Community and Public Sector Union & Ors v Commonwealth of Australia

[1995] HCATrans 198

TRANSCRIPT
OF PROCEEDINGS
AUSCRIPT
Victoria
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451 Little Bourke St
Melbourne VIC 3000
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Melbourne VIC 3001
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  O/N 1846  3.7.95
  A  4.7.95

IN THE HIGH COURT OF AUSTRALIA

MELBOURNE OFFICE OF THE REGISTRY

No. M36 of 1995

BETWEEN:COMMUNITY AND PUBLIC SECTOR UNION

STEPHEN MOSS and DENNIS YOUNG

Plaintiffs

- and -

COMMONWEALTH OF AUSTRALIA AND THE

MINISTER FOR PRIMARY INDUSTRIES AND ENERGY

Defendants

DAWSON J (In Chambers)

AT MELBOURNE, FRIDAY THE 30TH DAY OF JUNE 1995

Continued from 27.6.95

HIS HONOUR: The first defendant, the Commonwealth of Australia, has made or proposes to make offers of employment to certain members of the public service in various States. Those persons to whom the offers have been or are to be made perform quarantine services within the public service of a State but do so under Commonwealth legislation, namely the Quarantine Act 1908 (Cth) and the Export Control Act 1982 (Cth). They are authorised officers under those Acts. There are no quarantine departments in the various States but the officers concerned perform identifiable quarantine functions within larger State departments such as a Department of Agriculture. The Commonwealth reimburses the States for the cost of the performance of these functions.

In this action the plaintiffs claim that the making of the offers and the acceptance of them constitute, or will constitute, the transfer of departments of quarantine from the States to the Commonwealth. For this reason they say the transfer may only be made pursuant to s.69 of the Constitution. That section provides:

On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: 

Posts, telegraphs and telephones:

Naval and military defence:

Lighthouses, lightships, beacons and buoys:

Quarantine.

But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

The plaintiffs claim that in any event the provisions of s.84 of the Constitution apply to any person who joins the public service of the Commonwealth as a result of accepting one of the offers referred to. Section 84 so far as is relevant provides:

When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth.   ...

Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights ...

The plaintiffs complain that the offers in question are for employment upon terms and conditions which in a number of respects are less favourable than those upon which the officers are employed in a State public service.  A deadline has been set for the acceptance of some of the offers which have already been made. 

The plaintiffs seek an interlocutory order that the defendants be restrained pending the trial of the action from giving effect to or acting upon the offers of employment made by or on behalf of the defendants to persons who are carrying out quarantine services for the Commonwealth as members of the public service of a State unless the terms and conditions of the employment of the persons accepting employment by the Commonwealth are equivalent to or no less than the terms and conditions of employment which they enjoy as State public servants.

There are immediate difficulties in the way of the case which the plaintiffs seek to make. Both ss.69 and 84 appear to be directed to the compulsory transfer of departments from the States to the Commonwealth, the transfer of individual public servants being a consequence not dependent upon the exercise of any choice by them. This construction is supported by s.85 of the Constitution which provides that when any department of the public service of a State is transferred to the Commonwealth all property of the State of any kind used exclusively in connexion with the department shall become vested in the Commonwealth.

Clearly the purpose of s.69 and s.85 was to make available to the Commonwealth upon an immediate basis the apparatus of government which the States possessed at federation, but the Commonwealth did not, in those areas in which the Commonwealth was required to, or might be expected to, assume responsibility. In the case of quarantine, notwithstanding the legislative power conferred upon the Commonwealth by s.52(ix) of the Constitution with respect to that subject matter, the Commonwealth chose not to avail itself of s.69 and s.85 but to allow quarantine functions to be performed by State public servants, albeit under Commonwealth legislation.

Even assuming that a department of quarantine might be identified within each State public service, there is at least a strong argument that even the acceptance of all the offers in question by the persons performing quarantine functions, voluntarily and upon an individual basis, would not constitute the transfer of those departments and so bring into play ss.69, 84 and 85. But there is no evidence that all the persons concerned will accept the offers; indeed the evidence is to the contrary. However, I do not think that in this case I am required to determine whether the difficulties confronting the plaintiffs are such that there is no serious question to be tried, see Australian Coarse Grains Pool Pty Limited v Barley Marketing Board of Queensland (1982) 57 ALJR 425; Tableland Peanuts Pty Limited v Peanut Marketing Board (1984) 58 ALJR 283 at page 284; Castlemaine Tooheys Limited v South Australia (1986) 161 CLR 148 at page 153.

Even if there is a serious question to be tried, the balance of convenience remains to be considered in determining whether to grant interlocutory relief and I have reached a clear view that the balance lies against doing so. If in accordance with the plaintiffs' submissions, the acceptance of the offers which are made or are to be made, would constitute the transfer of State departments of quarantine within the meaning of the relevant sections of the Constitution, then the rights which would accrue under s.84 to the officers transferred would be constitutional rights which would not be subject to variation by any legislative or executive action on the part of the Commonwealth. See Flint v The Commonwealth (1932) 46 CLR 274 at page 278.

The plaintiffs suggest that the acceptance of the offers may constitute a waiver of any rights under s.84 but it is unnecessary to pursue that question in view of an undertaking which the Commonwealth is prepared to give. That undertaking is that it will not treat the acceptance by an officer who on 23 June 1995 was carrying out quarantine services for the Commonwealth as a member of the Public Service of one of the States concerned as an offer to carry out such services as a member of the Public Service of the Commonwealth or any offer to similar or like effect as constituting a waiver of or in any other way prejudicing such rights, if any, as the officer may have by reason of s.69 and s.84 of the Constitution.

Now, Mr Tracey, you are prepared to give that undertaking?

MR TRACEY:   Yes, I have those instructions, your Honour.

HIS HONOUR:   That undertaking being given, the balance of convenience is clearly in favour of refusing interlocutory relief and, accordingly, the summons seeking that relief should be dismissed.  I dismiss the summons.

MR MERKEL:   Your Honour, can I just indicate that we have had discussions between the parties on the further progress of the matter.

HIS HONOUR:   Yes.

MR MERKEL:   And it seems to be common ground that there are no factual issues that arise and be determinative, so we will be working on case stated which will be, when formed, asking your Honour to refer questions under a case stated to the full court.

HIS HONOUR:   Yes.

MR TRACEY:   Your Honour, we would make an application for the costs of the summons.

HIS HONOUR:   What do you say as to that, Mr Merkel?

MR MERKEL:   We would oppose that, your Honour.  We would say that the costs should either be costs in the cause or reserved.  The Minister was asked for an undertaking immediately prior to the action, in effect, to hold the status quo so that the parties could somehow arrive at a compromise position where no one would be prejudiced.  In fact in the running before your Honour, the undertaking was given, and we say that - - -

HIS HONOUR:   Yes, well, I will hear Mr Tracey.

MR MERKEL:   Thank you, your Honour.

HIS HONOUR:   What do you say, Mr Tracey?  Mr Tracey, do you have anything to say to that?

MR TRACEY:   Nothing in reply, your Honour.

HIS HONOUR:   Costs will be reserved.  I certify.

AT 10.29 AM THE MATTER WAS ADJOURNED
INDEFINITELY