Jones v The Commonwealth Court of Conciliation and Arbitration

[1917] UKPCHCA 1

National

Ainvayi V

Common­

wealth (No2)

(1946)71

CLRllS

396 HIGH COURT [1917.

[PRIVY COUNCIL.]

JONES AND OTHERS . . .

A ppellants ;

THE COMMONWEALTH COURT OF CONA

CILIATION AND ARBITRATION AND I

R e spo n d e n t s ;

O T H E R S .....................................................

THE ATTORNEY-GENERAL FOR THE COM-1

MONWEALTH AND THE ATTORNEY- I n terveners .

GENERAL FOR NEW SOUTH WALES^

ON APPEAL FROM THE FIIGH COURT.

PRIVifPrivy Council—Jurisdiction— Appeal from High Court— Decision upon question as

Co u n c il .*to limits inter sc of constitutional powers oj Commonwealth and States—Dispute

1917.                 extending beyond the limits of one State— Jurisdiction of Commonwealth Court of Conciliation and Arbitration— The Cotistitution (63 & 64 Viet. c. 12),

M ay

8.

secs. 51 (xxxv.), 74.

A decision by t he High Court that a particular dispute was a dispute extend­ ing beyond the limits of one State and that in respect of it the President oi the Commonwealth Court of Conciliation and Arbitration had, under legislation of the Commonwealth passed pursuant to their constitutional powers, juiis- diction to make an award, is a decision upon a question as to the limits inter se of the constitutional powers of the Commonwealth and those of the States, and, therefore, under sec. 74 of the Constitution the Pi’ivy Council has no jurisdiction to entertain an appeal from such a decision in the absence of a certificate by the High Court pursuant to that section.

Appeal from the decision of the High Court : The Builders' Labourers' Case, 18 C.L.R., 224, dismissed as incompetent.

A p p e a l from the High Court.

This was an appeal to the Privy Council by G. P. Jones and others from the decision of the High Court: The Builders' Labourers’ Case (1).

* Present^—Earl Loreburn, Viscount Haldane, Lord Atkinson, Lord Sunmer

and Lord Parmoor.

(1) 18 C.L.R., 224.

24 C.L.R.] OF AUSTRALIA.

397

The judgment of their Lordships, which was delivered by Earl

P rivy

CouNCir..

Loreburn, was as follows :—

1917.

The respondents in tliis case raised a preliminary objection to the

J

ONES

effect that sec. 74 of the Commonwealth of Australia Constitution Act

r .

Co m m o n ­

precluded the Board from entertaining this appeal at all. That sec­

w e a l t h

Co u r t o f Co n c il ia ­

tion forbids appeals to the Queen in Council “ from a decision of the

High Court upon any question, howsoever arising, as to the limits t io n AND

Ar b it r a ­

niter se of the constitutional powers of the Commonwealth and those

t io n .

of any State or States . . . unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.” No such certificate has been given in the present case.

Accordingly, it becomes necessary to inquire what the decision of the High Court actually was. The High Court refused to prohibit the Commonwealth Court of Conciliation and Arbitration from proceeding upon an award of their President as to the hours of work, wages, payment for overtime and for work done on holidays, com­ pensation for accidents, and other matters concerning the terms and conditions of the employment of builders’ labourers throughout Australia. The contention before the High Court was that the President had no power to make that award, and the High Court decided that he had power, because he had been authorized to make such awards by an Act of the Commonwealth Parliament pursuant to the Commonwealth Act.

Now, that Parliament can make laws with respect to “ conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.” But the rights of the State under its own Constitution must be borne in mind. Their Lordships do not express any opinion as to the power of the State to settle industrial disputes within its own borders, even though they have extended into other States, because that is the province of the High Court to determine, and the point has not been argued, but only adverted to in course of argument. For the same reasons it would be inappropriate to discuss the important matters decided in Australian Boot Trade Employees Federation v. Whyhrow <b Co. (1), beyond pointing out that it does

(1) 10 C.L.R., 266.

VOL. x.xiv.

398 HIGH COURT

[1917.

P r iv y

Co u n c il .not bear on the question now standing for decision, namely, whether

1917.or not the Board is authorized by law to entertain this appeal. Their Lordships are of opinion that it is not so authorized.

J o n e s

V.Whatever may be the power of the Commonwealth in regard to

Co m m o n ­

w e a l t h

industrial disputes, whether or not that power must be exerted in

Co u r t o p harmony with State laws or State awards, it is at all events clear

Co n c il ia ­

t io n AND that the field of legislation and of consequent determination in

A r b it r a ­

t io n .obedience to laws so made is divided between State and Common­

wealth, and these are constitutional powers because they spring from

constitutional sources.

The able but necessarily difficult arguments of Mr. Lawrence and Mr. Romer were directed to show that the decision of the High Court in the present case was not upon a question as to the limits inter se of Commonwealth and State powers. They said that it did not decide any conflict of powers and could not impair the power of the State, and therefore was not concerned with limits inter se, laying emphasis upon the two Latin words. Let it be supposed that no conflict has arisen and that the powers of the State could not be so impaired. These considerations do not, in their Lordships’ opinion, furnish the test.

Their Lordships consider that the High Court decided, fir.st, that the dispute before them was one extending beyond the limits of one State ; and secondly, that the President had jurisdiction to make his award under the legislation of the Commonwealth passed pursuant to their constitutional powers. The High Court decided that the frontier of the Commonwealth power reaches in this case into the State, and it therefore followed that the State has not exclusive, if any, power in this case. Tins appears to their Lordships to be a question as to the limits inter se of the several powers, however much or little the Commonwealth may be required to conform to State laws or State awards, and however much or little the State may impose laws upon its own subjects.

Their Lordships will therefore humbly advise His Majesty that by the Commonwealth of Australia Constitution Act 1900, sec. 74, no appeal is permitted to His Majesty in Council from the judgment of the High Court in this case.

The appellants will pay the respondents’ costs.