Pidoto v Victoria

[1943] HCA 37

68 CLR 87

PIDOTO AND OTHERS

THE STATE OF VICTORIA Constitutional Law-Defence-National security-Regulations-Validity-Industrial

peace-Jurisdiction of Commonwealth Court of Conciliation and Arbitration- " Industrial dispute"-State public servants-Additional payment in respect of work done on State holidays-Severability-The Constitution (63 &64 Vict. c. 12), ss. 51 (vi.), (xxxv.), 106, 107-National Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940), S. 5 1-Acts Interpretation Act 1901-1941 (No. 2 of 1901-No. 7 of 1941), 8. 46 (b)-National Security (Industrial Peace) Regula- tions (S.R. 1940 No. 190-1943 No. 156), regs. 3-5, 11-National Security (Supplementary) Regulations, regs. 19*, 29t, 29AT, 44§.

Held, by Latham C.J., Rich, McTiernan and Williams JJ. :-

1that the terms of S. 51 (xxxv.) of the Constitution should not be construed as imposing limitations upon the defence power of the Commonwealth Parlia- 68 CLR 88

respect of additional payment therein defined to employees in such an industry "who worked on any day which, under regulation 19

So held by Latham C.J., Rich, McTiernan and Williams JJ. (Starke J. dissenting).

(i) By Latham C.J., Rich, McTiernan and Williams JJ., that sub-regs. 1-3 and 7 of reg. 29 of the National Security (Supplementary) Regulations are valid in their application to employees of a State. By Starke J., that those regula- tions are invalid in SQ far as they purport to bind the States as such to make the payment prescribed.

(ii) By Latham C.J., Rich, Starke and Williams JJ., that regs. 29 (8)-(10) and 44 of the National Security (Supplementary) Regulations, and also reg. 29A in SO far as it operates to confer rights by relation to reg. 44, are invalid in SO far as they purport to apply to State employees. Section 46 (b) of the Acts Interpretation Act 1901-1941 cannot be applied SO as to save the operation of these provisions in respect of State employees engaged in any limited class of work. By McTiernan J., that those regulations are valid in their application to State employees to the extent to which they apply to such employees engaged in industry.

The operation of S. 46 (b) of the Acts Interpretation Act 1901-1941, and the construction and operation of enactments in part within, and in part without, power, considered.

R. v. Commonwealth Court of Conciliation and Arbitration Ex parte Victoria; Victoria v. The Commonwealth, (1942) 66 C.L.R. 488, and Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd., (1920) 28 C.L.R. 129, discussed.

CASE STATED under S. 31 (2) of the Commonwealth Conciliation and Arbitration Act 1904-1934.

On applications by W. L. Pidoto and others (hereinafter called the applicants) to the Commonwealth Court of Conciliation and Arbitration under National Security Regulations mentioned here- under, Judge Kelly stated for the High Court a case which was substantially as follows :-

1.-4. [These paragraphs recited regs. 3-5 and 11 of the National Security (Industrial Peace) Regulations.]

5.-8. [These paragraphs recited regs. 19 (1), (7), 29 (1)-(3), (7)-(10), 29A (1) and 44 (1)-(2A), (3), (4), of the National Security (Supple- mentary) Regulations, and it was pointed out that reg. 44 was repealed by Statutory Rules 1942 No. 242 notified in the Commonwealth Gazette on 28th May 1942.]

9. The applicants were at all material times and still are employed by the State of Victoria in the Public Works Department of the

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State and are permanent members of the public service of the H. State and are appointed under and employed by the State subject to the provisions of the Public Service Acts (Vict.).

10. Each of the applicants is paid an annual salary in respect of his said employment.

11.-14. [These paragraphs stated in respect of each of the applicants that he had worked in his said employment" on some one or more days, specified in respect of each applicant, among the following: 27th December 1941, 16th March, 6th and 7th April, 24th September and 3rd November 1942.]

15. The work performed by each of the applicants in his said employment on such of the said days on which he worked consisted of loading explosives at the Explosives Depot of the said Department at Truganina in the State of Victoria onto lighters, proceeding with such lighters to ships standing in Port Phillip Bay, removing such explosives from such lighters to such ships, returning on such lighters to the said Explosives Depot and from time to time performing maintenance work on or in connection with such lighters for the pur- poses of the transportation of such explosives from the Explosives Depot to such ships as aforesaid.

16. All the days mentioned, except 3rd November 1942, were public holidays or holidays within the meaning of the National Security (Supplementary) Regulations above recited.

17. The work of transportation of explosives from the Explosives Depot to ships standing in Port Phillip Bay has been carried on for many years and was carried on prior to the outbreak of the present

18. Prior to the outbreak of the present war the explosives SO transported were used mainly for purposes other than the manufac- ture of munitions of war; but some of such explosives were used in the manufacture of munitions of war and some of such explosives were used in the manufacture of ammunition destined either for naval and military or for private use.

19. Since the outbreak of war the Commonwealth Government has handled almost all of its own supplies of explosives and the explosives handled at the said Explosives Depot and loaded, transported and unloaded by the applicants have been nearly all destined for the following purposes, being purposes other than the manufacture of actual munitions of war such as shells, bombs, torpedoes, mines, small arms ammunition and pyrotechnics -(a) the construction of works for the manufacture, distribution or establishment of munitions of war or fortifications for use by the naval and military forces, such as the quarrying of stone, the excavation of foundations for, or the

68 CLR 90

demolition to clear sites for the foundations of, buildings and other structures, such as factories, wharves, bridges, aerodromes, roads, gun emplacements, bombproof shelters and the like (b) the mining of coal for the provision of heat and power used in the manufacture of munitions of war or their transportation by land or sea or in the construction of factories and works for their manufacture or use (c) the demolition of buildings or other obstructions whose demolition may be required for defensive purposes (d) the mining of coal for the provision of heat and power in the manufacture or preservation or distribution of food and clothing for the needs of that portion of the population engaged either in the armed forces or in the manufac- ture or construction of munitions of war or defensive works or factories or other structures connected therewith; (e) the mining of coal and the quarrying of stone or other materials for the provision of heat or power in the manufacture, preservation or distribution of food and clothing and for the provision of transport, transit and shelter for that portion of the population which, though not engaged in the armed forces or in the manufacture or construction of munitions of war or defensive works or factories or other structures connected therewith, is, in order to liberate men and women for work directly connected with the prosecution of the war (for example, in the armed forces or in the manufacture of munitions of war) called upon to undertake or to continue to fulfil, or is voluntarily undertaking or continuing to fulfil, the work of manufacturing or distributing goods or affording services in accordance with the essential needs of the civilian population; (f) purposes other than those mentioned above. The explosives handled at the Explosives Depot destined for use in the manufacture of actual munitions of war as above described have represented a very small proportion of the total of explosives SO handled. During the whole of the period of eleven months covering the days in question on only two occasions were explosives, which I am able to find were used in the manufacture of actual munitions of war as above described, handled by any of the applicants, viz., on 24th September 1942 (see par. 20 of this case) and on 23rd July 1942 (not being one of the days in question) on which day a number of cases of torpedo parts were handled.

20. (1) (a) It is not possible upon the evidence to find for what particular purpose or purposes the explosives handled by the applicants employed on 6th April 1942, 7th April 1942 or 3rd November 1942 were destined to be used. (b) The explosives handled by the applicants employed on 16th March 1942 were con- signed by Nobel (Australasia) Pty. Ltd. to its agencies in New Zealand, but it is not possible upon the evidence to find for what

68 CLR 91

particular purpose or purposes they were destined to be used. (2) On 24th September 1942 the applicants employed were engaged from 7.45 a.m. to 12 noon on maintenance of the lighters and from 12.30 p.m. to midnight in loading explosives (picrites) on behalf of the Department of Munitions. (3) On 27th December 1941 the applicants employed were engaged exclusively in the work of main- tenance of the lighters used in the transport of explosives; and on 25th April 1942 certain of the applicants were engaged exclusively in warding duties on lighters lying at anchorage and loaded with explosives, but it is not possible upon the evidence to find for what particular purpose or purposes the said explosives were destined to be used. (4) The handling of explosives and the maintenance of lighters on the days above mentioned were performed in the course of the duties of the applicants in their employment as aforesaid and

SO enabled them to be employed without the necessity of working for longer than they actually worked on other days than those mentioned at handling other explosives and at the maintenance of lighters for the purpose of transporting other explosives destined for one or other of the purposes set out in par. 19.

21. I am satisfied that the applicants were upon such of the said days as they worked as stated above employed by a State Depart- ment, within the meaning of the said National Security (Supplemen- tary) Regulations.

22. I am satisfied that the said Explosives Depot and the area traversed by the said lighters for the purpose of transporting the explosives to the ships is each a place at which the said Department carries out part of its functions and the place of employment of the applicants.

23. None of the applicants is entitled under any law or industrial award, order, determination or agreement to additional payment in respect of his having been engaged on work or having worked on any of the days mentioned in pars. 11, 12, 13 and 14.

24. Save as hereinafter stated, none of the applicants has received any additional payment in respect of his having been SO engaged or having SO worked on any of the said days. On any of such days on which overtime was worked an allowance therefor was made either by way of additional leave equivalent to the overtime SO worked or by way of overtime payment. In respect of 16th March 1942 an extra day's pay to the applicants who worked on that day has been paid by the State and in respect of work performed on 6th and 7th April 1942 two days' leave to be taken at the convenience of the said Department has been granted to the applicants who worked on the said days. The payments and the leave referred to in this paragraph

68 CLR 92

were made and granted since the making of the applications referred to in subsequent paragraphs of this case. These payments were accepted by the applicants to whom they were made without preju- dice to the applications. The leave has not yet been taken by any of the applicants to whom it has been granted. The payments and leave were made and granted consistently with payments and leave of a like nature and to the same extent made and granted to other members of the Victorian public service who worked on the days abovementioned.

25. The applicants who worked on 27th December 1941 have made application pursuant to reg. 29A of the National Security (Supplementary) Regulations to the Commonwealth Court of Concilia- tion and Arbitration for a determination that they shall be entitled for having SO worked to additional payment at such rate as in all the circumstances (including the regularity of their attendance at work) the said Court may think just.

26. The Minister did not, in pursuance of reg. 19 of the National Security (Supplementary) Regulations, substitute 27th December 1941 for 25th or 26th December 1941 or 1st January 1942 in respect of the State of Victoria.

27-30. [Pars. 27 and 28 described, in terms similar to those of par. 25, applications by some of the applicants in respect of 16th March and 6th and 7th April 1942 pursuant to regs. 29A and 44 of the Supplementary Regulations. Pars. 29-30 described applications pursuant to reg. 29 of those Regulations in respect of 24th September and 3rd November 1942.]

31. As a judge of the Commonwealth Court of Conciliation and Arbitration, sitting as the said Court, I am satisfied, pursuant to reg. 5 of the National Security (Industrial Peace) Regulations, that the applications are in respect of an industrial dispute, within the meaning of the said Regulations, which is proper to be dealt with in the interests of industrial peace and national security and I have taken cognizance thereof accordingly; and, sitting as the said Court, I deem it desirable in the interests of industrial peace and national security, pursuant to reg. 11 of the said Regulations, to exercise jurisdiction under the Commonwealth Conciliation and Arbitration Act 1904-1934 and the said Regulations on my own motion in respect of the said dispute.

32. It has been contended before me (sitting as the said Court), on behalf of the State of Victoria-(a) that the National Security (Industrial Peace) Regulations, and in particular regs. 3, 4, 5 and 11 thereof, are invalid to give the said Court cognizance of the said dispute and to empower it to exercise any jurisdiction under the

68 CLR 93

Commonwealth Conciliation and Arbitration Act 1904-1934 or the said Regulations (b) that regs. 19, 29, 29A and 44 of the National Security (Supplementary) Regulations and in particular such portions of them as are recited in pars. 5, 6, 7 and 8 respectively of this case, are in SO far as any of them or the said portions of them are relied upon by any of the said employees for their said applications, invalid to empower the said Court to entertain and determine any of the said applications; (c) that the said Court cannot take cog- nizance of the said dispute or exercise any jurisdiction under the Commonwealth Conciliation and Arbitration Act 1904-1934, or the National Security (Industrial Peace) Regulations in respect thereof (d) that the said Court cannot determine the said applications.

33. The contrary has been contended on behalf of the applicants. The judge stated the following questions, which "are in my opinion questions of law arising in the proceeding, that is to say, in the hearing and determination of the said dispute and of the said applications before me, sitting as the said Court for the purpose of such hearing and determination," for the opinion of the High Court :-

(1) Are the National Security (Industrial Peace) Regulations and

in particular regs. 3, 4, 5 and 11 thereof a valid exercise of the powers conferred upon the Governor-General by the National Security Act 1939-1940, SO as to give the said Court cognizance of the said dispute and empower the said Court to exercise any jurisdiction under the Commonwealth Conciliation and Arbitration Act 1904-1934, or the said Regulations ? (2) Are any of the regulations 19, 29, 29A and 44 of the National

Security (Supplementary) Regulations and in particular such portions of them as are recited in pars. 5, 6, 7 and 8 respec- tively of this case and in pursuance of which the said employees have purported to make their said application, and, if so, which of them, a valid exercise of the powers conferred upon the Governor-General by the National Security Act 1939-1940 SO as to empower the said Court to entertain and determine all or any, and, if only one or some, which, of the said applications ? P. E. Joske, for the applicants, relied upon the argument to be presented on behalf of the Commonwealth (intervening).

Fullagar K.C. (with him Dean), for the respondent, at the instance of the Court presented argument at this stage. Presumably the

68 CLR 94

applicants rely upon reg. 19 of the Supplementary Regulations (coupled with reg. 29A) for 27th December 1941, reg. 44 (and 29A) for 16th March and 6th and 7th April 1942, and reg. 29 8-(10) for 24th September and 3rd November 1942. Reg. 29 1, which is limited to work connected with the war, is, on the case stated, not applicable to any of the days in question here. Regs. 19, 29 (8)-(10) and 44 are all quite general in expression and are not necessarily limited either in relation to industry in general or war work in particular. They are wholly invalid or, at least, invalid SO far as they purport to apply to State servants (R. v. Commonwealth Court of Concitiation and Arbitration; Ex parte Victoria Victoria v. The Commonwealth (Public Service Case) (1) ). There is no possibility of severance or reading down of the provisions of regs. 19, 29 (8)-(10) or 44, at all events in any manner affecting the respondent. The Court cannot say what would have been intended by the subordinate legislative body on the assumption that these regulations in their present form were beyond power, and there is no room for the application of S. 46 (b) of the Acts Interpretation Act (R. v. Poole; Ex parte Henry [No. 2] 2 The real effect of the decision in the Public Service Case (1) is that sub-regs. 8-10 of reg. 29 are wholly invalid or invalid in SO far as they purport to bind the State of Victoria. These sub-regulations are not limited in terms to work connected with the war or even to industrial work; they purport to bind the State in respect of all its servants, and cannot be read down SO that they will be limited to State servants engaged in either industrial or war work. This applies also to regs. 19 and 44. The defence power does not authorize interference with State services even in the carrying on of an industry. If it is sought to distinguish the Public Service Case (1) on the ground that there the declaration of invalidity was restricted to servants not engaged in industry and that the work now in question is industrial, the applicants are still faced with the proposition that the defence power does not include a general power to control industry (Victorian Chamber of Manufac- tures v. The Commonwealth (Industrial Lighting Regulations) 3 ). It may be that the regulations in question or some of them can be read down SO that they do not apply to State servants, but the respondent here is not concerned with that. The true effect of the Public Service Case (1) as here submitted is shown by passages in the judgments, per Latham C.J. 4; per Rich J. (5); per Starke J. 6; per McTiernan J. 7; per Williams J. (8). If the argument as to

8(1942) 66 C.L.R., at pp. 532, 533. 1(1942) 66 C.L.R. 488. (1942) 66 C.L.R., at p. 510. 2(1939) 61 C.L.R. 634. 3(1943) 67 C.L.R. 413. 4(1942) 66 C.L.R., at pp. 508, 509. 6(1942) 66 C.L.R., at p. 515. 7(1942) 66 C.L.R., at pp. 524, 525, 68 CLR 95

the Supplementary Regulations is wrong SO that the applicants have some rights under those Regulations, there still remains the question whether the Commonwealth Court of Conciliation and Arbitration has jurisdiction in the matter. This depends on the Industrial Peace Regulations. These Regulations are wholly invalid; alternatively, they do not apply as a matter of construction to State servants and, if they do, they are to that extent invalid. They are quite general in their application and cover all sorts of disputes and matters which can have no relation to the conduct of the war or the defence of the Commonwealth. Broadly speaking, it is true to say that industrial peace is desirable in the interests of defence, but that means general industrial peace throughout the country, and, as already mentioned in connection with the Supplementary Regula- tions, the contention that the defence power gives the Commonwealth a general power in relation to industry has already been rejected. [He referred to the Public Service Case 1.]

Barry K.C. and P. D. Phillips, for the Commonwealth (interven- ing).

Barry K.C. The Industrial Peace Regulations are a proper exercise of the defence power. The preamble to those Regulations recites that peace in industry is necessary for the efficient prosecution of the war and that, to preserve peace in industry, it is desirable that certain limitations on the jurisdiction of Commonwealth industrial tribunals should be removed and provision made for those tribunals to deal with industrial disputes with greater expedition. The Regulations themselves are directly related to the matters stated in the preamble, and those matters are directly related to defence. The purpose of the Regulations is to see that there is an efficient use of the man-power resources of the Commonwealth. The proper mobilization and utilization of those resources is plainly related to the effective prosecution of the war: See Victorian Chamber of Manufactures v. The Commonwealth (Women's Employ- ment Regulations) 2, per Latham C.J., McTiernan J., and Williams J. respectively; Farey v. Burvett 3, per Higgins J.; Victorian Chamber of Manufactures v. The Commonwealth (Prices Regulations) 4, per Latham C.J. and Williams J. respectively; Ferguson V. The Commonwealth 5, per Latham C.J.; Peacock v. Newtown Marrickville &General Co-operative Building Society No. 4 Ltd. 6,

1(1942) 66 C.L.R., at p. 508. 2(1943) 67 C.L.R. 347 See pp. 3(1916) 21 C.L.R. 433 : See p. 459. 4(1943) 67 C.L.R. 335 : See pp. 5(1943) 66 C.L.R. 432 See p. 434. 6(1943) 67 C.L.R. 25 : See p. 49. 68 CLR 96

per Williams J. The national control of industry in war-time is capable of assisting defence, and the matter of man power is particu- larly one which in time of war must be subject to the control of a strong central authority. The Commonwealth has exercised its power in that regard in the Regulations, and it is not for the Court to say whether the means chosen are the correct or the best means of achieving the purpose. The extension of the jurisdiction of the Arbitration Court is merely the adaptation of the existing machinery for the purpose of accomplishing something which is necessary by reason of the abnormal circumstances created by the war, and is a proper exercise of the defence power. It is impossible to say in advance that any particular industrial dispute will or will not militate against the efficiency of the war effort, and the only prac- ticable way of dealing with the matter is to assume control of all industrial disputes. As to the Supplementary Regulations, for the purposes of this case reg. 19 (Statutory Rules 1941 No. 297) is material to 27th December 1941. Reg. 44 (Statutory Rules 1942 Nos. 125, 157) is material to the days in March and April It was repealed but by Statutory Rules 1942 No. 282, a new regulation, 29A, preserving rights under reg. 44 and providing a procedure for the purposes of reg. 19, was enacted. The object of reg. 29A was to enable workers who were not protected by laws or awards to obtain holiday pay for days worked during the Christmas, New Year and Easter periods. Reg. 29 (8) (Statutory Rules 1942 No. 407) was inserted to deal with the Victorian statutory holiday, 24th September 1942 (Show Day), and reg. 29 (9), (10) (Statutory Rules 1942 No. 422), to deal with the day which ordinarily would have been Melbourne Cup Day (3rd November 1942). So far as Show Day and Cup Day are concerned reg. 29 (1) would apply if the applicants' work was connected with the war (which is a question for the Arbitration Court) and it would not be necessary to invoke reg. 29 (8) for Show Day or reg. 29 (9) or (10) for Cup Day. Regs. 19, 44, 29 and 29A are merely the manner whereby the Commonwealth exercises its control over man power the existence of the power is not to be confused with the policy which directs its exercise. Once it is shown that the Commonwealth has power to control and direct the man-power resources of the Commonwealth it follows that the Commonwealth may say to the whole working population of Aus- tralia, whether engaged in the war effort or in manufacturing articles which have no immediate connection with the war effort "You may take a holiday on a particular day," or "You may not." It is reasonably incidental to the exercise of the power to require people to work that those for whom they work be required to pay

68 CLR 97

The Commonwealth can bind the States in this respect, treating State servants as it does all other employees. Accordingly, the regulations in question which are not restricted to work directly connected with the war effort are nevertheless valid and bind the States. This contention applies to reg. 29 (8)-(10). In SO far as the Public Service Case 1 is inconsistent with this contention, it should be reconsidered: It was not put to the Court in that case, as it is now put, that the real justification for the regulations in question relates to control of man power, that the Commonwealth has power to deal with every aspect of the way in which people should work, whether employed immediately in war industry or in the production of civilian goods or in the supply of other services to the community. The Commonwealth can bind the States, provided it is otherwise within the extent of its powers (Amal- gamated Society of Engineers v. Adelaide Steamship Co. Ltd. 2 [He referred also to the Public Service Case 3.]

P. D. Phillips. If the Court is not prepared to reconsider the Public Service Case (1), the question arises, particularly in relation to reg. 29 (8)-(10), as to the application of S. 46 (b) of the Acts Interpretation Act. As to the days covered by reg. 29 (8)-(10), if the Arbitration Court found that the work in question was within reg. 29 (1), that Court could take cognizance of the applications without reference to reg. 29 (8)-(10); if not, the question how far sub-regs. 8-10 now operate remains to be determined. Section 46 (b) is directed to giving operative effect to provisions held in part invalid, and not to construction. If an enactment contains valid and invalid parts in separate words SO that the invalid part can be struck out by the 'blue-pencil' " method, there is no difficulty. If it is clear on the face of an enactment that it was not intended to operate otherwise than as a whole, then, if part is bad, all is bad. However, it does not follow that an enactment expressed in general terms is wholly invalid because it is capable of extending beyond power and cannot be treated by the blue-pencil method. In view of S. 46 (b) the function of the Court, when it finds such an enactment bad in its application to particular circumstances, is limited to declaring it bad to that extent, the enactment being left to operate in all cases to which it can validly apply. The regulations in question could validly operate SO as to apply to State servants engaged in industry or, at all events, to those engaged in war work, and the Court could

1(1942) 66 C.L.R. 488. 2(1920) 28 C.L.R. 129, at pp. 153, 3(1942) 66 C.L.R., at pp. 505, 508, 68 CLR 98

make a declaration accordingly. These submissions are not sistent with Newcastle and Hunter River Steamship Co. Ltd. V. Attorney-General for the Commonwealth 1, nor with Victorian Chamber of Manufactures v. The Commonwealth (Industrial Lighting Regulations) 2, in which the view appears to have been taken that the whole subject matter was beyond power. [He referred also to Huddart Parker Ltd. v. The Commonwealth 3; R. v. Poole Ex parte Henry [No. 2] 4 Australian Railways Union v. Victorian Railways Commissioners 5.]

Fullagar K.C., by leave, referred to Attorney-General (Alberta) V. Attorney-General (Canada) 6; Adelaide Company of Jehovah's Witnesses Inc. v. The Commonwealth 7, per Williams J.

P. E. Joske, in reply. The proper construction of reg. 19 of the Supplementary Regulations is that it refers only to departments of the State or of the Commonwealth in which any industry is carried on. Alternatively, if it is wider than that, the express reference to State departments can be severed the result will be that the regulation will apply in general terms to all premises in which any industry is carried on and State premises will be affected in the same way as any other premises. Similarly, reg. 44 applies to employees in a business of the Commonwealth or a State. [He referred to Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [No. 2] 8.]

The following written judgments were delivered :-

LATHAM C.J. Case stated by his Honour Judge Kelly under the Commonwealth Concitiation and Arbitration Act 1904-1934, S. 31, sub-s. 2. This case raises questions as to the validity of the National Security (Industrial Peace) Regulations and of certain National Security (Supplementary) Regulations, and as to the applicability of the regulations, if they are valid, to certain claims made in the Arbitration Court by employees of the Government of Victoria for payment for work done on days which would normally have been holidays, but which, under the regulations, were working days in respect of which the regulations provided that extra payment could be awarded by industrial authorities.

1(1921) 29 C.L.R. 357. 2(1943) 67 C.L.R. 413 : See pp. 3(1931) 44 C.L.R. 492, at pp. 512 4(1939) 61 C.L.R., at pp. 640, 653, 5(1930) 44 C.L.R. 319. 6(1943) A.C. 356, at p. 376. 7(1943) 67 C.L.R. 116, at p. 161. 8(1920) 28 C.L.R. 436. 68 CLR 99

The Industrial Peace Regulations are Statutory Rules 1940 No. 290 as subsequently amended. The validity of the Regulations was discussed but not decided in Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. 1, and R. v. Common- wealth Court of Conciliation and Arbitration (Public Service Case) 2.

In the Industrial Peace Regulations " the Act" means the Common- wealth Conciliation and Arbitration Act 1904-1934 (reg. 2).

Reg. 3 provides :-" 3. Subject to these Regulations, the Act and these Regulations shall, SO long as these Regulations continue in force, be construed as if the provisions of these Regulations were incorporated in the Act as amendments thereof."

Reg. 4 provides 4. So long as these Regulations continue in force, the provisions of the Act shall be applied and construed as if from the definition of ' industrial disputes in section 4 the words

' extending beyond the limits of any one State were omitted, and the jurisdiction of the Court shall be extended accordingly."

Reg. 5 provides: 5. In addition to the industrial disputes of which the Court has cognizance in pursuance of the Act, the Court shall also have cognizance of all industrial disputes-

(a) which the Court is satisfied are, or which the Minister

certifies to the Court as being, proper to be dealt with in the interests of industrial peace and national security or (b) which are referred into Court by the Court or Judge in pur-

suance of sub-regulation (4.) of regulation 15 of these Regulations." Reg. 6 gives power to make a common rule in an industry. Reg. 9 provides 9. Where the Minister is of the opinion that any industrial matter has led, or is likely to lead, to industrial unrest, he may refer that matter to the Court and, notwithstanding that an industrial dispute affecting that matter does not exist, the Court may proceed to hear and determine the matter in like manner as if it were an industrial dispute."

Reg. 11 provides: " 11. In any case where the Court deems it desirable in the interests of industrial peace or national security SO to do, it may exercise any jurisdiction under the Act or these Regulations on its own motion."

The regulations quoted are sufficient to show that they are designed to exercise Commonwealth legislative power in relation to industrial matters and industrial disputes without regard to the limitations which arise from the terms of S. 51 (xxxv.) of the Con- stitution, which confers power upon the Federal Parliament to make laws with respect to " conciliation and arbitration for the

1(1942) 66 C.L.R. 161. 2(1942) 66 C.L.R. 488. 68 CLR 100

prevention and settlement of industrial disputes extending beyond the limits of any one State." It has been held that under this pro- vision the Commonwealth Parliament is limited to making laws for the prevention and settlement of industrial disputes (not for the direct regulation of industrial matters) and only of inter-State industrial disputes, and for the prevention and settlement of such disputes only by the methods of conciliation and arbitration. The Industrial Peace Regulations do not limit authorities acting there- under to methods of conciliation and arbitration, or to the subject matter of inter-State industrial disputes, or to disputes.

The Regulations were made under the National Security Act 1939- 1940, and the question is whether they can be supported under that Act as necessary or convenient to be prescribed for the more effectual prosecution of any war in which His Majesty is engaged (s. 5). They apply to any industrial matter, provided either 1 that the Court is satisfied or the Minister certifies that it is proper to be dealt with in the interests of industrial peace and national security (reg. 5 (a); or (2) that a conciliation commissioner is of opinion that an industrial dispute has arisen or is threatened or impending (regs. 5 (b) and 15); or (3) that the Minister is of opinion that the industrial matter has led or is likely to lead to industrial unrest (reg. 9); or (4) that the Arbitration Court thinks it desirable in the interests of industrial peace or national security to exercise its powers under the Regulations (reg. 11). The Regulations, therefore, do not deal with industrial matters generally, but only with industrial matters which in the opinion of the Court or of the Minister or of a conciliation commissioner are actual or probable sources of indus- trial disturbance, or in the opinion of the Court should be dealt with in the interests of national security. The Regulations do not relate to industrial matters irrespective of the possibility of industrial disputes or of relation to national security. They are, therefore, in my opinion, distinguishable in this essential particular from the regulations considered in the Victorian Chamber of Manufactures V. The Commonwealth (Industrial Lighting Regulations) (1). Those Regulations were not limited in any way by reference to possible industrial disturbance or to possible effect upon national security.

An industrial matter which in the opinion of the Arbitration Court may affect national security is, I think, very plainly a matter affecting the effectual prosecution of the war. But jurisdiction in respect of other matters under the regulations mentioned depends upon the opinion of the Minister as to the actuality or probability of industrial unrest or upon the opinion of the Arbitration Court or

1(1943) 67 C.L.R. 413. 68 CLR 101

a conciliation commissioner as to the preservation of industrial peace. The fact that jurisdiction depends upon the opinion of the Court or the Minister or a conciliation commissioner does not constitute an obstacle to the validity of the Regulations: See Lloyd V. Wallach 1, and Ex parte Walsh 2. The opinion of the Minister or a commissioner has only the same effect in bringing a matter before the Court as a certificate of the Registrar of the Court under S. 19 (a) of the Commonwealth Conciliation and Arbitration Act 1904- 1934. The question which arises, therefore, is that of the relation of industrial unrest (or, obversely viewed, industrial peace) to the effectual prosecution of the war.

The first objection to the Regulations submitted by the State of Victoria is based upon S. 51 (xxxv.) of the Constitution, which confers upon the Commonwealth Parliament power to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." It is contended that this provision implies a negative-that it means, not only that the Commonwealth Parliament shall have power to legislate in relation to the industrial disputes there defined and in the manner there prescribed, but also that the Commonwealth Parliament shall not have power to deal with any other industrial matter or with any industrial dispute in any other manner. In my opinion this argument cannot be supported. Sec- tion 51 (xxxv.) is a positive provision conferring a specific power. The particular terms in which this power is conferred are not, in my opinion, SO expressed as to be capable of being SO construed as to impose a limitation upon other powers positively conferred. Further, if S. 51 (xxxv.) were construed SO as to prevent the Parlia- ment from dealing with industrial matters except under that specific provision, similar reasoning would lead to the conclusion that the Commonwealth Parliament could not (under any legislative power) provide for the use of conciliation and arbitration in relation to any other matter than inter-State industrial disputes. It must, I think, be conceded, for example, that the Commonwealth Parliament can, in legislating with respect to the public service of the Commonwealth (Constitution, S. 52 (ii.) ), provide for conciliation and arbitration in relation to matters such as wages, conditions and hours, whether or not any dispute about those matters is industrial, and whether or not it extends beyond the limits of any one State. In my opinion the objection to the Industrial Peace Regulations based upon S. 51 (xxxv.) of the Constitution must be rejected, because it finds no support in the words of this provision for the implied prohibition suggested.

1(1915) 20 C.L.R. 299. 2(1942) A.L.R. 359. 68 CLR 102

The next question is whether, if the making of the Industrial Peace Regulations is not prohibited by an implication based upon S. 51 (xxxv.) of the Constitution, the Regulations can be justified under the National Security Act, S. 5.

It is contended that the assumption of the degree of control of C.J. industrial matters which is involved in the Regulations cannot be SO

related to the defence of the country and the prosecution of the war as to justify the making of the Regulations under the Act.

It is argued that there are some industrial matters such, for example, as the growing of ornamental flowers, which cannot possibly be regarded as having any real relation to the successful prosecution of the war. But the question which now arises is not whether the growing of ornamental flowers or some such occupation can be SO regarded, but whether industrial peace and industrial war have a real connection with the war effort. The question is whether a system of dealing with all industrial disputes and all industrial matters which have led or may lead to such disputes or to industrial unrest, as distinguished from a system of dealing only with inter-State industrial disputes by means of conciliation and arbitration, can be sufficiently connected with defence and the war. In my opinion the answer to this question should be in the affirmative. In such a war as the present the authority responsible for defence must be able to organize and control the working capacity of the people and to assist the smooth working of the industrial system by prevent- ing the friction and waste of time and energy which are inevitably involved in any industrial dispute. Industrial matters which may lead to an industrial dispute are possible, though not yet actual, sources of such waste and friction. With the present organization of employers and employees and of capital and labour, any industrial matter, however small (even a matter relating to the growing of flowers), may lead to an industrial dispute which may develop into an obstacle to the war-efficiency of the community. The defence power, in my opinion, authorizes the Commonwealth Parliament to provide a system of dealing with all industrial matters which fall within the terms of the challenged regulations 4, 5, 9 and 11.

It should be observed that the Industrial Peace Regulations deal only with industry and industrial matters, and not with the govern- mental activities of States See the Public Service Case 1. In my opinion the objections to the validity of the Industrial Peace Regulations fail. This opinion is in accordance with the principles which were stated by the majority of the Court in the Women's Employment Case-Victorian Chamber of Manufactures v. The Commonwealth (Women's Employment Regulations) 2.

1(1942) 66 C.L.R. 488. 2(1943) 67 C.L.R. 347. 68 CLR 103

The next question which arises is as to the validity of certain National Security (Supplementary) Regulations, Statutory Rules 1941 No. 297 as amended. The regulations in question are Nos. 19, 29, 29A and 44.

Reg. 19 limits days which may be observed as holidays in the Christmas-New Year season 1941-1942 and expressly applies to State Departments and authorities, but it is limited to " business premises." The word "premises" is defined as follows :-

" "premises means bank, office, shop, factory or any premises whatever at which any industry is carried on and includes any Department of the Commonwealth or of a State or Territory of the Commonwealth and any place at which the business of any authority of the Commonwealth or of a State or Territory of the Commonwealth or of any local governing body is carried on." In SO far as the regulation applies to State Departments irrespective of whether or not those Departments are engaged in industry and therefore to purely governmental work, the regulation must, in my opinion, be held to be ineffective in accordance with the decision in the Public Service Case 1. But the word "State" in the definition of premises is clearly severable, and, if this word is struck out, the regulation would apply to limit holidays in industries, whether they were carried on by a private employer or by a State Department or authority. The fact that an industry is carried on by a State does not exclude the application of Commonwealth legislative power in respect of that industry. If a Commonwealth legislative power, upon its true construction, extends to a particular subject matter, a law which is a law with respect to that subject matter may validly apply to a State in the absence of any special provision to the contrary in the Constitution. There is no implied constitutional prohibition against Commonwealth legislation binding a State (Engineers' Case 2 ), which established the proposition which I have stated-see p. 149-quotation from R. v. Burah 3; p. 153, Commonwealth laws may validly bind the " political organisms called States '? :-rejection of any a priori contention that the grant of legislative power to the Commonwealth Parliament should not bind the States and their agencies p. 154-a power generally expressed may extend to the States " subject to any special provision to the contrary elsewhere in the Constitution"; p. 155-States are subject to Commonwealth legislation passed under a general power containing no exceptions relating to States, if such legislation on

1(1942) 66 C.L.R. 488. 2(1920) 28 C.L.R. 129. 3(1878) 3 App. Cas. 904, 905. 68 CLR 104

its true construction applies to them; and p. 144-the principles upon which the Engineers' Case 1 was determined apply generally to all powers contained in S. 51 of the Constitution. Thus, if the Commonwealth Parliament can, under the defence power, limit the days to be observed as holidays in industry, general legislation of this character may be made applicable to industry carried on by States.

The continuity of industrial production in time of war is a matter which has a very close connection with defence. Maximum indus- trial production is, or obviously may be, of the greatest importance for the purposes of war. Thus the limitation of the number of holidays to be enjoyed by men and women who are engaged in industry is a subject which falls within the defence power. (As I prepare this judgment it is announced that in Germany there are to be no Christmas holidays this year.) The applications made to the Arbitration Court to which this case refers are stated in the case (par. 31) to be applications in respect of an industrial dispute. So far as reg. 19 is concerned, I am of opinion that it validly applies to industries even though those industries are carried on by a State. I now proceed to consider the other regulations the validity of which is challenged.

Reg. 29 (1) is as follows :- " 29.-(1) The employer, manager, or occupier of every establishment, factory, mine, dockyard, or work- shop, which is engaged wholly or partly in production for war or defence purposes, or in the repair or overhaul of munitions of war, and every Commonwealth or State Department, or authority of the Commonwealth or of a State engaged on work associated with the prosecution of the war, shall, on every day to which this regulation applies, carry on such production, repair, overhaul or work in the same manner and to the same extent as would be the case if that day were an ordinary working day."

Further provisions of reg. 29 are stated in the report of the Public Service Case 2. Reg. 29 (1) is limited to what may be described as work associated with the war, but sub-regs. 8, 9 and 10, added by amendment, relate to any work whatever. They are set out in the report of the Public Service Case 3, and they relate to Royal Agricultural Show Day in Victoria and to the day which ordinarily is Melbourne Cup Day in Victoria. Sub-reg. 8 expressly applies to State Departments and employees.

Reg. 44 required employers to keep their premises open on the days to which the regulation applied, which were days which would

1(1920) 28 C.L.R. 129. 2(1942) 66 C.L.R., at pp. 503, 504. 3(1942) 66 C.L.R., at p. 504. 68 CLR 105

normally have been observed as holidays, and gave a right to H. employees including State employees (sub-reg. 3) to get additional payment if awarded by a tribunal or authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work of the employee. Reg. 44 has been repealed, but the rights under the regulation are preserved by reg. 29A.

Reg. 29A provides that where an employee has worked on any day which under reg. 19 was not observed as a holiday, or on any day to which reg. 44 applied, and the employee was not entitled to additional payment for SO working under an existing law, industrial award, &., any tribunal or authority with jurisdiction described as in reg. 44 already quoted may, upon application of the employee, determine that the employee shall be entitled to additional payment.

The applicants worked on various of the days to which these regulations apply, and have made application to the Arbitration Court for additional payment under the regulations.

The application cannot succeed unless the Arbitration Court is a 'tribunal

having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employment in relation to the work on which the employee is employed' (reg. 29 (3) and reg. 29A 1 ). If the Industrial Peace Regulations are invalid there might be room for doubt whether a tribunal having jurisdiction to deal only with inter-State disputes, and then only by means of conciliation and arbitration, was a tribunal falling within the general description quoted. But if the Regulations are valid (as in my opinion they are for reasons already stated) the Arbitration Court is plainly such a tribunal.

In the Public Service Case (1), it was held that sub-regs. 8, 9 and 10 of reg. 29, in SO far as they purported to control holidays and remuneration of members of the public service who were engaged in ordinary State governmental work, were not authorized under the power of the Commonwealth Parliament to legislate with respect to defence. These sub-regulations were held to be invalid in their application to such public servants. Similar reasoning would apply in such cases to the right given to such State servants by reg. 29A in respect of days not observed as holidays by reason of reg. 19 and to the right created by reg. 44 as preserved by reg. 29A. Accord- ingly, the applicants and the Commonwealth (intervening) submit two arguments to the Court in these proceedings. In the first place they ask the Court to reconsider the decision in the Public Service Case (1) and to hold that the regulations in question are

1(1942) 66 C.L.R. 488. 68 CLR 106

valid in their application to all State servants whatever the nature of their work may be, and, secondly, they contend that, even if the regulations are invalid in relation to employees engaged in what may be called the strictly governmental service of the State, reg. 29 1, limited to war work but applying to State servants engaged in such work, is valid, and that sub-regs. 8, 9 and 10 of reg. 29 should be read down by virtue of the Acts Interpretation Act 1901- 1941, S. 46 (b), SO as to apply only to State public servants engaged in work described in reg. 29 (1). On the other hand it was contended for the State of Victoria that the Court should follow its decision in the Public Service Case (1) and that the regulations cannot be read down, but are invalid in toto.

No arguments have been presented in the present proceedings which lead me to think it necessary or proper to reconsider the decision in the Public Service Case (1). I venture to repeat what I said in that case after stating 2 that the question involved was whether the Federal control of State public servants sought to be exercised by the regulations without reference to the character of their work could be shown to be a measure which was really a defence measure :- If, under the defence power, the Commonwealth can control the pay, hours and duties of all State public servants, it is obvious that the Commonwealth can take complete control of all governmental administration within Australia. The result would be the abolition, in all but name, of the Federal system of govern- ment which it is the object of the Constitution to establish-preamble and clause 3 of the covering clauses of the Constitution" 3.

The question stated was fully argued in the Public Service Case (1). The Justices agreed in the decision. To hold otherwise would, in my opinion, involve the practical abolition of State Governments in any time of war. Such a result should not be brought about by a decision of this Court unless it is inescapable. In my opinion the reasons given for judgment in the Public Service Case (1) are right and the case should be followed as a binding authority. I mention that the case has no reference to the emergencies and urgencies of actual military operations.

As I indicated in my reasons for judgment in the Public Service Case (1), in my opinion reg. 29 (1) is valid in relation to State public servants employed in State Departments or by State authorities in work of the kind to which reg. 29 (1) applies: see the report 4. Reg. 29 (1) is limited in its application to 'production for war or defence purposes," "the repair or overhaul of munitions of war " and

1(1942) 66 C.L.R. 488. 2(1942) 66 C.L.R., at p. 506. 3(1942) 66 C.L.R., at p. 507. 4(1942) 66 C.L.R., at p. 508. 68 CLR 107

"work associated with the prosecution of the war." A further question which now arises is whether the general provisions of reg. 29 (8), (9) and (10) and reg. 44, which relate to any work whatever, and of reg. 29A SO far as it purports to give rights to persons who worked on days to which reg. 19 and reg. 44 applied, can be read down SO as to be limited to certain work or to certain employees SO as to be valid in relation to State employees engaged in such work.

The answer to this question depends upon the application to the regulations of S. 46 (b) of the Acts Interpretation Act 1901-1941. Section 46 (b) is in the following terms :-

" 'Where an Act confers upon any authority power to make, grant or issue any instrument (including rules, regulations or by-laws), then

(b) any instrument SO made, granted or issued shall be read

and construed subject to the Act under which it was made, and SO as not to exceed the power of that authority, to the intent that where any such instrument would, but for this section, have been construed as being in excess of the power conferred upon that authority, it shall nevertheless be a valid instrument to the extent to which it is not in excess of that power." This provision applies to regulations. A similar provision apply- ing to statutes is to be found in S. 15A. I propose for the purpose of this judgment to refer to these provisions as the Acts Interpretation Act, and to refer to statutes and regulations as laws, using the term "law for the purpose of describing statutes in fact passed and regulations in fact promulgated, without reference to any question of their validity.

In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow &Co. 1, attention was given to the question of severability in its relation to the possible invalidity of statutes. Isaacs J. in particular examined the two cases of (1) separate words or expressions, some of which as enactments separately considered were valid and others invalid, and (2) a general word or expression which included both good and bad provisions. The relevant pro- visions of the Acts Interpretation Act were passed subsequently to this and a number of other decisions in which the question of sever- ability arose. It is a fair construction of the Act to say that Parlia- ment has in the Act indicated its general intention that all Federal laws shall be held to be valid SO far as possible. But it may be that the provisions of a particular law show that it was the intention of

1(1910) 11 C.L.R. 1. 68 CLR 108

the Parliament that, if the law did not have a full and complete application in all cases according to its terms, it should not apply in any case. The whole question is one of the intention of Parlia-

Mr. Phillips, in an interesting argument, submitted to the Court C.J. that the Act was not directed to the construction of laws for the

purpose of determining their meaning, but to the operation of all laws. The Act applies only when the law, construed according to its terms, is beyond power. One view of the section is that if it appears that Parliament intended it to operate under certain con- ditions, even though it could not operate fully as expressed, and if this intention can be ascertained from an examination of the law. itself (taking the Acts Interpretation Act into account), then it is valid in relation to those conditions. This view treats the Act as prescribing a rule of construction, as stated by Evatt J. in R. v. Poole Ex parte Henry [No. 2] 1. Upon this view, where, to use the words of Isaacs J. in Whybrow's Case 2, good and bad provisions are contained in separate words and expressions, then it will be possible to strike out the invalid parts, provided that the operation of the remaining parts of the law remains unchanged. But if, either in such a case or in the case of "general words or expressions " the Court is of opinion that the law was intended to operate fully and completely according to its terms, or not at all, then the law would be either completely valid, or completely invalid. The opposing view, for which the applicants contend, is that the Act should be read as affecting the operation of all laws in the sense that all laws are to be held to be valid in all cases to which they are, according to their terms, applicable, irrespective of failure to operate in other cases that is, that the Act in effect says that all laws are to be construed as validly applying wherever they could by suitable limita- tions have been made validly applicable. Upon this view no legis- lation would ever be completely invalid if a case could be discovered to which it could have been validly applied. This argument may be illustrated by an example. Let it be supposed that the Common- wealth Parliament passes a general statute dealing with larceny which, according to its terms, is plainly beyond Commonwealth legislative power because the Parliament has no power to make general criminal laws. Prima facie the law is invalid. But the Commonwealth has full powers of legislative control, e.g., in relation to all the territories of the Commonwealth, in relation to acts and defaults of postal, customs and other Commonwealth officers, and in relation to acts which constitute parts of inter-State and foreign

1(1939) 61 C.L.R., at p. 656. 2(1910) 11 C.L.R. 1. 68 CLR 109

commerce. Then, it is said, the statute should be treated as valid in relation to such cases as those mentioned, that is, to all larcenies in the Federal Capital Territory, the Northern Territory, Norfolk Island, &., in relation to larcenies by postal, customs and other Commonwealth officers, and in relation to people who, in the course of transactions in inter-State trade and commerce, are guilty of the acts which are penalized by the statute. When any person was charged with an offence under the statute the inquiry would be, not whether the statute in its general terms was within Commonwealth power, but whether such a statute could have been passed with some limitation or limitations which would have resulted in the statute being valid and applicable to the person who was on that particular occasion charged with an offence. If this question could be answered in the affirmative, it is said that the effect of the Acts Interpretation Act is that the statute must be held to be valid in its operation in relation to that person. It would be left to the Court to discover and prescribe an appropriate limitation as various cases presented themselves. One person A could be convicted under the statute because he committed larceny in the Northern Territory, another person B because he was a customs officer, C for some other reason, while D, E and F, whose acts fell within the precise words of the statute, could not be convicted because the courts which dealt with

D and E and F found themselves unable to think of a category which, if specified in the statute, would have validly included them within the scope of Commonwealth legislative power.

Such an application of the Acts Interpretation Act appears to me to require the Court to perform a feat which is in essence "legis- lative and not judicial" (R. v. Burgess; Ex parte Henry 1. To recur to the illustration given, the view suggested should, in my opinion, be rejected for the reason that it could not reasonably be supposed that it was the intention of Parliament, as disclosed in the statute, taken together with the Acts Interpretation Act, to produce such a hotch-potch of irregularly and partially operating law with respect to larceny: Compare Attorney-General for Manitoba V. Attorney-General for Canada 2.

Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different. Thus where a law is clearly made with the intention of exercising the power to make laws with respect to trade and commerce, it is not difficult to read it down SO as to limit its application to inter-State and foreign trade and commerce, with which alone the Commonwealth Parliament

1(1936) 55 C.L.R. 608, at p. 676. 2(1925) A.C. 561, at p. 568. 68 CLR 110

has power to deal (Constitution, S. 51 (i.) ). In such a case the subject matter of the legislation itself is such as to provide a test for limiting the law by construction SO as to treat it as applying only to that part of a definite subject matter which is within power and with which Parliament clearly intended to deal SO far as it could lawfully do SO. Examples are to be found in Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Com- monwealth 1 and Huddart Parker Ltd. v. The Commonwealth 2. If the laws in question in those cases were treated as applying to all trade and commerce, they were invalid. But construed as applying only to foreign and inter-State trade and commerce they were held to be valid.

SO as to be applicable to employees in the service of the Common- wealth or any authority of the Commonwealth, but this question does not arise in the present proceedings.

For these reasons I am of opinion that question 2 should be answered that regs. 19 and 29, sub-regs. 1-3 and 7 are, but that regs. 44 and 29, sub-regs. 8 and 9 (and sub-reg. 10 must fall with 9) are not, in relation to State servants, a valid exercise of power; and in consequence that reg. 29A is a valid exercise of power for the purpose of applications by such servants under reg. 19 but not for the purpose of applications by them under reg. 44.

Questions in case answered as follows :-

1The said regulations 3, 4, 5 and 11 are valid. 1(1943) 67 C.L.R. 413, at p. 419.