, thus terminating
the immunity (s 170PO(4)) (155), if it is satisfied that the party involved in
the industrial action is
not genuinely trying to reach agreement, or has not
complied with the Commission's directions to negotiate in good faith, or if it
is satisfied that the action in question is threatening to endanger the life,
safety or health of the public or a section of the
public, or to cause
significant damage to the economy or an important part of it. And by s 170PP,
if the bargaining period is terminated
for either of the two last-mentioned
reasons, "(t)he Commission must immediately begin to exercise its powers under
(the) Act to
prevent or settle the industrial dispute".
237. It is well settled that s 51(xxxv) "carries with it authority to make
such provisions as are incidental to the effectuation
of the purpose described
by the express words of the power" (156). However, there is no precise test to
determine whether a provision
is "incidental" in that sense. Various
questions have been propounded in the decided cases to facilitate examination
of the issue
whether there is a sufficient connection between the provision in
question and the subject-matter of the power, the questions asked
often
varying according to the nature of the provision or the power in question.
However, it is clear that the grant of power extends
beyond what is merely
necessary (157) and, at the very least, includes whatever is appropriate to
effectuate the exercise of the
power (158). It is also clear that what is
appropriate is to be determined by the Court (159) with due weight being given
to the
view of Parliament (160).
238. A provision conferring general immunity with respect to industrial
action or lock-outs in support of or in resistance to claims
involved in an
industrial dispute might well be viewed as likely to frustrate the Commission
in the exercise of its powers of conciliation
and arbitration and, thus, as
not appropriate to effectuate those powers. But different considerations
arise if immunity is limited
to action which does not involve the likelihood
of personal injury or wilful or reckless interference with property rights
("limited
immunity") and is qualified in a way that leads or can lead to the
loss of immunity and also ensures that the Commission is in a
position to
exercise a measure of control over the parties and their dispute.
239. In the absence of limited immunity for industrial action taken in
support of or in response to claims in an industrial dispute,
the parties may
well take the view that civil litigation should be pursued rather than the
processes of conciliation and arbitration.
And if differences are entrenched
by reason of the prospect of civil litigation that, too, reduces the
likelihood of successful
conciliation. By arming the Commission with the
authority to withdraw that immunity in the event of a failure by a party to
negotiate
towards a settlement, s 170PM enables the Commission to play a
constructive role in negotiations aimed at settling the dispute.
240. It was open to the Parliament to form the view that disputes might more
readily be resolved by conciliation and arbitration
if the parties to a
dispute who so wish are first provided with an opportunity to negotiate the
matters in the dispute freed from
the prospect of civil litigation in the
event of direct industrial action. The view is also open that limited
immunity of the kind
conferred by s 170PM has the capacity to assist in the
resolution of the dispute by conciliation and arbitration if negotiations
fail
and it becomes necessary for the Commission to exercise its powers in that
regard. Thus s 170PM has a substantial connection
with conciliation and
arbitration for the prevention and settlement of interstate industrial
disputes. It follows that, subject
to the questions raised by the plaintiff
States with respect to the acquisition of property and discrimination against
the States,
the provisions of Div 4 of Pt VIB are validly enacted pursuant to
s 51(xxxv) of the Constitution.
(vi) Section 334A and the conciliation and arbitration power
241. Although it is not strictly necessary to consider whether s 334A is a
valid law with respect to conciliation and arbitration,
it is convenient to
note that it operates to prevent an employer dismissing or taking other action
against an employee because he
or she has engaged or is proposing to engage in
industrial action "in relation to an industrial dispute that has been notified
to
the Commission or that the Commission has found to exist". As with the
limited immunity conferred by s 170PM, the employee is not
protected in his or
her employment if the industrial action involves or is likely to involve
personal injury, wilful or reckless
destruction of or damage to property, or
the unlawful taking, keeping or use of property (s 334A(3)).
242. And as with the limited immunity conferred by s 170PM, the view is well
open that interstate industrial disputes will more
readily be resolved by
conciliation and arbitration if the employer is prevented from dismissing or
taking other action against employees
in the circumstances to which s 334A is
directed. Particularly is that so where, as s 334A requires, the dispute has
been notified
to the Commission or a dispute finding has already been made.
Section 334A has a substantial connection with the conciliation and
arbitration of interstate industrial disputes. Subject to a consideration of
the arguments of the plaintiff States with respect
to the acquisition of
property and discrimination against the States, it is also a valid law on the
subject of conciliation and arbitration.
(vii) Immunity from civil liability - ss 164, 166 and 166A
243. Two other provisions of the Act confer immunity from action on
organisations of employees, their officers, members and employees.
The first
is s 166 which confers immunity from action under a law of a State or
Territory with respect to conduct that is a breach
of a bans clause in a
federal award or in an agreement having the force of a federal award. The
second is s 166A which confers immunity
from action in tort under the law of a
State or Territory "in relation to conduct ... in contemplation or furtherance
of claims that
are the subject of an industrial dispute", subject to the
qualification that immunity neither attaches to conduct resulting in personal
injury, wilful or reckless damage or misappropriation of property, nor to
conduct arising from a demarcation dispute or disputes
relating to payment
claims in respect of a period in which the employees were engaging in
industrial action (s 166A(2)).
244. By s 164 of the Act, immunity is also conferred on a trade union, which
is defined to include an organisation of employees
registered under the Act
and an organisation which is registered or recognised under State law (161),
its officers, members and employees.
The immunity is immunity from action
under a law of a State or Territory for conduct leading to or resulting in
secondary boycotts
of a constitutional corporation as defined in s 156 of the
Act. As with s 170PM, the immunity conferred by s 164 of the Act does
not
attach to conduct resulting in personal injury, damage or misappropriation of
property nor to defamation (s 164(2) and (3)).
(viii) Questions in the case stated with respect to ss 164, 166 and 166A
245. The questions in the case stated with respect to these provisions may be
condensed into the single question:
. Are any of ss 164, 166 and 166A of the Act beyond thelegislative power of the Commonwealth and invalid? In this regard the plaintiff States argue that ss 166 and 166A are not supported by the conciliation and arbitration power and that s 164 is not supported by the powers which authorise the provisions of the Act proscribing secondary boycotts. They also argue that s 166A effects an acquisition of property other than on just terms.
(ix) Section 166A and the conciliation and arbitration power
246. It is convenient to deal first with s 166A which confers limited
immunity on organisations of employees, their officers, members
and employees
in relation to industrial action taken in contemplation or furtherance of
claims that are the subject of an industrial
dispute. It is limited in the
manner earlier described. Moreover, it is conferred subject to the
qualification that it is lost
in the circumstances set out in sub-ss (3), (4),
(5) and (6). In general terms, those sub-sections allow a person who wishes
to
bring an action in tort to notify the Commission, whereupon the Commission
must take immediate steps to stop the conduct involved
and, if the conduct has
not ceased within 72 hours, or if the Commission is of the opinion it cannot
stop the conduct promptly or
that there would be substantial injustice if the
notifying party were prevented from bringing action, it must certify to that
effect
and immunity is thereby lost.
247. As earlier indicated with respect to the provisions of Div 4 of Pt VIB,
the view is well open that industrial disputes will
more readily be resolved
by conciliation and arbitration by the conferral of a limited immunity of the
kind presently in question.
And particularly is that so if the body charged
with conciliation and arbitration has power to take action which results in
the
loss of that immunity. That being so, there is a clear and substantial
connection between s 166A and conciliation and arbitration
for the prevention
and settlement of industrial disputes. Subject to the question whether s 166A
offends the constitutional prohibition
against acquisition other than on just
terms, it is validly enacted pursuant to s 51(xxxv) of the Constitution.
(x) Section 166 and the conciliation and arbitration power, the corporations
power, etc
248. As already indicated, s 166 provides that "(a)n action under a law of a
State or Territory does not lie against an organisation,
or an officer, member
or employee of an organisation, in relation to conduct of the organisation, or
of the officer, member or employee
acting in that capacity, that is in breach
of a bans clause (162) of an award" (163). The immunity which s 166 confers
is to be
considered in the context of s 178 of the Act. Pursuant to s 178,
the Industrial Relations Court may impose a penalty on an organisation
or
party bound by an award of the Commission for breach of a term of that award,
including breach of a bans clause (164).
249. There can be no doubt as to the Parliament's power to legislate as to
the legal consequences to attach to the breach of a term
of an award. And the
same is true of the terms of an agreement if, as here, Parliament has validly
enacted that it is to have effect
as an award. And if Parliament legislates
as to the legal consequences of a breach of a bans clause, it may specify,
either expressly
or by implication, that they are to be exclusive of those
that might otherwise attach under a law of a State or Territory.
250. In context, s 166 merely makes it plain that s 178 provides exhaustively
as to the consequences which attach to the breach
of a bans clause. It is a
valid exercise of the power with respect to conciliation and arbitration and,
so far as concerns enterprise
flexibility agreements, a valid exercise of the
powers which authorise the provisions of the Act in that regard.
(xi) Section 164 and the corporations power
251. The plaintiff States contend that s 164 is invalid, being a law for the
protection of trade unions and not a law which may
validly be enacted pursuant
to those powers which authorise the provisions of the Act proscribing
secondary boycotts. The Commonwealth
contends that it is validly enacted
pursuant to those powers and, also, pursuant to the power conferred by s
51(xxxv) of the Constitution. However, it will later emerge that
consideration of s 51(xxxv) is unnecessary.
252. To understand the operation of s 164, it is necessary to turn to the
provisions of Div 7 of Pt VI, particularly the prohibitions effected by ss 162
and 163 by reference to a "constitutional corporation". A "constitutional
corporation"
is specially defined in s 156 for the purposes of Div 7. In
general terms, the effect of that definition is that constitutional
corporations are foreign corporations, trading and financial corporations
formed within the Commonwealth (which together will be
referred to as "s
51(xx) corporations") and corporations formed in a Territory.
253. Subject to exceptions and qualifications which are not presently
relevant, s 162 prohibits a person from acting in concert
with another for the
purpose of advancing the interests of some person or trade union (which by
definition includes a State union
registered or recognised under State law
(165)) in relation to industrial matters (166), if their conduct hinders or
prevents a third
person from trading with a fourth person and the purpose and
likely effect of the conduct is to cause substantial loss or damage
to the
business of that fourth person, provided the third or the fourth person is a
constitutional corporation as defined in s 156
of the Act.
254. Again subject to exceptions and qualifications which are not presently
relevant, s 163 prohibits a person (referred to in s
163(1) and hereafter as
the "first person") from entering into an agreement with a trade union or a
member, officer or employee of
a trade union in order to prevent or settle an
industrial dispute between the first person and a third person if "the
substantial
immediate purpose of the agreement" is to prevent or hinder the
first person from continuing to trade with the third person (167)
or to
subject continued trading to a condition preventing or hindering the third
person from supplying goods or services to another
person, and the agreement
is likely to cause substantial loss or damage to the business of the third
person, provided that either
of the first or the third person is a
constitutional corporation as defined in s 156 of the Act.
255. Division 7 is given additional operation by ss 159, 160 and 161.
Section 159 provides:
"To the extent that a business is carried on by:
(a) the Commonwealth; or
(b) a body corporate established for a purpose of theCommonwealth by or under a law of the Commonwealth or a law of a Territory; or
(c) an incorporated company in which the Commonwealth, or abody corporate of a kind referred to in paragraph (b), has a controlling interest;
256. "In addition to its effect apart from this section, section 162 has the
effect that it would have if:
(a) any reference to conduct were a reference to conduct inthe course of, or in relation to, constitutional trade or commerce; and
(b) the reference in paragraph 162(2)(a) to trading were areference to trading by way of constitutional trade or commerce; and
(c) in subsection 162(3) the words 'if either the thirdperson or the fourth person is a constitutional corporation' were omitted."
"(a) trade or commerce between Australia and places outsideAustralia; or
(b) trade or commerce among the States; or
(c) trade or commerce within a Territory, between a Stateand a Territory or between 2 Territories; or
(d) the supply of goods or services to or by theCommonwealth or an authority or instrumentality of the Commonwealth".
257. Provision is made in s 163A for the notification of boycott disputes
(168) to the Commission, whereupon, by s 163B, the Commission
is to take
immediate steps to settle the dispute by conciliation. If the Commission
thinks it is not likely to be able to settle
the dispute or to stop the
boycott promptly, it must certify to that effect (s 163D). Thereupon,
proceedings may be instituted in
the Industrial Relations Court (s 163P). If
the requirements of s 163D(3) are satisfied, the Commission must certify to
that effect.
Proceedings can be commenced in the Industrial Relations Court
if the Commission decides that it would cause substantial injustice
if a party
who wishes to bring action were prevented from beginning that action, or if 72
hours have elapsed since the boycott contravention
(s 163D(3)). If
proceedings are commenced, the Industrial Relations Court may grant
restraining and mandatory injunctions (s 163G).
And by s 163H, "(a) person
who suffers loss or damage by boycott conduct may recover the amount of the
loss or damage by action
in (that) Court", provided the action is brought
within three years after the cause of action arose (169).
258. It is in this statutory setting that s 164 confers immunity from action
under a law of a State or Territory on trade unions,
their officers, members
and employees with respect to "boycott conduct" as defined by s 156 or, what
would be boycott conduct if
ss 162(7) and 163(4) and s 162A had not been
enacted (170). "(B)oycott conduct" is defined in s 156 to mean:
"conduct that constitutes or would constitute:
(a) a boycott contravention; or
(b) attempting to commit a boycott contravention; or
(c) aiding, abetting, counselling or procuring a person tocommit a boycott contravention; or
(d) inducing, or attempting to induce, a person (whether bythreats, promises or otherwise) to commit a boycott contravention; or
(e) being in any way, directly or indirectly, knowinglyconcerned in, or party to, the commission of a boycott contravention; or
(f) conspiring with others to commit a boycottcontravention".
259. Although the plaintiff States argue that s 164 is not supported by any
of the legislative powers authorising provisions proscribing
secondary
boycotts, it is convenient to consider the validity of s 164 by reference to s
51(xx) of the Constitution. In this regard, it is sufficient to note that it
is not in dispute that the powers of the Parliament to legislate as to
secondary
boycotts by and affecting "a body corporate that is incorporated in
a Territory" (171), a business of the kind specified in s 159,
and boycotts in
the course of or affecting constitutional trade and commerce, as defined in s
156, are no less extensive than the
power conferred by s 51(xx) to legislate
with respect to "(f)oreign corporations, and trading or financial corporations
formed within the limits of the Commonwealth".
260. The prohibitions effected by ss 162 and 163 each have a double aspect.
So far as a s 51(xx) corporation is concerned, s 162 operates to protect it
from conduct of a specified kind, the purpose and likely result of which is
substantial loss or damage to the business of the corporation. It is
convenient to refer to this as its primary operation. It also
operates, so
far as a s 51(xx) corporation is concerned, to protect it from specified
conduct which prevents or hinders it from trading with another. It is
convenient
to refer to this as its secondary operation.
261. The prohibition in s 163 also operates to protect a s 51(xx) corporation
from conduct of a specified kind, the purpose and likely result of which is
substantial loss or damage to the business
of the corporation. Again it is
convenient to refer to that operation as its primary operation. It also
operates to prevent a s 51(xx) corporation from entering into an agreement of
a specified kind with a trade union, its officers, members or employees if the
substantial
and immediate purpose of the agreement is to prevent or hinder the
corporation from trading with another (172). It is convenient
to refer to
this as the secondary operation of s 163.
262. It was held in Actors and Announcers Equity Association v Fontana Films
Pty Ltd, a case concerned with a provision operating
to much the same effect
as s 162 in its primary operation (173), that s 51(xx) of the Constitution
authorises a law forbidding conduct engaged in for the purpose of causing loss
or damage to a corporation to which that constitutional
provision relates
(174). If the Parliament chooses to forbid conduct of that kind, it may
validly proscribe some or all conduct
of that kind or, as with s 162 and s 163
(to the extent that they operate to that effect), conduct by particular bodies
or persons.
It may also validly legislate as to the consequences to attach to
that conduct and, in so doing, it may provide, either expressly
or by
implication, that those consequences shall be exclusive of the consequences
which might otherwise attach under a law of a State
or Territory.
263. Sections 162 and 163, in their application to conduct the purpose and
likely effect of which is to cause damage to the business
of a s 51(xx)
corporation, validly proscribe conduct by a trade union, its officers, members
and employees. Sections 163G and 163H validly enact
the consequences which
attach to that conduct. And s 164 validly provides that those consequences
are exclusive of the consequences
which might otherwise attach under a law of
a State or of a Territory.
264. In its secondary operation, s 162 proscribes conduct of a specified kind
that "hinders or prevents (a s 51(xx) corporation) from trading with (another
person)", if the purpose and likely effect of the conduct is to cause
substantial loss or
damage to the business of that other person. Although in
its secondary operation s 162 is not concerned to protect the business
of a s
51(xx) corporation from loss or damage, it nonetheless operates to "protect (a
s 51(xx) corporation) by prohibiting interference with (its) trading
activities", an operation which Mason J, in Fontana Films (175), considered
gave the provision there in question the character of a law with respect to a
s 51(xx) corporation.
265. There is no distinction, for the purposes of s 51(xx) of the
Constitution, between a law which operates to protect the business of a
corporation from loss or damage and one that operates to protect the
corporation
from interference with its trading activities. Each "protects the
subject of a power by operating directly on it" (176). Thus,
so far as
concerns a s 51(xx) corporation, s 162 is valid in its secondary operation. It
follows that, to that extent, ss 163G and 163H validly enact the consequences
to attach to conduct proscribed by s 162 in its secondary operation and s 164
is valid in its application to that conduct.
266. It remains to be considered whether s 164 is valid in its application to
conduct proscribed by s 163 in its secondary operation.
That conduct is the
entry into an agreement by a s 51(xx) corporation with a trade union, or a
member, officer or employee of a trade union, which prevents or hinders the
corporation from
continuing to trade with another person. In its statutory
setting, the prohibition is clearly a prohibition directed both to a s 51(xx)
corporation and a trade union, its members, officers and employees. So far as
the prohibition is directed to a corporation of that
kind, it operates
directly on a subject of the power conferred by s 51(xx). Moreover, it
operates with respect to its trading activities, which activities have been
described as constituting "the very heart
of the purpose for which the
corporation was formed" (177). The prohibition is, to that extent, clearly
authorised by s 51(xx) of the Constitution.
267. It follows from Re Dingjan; Ex parte Wagner (178) that not every
direction to a third party which relates to the business of
a s 51(xx)
corporation is a law with respect to a corporation of that kind. However, a
law which prevents third parties from entering into
agreements with a s 51(xx)
corporation for the purpose of preventing or hindering the corporation in its
trading activities is one so closely connected with
the regulation of the
corporation in the conduct of its trading activities as to be a law with
respect to a s 51(xx) corporation. That being so, it follows that, so far as
concerns a s 51(xx) corporation which has entered into an agreement with a
trade union, ss 163G and 163H are valid in their application to conduct
proscribed
by s 163 in its secondary operation and that s 164 validly enacts
that the consequences specified in ss 163G and 163H are exclusive
of the
consequences which might otherwise attach under a law of a State or of a
Territory.
268. As already indicated, it is not in issue that if Parliament may validly
legislate with respect to s 51(xx) corporations in terms of ss 162, 163, 163G,
163H and 164, it may validly legislate in the same terms for bodies corporate
formed
in a Territory, a business of the kind specified in s 159 and
constitutional trade and commerce, as defined in s 156. It follows
that s 164
is a valid exercise of the corporations power and those other powers which
support ss 162 and 163 in their operation beyond
s 51(xx) corporations. Thus,
as already indicated, it is unnecessary to consider whether, as contended for
the Commonwealth, s 164 is also
a valid law with respect to conciliation and
arbitration for the prevention and settlement of interstate industrial
disputes.
(xii) Conclusions with respect to ss 164, 166 and 166A
269. It remains to consider whether s 166A provides for the acquisition of
property other than on just terms. Subject to that consideration,
the
provisions in Div 8 of Pt VI are wholly valid.
(xiii) Division 4 of Pt VIB and ss 166A and 334A(7)(b) -
acquisition of property other than on just terms
270. As already indicated, ss 166A and 170PM(3) confer limited immunity from
suit with respect to industrial action and, also, in
the case of s 170PM(3),
with respect to lock-outs. It is unnecessary to repeat the limitations and
qualifications that attach to
the immunity thus conferred. It is, however,
necessary to note, as was conceded in argument, that ordinary principles of
interpretation
require that ss 166A and 170PM(3) be construed as operating
prospectively, and not as affecting accrued rights (179). This
notwithstanding,
the plaintiff States contend that ss 166A and 170PM(3) effect
an acquisition of property other than on just terms, contrary to s 51(xxxi) of
the Constitution.
271. It is well established that the guarantee effected by s 51(xxxi) of the
Constitution extends to protect against the acquisition, other than on just
terms, of "every species of valuable right and interest including
... choses
in action" (180). It has been held to prohibit the extinguishment of vested
causes of action (181). At least that is
so if the extinguishment results "in
a direct benefit or financial gain ... and the cause of action is one that
arises under the
general law" (182). However, it follows from the fact that
ss 166A and 170PM(3) operate only prospectively that they do not operate
to
extinguish vested causes of action.
272. Properly construed, ss 166A and 170PM(3) are concerned solely to provide
as to the future rights and liabilities of those involved
in or adversely
affected by lock-outs and industrial action. As such, they are concerned with
rights and interests in the abstract,
not with valuable rights and interests
as protected by s 51(xxxi) of the Constitution. There is no acquisition of
property involved in the modification or extinguishment of a right or interest
that has not yet accrued.
To put the contrary is to propose an acquisition of
something that does not exist. Thus, ss 166A and 170PM(3) do not infringe the
guarantee in s 51(xxxi).
273. The plaintiff States also argue that s 334A(7)(b) offends against s
51(xxxi) of the Constitution. As earlier indicated, an employer who has,
under s 334A(2), been convicted of dismissing an employee or otherwise
injuring or prejudicing
the employee in his or her employment "merely because
(he or she) has engaged, or is proposing to engage, in industrial action" may,
pursuant to s 334A(7)(b), be ordered to pay the employee compensation for loss
suffered in consequence.
274. The argument for the plaintiff States is that s 334A prevents an
employer from refusing to pay an employee for any period during
which he or
she refuses to perform duties for this involves injury to the employee in his
or her employment. According to the argument,
to award compensation for that
injury amounts to an acquisition of property because it would require the
employer to part with money
without having received consideration in the form
of services rendered. The argument proceeds without regard to the contractual
or award rights of an employee.
275. If, as is theoretically possible, an employee is entitled by contract or
by award to payment for a period during which he or
she is involved in
industrial action, the refusal of an employer to make payment clearly
constitutes "injury" within the ordinary
meaning of that word. And if
compensation were ordered in such circumstances, it would be compensation for
deprivation of the employee's
contractual or award rights and would not, in
any sense, involve the acquisition of property.
276. However, as a matter of ordinary language, a refusal to pay that which
there is no obligation to pay does not constitute injury.
And there is no
reason why "injury" in s 334A should be so construed. Once it is accepted, as
it must be, that s 334A does not
require a payment that is not otherwise
required, there is no basis for the argument that s 334A(7)(b) effects an
acquisition of
property other than on just terms.
(xiv) The provisions of Div 4 of Pt VIB and s 334A -
discrimination against the States
277. It was argued for the plaintiff States that the combined effect of the
definition of "protected action" in s 170PG and the
grant of immunity from
civil suit by s 170PM(3) is to discriminate against the States in two distinct
ways. First, it is said that
they operate to curtail or impair the ability of
the States "to control industrial action within the State" in that they cannot
"pass
or enforce legislation designed to prevent industrial action that is
substantially damaging the interests of (a) State and its people".
Then it is
said that they operate "to curtail or impair the capacity of a State to
function as a Government in respects which are
critical to the ability of the
State to exercise its constitutional powers".
278. The first argument is one that directs attention to the States as bodies
politic, not as employers. If their powers are in
any way curtailed, it is by
s 109 of the Constitution, not by the provisions of Div 4 of Pt VIB. The
first argument must be rejected. The second argument directs attention to the
States as employers. In this respect, ss 170PG
and 170PM do not, in terms,
distinguish between the States as employers and other employers. And the
plaintiff States do not point
to circumstances which result in the Act
operating upon them with different impact from the way in which it operates on
other employers.
Thus, the provisions of Div 4 of Pt VIB are valid unless
they offend the second element of the implied prohibition identified and
explained in Re Australian Education Union.
279. It is unlikely, but theoretically possible, that those employed at the
higher levels of government might participate in industrial
action in support
of claims by other State employees even though their own terms and conditions
cannot be the subject of an award
and, thus, cannot be the subject of a
certified agreement. But, subject to that consideration, the limited immunity
from civil suit
conferred by s 170PM(3), qualified, as it is, by the
Commission's power to take action resulting in the loss of that immunity, in
no way infringes any aspect of the second element of the prohibition
identified in Re Australian Education Union.
280. So far as concerns persons employed at the higher levels of government,
the reading down of s 6 of the Act has the result that
it does not confer
immunity for action by and against them. And s 334A of the Act is in no
different position from the provisions
of Div 3 of Pt VIA which proscribe
termination on specified grounds unconnected with the term of employment,
namely, by reason of
the reading down of s 6, it does not bind the States with
respect to those employed at the higher levels of government.
(xv) Conclusions with respect to Div 4 of Pt VIB and s 334A
281. The provisions of Div 4 of Pt VIB have valid operation according to
their terms, except that the reading down of s 6 has the
effect that s
170PM(3) does not apply to action which would otherwise be "protected action"
for the purpose of s 170PG by and against
those employed at the higher levels
of government. And, by reason of the reading down of s 6, s 334A is valid but
does not bind
the States with respect to those employed at the higher levels
of government.
Answers to Questions in the Case Stated
282. The questions in the case stated should be answered as follows:
Matter No M46 of 1994
(1) Are any of the following provisions of the IndustrialRelations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid-
(a) Division 1 of Part VIA;agreements;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 4 of Part VIB;
(g) section 334A;
(h) section 152 in its application to enterprise flexibility
(i) section 164;Answer: Yes. Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. See also the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170BC and 170BI, which are in Div 2 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; ss 170KA, 170KB and 170KC, which are in Div 5 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A. No answer is given with respect to the term "mental disability" in s 170DF(1)(f).
(j) section 166; and
(k) section 166A?
(2) Are any of the following provisions of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States -
(a) Division 1 of Part VIA;Answer: Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. The other provisions are valid. However, see the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A.
(b) Division 3 of Part VIA;
(c) Division 2 of Part VIB;
(d) Division 4 of Part VIB; and
(e) section 334A?
(3) Are the provisions of Division 1 of Part VIA of the Act,or any of them, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Victoria?
(4) If any such provision or provisions of the Act is or areinvalid, is it or are they severable and, if so, to what extent?
(5) Are any of the following provisions of the IndustrialRelations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid -
(a) Division 1 of Part VIA;agreements;
(b) Division 3 of Part VIA;
(c) Division 5 of Part VIA;
(d) Division 2 of Part VIB;
(e) Division 4 of Part VIB;
(f) section 334A;
(g) section 152 in its application to enterprise flexibility
(h) section 164;Answer: See the answer to Q 1.
(i) section 166; and
(j) section 166A?
(6) Are the provisions of Division 2 of Part VIB of the Act,or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
(7) Are any of the following provisions of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of South Australia in relation to persons employed to enable the State to continue to exist and function as such -
(a) Division 1 of Part VIA;Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid. The other provisions are valid, however see the answer to Q 4.
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA; and
(d) Division 5 of Part VIA?
(8) If any such provision or provisions of the Act is or areinvalid, is it or are they severable and, if so, to what extent?
(9) Are any of the following provisions of the IndustrialRelations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid -
(a) Division 1 of Part VIA;agreements;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB;
(h) section 3(g);
(i) section 150A;
(j) section 152 in its application to enterprise flexibility
(k) section 164;Answer: Division 3 of Pt VIB is valid. Section 3(g) is valid in all its operations save that, with respect to its operation with s 170DF(1)(f), no answer is provided as to the phrase "mental disability". As to s 150A, see the answer to Q 13. Otherwise, see the answer to Q 1.
(l) section 166;
(m) section 166A; and
(n) section 334A?
(10) Are the provisions of Division 1 of Part VIA of theAct, or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the State of Western Australia?
(11) Are the provisions of Division 2 of Part VIB of theAct, or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
(12) Are any of the following provisions of the Act, or anypart of such provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Western Australia in relation to persons employed to enable the State to continue to exist and function as such -
(a) Division 1 of Part VIA;Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid. All other provisions are valid. As to Qs 12(a), (b), (c), (d), (g) and (h), however, see the answer to Q 4.
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB; and
(h) section 334A?
(13) If any such provision or provisions of the Act is orare invalid, is it or are they severable and, if so, to what extent?
DAWSON J. In seeking to support the validity of those provisions of the Industrial Relations Act 1988 (Cth) which are challenged in these cases, the Commonwealth placed reliance upon its power to legislate under s 51(xxix) of the Constitution with respect to "External affairs". Those provisions, as the name of the Act would suggest, deal with industrial relations but in important respects travel beyond the limits which the Constitution imposes upon the power of the Commonwealth to legislate with respect to that subject-matter. Those limits confine Commonwealth power to the making of laws with respect to "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" (183). It is evident that the intention which lay behind the imposition of those limits was that the States should remain responsible for industrial relations within their borders except where, because of the interstate nature of a dispute, its prevention or settlement might be beyond the capacity of any one State. It was then, and only then, that the Commonwealth was to have power to prevent or settle the dispute, and then only by means of conciliation or arbitration.
2. For a long time the Commonwealth has found these restrictions on its power
irksome. Commencing in 1910 it has sought amendments
to the Constitution to
remove them (184). None of these amendments have received the majority of
votes required by s 128 for the amendment of the Constitution. The
Commonwealth made its last unsuccessful attempt at amendment in 1946, this
time by the insertion of the following paragraph
in s 51 of the Constitution
(185):
"(xxxivA) Terms and conditions of employment in industry,but not so as to authorise any form of industrial conscription".
3. Not only is it ironical, but the result is such as to call into question
the construction which produces it. It is one thing
to say that the
enumerated legislative powers given to the Commonwealth by s 51 may overlap.
It is quite another thing to say that the carefully drawn limits upon one
power may be disregarded in the construction
of another. Where those limits
are in the form of an exception to a power otherwise given - for example, the
exception of State
banking from the banking power (186) - they must surely be
given effect whatever paragraph of s 51 is under consideration (187). And
even where the limits are to be found in the definition of the subject-matter
of the power - as
is the case with s 51(xxxv) - they must surely be taken into
account in the construction of s 51 as a whole.
4. This is not to deny the plenary nature of the powers conferred by s 51,
but before a power can be given full effect, its proper scope must be
determined. For example, the power to legislate with respect
to corporations
under s 51(xx) is undoubtedly a plenary power, but that did not relieve the
Court of the task of construing its terms to ascertain its meaning (188).
And
if the injunction that the Court should lean towards a broader rather than a
narrower interpretation of the Constitution (189) means that it should abandon
the basic principle of construction that an instrument should be construed as
a whole, then I
respectfully dissent from its application in the present
context.
5. What then is the construction of the external affairs power which supports
legislation with respect to industrial matters which
are confined to Australia
and which are otherwise regarded by the Constitution as being of a domestic
nature and does so in a manner which disregards the limits imposed by s
51(xxxv) upon Commonwealth power with respect to such matters? It is a
construction which adopts the view that the legislative implementation
of an
international treaty (190) made in good faith is within the ambit of the
external affairs power. I have elsewhere expressed
my disagreement with that
view (191).
6. In Richardson v Forestry Commission (192) I observed that the mere fact
that a treaty is international in character does not
mean that the matters
with which it deals cease to be of a domestic nature and become part of a
country's external affairs. Just
as the fact that a contract is made over
State borders will not determine whether the subject-matter of the contract is
interstate
or intrastate trade, so the fact that an agreement is made
internationally will not determine whether its subject-matter is external
or
domestic in character. The view that legislation implementing a treaty is
necessarily legislation with respect to a subject-matter
falling within the
description of external affairs is a view that confuses the implementation of
the treaty with the subject-matter
of the treaty. No doubt the purpose, in
the sense of motive, of enacting the legislation is to implement the treaty
but that is
not to say that the resultant law is a law with respect to the
implementation of the treaty (193).
7. A law with respect to treaties or the implementation of treaties would
operate on treaties as a subject-matter. Thus it might
deal with the nature
of the obligations which could be undertaken by treaty or the manner in which
they were to be implemented -
for example, whether by regulation or statute.
Such a law would be a law with respect to external affairs because it would
operate
upon a matter which is external to Australia, namely, treaties with
other countries. But a law actually implementing a treaty is
a law with
respect to the subject-matter of the treaty and the nature of that
subject-matter is to be found "by reference to the
nature of the rights,
duties, powers and privileges which it changes, regulates or abolishes" (194).
It may or may not be with respect
to matters external to Australia. And, of
course, such a law may deal with matters both internal and external to
Australia, and
be a law with respect to external affairs. The view of the
external affairs power which I favour is not based on the incorrect assumption
that "affairs are either internal or external in the sense that the two
categories are mutually exclusive" (195). Indeed, in my opinion,
it is the
prevailing view which involves a characterisation fallacy. That fallacy is to
characterise a law which implements a treaty
as a law with respect to treaties
even though such a law does not operate upon treaties as a subject-matter.
8. To say that any matter covered by a bona fide international treaty is, by
its very inclusion in the treaty, brought within the
ambit of the external
affairs power is to say that the matters upon which there might be valid
Commonwealth legislation are limited
only by the capacity of the executive to
conclude a treaty upon them. Effectively, it means that it is for the
executive and not
the Court to determine the scope of the external affairs
power, for upon that view no distinction can be drawn in terms of
subject-matter
between what might be described as external affairs and what
might not. Yet that is a distinction which s 51(xxix) itself requires to be
drawn by the use of the term "External affairs".
9. To adopt the view that a matter must exhibit some characteristic other
than its inclusion in a treaty to fall within the external
affairs power is
not to adopt a restrictive interpretation of that power, nor is it to rely
upon implications drawn from the federal
nature of the Constitution. It is
simply to recognise and apply the distinction which is necessarily made by s
51(xxix) between those matters which are external affairs and those which are
not (196). True it is that such a distinction is also required
because
otherwise s 51(xxix) would have the capacity to obliterate the division of
power which is a necessary feature of any federal system and of our federal
system in particular (197). But it is a distinction which is expressly made
by the language used in s 51(xxix) and is not dependent upon implication.
10. In Koowarta v Bjelke-Petersen (198) Mason J said that to adopt any other
view than that the implementation of a bona fide treaty
falls within the
external affairs power would be unacceptable because it would
"leave the decision on whether Australia should comply withits international obligations in the hands of the individual States as well as the Commonwealth, for the Commonwealth would then lack sufficient legislative power to fully implement the treaty."
"The ramifications of such a fragmentation of thedecision-making process as it affects the assumption and implementation by Australia of its international obligations are altogether too disturbing to contemplate. Such a division of responsibility between the Commonwealth and each of the States would (be) a certain recipe for indecision and confusion, seriously weakening Australia's stance and standing in international affairs."
11. Nor is it any easier to understand why observance of the fundamental
federal principle of division of legislative power should,
in the context of
external affairs, seriously weaken "Australia's stance and standing in
international affairs". To adhere to such
a view is to ignore the experience
of other federal states. For example, since the decision in Attorney-General
(Canada) v Attorney-General
(Ontario) (202), Canada has used federal state
clauses in treaties to accommodate its federal requirements and has developed
co-operative
treaty-making mechanisms between the federal government and the
governments of the provinces (203). No doubt there have been times
when
Canada has been inconvenienced by the "watertight compartments which are an
essential part of her original structure" (204),
but convenience is hardly to
be weighed against the basic principle of federalism.
12. In any event, the Commonwealth Parliament, unlike the Canadian federal
legislature, has specific power to make laws with respect
to external affairs
and matters incidental thereto, in addition to its other enumerated powers
which may also be employed to implement
treaties. The external affairs power
is a broad power but for a law to fall within its terms, it must, in my view,
operate upon
something which is external to Australia. That is to give the
power no narrow construction. A glance at the many treaties entered
into by
Australia in recent years shows that laws implementing the vast majority of
them would deal with matters having an external
aspect sufficient to satisfy
such a test (205). But a law which has an entirely domestic operation cannot,
in my view, be a law
with respect to external affairs merely because it
implements a treaty or is upon a subject-matter which is of international
concern.
13. The only accepted limits upon the view that the legislative
implementation of an international treaty, whatever its subject-matter,
lies
within the external affairs power are the prohibitions, express and implied,
imposed by the Constitution and the requirement that the treaty be entered
into bona fide and not as a mere device to attract power. The prohibitions
are few
in number and are confined. The requirement of bona fides, as Gibbs
CJ said in Koowarta (206), is "at best ... a frail shield, and
available in
rare cases". It is not surprising, therefore, that in individual judgments
which accept the expansive view of the power,
efforts have been made to
confine it, lest its application should result in a complete distortion of the
division of legislative
power which s 51 otherwise effects. Those efforts
have been, in my view, unsuccessful.
14. In Koowarta Stephen J endeavoured to impose a requirement of
international concern. He spoke of the necessity to scrutinise
a treaty which
the legislature sought to implement and said (207):
"It will not be enough that the challenged law gives effectto treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive that scrutiny."
"(U)nless standards are broadly adhered to or are likely tobe broadly adhered to in international practice and unless those standards are expressed in terms which clearly state the expectation of the community of nations, the subject of those standards cannot be described as a true matter of international concern. It may be that there are few occasions when the external affairs power is enlivened by the existence of a matter of international concern without a corresponding obligation in international law, but whether the enlivening factor be an obligation or a concern it is necessary to define it with some precision in order to ascertain the scope of the power."
15. In The Tasmanian Dam Case (212) Deane J formulated a test for laws which
are reliant for validity upon the external affairs
power. He said that "the
law must be capable of being reasonably considered to be appropriate and
adapted to achieving what is said
to impress it with the character of a law
with respect to external affairs". With respect, I must confess that those
somewhat complicated
words mean no more to me than that, where a treaty is
relied upon, the law must give effect to the treaty. Where the terms of a
treaty are little more than exhortation or aspiration, as is not uncommon
nowadays, the requirement that a law give effect to the
treaty is hardly
confining. And, no doubt, as this case shows, the law may give effect to the
treaty partially or as a whole. But
the real reason why the requirement
represents no real limit upon the external affairs power is that the matters
which may be the
subject of a treaty are virtually unlimited.
16. However, Deane J regarded the external affairs power as purposive. In
The Tasmanian Dam Case he said (213):
"Implicit in the requirement that a law be capable of beingreasonably considered to be appropriate and adapted to achieving what is said to provide it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it."
17. Notwithstanding that I find nothing in the reasons of the majority in
these cases which causes me to doubt the views which I
have expressed above
and in previous cases, I nevertheless think that I should adhere to the course
which I adopted in Richardson.
There I said (215):
"Precedent must, however, have a part to play, even in theinterpretation of a constitution. Considerations of practicality make it necessary that the law should, as far as possible, take a consistent course. The constant re-examination of concluded questions is incompatible with that aim. That is why this Court has adopted the practice of requiring leave to be granted before it will allow a previous decision to be re-argued: Evda Nominees Pty Ltd v Victoria (216). The parties in the present case did not seek to question the decision in the Tasmanian Dam Case. In these circumstances, and having made my own view clear, it is, I think, proper to proceed upon the same basis as did the argument in this case and to assume the authority of that decision."
18. The comment which I wish to add is that, whilst I agree with the majority
that neither s 166A nor s 170PM(3) of the Industrial
Relations Act effects an
acquisition of property otherwise than on just terms contrary to s 51(xxxi) of
the Constitution, I adhere to the view which Toohey J and I expressed in
Mutual Pools and Staff Pty Ltd v The Commonwealth (217) that merely to
extinguish
a proprietary right is not to effect an acquisition of property. I
agree with the majority that there is no acquisition of property
involved in
the modification or extinguishment of a right or interest that has not yet
accrued, but I would go further and say that
there is no acquisition of
property by the Commonwealth in the modification or extinguishment of a right
or interest, whether accrued
or not, if the property in the right or interest
is not thereby transferred to the Commonwealth.
1 Section 6 of the Act provides:
"This Act binds the Crown in right of the Commonwealth, eachof the States, the Australian Capital Territory and the Northern Territory, but nothing in this Act renders the Crown in right of the Commonwealth, a State, the Australian Capital Territory or the Northern Territory liable to be prosecuted for an offence."
14 See Jolley v Mainka [1933] HCA 43; (1933) 49 CLR 242 at 287-288.
15 See the Preamble to the Treaty of Peace Act 1919 (Cth).
16 See as to the Mandate system, Ffrost v Stevenson [1937] HCA 41; (1937) 58 CLR 528 at
549-553, 578-586.
17 Starke, "The Commonwealth in International Affairs", in Else-Mitchell (ed),
Essays on the Australian Constitution, 2nd ed (1961) 343 at 349. See also New
South Wales v The Commonwealth [1975] HCA 58; (1975) 135 CLR 337 at 373. A more cautious
view is that
"at some time" between the Balfour Declaration in 1926 and 1945,
Australia
achieved full independence as a sovereign
state: Final
Report of the
Constitutional Commission, (1988), vol 1, par 2.128.
18 [1936] HCA 52; (1936) 55 CLR 608 at 643-644.
19 (1974) 131 CLR 477 at 498.
20 Pitt Cobbett, "The International Organization of Society", (1909) 6 The
Commonwealth Law Review 193 (Pt 1), 243 (Pt 2).
21 International Law, (1905), vol 1, para 578.
22 See Codding, "The International Telecommunications Union: 130 Years of
Telecommunications Regulation", (1995) 23 Denver Journal
of International Law
and Policy 501.
23 Oppenheim, International Law, (1905), vol 1, para 580.
24 The Treaty is reproduced in The Consolidated Treaty Series, vol 147 at 136
(French text). From 1874 to 1878 it was known as the
"Union Generale des
Postes".
25 Zines, "The Growth of Australian Nationhood and Its Effect on the Powers of
the Commonwealth", in Zines (ed), Commentaries on
the Australian Constitution,
(1977) 1 at 7.
26 Oppenheim, International Law, (1905), vol 1, para para 583, 584.
27 Stone, Legal Controls of International Conflict, (1954) at 77-81.
28 The title of the Convention was "The Convention for the Amelioration of the
Condition of the Wounded in Armies in the Field".
It is reproduced in The
Consolidated Treaty Series, vol 129 at 361 (French text).
29 The Consolidated Treaty Series, vol 173 at 293 (French text).
30 35 and 36 Vict c 19.
31 38 and 39 Vict c 51.
32 The Consolidated Treaty Series, vol 188 at 418 (French text).
33 The Consolidated Treaty Series, vol 153 at 247 (French text).
34 Oppenheim, International Law, (1905), vol 1, para 588.
35 Stewart, "Treaty-Making in the British Dominions", (1938) 32 American
Journal of International Law 467 at 473-477.
36 Certain exceptions or qualifications are identified and discussed by J G
Starke in "The High Court of Australia and the rule in
Walker v Baird (1892)
AC 491", (1974) 48 Australian Law Journal 368.
37 (1892) AC 491 at 492.
38 vol 6, "Constitutional Law" at 440-441.
39 [1948] HCA 37; (1948) 77 CLR 449 at 478; see also Brown v Lizars [1905] HCA 24; (1905) 2 CLR 837 at 851,
860; Bradley v The
Commonwealth [1973] HCA 34; (1973) 128 CLR 557
at 582; Simsek v Macphee
[1982] HCA 7; (1982) 148 CLR 636 at 641-642.
40 (1892) AC 491 at 497.
41 Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at
286-288, 298, 315.
42 [1974] HCA 20; (1974) 131 CLR 477 at 498-499. A similar conclusion was reached by Barwick
CJ (at 487-488), McTiernan and Menzies
JJ (at 491)
and
Jacobs J (at 505).
43 R v Sharkey [1949] HCA 46; (1949) 79 CLR 121 at 136-137.
44 R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 at 684-685; New South Wales v
The Commonwealth [1975] HCA 58; (1975)
135 CLR 337 at 360.
45 See fn 13.
46 [1906] HCA 56; (1906) 4 CLR 265 at 286.
47 Opinions of Attorneys-General of the Commonwealth of Australia, (1981), vol
1 at 134.
48 R v Burgess; Ex parte Henry [1936] HCA 52; (1936) 55 CLR 608 at 687.
49 [1936] HCA 52; (1936) 55 CLR 608 at 680-681; see to similar effect the comments of Wilson
J in Koowarta v Bjelke-Petersen [1982]
HCA 27; (1982)
153 CLR 168
at 248-249.
50 (1982) 153 CLR 168.
51 (1982) 153 CLR 168 at 216-217.
52 [1983] HCA 21; (1983) 158 CLR 1.
53 As to the distinction between these principles, see Re Tyler; Ex parte
Foley [1994] HCA 25; (1994) 181 CLR 18 at 37-38; cf as
to stare decisis
in constitutional law
decisions of the United States Supreme Court, Payne v Tennessee
[1991] USSC 131; (1991) 501 US
808 at 827-830,
842-844, 848-855;
Seminole Tribe of Florida v Florida (1996)
64 LW 4167 at 4172-4173.
54 [1991] HCA 32; (1991) 172 CLR 501.
55 [1991] HCA 32; (1991) 172 CLR 501 at 632.
56 [1991] HCA 32; (1991) 172 CLR 501 at 528-531.
57 [1991] HCA 32; (1991) 172 CLR 501 at 599-603.
58 (1991) 172 CLR 501 at 695-696.
59 [1991] HCA 32; (1991) 172 CLR 501 at 712-714.
60 R v Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297 at
314; Jumbunna Coal Mine NL v Victorian
Coal Miners'
Association (1908) 6 CLR
309 at 367-368.
61 [1983] HCA 21; (1983) 158 CLR 1 at 221.
62 Zines, The High Court and the Constitution, 3rd ed (1992) at 250 (emphasis
in original).
63 (1972) ICJ Rep 46 at 107n. Cited by Brennan J in The Tasmanian Dam Case
[1983] HCA 21; (1983) 158 CLR 1 at 226.
64 [1983] HCA 21; (1983) 158 CLR 1 at 261-262.
65 Airlines of NSW Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54 at 136;
The Tasmanian Dam Case
[1983] HCA 21; (1983) 158 CLR 1 at 130-131,
172, 232, 259; Richardson
v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261 at 288-289, 303,
311-312, 336, 342.
66 See the statements collected by Gaudron J in Richardson v Forestry
Commission [1988] HCA 10; (1988) 164 CLR 261 at 341-342.
67 [1994] HCA 44; (1994) 182 CLR 272 at 322.
68 [1988] HCA 10; (1988) 164 CLR 261 at 326.
69 Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312.
70 [1936] HCA 52; (1936) 55 CLR 608 at 688.
71 See The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 172, 233-234, 268; Chu Kheng
Lim v Minister for Immigration [1992]
HCA 64; (1992) 176 CLR 1 at
75.
72 [1936] HCA 52; (1936) 55 CLR 608 at 688.
73 [1983] HCA 21; (1983) 158 CLR 1 at 234.
74 [1983] HCA 21; (1983) 158 CLR 1 at 268.
75 The Consolidated Treaty Series, vol 225 at 373.
76 International Labour Organisation Act 1947 (Cth). The changes to the
Constitution of the ILO made in the inter-war period were designed to
dissociate the ILO from the Treaty of Versailles and from the League of
Nations: see Starke, "Australia and the International Labour Organisation",
in O'Connell (ed), International Law in Australia, (1965)
at 115-140.
77 Section 170AH(1) provides:
"Because of this section, this Division has the effect itwould have if section 170AA were repealed. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section."
(i) extending beyond the limits of any one State; and(ii) that is about matters pertaining to the relationship between employers and employees; or
86 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 232.
87 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 233.
88 Note that by s 4(1) "award" is defined as:
"(a) an award or order that has been reduced to writing under subsection
143(1); or
(b) a certified agreement; or
(c) an enterprise flexibility agreement".
89 "State arbitrator" is defined to mean "a State industrial authority that
has the power, or powers including the power, to set
minimum wages by
compulsory arbitration".
90 "State employment agreement" is defined to mean:
"an agreement that:
(a) was entered into under a State law; and
(b) sets minimum wages that, if the agreement had not been entered into, could
have been set by a State arbitrator by compulsory
arbitration; and
(c) prevails over any inconsistent order, award, decision or determination of
a State industrial authority; and
(d) during a particular period, but only during that period, prevents those
minimum wages from being set or adjusted by a State arbitrator
by compulsory
arbitration".
91 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 240, referring to
Queensland Electricity Commission v The
Commonwealth [1985] HCA 56; (1985)
159 CLR 192 at
249-250 per Deane J.
92 See Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 239-240.
93 Note it also provides that nothing in the Act renders the Crown in right of
the Commonwealth, the States or the Territories liable
to be prosecuted for an
offence. See fn 1.
94 [1995] HCA 71; (1995) 184 CLR 188.
95 [1947] HCA 26; (1947) 74 CLR 31.
96 Section 7A(1) provides:
"Unless the contrary intention appears, if a provision ofthis Act:
(a) would, apart from this section, have an invalid application; butit is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application."
(b) also has at least one valid application;
99 Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108 per Latham CJ. See also R v
Commonwealth Court of Conciliation and
Arbitration; Ex
parte Whybrow and Co
[1910] HCA 33; (1910) 11 CLR 1 at 54; Vacuum Oil Co Pty Ltd v Queensland (No 2) [1935] HCA
9; (1935) 51 CLR
677 at 692; Bank of NSW v The
Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 369-371; Re
Dingjan; Ex parte Wagner
[1995] HCA 16; (1995) 183 CLR 323 at 348.
100 Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 108 per Latham CJ. See also R v
Commonwealth Court of Conciliation and
Arbitration; Ex
parte Whybrow and Co
(1910) 11 CLR 1 at 54; Cam and Sons Pty Ltd v The Chief Secretary of New South
Wales [1951] HCA 59; (1951) 84 CLR 442 at 454;
Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971)
124 CLR 468.
101 Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 111 per Latham CJ.
102 Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 111 per Latham CJ.
103 See Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 at 519-520.
104 Pidoto v Victoria [1943] HCA 37; (1943) 68 CLR 87 at 109 per Latham CJ. See also
Strickland v Rocla Concrete Pipes Ltd [1971]
HCA 40; (1971) 124 CLR 468 at
518-519.
105 [1983] HCA 21; (1983) 158 CLR 1 at 130-131, 172, 232, 259-260.
106 The Commonwealth Employment Service is established pursuant to Pt VI (ss
48-50) of the Employment, Education and Training Act
1988 (Cth).
107 The Victorian written submissions at par 29 refer to a s 170DA(1)(f) which
does not exist. From the reference to the subject-matter
of the challenged
section, we have assumed that it should refer to s 170EDA(1)(b).
108 See the authorities collected in fn 65.
109 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 232.
110 Re Australian Education Union (1995) 184 CLR 188 at 232.
111 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 232.
112 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 232.
113 Re Australian Education Union [1995] HCA 71; (1995) 184 CLR 188 at 232.
114 See the authorities in fn 71.
115 Pursuant to s 150A(1), the Commission must review its awards as follows:
"(a) if the award was in force at the commencement of this section - within 3
years after that commencement; and
(b) otherwise - within 3 years after the award was made; and
(c) in any case - within 3 years after the award was last reviewed for those
purposes".
116 Certified and enterprise flexibility agreements are the subject of
separate consideration in this judgment.
117 An employer may terminate on the grounds set out in s 170DF(1)(f) if the
reason for termination is based on the inherent requirements
of the position
(sub-s (2)) or if the person is an employee of a religious institution, or an
institution of a particular creed,
and the employer, in good faith, terminates
the employment to protect the religious susceptibilities of adherents to that
religion
or creed (sub-s (3)).
118 Industrial Relations Regulations, reg 26A(3) and (4).
119 See Re Federated Storemen and Packers Union of Australia; Ex parte
Wooldumpers (Vic) Ltd [1989] HCA 10; (1989) 166 CLR 311 at
317-318, 334.
120 See Re Federated Storemen and Packers Union of Australia; Ex parte
Wooldumpers (Vic) Ltd [1989] HCA 10; (1989) 166 CLR 311 at
317 per Mason
CJ. See also at 334
per Gaudron J and the cases there cited.
121 As to which, see, for example, R v Metal Trades Employers Association; Ex
parte Amalgamated Engineering Union
[1949] HCA 17; (1949) 78 CLR 366
at 372; R v Kelly; Ex
parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461 at 473-475, 482; R v Holmes;
Ex parte Victorian Employers'
Federation [1980] HCA 37; (1980) 145 CLR 68 at 76 per Mason J;
Re State Public Services Federation;
Ex parte Attorney-General (WA) (1993) 178
CLR
249 at 291-292, 305-307.
122 See, for example, Australian Insurance Staffs' Federation v Atlas
Assurance Co Ltd [1931] HCA 35; (1931) 45 CLR 409; R v Metal
Trades Employers
Association; Ex
parte Amalgamated Engineering Union [1949] HCA 17; (1949) 78 CLR 366; R v Kelly; Ex parte
Australian
Railways Union [1953] HCA 96; (1953) 89 CLR
461; R v Clarkson; Ex parte General
Motors-Holden's Pty Ltd [1976] HCA 8; (1976) 134
CLR 56.
123 See, for example, R v Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89
CLR 461 which refers to s 49 of the
Conciliation and
Arbitration Act 1904-1952
(Cth).
124 Human Rights and Equal Opportunity Commission Regulations, SR 1989 No
407.
125 See the Report submitted by Australia to the ILO pursuant to Art 22 of the
Constitution of the ILO on measures taken to give effect to the Convention
during the period 30 June 1988 to 30 June 1990.
126 National Committee on Discrimination in Employment and Occupation, Twelfth
Annual Report 1984-85, Appendix 4 at 36, function
(iii).
127 National Committee on Discrimination in Employment and Occupation, Twelfth
Annual Report 1984-85, Appendix 4 at 37.
128 National Committee on Discrimination in Employment and Occupation, Twelfth
Annual Report 1984-85. Appendix 6 at 50 defines "physical
disability" as "an
incapacity caused by injury, disease or other causes".
129 See Human Rights and Equal Opportunity Commission, Annual Report 1989-90,
at 27-29.
130 However, the ground of "medical record" recognised by the Committees was
defined to refer to "a record of a person's mental or
physical complaints,
past and present": National Committee on Discrimination in Employment and
Occupation, Twelfth Annual Report
1984-85, Appendix 6 at 49.
131 Section 4(1) of the Act defines "Commonwealth authority" to mean:
"(a) a body corporate established for a public purpose by or under a law of
the Commonwealth or the Australian Capital Territory;
or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory;
and
(ii) in which the Commonwealth has a controlling interest;other than a prescribed body".
(b) a demarcation dispute of the kind referred to in that definition".134 Section 170MD(5A) states that the Commission should disregard provisions which discriminate on the basis that an employee has not reached a certain age in any determination it makes prior to 22 June 1997. Section 170MD(6) provides that s 170MD(5) does not apply where provisions discriminate as a result of: (a) the inherent requirements of the job; or (b) where the provision deals with staff of an institution conducted in accordance with the doctrines of a particular religion or creed, an attempt to avoid injury, in good faith, to the susceptibilities of adherents to that religion or creed.
141 See s 111(1)(g) of the Act.
142 As to the conditional nature of such agreements, see Australian
Agricultural Co v Federated Engine-Drivers and Firemen's Association
of
Australasia [1913] HCA 41; (1913) 17 CLR 261.
143 See part (i) of this section of these reasons for judgment headed
"Legislative provisions".
144 See Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 108-109; Australian
Coastal Shipping Commission v O'Reilly
[1962] HCA 8; (1962) 107
CLR 46 at 56-57; Botany
Municipal Council v Federal Airports Authority [1992] HCA 52; (1992) 175 CLR 453
at 465;
Western Australia v The Commonwealth
[1995] HCA 47; (1995) 183 CLR 373 at 465-466.
145 See Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529 at 547-549; R v
Credit Tribunal; Ex parte General Motors
Acceptance
Corporation (1977) 137 CLR
545 at 562-564; Metal Trades Industry Association v Amalgamated Metal Workers'
and Shipwrights' Union
[1983] HCA 28; (1983) 152 CLR 632 at 648-649.
146 Reproduced as Schedules to the International Labour Organisation Act 1947
(Cth) and the International Labour Organisation Act 1973 (Cth).
147 Notice - s 170PH; negotiation - s 170PI; authorisation - s 170PK;
certification of agreement - s 170PL.
148 There is no offence by the employer if the conduct of the employee results
in personal injury, wilful or reckless damage or misappropriation
of property
(s 334A(3)).
149 Asylum Case (1950) ICJ Rep 266 at 276-277; North Sea Continental Shelf
Cases (1969) ICJ Rep 1 at 43.
150 Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501 at 560; Brownlie,
Principles of Public International Law,
4th ed (1990) at
7; Brierly, The Law
of Nations, 6th
ed (1963) at 61.
151 See Thiel v Federal Commissioner of Taxation [1990] HCA 37; (1990) 171 CLR 338 at 349,
356-357.
152 It might be contended that Art 4 of the Right to Organise and Collective
Bargaining Convention 1949 supports the lock-out provisions.
However that
relates to measures "to encourage and promote the full development and
utilisation of machinery for voluntary negotiation".
The provisions
protecting lock-outs do encourage the use of voluntary negotiation to reach a
collective agreement. But it is not
clear whether the reference to
"machinery" is designed to mean institutional machinery such as the Commission
or to cover negotiation
outside such state-endorsed organisations. Only if
the latter were included in the notion of "machinery" could the Article be
relevant.
In any event, the Article is not relied upon by the Commonwealth.
153 See part (i) of this section of these reasons for judgment headed
"Immunity from civil liability - Pt VIB, Div 4, ss 170PA-170PP;
Non-dismissal
- s 334A".
154 The bargaining period ends when either: (a) an agreement is reached; (b)
one of the parties states that it will be unable to
reach agreement; or (c)
the Commission terminates the bargaining period (s 170PN). The Commission may
also suspend the bargaining
period (s 170PO).
155 See also s 170PG(2) and (3).
156 Federated Iron Workers' Association of Australia v The Commonwealth [1951] HCA 71; (1951)
84 CLR 265 at 277. See also R v Bowen;
Ex parte Amalgamated
Metal Workers and
Shipwrights Union [1980] HCA 42; (1980) 144 CLR 462 at 468-469.
157 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ,
87 per Dawson J, 93-94 per Gaudron J;
British Medical
Association v The
Commonwealth [1949] HCA 44; (1949) 79 CLR 201 at 274 per Dixon J. See also Attorney-General
(WA)
v Australian National Airlines
Commission (1976) 138 CLR 492 at 515;
Alexandra Private Geriatric Hospital Pty Ltd
v The Commonwealth [1987] HCA 6; (1987) 162 CLR
271 at 281.
158 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ,
93-94 per Gaudron J. See also R v Sweeney;
Ex parte
Northwest Exports Pty Ltd
[1981] HCA 22; (1981) 147 CLR 259 at 275.
159 See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6
CLR 309 at 345.
160 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 28-29 per Mason CJ,
104 per McHugh J.
161 Section 4(1) of the Act defines "trade union" to mean:
"(a) an organisation of employees;
(b) an association of employees that is registered or recognised as a trade
union (however described) under the law of a State or
Territory; or
(c) an association of employees a principal purpose of which is the protection
and promotion of the employees' interests in matters
concerning their
employment".
162 "(B)ans clause" is defined in s 4(1) of the Act to mean "a term of an
award (however expressed) to the effect that engaging in
conduct that would
hinder, prevent or discourage:
(a) the observance of the award;
(b) the performance of work in accordance with the award; or
(c) the acceptance of, or offering for, work in accordance with the award;
is, to any extent, prohibited, but does not include such a term if it
constitutes or forms part of procedures specified in the award
for preventing
and settling disputes between parties to the award".
163 Note the definition of "award" in s 4(1) includes a certified agreement
and an enterprise flexibility agreement.
164 Note that pursuant to s 182 of the Act proceedings may not be commenced
for breach of a bans clause unless a Presidential Member
of the Commission has
issued a certificate under Div 2 of Pt VIII of the Act in relation to the
breach.
165 See the definition of "trade union" in s 4(1) of the Act, extracted at fn
161.
166 The definitions of "industrial dispute" and "industrial matter" which
apply to ss 162 and 163 may be found in s 156: "'industrial
dispute' means an
industrial dispute within the meaning of paragraph 51(xxxv) of the
Constitution, whether or not it extends beyond the limits of a State";
"'industrial matter' means a matter that is, or could be, the subject of
an
industrial dispute".
167 Note that by s 163(2)(a), the first person must be "accustomed, or under
an obligation, to trade with (that) third person".
168 The definition of "boycott dispute" in s 156 is "a dispute:
(a) that relates to a boycott contravention or a threatened, impending or
probable boycott contravention; and
(b) in relation to which either of the following applies:
(i) the dispute relates, or may relate, to work done or to be done under an
award;
(ii) the dispute involves an organisation of employees or a member, officer or
employee of such an organisation".
169 Note that, by s 163P, the Industrial Relations Court has no jurisdiction
to grant an injunction or award damages unless the Commission
has certified in
accordance with s 163D.
170 Note that the immunity is subject to the exceptions set out in s 164(2)
and (3), being the same exceptions set out in s 170PM(3)
and (4).
171 See par (d) of the definition of "constitutional corporation" in s 156.
172 Note that, by s 163(2)(a), the corporation must be "accustomed, or under
an obligation to trade with (that other) person".
173 See s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth).
174 [1982] HCA 23; (1982) 150 CLR 169 at 184-185 per Gibbs CJ, 194 per Stephen J, 201 per
Mason J (Aickin J agreeing at 215), 212
per Murphy J,
215
per Wilson J, 222
per Brennan J.
175 [1982] HCA 23; (1982) 150 CLR 169 at 206. See, more generally, at 183 per Gibbs CJ, 212
per Murphy J, 222 per Brennan J; R
v Federal Court
of
Australia; Ex parte WA
National Football League [1979] HCA 6; (1979) 143 CLR 190 at 239 per Murphy J.
176 Actors and Announcers Equity Association v Fontana Films Pty Ltd [1982] HCA 23; (1982)
150 CLR 169 at 207 per Mason J.
177 Strickland v Rocla Concrete Pipes Ltd [1971] HCA 40; (1971) 124 CLR 468 at 489 per
Barwick CJ. See also Trade Practices Commission
v Tooth
and Co Ltd [1979] HCA 47; (1979) 142
CLR 397 at 433 per Mason J; Actors and Announcers Equity Association v Fontana
Films
Pty Ltd (1982) 150 CLR
169 at 205 per Mason J.
178 [1995] HCA 16; (1995) 183 CLR 323.
179 See, for example, Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 at 267; Fisher v
Hebburn Ltd [1960] HCA 80; (1960) 105 CLR
188 at 194; General Motors-Holden's
Pty Ltd v
Staska [1969] HCA 13; (1969) 119 CLR 301 at 315; Staska v General Motors-Holden's
Pty Ltd
[1972] UKPCHCA 1; (1972) 123 CLR 673 at 675.
180 Minister of State for the Army v Dalziel [1944] HCA 4; (1944) 68 CLR 261 at 290. See
also Bank of NSW v The Commonwealth [1948]
HCA 7; (1948) 76 CLR 1 at
299, 349; Australian
Tape Manufacturers Association Ltd v The Commonwealth [1993] HCA 10; (1993) 176
CLR 480 at
509; Mutual Pools and Staff Pty
Ltd v The Commonwealth [1994] HCA 9; (1994) 179 CLR 155 at
172, 176, 184, 194, 201, 222.
181 Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994)
179 CLR 297.
182 Georgiadis v Australian and Overseas Telecommunications Corporation [1994] HCA 6; (1994)
179 CLR 297 at 305.
183 Constitution, s 51(xxxv).
184 See Constitution Alteration (Legislative Powers) 1910; Constitution
Alteration (Industrial Matters) 1912; Constitution Alteration (Railway
Disputes) 1912; Constitution Alteration (Legislative Powers) 1919;
Constitution Alteration (Industry and Commerce) 1926; Constitution Alteration
(Industrial Employment) 1946.
185 See Constitution Alteration (Industrial Employment) 1946.
186 Constitution, s 51(xiii).
187 See Attorney-General (Cth) v Schmidt [1961] HCA 21; (1961) 105 CLR 361 at 371-372 per
Dixon CJ.
188 See New South Wales v The Commonwealth (The Incorporation Case) (1990) 169
CLR 482.
189 See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6
CLR 309 at 367-368.
190 For present purposes, I include a convention or recommendation within the
term "treaty".
191 See The Commonwealth v Tasmania (The Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1
at 303; Richardson v Forestry Commission
[1988] HCA 10; (1988) 164
CLR 261 at 321;
Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 632.
192 [1988] HCA 10; (1988) 164 CLR 261 at 321.
193 cf Australian Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 273
per Kitto J.
194 See Fairfax v Federal Commissioner of Taxation [1965] HCA 64; (1965) 114 CLR 1 at 7 per
Kitto J.
195 See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 226 per Mason J.
196 That the specification of a power presupposes something not specified was
recognised in Gibbons v Ogden [1824] USSC 18; (1824) 22 US 1 at 85
and recently reaffirmed by
the United States Supreme Court in United States v Lopez [1995] USSC 42; (1995) 131 L Ed 2d
626.
197 See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR
254 at 267.
198 (1982) 153 CLR 168 at 225.
199 [1995] USSC 42; (1995) 131 L Ed 2d 626.
200 [1995] USSC 42; (1995) 131 L Ed 2d 626 at 643.
201 [1995] USSC 42; (1995) 131 L Ed 2d 626 at 648-649, quoting Coleman v Thompson [1991] USSC 129; (1991) 501
US 722 at 759.
202 (1937) AC 326.
203 See Rayfuse, "Treaty Practice: The Canadian Perspective" in Alston and
Chiam (eds), Treaty-Making and Australia: Globalisation
versus Sovereignty?
(1995) 253.
204 See Attorney-General (Canada) v Attorney-General (Ontario) (1937) AC 326
at 354.
205 For example, to name but a few subjects, Australia is a party to treaties
dealing with extradition, the law of the sea, marine
pollution, the
exploration for and exploitation of petroleum resources in areas of the
continental shelf, air navigation, atmospheric
pollution, diplomatic
representation, international telecommunications, international child
abduction, drug trafficking, conservation
of migratory animals, smuggling of
endangered species, and international trade.
206 (1982) 153 CLR 168 at 200.
207 (1982) 153 CLR 168 at 216-217.
208 See The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 131-132 per Mason J;
171-172 per Murphy J.
209 See The Tasmanian Dam Case [1983] HCA 21; (1983) 158 CLR 1 at 219.
210 [1991] HCA 32; (1991) 172 CLR 501 at 561-562.
211 [1983] HCA 21; (1983) 158 CLR 1 at 222.
212 [1983] HCA 21; (1983) 158 CLR 1 at 259.
213 [1983] HCA 21; (1983) 158 CLR 1 at 260. See also Richardson [1988] HCA 10; (1988) 164 CLR 261 at 308.
214 (1988) 164 CLR 261 at 325-326.
215 [1988] HCA 10; (1988) 164 CLR 261 at 322. See also O'Toole v Charles David Pty Ltd
[1991] HCA 14; (1991) 171 CLR 232 at 267
per Brennan J.
216 [1984] HCA 18; (1984) 154 CLR 311.
217 [1994] HCA 9; (1994) 179 CLR 155 at 195-199.
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