R v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria

[1942] HCA 39

66 CLR 488

COMMONWEALTH COURT OF CONCILIATION AND

ARBITRATION AND OTHERS Ex PARTE

THE STATE OF VICTORIA AND ANOTHER.

THE STATE OF VICTORIA AND ANOTHER

THE COMMONWEALTH

THE KING v. COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION National Security-Industrial peace- Industrial matter"-Meaning-Employment

of State public servantsCommonwealth Conciliation and Arbitration Act 1904- 1934 (No. 13 of 1904-No. 54 of 1934), sec. 4-National Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940), sec. 5-National Security (Industrial Peace) Regulations (S.R. 1940 No. 290), regs. 2, 3, 5, 9.

The expression "industrial matter," as used in the National Security (Industrial Peace) Regulations, does not include questions relating to the employment of public servants of a State engaged in its ordinary governmental departments.

VICTORIA v. THE COMMONWEALTH. Constitutional Law--Defence-Ambit of power of Commonwealth-State public

servants not engaged in war work-Holidays and remuneration-National Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940), sec. 5-National Security (Supplementary) Regulations (S.R. 1940 No. 126-1942 No. 422), reg. 29.

Sub-regs. and remuneration

8, 9 and 10 of reg. 29 of the National Security (Supplementary) Regulations, in SO far as they purport to control the holidays of members of the public service of the State of Victoria who are not engaged in work associated with the prosecution of the war, are not within the ambit of the defence power of the Commonwealth.

66 CLR 489

The matters of The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria, wherein the State of Victoria and the Public Service Board of that State sought an order absolute prohibiting the Commonwealth Court of Conciliation and Arbitration and Judge Kelly from further proceeding with a reference to the Court by the Minister for Labour and National Service, and Victoria V. The Commonwealth, which was a demurrer to a statement of claim wherein the State of Victoria and the Attorney-General thereof sought declarations that certain Commonwealth regulations were invalid, were heard together. The provisions of the relevant regulations are set forth in the judgments hereunder. The King v. Commonwealth Court of Conciliation and Arbitration;

Ex parte Victoria.

ORDER NISI for prohibition.

On 20th June 1942 the Minister of State for Labour and National Service made a reference under reg. 9 of the National Security (Industrial Peace) Regulations (Statutory Rules 1940 No. 290) to the Commonwealth Court of Conciliation and Arbitration as follows:

" Whereas the hours of duty of members of the Victorian Public Service Association have been increased by the Government of the State of Victoria.

And whereas the Public Service Board of the State of Victoria has refused to determine the rate of pay of the members of the Victorian Public Service Association who worked on the days referred to in Regulation 44 (2) (a) (sic) of the National Security (Supplementary) Regulations.

And whereas I am satisfied that the industrial dispute arising out of the said industrial matters is one proper to be dealt with by the Commonwealth Court of Conciliation and Arbitration in the interests of industrial peace and national security by virtue of the provisions of Regulation 5 (a) of the National Security (Indus- trial Peace) Regulations.

Now therefore I, Edward John Ward, the Minister of State for Labour and National Service, in pursuance of the powers conferred by Regulation 9 of the National Security (Industrial Peace) Regula- tions do hereby refer the said matters to the Court to hear and determine."

The Victorian Public Service Association served on the Crown Solicitor for Victoria particulars of claim which were substantially as follows :-

1. The Association is a voluntary association of officers employed by the State of Victoria in the Public Service of Victoria under the

66 CLR 490

provisions of the Public Service Act 1928 (No. 3757) (which with its amendments is cited as the Public Service Acts) and of regulations made under the Public Service Acts.

2. The Public Service Board is constituted by Part II. of the Public Service Act 1928 as amended by several Acts and particularly by the Public Service Act 1940.

3. In respect of work done on holidays appointed by or pursuant to the Public Service Act 1928, sec. 187, the Association claims that officers should be paid holiday pay as follows :-(a) for work done on Saturday, 27th December 1941, one day's pay calculated at ordinary rates; and (b) for work done on each of the following days -to wit, Labour Day 1942, Easter Monday 1942, and Easter Tuesday 1942-at overtime rates according to the scale set out in Part I. of Chapter XII. of the Regulations under the Public Service Acts.

4. In respect of time of duty the Association claims that the hours of attendance of its members should be fixed by an award of the Court at not less than those set out in Part I. of Chapter XII. aforesaid before the amendment thereof made on 21st April 1942, and that the said hours should not be increased or otherwise varied to the detriment of officers without the authority of the Court.

5. In respect of time worked by him on any day in excess of the hours (a) fixed for such day each officer shall be paid overtime at rates not less than the overtime rates according to the scale set out in Part I. of Chapter XII. aforesaid, and (b) that as to such payment the award be made retrospective to 13th April 1942.

The Victorian Public Service Association is a voluntary organiza- tion of the members of the Victorian public service banded together to promote their common interests in matters connected with the occupations carried on by the members. It is not registered under the Commonwealth Conciliation and Arbitration Act 1904-1934. Members of the Association include officers of the first, professional, clerical and general divisions of the public service, employed under the Public Service Acts (Vict.) in the various departments, such as the Departments of the Premier, Treasurer, Chief Secretary, Lands, Law, Water Supply, Forests, Mines and Agriculture, and in State instrumentalities such as the Country Roads Board and the Liquid Fuel Control Board.

On 21st April 1942 the Public Service Board had amended Chapter XII. of the Public Service Regulations. The effect of the amend- ment was that hours of attendance of officers were increased from seventy-six to eighty-one per fortnight, and overtime was paid only for hours worked in excess of eighty-three per fortnight.

66 CLR 491

All members of the Victorian public service had been called on to work, in pursuance of the National Security (Supplementary) Regu- lations, on 27th December 1941, 16th March 1942, and 6th and 7th April 1942, and certain members of the public service were called on to work on 15th June 1942, all of which were public holidays in Victoria. The secretary of the Public Service Association had made demands on the Public Service Board for pay in respect of the work done on those days based on alleged rights to such payments given by the Regulations, but the Board refused to make the payments.

Judge Kelly, before whom the reference came on to be heard, held :-(1) That the Governor-General had authority, pursuant to sec. 5 of the National Security Act 1939-1940, to make the National Security (Industrial Peace) Regulations. (2) That the matters referred to the Court by the Minister of State for Labour and National Service on 20th June 1942 were industrial matters within the meaning of the National Security (Industrial Peace) Regulations. (3) That the Court had power to hear and determine the said industrial matters. The matter was listed for further hearing.

On application made on behalf of the State of Victoria and the Public Service Board of that State Latham C.J. ordered the Common- wealth Court of Conciliation and Arbitration and Judge Kelly to show cause before the Full Court of the High Court why a writ of prohibition should not be issued to restrain them and each of them from further proceeding to hear and determine the reference, on the following grounds :-

1. That the "matters referred to in the reference dated 20th June 1942 signed by the Minister of State for Labour and National Service were not "industrial matters within the meaning of the National Security (Industrial Peace) Regulations.

2. That the National Security (Industrial Peace) Regulations, or alternatively reg. 9 thereof, were or was invalid and not authorized by any power conferred upon the Parliament of the Commonwealth by the Commonwealth Constitution.

3. That the granting of the application of the Victorian Public Service Association, which was the claimant against the State of Victoria and the Victorian Public Service Board in the Common- wealth Court of Conciliation and Arbitration, involved an alteration of rates of remuneration applicable to an employment on 10th Feb- ruary 1942 contrary to the National Security (Economic Organization) Regulations of the Commonwealth.

By amendment, Joseph Charles MacDonald, representing himself and all other members of the Victorian Public Service Association, was added as a respondent.

66 CLR 492

Victoria v. The Commonwealth.

The State of Victoria and the Attorney-General for that State brought an action in the High Court against the Commonwealth of Australia.

The statement of claim was, in substance, as follows :- 1. The plaintiffs are the State of Victoria and His Majesty's Attorney-General for the State of Victoria.

2. The defendant is the Commonwealth of Australia. 3. Purporting to act pursuant to the provisions of the National Security Act 1939-1940 the Governor-General of the Commonwealth has made certain Regulations entitled National Security (Supple- mentary) Regulations, being Statutory Rules 1940 No. 126, and has from time to time amended the same.

4. On 23rd September 1942 the Governor-General of the Common- wealth made an amendment to the National Security (Supplementary) Regulations by Statutory Rules 1942 No. 407 as follows -

'Regulation 29 of the National Security (Supplementary) Regulations is amended by adding at the end thereof the following sub-regula- tion :-

(8) The foregoing provisions of this regulation shall, in respect of the State of Victoria, apply also, on the last Thursday in September, 1942 (being Royal Agricultural Show Day), to employers and managers (being persons engaged in the business of banking or of insurance) and to every Commonwealth or State Department, or authority of the Commonwealth or of a State, engaged on any work whatsoever and to all employees of any such employer or manager and to officers and employees of any such Department or authority.'" 5. On 1st October 1942 the Governor-General of the Common- wealth made an amendment to the National Security (Supplementary) Regulations by Statutory Rules 1942 No. 422 as follows :-

" Regulation 29 of the National Security (Supplementary) Regula- tions is amended by adding at the end thereof the following sub- regulations :-

(9) If under any law or industrial award, order, determina- tion or agreement, an employee in the State of Victoria would have been entitled to a holiday on the first Tuesday in November, 1942, had that day been appointed by proclamation under any law of that State to be observed as a public holiday, he shall, in respect of work on which he was engaged on that day, be entitled to the compensation to which he would have been entitled under the law or industrial award, order, determination or agreement if that day had been SO proclaimed.

66 CLR 493

(10) Where an employee who is SO engaged on the first Tuesday in November, 1942, is not entitled under any law or industrial award, order, determination or agreement to additional payment in respect of his being or having been SO engaged, the provisions of sub-regulations (3) and (4) of this regulation shall extend to any such employee.'" 6. (a) The regulations made by Statutory Rules 1942 No. 407 are, either wholly or in SO far as the same purport to affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.) not authorized by any power validly conferred upon the said Governor-General by the National Security Act 1939-1940 or by any other enactment of the Parliament of the Commonwealth.

(b) The National Security Act 1939-1940 if and SO far as it purports to confer upon the Governor-General power to make the regulations contained in Statutory Rules 1942 No. 407, or alternatively if and

SO far as it purports to confer power upon the Governor-General to affect by the said regulations persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), is not authorized by sec. 51 (vi.) of the Constitution of the Commonwealth or by any other power conferred by the Constitution upon the Commonwealth.

(c) Alternatively to (b) hereof, upon the true construction of the regulations made by Statutory Rules 1942 No. 407, the same do not affect or apply to persons employed by the plaintiff the State of Victoria, pursuant to the provisions of the Public Service Act 1928 (Vict.).

7. (a) The regulations made by Statutory Rules 1942 No. 422 are, either wholly or in SO far as the same purport to affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), not authorized by any power validly conferred upon the Governor-General by the National Security Act 1939-1940 or by any other enactment of the Parliament of the Commonwealth.

(b) The National Security Act 1939-1940, if and SO far as it purports to confer upon the Governor-General power to make the regulations contained in Statutory Rules 1942 No. 422, or alternatively if and

SO far as it purports to confer power upon the said Governor-General to affect by the said regulations persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 of the said State, is not authorized by sec. 51 (vi.) of the Constitution of the Commonwealth or by any other power conferred by the Constitution upon the Commonwealth.

66 CLR 494

(c) Alternatively to (b) hereof, upon the true construction of the regulations made by Statutory Rules 1942 No. 422, the same do not affect or apply to persons employed by the plaintiff the State of Victoria, pursuant to the provisions of the Public Service Act 1928 (Vict.).

The plaintiffs claim :- (a) A declaration that the regulations made by Statutory Rules 1942 No. 407 are, either wholly or in SO far as the same purport to affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), not authorized by any power validly conferred upon the Governor-General by the National Security Act 1939-1940 or by any other enactment of the Parliament of the Commonwealth.

(b) A declaration that the National Security Act 1939-1940, if and

SO far as it purports to confer upon the Governor-General power to make the regulations contained in Statutory Rules 1942 No. 407, or alternatively if and SO far as it purports to confer upon the Governor-General power to affect by the said regulations persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), is not authorized by sec. 51 (vi.) of the Constitution of the Commonwealth or by any other power conferred by the Constitution upon the Commonwealth.

(c) A declaration that upon the true construction of the regulations made by Statutory Rules 1942 No. 407 the same do not affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.).

(d) A declaration that the regulations made by Statutory Rules 1942 No. 422 are, either wholly or in SO far as the same purport to affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), not authorized by any power validly conferred upon the Governor-General by the National Security Act 1939-1940 or by any other enactment of the Parliament of the Commonwealth.

(e) A declaration that the National Security Act 1939-1940, if and

SO far as it purports to confer upon the Governor-General power to make the regulations contained in Statutory Rules 1942 No. 422, or alternatively if and SO far as it purports to confer upon the Governor- General power to affect by the said regulations persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.), is not authorized by sec. 51 (vi.) of the Constitution of the Commonwealth of Australia or by any other power conferred by such Constitution upon the Commonwealth.

(f) A declaration that upon the true construction of the regulations made by the Statutory Rules 1942 No. 422 the same do not affect or

66 CLR 495

apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928 (Vict.).

The Commonwealth demurred to the statement of claim. The demurrer was as follows :-

1. The defendant demurs to the statement of claim herein. 2. Among the grounds on which the defendant will rely are :-

(a) The regulations made by the Statutory Rules referred to in the statement of claim are respectively authorized by power validly conferred upon the Governor-General by the National Security Act 1939-1940.

(b) The National Security Act 1939-1940 is authorized by the Constitution of the Commonwealth of Australia.

(c) Upon their true construction the regulations made by the said Statutory Rules respectively affect or apply to persons employed by the plaintiff the State of Victoria pursuant to the provisions of the Public Service Act 1928. Royal Agricultural Show Day is a statutory holiday under the Public Service Act 1928 (Vict.), sec. 187 (f), but it was cancelled in 1942. The first Tuesday in November is ordinarily Melbourne Cup Day. It is not declared by statute to be a public holiday, and in 1942 was not proclaimed a public holiday.

The two matters were argued together. Fullagar K.C. (with him Dean), for the State of Victoria, the Attorney-General thereof, and the Victorian Public Service Board. It was not competent for the Minister to refer, nor for Judge Kelly to adjudicate on, the matters contained in the reference. The mem- bers of the Public Service Association of Victoria are not engaged in an "industry," and their claim did not involve an "industrial matter." Expressions used in the National Security (Industrial Peace) Regulations have the same meaning as in the Commonwealth Conciliation and Arbitration Act 1904-1934. The work of the State public service is not "industrial" (Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation

66 CLR 496

does not give the expressions used therein a wider meaning than they have in the Commonwealth Conciliation and Arbitration Act 1904-1934. The National Security (Industrial Peace) Regulations are not authorized by the defence power of the Commonwealth and are invalid (South Australia v. The Commonwealth 1 ). Reg. 29 (8), (9) and (10) of the National Security (Supplementary) Regu- lations is not a valid exercise of the defence power. The relations between the State public servants and the State are prima facie a matter for State regulation alone: : See Constitution, sec. 106. The defence power is not unlimited See South Australia V. The Commonwealth 2, where Latham C.J. and Starke J. held that the Income Tax (War-time Arrangements) Act 1942 was invalid, and Rich, McTiernan and Williams JJ. said that there was a limit to the defence power 3.

Menzies K.C. (with him Dethridge), for J. C. MacDonald, represent- ing the members of the Victorian Public Service Association. The National Security (Industrial Peace) Regulations are a valid exercise of the defence power. The term 'industrial dispute " has a wider meaning in regulations made under the defence power than in legis- lation enacted under the arbitration power. Reg. 9 of the Industrial Peace Regulations is designed to anticipate industrial unrest, SO that a matter may be dealt with by the Commonwealth Court of Concilia- tion and Arbitration before dislocation, with consequent danger to public security, arises. In time of war the Commonwealth may tell citizens where and when and for whom they are to work (South Australia v. The Commonwealth 4 ). The granting of the applica- tion of the Public Service Association would not involve an alteration of rates of remuneration applicable to an employment contrary to the National Security (Economic Organization) Regulations. No rate of remuneration has been prescribed for Victorian public servants who work on public holidays in accordance with Commonwealth regulations. The public servants were not required to work on the holidays under sec. 187 of the Public Service Act 1928 (Vict.), but under the Commonwealth regulations.

Ham K.C. (with him Barry K.C. and Fraser), for the Common- wealth. The matters contained in the reference were industrial matters" within the meaning of that phrase in the National Security (Industrial Peace) Regulations. Expressions used in the Regulations have the same meaning as in the Commonwealth Conciliation and

1(1942) 65 C.L.R. 373, at pp. 431, 2(1942) 65 C.L.R. 373. 3(1942) 65 C.L.R., at pp. 438, 458, 4(1942) 65 C.L.R. 373. 66 CLR 497

Arbitration Act 1904-1934. The wide construction placed on the meaning of the word "industry" by decisions of this Court should be adopted. As to the meaning of "industry", see Federated Municipal and Shire Council Employees' Union of Australia V. Melbourne Corporation 1; Federated State School Teachers' Associa- tion of Australia v. Victoria 2; Jumbunna Coal Mine No Liability v. Victorian Coal Miners' Association 3. The meaning of expressions in the Act has been restricted because the Act is made under the limited arbitration power contained in the Constitution, sec. 51 (xxxv.); the Regulations are made under the defence power, and the meaning of expressions therein is not restricted by limitations on power. The Industrial Peace Regulations are within the ambit of the defence power. Under the defence power the Commonwealth can control the whole resources of the Commonwealth and suspend temporarily the policy of the States (Farey v. Burvett 4; South Australia v. The Commonwealth 5 ). It is within the defence power to pass legislation conducive to the harmony of the community, and therefore to the efficient conduct of the war, by providing that in the matter of holidays all shall be on the same footing: See also Liversidge v. Anderson 6.

Fullagar K.C., in reply. The relations between the public service and the State, apart from departments related to defence, are the exclusive concern of the State. The word "industrial" in the National Security (Industrial Peace) Regulations has not a wider meaning than it has in the Commonwealth Conciliation and Arbitra- tion Act. Reg. 29 (8) and (9) purports to regulate the relations between the State and the public service and is invalid.

Cur. adv. vult. The following written judgments were delivered :-

LATHAM C.J. The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria.-This is an application for a writ of prohibition directed to the Commonwealth Court of Concilia- tion and Arbitration, his Honour Judge Kelly, a judge of that Court, and (by amendment) Joseph Charles MacDonald, a person repre- senting himself and all other members of the Victorian Public Service Association, to prohibit any further proceeding by the said Court or judge in hearing and determining a certain alleged industrial dispute.

1(1919) 26 C.L.R., at p. 554. 2(1929) 41 C.L.R., at p. 575. 3(1908) 6 C.L.R. 309, at pp. 338, 4(1916) 21 C.L.R. 433, at pp. 455, 5(1942) 65 C.L.R. 373. 6(1941) 2 All E.R. 612. 66 CLR 498

The National Security (Industrial Peace) Regulations, made under the National Security Act 1939-1940, provide in reg. 9 that " 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 deter- mine the matter

as if it were an industrial dispute." Reg. 5 provides that, in addition to the industrial disputes of which the Court has cognizance in pursuance of the Commonwealth Conciliation and Arbitration Act 1904-1934, the Court shall also have cognizance of all industrial disputes which the Minister certifies to the Court as being proper to be dealt with in the interests of industrial peace and national security. Acting under these provisions the Minister for Labour and National Service has referred to the Court (reg. 9) and certified to the Court (reg. 5) certain industrial matters" and an "industrial dispute arising out of those matters. The matters are (1) increase by the Government of Victoria of hours of duty of members of the Association, and (2) refusal, of the Public Service Board of the State of Victoria to determine rates of pay of such members who worked on certain days which normally are holidays, but which in 1942 were not holidays. Hours of duty and rates of pay of the public service of Victoria have hitherto been determined under the provisions of the Public Service Acts of Victoria. The members of the Association include the State public servants in the professional, clerical and general divisions of the service: see Public Service Act 1928, sec. 18. The Association thus includes State employees in the Departments of the Premier, of the Treasury, and in the Departments of Lands, Law, Public Works, Mines, Agricul- ture, Labour and Health. Manual, as well as clerical and professional employees, are included.

It is objected in the first place by the prosecutors that these "matters" are not "industrial matters" within the meaning of the Industrial Peace Regulations.

Reg. 2 (2) provides that expressions used in the Regulations shall, unless the contrary intention appears, have the same meaning as in the Act, i.e., the Commonwealth Conciliation and Arbitration Act 1904-1934.

His Honour Judge Kelly has decided that the matters referred to are 'industrial matters," because they fall within the meaning of " industrial matters" as (inclusively) defined in the Act. Sec. 4 of the Act provides that "Industrial matters include, inter alia, all matters relating to pay, wages, reward, hours, privileges, rights, or duties of employers or employees. "Employer" is defined as

66 CLR 499

meaning any employer in any industry, and "employee" as meaning any employee in any industry. "Industry" is declared to include: '(a) any business, trade, manufacture, undertaking, or calling of employers, on land or water; (b) any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water;

These provisions, as used in the Regulations, are, it was held by Judge Kelly, to be given their full meaning according to their terms. In particular, they are not to be read down or limited in any way in order to bring the Regulations within the legislative power vested in the Commonwealth Parliament by sec. 51 (xxxv.) of the Constitu- tion in relation to: Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." The construction of the Arbitration Act has been affected by the fact that its provisions can be valid only if they can be supported under sec. 51 (xxxv.). For example, if the Act were construed to apply to all employer-employee relations, it could not validly SO be applicable. It could apply only where there was a dispute, where that dispute was an industrial dispute, and where it extended beyond the limits of any one State. These limitations necessarily follow from the terms of sec. 51 (xxxv.) of the Constitu- tion, upon which the Act relies for its authority. But the Industrial Peace Regulations are made under the defence power (sec. 51 (vi.), not under the arbitration power. They remove the limitations mentioned: see regs. 4, 9 and 13. Accordingly, it is said, because the State Government is an employer and also because the members of the Public Service Association are engaged in industry in that they all follow some calling, service, employment, &., questions relating to the hours of work and pay of members of the Association are "industrial matters" within the meaning of the Regulations and

SO may be referred by the Minister to the Court in pursuance of reg. 9.

I agree that the interpretation of the Industrial Peace Regulations should not be affected by considerations derived from the terms of sec. 51 (xxxv.) of the Constitution. But the Regulations adopt the definitions contained in the Act. Close examination of those defini- tions shows, in my opinion, that they are all limited by reference to the word "industry" used in its ordinary sense, and that sec. 4 of the Act does not extend that meaning SO as to include callings, employments, &., which are not industrial in that sense.

"Industrial matters includes matters relating to work, pay, hours, &., of employers or employees. But " employer" means employer in any industry "-and employee has a like meaning.

66 CLR 500

A. Then "industry" is declared to include "any business, trade,

of employers," and "any calling, service, employment,

of employees "-i.e., of employers and employees in an industry. These provisions would be absurd if "industry" in the definitions of employers and employees were given the mean- ing of employment, whether industrial or not. Unless "industry" is given some other meaning the definitions become unintelligible -they merely refer back to each other with no explication of the significance of the terms. The difficulty is solved, not by ignoring the reference to "industry" in the definitions of employers and employees or by making it meaningless, but by regarding the Act as dealing only with industrial disputes, in the ordinary sense of that term, and not in any case with non-industrial disputes. That this is the intention of the Act is shown by the incorporation of the reference to industry in the definitions of employers and employees. If Parliament had intended to deal with all employer-employee relations, whether in an industry or not, there would have been no reason whatever for such definitions. Those definitions are based upon the assumption that there may be employers and employees engaged " in an industry' and also not SO engaged. It would, I think, be a strange procedure to use the subsequent definition of "industry" for the purpose of establishing that all employers and employees were necessarily, for the purposes of the Act, employers and employees in an industry.

This view that anything that is not industrial in the ordinary sense of that word is deliberately excluded by the Act finds support directly relevant to this case in the definition of industrial dispute in sec. 4. When that definition is read subject to the exclusion of the reference to inter-State extension of disputes which is effected by reg. 4, it becomes :-

"Industrial dispute (1.) any dispute as to industrial matters, and (II.) any dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State, or any public authority constituted under the Commonwealth or a State, and

(III.) any threatened or impending or probable industrial dispute." If "industry" were construed in such a way that all employers and all employees are to be taken to be engaged in industry merely because they are employers or employees, SO that any dispute between such persons in such characters would be an industrial dispute, then par. II. of the definition would be quite unnecessary. If all matters affecting employer-employee relationships were

66 CLR 501

included in "industrial matters," then par. I. of the definition would have included both Commonwealth and States as employers. But it was thought necessary to make a special and particular pro- vision for these cases. That provision does not relate to employ- ment simpliciter, but to 'employment in an industry carried on by or under the control of the Commonwealth or a State" &. It is not enough that there should be the relation of employer and employee there must be employment in an industry.

Thus, in my opinion, the references in sec. 4 of the Act under industrial matters" to " employers and employees " and to "employment" limit the effect of the provision by confining it to matters which are industrial in the ordinary sense of that word.

It is unnecessary to embark upon an examination of all the diffi- culties associated with the meaning and application of the word "industrial." It is a vague term-one of the terms whose meaning can be explained by illustration rather than by definition per genus et differentiam. In biology, classes of animals or plants may be "defined" by reference to type specimens-by reference to a central point within, rather than to a boundary line without. A plant is said to belong to a particular variety if it sufficiently resembles the type specimen. The same principle must be adopted in relation to some social and economic conceptions. In this field categories shade out into one another and it is sometimes impossible to draw an absolute line of demarcation.

An ordinary factory producing for profit is plainly an industrial undertaking. So is an enterprise providing services for reward upon a purely commercial basis. Such cases are clear. In each there is the characteristic of supplying goods or services which are paid for by the recipient, such supply being undertaken with a view to profit. Thus the publication of newspapers has been held to be an industrial enterprise. The definition of industrial disputes has been held to include disputes between municipal corporations and their employees engaged in making and maintaining roads and public lighting (Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation 1 ), even though there was no profit motive; and it also includes disputes between banking and insurance clerks and their employers: Australian Insurance Staffs' Federation v. Accident Underwriters Association 2, where the employees were not manual labourers.

But the Court held that a dispute as to the pay &. of State teachers was not an industrial dispute (Federated State School

1(1919) 26 C.L.R. 508. 2(1923) 33 C.L.R. 517. 66 CLR 502

Teachers' Association of Australia v. Victoria 1 ). In Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 2 the fact that a State was engaged in industry, and not the mere fact that the State was an employer, was the circumstance which was held to make it possible for the State or its Minister to be a party to an industrial dispute.

No-one would say that, in the ordinary sense of the word industry, a public servant in one of the ordinary governmental departments was engaged in industry. Officers in the Lands Department and the Titles Office and the Attorney-General's Department, policemen controlled by the Chief Secretary, are all doing useful and necessary work as employees of the State, but it would be a misuse of words to describe them or their employer as engaged in industry. The questions that may arise in relation to their employment are not industrial matters.

The distinction between governmental and industrial matters has been clearly recognized by this Court Federated State School Teachers' Association of Australia v. Victoria 3 (in connection with the first passage referred to, I refer to what I have already said as to the definition of various terms in the Arbitration Act)-and see per Isaacs J. dissenting, but nevertheless saying :- In no case has it ever been suggested that Crown officials engaged in administering true, essential governmental authority come within the ambit of the industrial disputes power. For instance, no-one has ever thought that Treasury officials performing duties under the State Trading Concerns Act 1916 of Western Australia, or under the State railway systems are within the Commonwealth industrial dispute jurisdiction although the trading employees are. There is a line of demarcation inherent in all British Constitutions which inexorably divides the two classes of cases" 4.

I am accordingly of opinion that the matters referred to the Arbitration Court by the Minister were not industrial matters within the meaning of the Arbitration Act or of the Industrial Peace Regulations and that for this reason the order nisi should be made absolute. It is unnecessary to consider other grounds taken by the prosecutors.

Victoria v. The Commonwealth.-I this action the plaintiffs raise the question of the validity of certain regulations made under the National Security Act 1939-1940 and of the Act itself. The challenged

1(1929) 41 C.L.R. 569. 2(1920) 28 C.L.R. 129. 3(1929) 41 C.L.R. 569, at pp. 574, 4(1929) 41 C.L.R., at p. 584. 66 CLR 503

regulations are Statutory Rules 1942 No. 407 and Statutory Rules 1942 No. 422. These Statutory Rules add sub-regulations to reg. 29 of the National Security (Supplementary) Regulations (Statutory Rules 1940 No. 126 as subsequently amended). Statutory Rules 1942 No. 407 applies to all Victorian State Departments and to employees of such departments, and Statutory Rules 1942 No. 422 applies to all employees in Victoria.

The defendant has demurred to the statement of claim upon the grounds that the regulations and the National Security Act 1939- 1940 are valid and that upon their true construction the challenged regulations apply (i.e., validly apply) to persons employed under the Public Service Act 1928-i.e., to all Victorian public servants. The demurrer comes for argument before this Court.

The original reg. 29 of the statutory rule was repealed by Statutory Rules 1942 No. 242 and a new regulation was made. The new regulation in effect requires establishments, factories, &., engaged on war work to be carried on upon holidays in the same manner as if the holidays were ordinary working days (sub-reg. 1). Sub-reg. 2 provides that employees engaged in work on such days should be paid as required by any appropriate law or industrial award, order, determination or agreement. Sub-reg. 3 provides for cases in which there is no such law or award &. applicable and authorizes " any 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 on which the employee is employed' to award additional payment for such work. Sub-reg. 4 provides that an employee to whom such a determination applies shall be entitled to sue for and recover in any court of competent jurisdiction any payment to which he is entitled under the determination. The days to which the regulation applies include days in 1942 which are holidays by virtue of State law (sub-reg. 7). By Statutory Rules 1942 No. 282 a new sub-regulation (4A) was made, which authorized the Commonwealth Court of Conciliation and Arbitration or a Concilia- tion Commissioner or any person duly authorized by the Minister to deal with disputes under the regulations, and, in the absence of agreement, to make a determination binding upon the parties.

Reg. 29, as it stood before the making of Statutory Rules 1942 No. 407, applied to " every establishment, factory, mine, dockyard, or workshop, 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."

66 CLR 504

Statutory Rules 1942 Nos. 407 and 422 extended reg. 29 SO as to make it apply to all State public servants, without any reference to the character of their work, i.e., the application of the regulation in such cases is not made to depend upon the work in question having any connection with war or defence purposes.

Statutory Rules 1942 No. 407 adds the following sub-regulation to reg. 29:

" (8) The foregoing provisions of this regulation shall, in respect of the State of Victoria, apply also, on the last Thursday in Sep- tember, 1942 (being Royal Agricultural Show Day), to employers and managers (being persons engaged in the business of banking or of insurance) and to every Commonwealth or State Department, or authority of the Commonwealth or of a State, engaged on any work whatsoever and to all employees of any such employer or manager and to officers and employees of any such Department or authority."

Statutory Rules 1942 No. 422 adds the following sub-regulations to reg. 29 -

(9) If under any law or industrial award, order, determination or agreement, an employee in the State of Victoria would have been entitled to a holiday on the first Tuesday in November, 1942, had that day been appointed by proclamation under any law of that State to be observed as a public holiday, he shall, in respect of work on which he was engaged on that day, be entitled to the compensation to which he would have been entitled under the law or industrial award, order, determination or agreement if that day had been SO proclaimed.

(10) Where an employee who is SO engaged on the first Tuesday in November, 1942, is not entitled under any law or industrial award, order, determination or agreement to additional payment in respect of his being or having been SO engaged, the provisions of sub-regulations (3) and (4) of this regulation shall extend to any such employee."

The first Tuesday in November is ordinarily Melbourne Cup Day. In 1942 this day was not proclaimed as a holiday. The plaintiffs challenge the validity of these three sub-regulations SO far as they apply to Victorian State Departments and to members of the Victorian public service.

Holidays in the public service of Victoria are fixed by or under the Public Service Act 1928, sec. 187, and the Public and Bank Holidays Act 1934, sec. 4. When an officer works on such a holiday he is not, in general, entitled to extra pay (salaries are on an annual basis, not a daily basis-Public Service Act 1928, secs. 26 et seq.),

66 CLR 505

but is entitled in lieu thereof to a holiday upon such other occasion as does not interfere with public business (sec. 187 (2) ); though upon the certificate of the permanent head of a department and with the authority of the Public Service Commissioner (now the Public Service Board-Act No. 4751, sec. 3, First Schedule) a gratuity for overtime work may be paid (sec. 192).

Thus the State Parliament has provided a legislative scheme for dealing with work done by public servants on days which would normally be holidays. The Commonwealth regulations purport to authorize the Commonwealth Court of Conciliation and Arbitration, a Conciliation Commissioner, or any person appointed by the Com- monwealth Minister, to substitute some other scheme for that which has been embodied in the State statutes and to do this whether or not the State servants concerned are employed in an establishment &. engaged in connection with war or defence purposes. The question is whether the Commonwealth legislative power extends to cover such cases.

It has not been argued that the Commonwealth Parliament has power to make laws with respect to State servants as such. The Com- monwealth Parliament possesses the powers conferred upon it by the Constitution and no other powers. The Commonwealth Parliament has full power to legislate with respect to the public service of the Commonwealth and has no power to legislate with respect to the public service of a State-for the simple reason that no provision of the Constitution contained in sec. 51 or elsewhere confers such a power upon it. The Constitutions of the States are, subject to the Commonwealth Constitution, preserved by sec. 106. The State Parliaments therefore, by virtue of the Constitutions of their own States expressly preserved by the Commonwealth Constitution, have full power to legislate for their respective public services. They have no power to legislate with respect to the Commonwealth public service.

But, though the Commonwealth cannot take control of State public services, it may affect such services by laws passed under powers which do not directly relate to such services but which are such that the exercise of the Commonwealth powers affects State services. Thus I can see no reason to doubt the Commonwealth power to make laws which apply to State servants engaged in war work for the Commonwealth-but such laws are justified because it is clear that they relate to defence and to State servants only SO far as they are connected with defence.

The validity of sec. 5 of the National Security Act 1939-1940, under which the regulations were made, is not now open to challenge

66 CLR 506

(Wishart v. Fraser 1 ). The question is whether Statutory Rules 1942 Nos. 407 and 422 are authorized by sec. 5, as being regulations

for securing the public safety and the defence of the Commonwealth and the Territories of the Commonwealth", or as being necessary or convenient to be prescribed, for the more effectual prosecution of the war."

The effect of the new provisions added by Statutory Rules 1942 Nos. 407 and 422 is to extend the operation of reg. 29 to Victorian public servants who are not employed in any department engaged in war or defence work. These provisions therefore can be supported only if such Federal control of State public servants, without reference to the character of their work, can be shown to be a measure which is really a defence measure.

In South Australia v. The Commonwealth (Uniform Taxation Case) 2 I quoted the very wide definitions or descriptions of the defence power which are to be found in Farey v. Burvett 3. Even upon this basis, I said that there must be some connection between the legislation in question and the defence of the country." In that case I differed from the majority of the Court only in that I could not discern any such connection in the case under consideration.

The argument for the Commonwealth was principally based upon a statement of Isaacs J. in Farey v. Burvett 4 that a measure will be authorized under the defence power if it " may conceivably in such circumstances even incidentally aid the effectuation of the power of defence." The words "conceivably" and "even inciden- tally" were especially emphasized. The circumstances to which his Honour referred were the facts that the people of Australia were actors, not spectators, in a mighty and unexampled struggle and that the Court could see beyond controversy that ' co-ordinated effort in every department of our life may be needed to ensure success and maintain our freedom." Those circumstances exist again to-day. It should require no argument to show that co-ordination of national effort and full utilization of national resources are essential to effective defence, and that the responsibility for defence rests with Parliament and the Government and not with any court.

The acceptance of these propositions involves the result that a court will be most cautious and indeed reluctant before it decides that measures which are promulgated under the defence power are not really defence measures, but that they exceed the limits of that power. But the most complete recognition of the power and respon- sibility of Parliament and of the Government in relation to defence

1(1941) 64 C.L.R. 470. 2(1942) 65 C.L.R., at pp. 431, 432. 3(1916) 21 C.L.R. 433. 4(1916) 21 C.L.R., at pp. 455, 456. 66 CLR 507

does not involve the conclusion that the defence power is without any limits whatever. The existence of the defence power in the Commonwealth Parliament and the exercise of that power do not mean that all governmental power in Australia may, by the action of the Commonwealth Parliament, be concentrated in Common- wealth authorities. The Constitution cannot be made to disappear because a particular power conferred by the Constitution upon the Commonwealth Parliament is exercised by that Parliament. Indeed, the grant of the power to legislate with respect to defence is made expressly 'subject to this Constitution --see opening words of sec. 51. 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 govern- mental administration within Australia. The result would be the abolition, in all but name, of the federal system of government which it is the object of the Constitution to establish-preamble and clause 3 of the covering clauses of the Constitution.

But such a result cannot follow if the defence power is regarded as enabling the Commonwealth Parliament to make such laws only as have a real connection with defence. In spite of the use of the word "conceivably," I do not regard the statement of Isaacs J. which I have quoted as meaning more than this, except that, recog- nizing the great scope and profound national importance of the defence power, it emphasizes the necessity for care and caution before deciding that a particular measure, put forward as appertain- ing to defence, in truth and in substance has nothing to do with defence. When the statement is thus understood it goes no further than the reasons for judgment of the other members of the Court in Farey v. Burvett 1, and it is only in this sense that, in my opinion, it should be accepted as authoritative.

It may be observed that the passage which I have quoted from the judgment of Isaacs J. begins with the following sentence :- "I do not hold that the (Commonwealth) "legislature is at liberty wantonly and with manifest caprice to enter upon the domain ordinarily reserved to the States" 2. His Honour therefore concedes the existence of some limitations upon the defence power. Since Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. 3, however, no conclusion as to the validity of Common- wealth legislation can be based upon any supposed reservation of particular matters to the States. There is nothing in the words last quoted to support the proposition that only measures which are

1(1916) 21 C.L.R. 433. 2(1916) 21 C.L.R., at p. 455. 3(1920) 28 C.L.R. 129. 66 CLR 508

wanton and manifestly capricious are beyond the defence power or that wantonness and capriciousness are special tests of the con- stitutional validity of statutes in relation to that power. The principle which would destroy the validity of wanton and capricious measures may, I venture to think, be expressed by stating that a law must have a real connection with a subject matter in order to be validly enacted under a power to make laws with respect to that subject matter. This is the criterion which the Court has always applied, whatever may have been the legislative power in question-whether trade and commerce, taxation, arbitration in relation to industrial disputes or any other subject matter. The question always must be "Is the challenged law really (i.e., in substance) a law with respect to the subject matter in question If the answer is in the negative the law cannot be valid under the power to make laws with respect to that subject matter. That test is not always easy to apply. I have stated my opinions on this question in South Australia v. The Commonwealth (Uniform Taxation Case) 1.

In this case the Court has to deal with regulations which substitute control by a Commonwealth authority for the control provided by Victorian statutes in relation to pay of Victorian public servants for work on days which are normally holidays. If such public servants are engaged in war work of the kind specified in reg. 29 (1), no difficulty arises. The question arises as to public servants who are not engaged in such work and who are brought within the regulations only by Statutory Rules 1942 Nos. 407 and 422.

Prima facie the work of such public servants, e.g., in the Lands Office and the Titles Office, is not connected with the war-except in SO far as everything in an organized community is connected with everything else in that community. It is essentially civilian in character. Indeed, it is as far from the war as anything can be- even during a war of such gigantic percussions and repercussions as the present war.

The arguments in support of the validity of the regulations may be fairly expressed, I think, in two propositions.

In the first place, there is a suggestion that Commonwealth control of anything is more efficient than State control, and that therefore the extension of Commonwealth control promotes general efficiency and therefore assists the war effort. I gave reasons for declining to make this assumption as the basis of a legal decision in the Uniform Taxation Case 2, and I see no reason for making it in the present case. The rejection of this assumption is not inconsistent

1(1942) 65 C.L.R., at pp. 424-426. 2(1942) 65 C.L.R., at p. 433. 66 CLR 509

with the proposition that, in relation to many matters, national control is necessary or desirable to secure efficiency and promptitude in action. This may be apparent from the nature of the case, or it may be established by evidence. But the mere fact of a desire by the Commonwealth to assume powers in relation to a particular matter does not conclude the question.

The substantial argument for the Commonwealth was that, especially in time of war, civic contentment and good feeling is very important and that this is prejudiced if State servants are dissatisfied with respect to holiday pay. Therefore, it is argued, the Commonwealth must, under the defence power, have authority to take charge of such a matter. This contention inescapably depends upon the proposition that under the defence power the Commonwealth Parliament may pass any law to promote the con- tentment and happiness of the people.

Sec. 51 of the Constitution provides that "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to thirty-nine specified matters. These powers, and other specified powers, are the only legislative powers of the Commonwealth. The adoption of the argument under consideration would have the result of striking out of sec. 51 all the words relating to the subjects of possible legislation, thus leaving the Parliament with power to make laws for the peace, order and good government of the Commonwealth. The Parliament would become a Parliament not with limited powers, but with unlimited powers. Such a result is simply a contradiction of the Constitution. The Constitution, as a Federal Constitution assigning only specified legislative powers to the central legislature, would cease to exist at the will of the Commonwealth Parliament.

As I have already said, the defence power should not, in my opinion, be construed as an unlimited legislative power. It should be interpreted upon the same principle as that which is applied to other constitutional powers. If the alleged connection between a particular power of legislation and the subject of defence is either non-existent or SO attenuated as to be practically non-existent, the legislation cannot be supported under that power. So far as the validity of the regulations in question is challenged, the relation which they have to defence is no greater than the relation which any legislation deemed to be desirable in the general interests of the community has to defence. A law cannot, in my opinion, be brought within the defence power merely upon this ground.

This conclusion does not place any obstruction or difficulty in the way of the Commonwealth in the full exercise of what is perhaps

66 CLR 510

the most important power and responsibility with which it is entrusted -that of defending the people in time of war. The view which I have expressed is in accordance with the reasons for the decision of the majority of the Court in Farey v. Burvett 1.

For the reasons stated I am of opinion that Statutory Rules 1942 Nos. 407 and 422 cannot be validly applied to Victorian public

The demurrer should therefore be overruled.

RICH J. I concur in the conclusion arrived at by my brother Williams, and, generally speaking, with the reasons given by him in arriving at that conclusion.

Victoria v. The Commonwealth.-In my opinion the demurrer should be overruled.

STARKE J. The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria.-Rule nisi to show cause why a writ of prohibition should not issue to the Commonwealth Court of Concilia- tion and Arbitration and Judge Kelly of that Court prohibiting the Court and the judge from further proceeding to hear and deter- mine the reference dated 20th June 1942 by the Minister of State for Labour and National Service to the said Court pursuant to reg. 9 of the National Security (Industrial Peace) Regulations of the Com- monwealth (Statutory Rules 1940 No. 290 and amendments thereto).

Reg. 9 provides :- 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." Under this regulation the Minister made the following reference which is remarkable, as well for its vagueness, as for its assumption of authority :-

" Whereas the hours of duty of members of the Victorian Public Service Association have been increased by the Government of the State of Victoria.

And whereas the Public Service Board of the State of Victoria has refused to determine the rate of pay of the members of the Victorian Public Service Association who worked on the days referred to in Regulation 44 (2) (a) (sic) of the National Security (Supplementary) Regulations.

And whereas I am of opinion that the said industrial matters are likely to lead to industrial unrest.

1(1916) 21 C.L.R. 433. 66 CLR 511

And whereas I am satisfied that the industrial dispute arising out of the said industrial matters is one proper to be dealt with by the Commonwealth Court of Conciliation and Arbitration in the interests of industrial peace and national security by virtue of the provisions of Regulation 5 (a) of the National Security (Indus- trial Peace) Regulations.

Now therefore I, Edward John Ward, the Minister of State for Labour and National Service, in pursuance of the powers conferred by Regulation 9 of the National Security (Industrial Peace) Regu- lations do hereby refer the said matters to the Court to hear and determine,

Dated this 20th day of June, 1942.

E. J. WARD, Minister of State for Labour &National Service." In the regulation the words " matter," "unrest," " dispute," are all qualified by the word " industrial," yet the reference assumes and asserts that there exists between the State of Victoria and its officers subject to the Public Service Act 1928 of the State an indus- trial relationship, that the hours of duty and remuneration of those officers are "industrial matters," that such matters are likely to lead to "industrial unrest " and constitute an "industrial dispute." Such an interpretation of the regulation is contrary to the ordinary use and signification in English of the word "industrial," to the provision in the Regulations themselves (reg. 2 (2) ), that expressions used in the Regulations shall, unless the contrary intention appears, have the same meaning as in the Commonwealth Conciliation and Arbitration Act 1904-1934, and really disregards the decision of this Court in Federated State School Teachers' Association of Australia V. Victoria 1.

It is unnecessary in this view and undesirable to consider a further contention on the part of the State of Victoria that the Regulations or alternatively reg. 9 are or is invalid and not authorized by any power conferred upon the Commonwealth by the Constitution Act.

The rule nisi for prohibition should be absolute. Victoria v. The Commonwealth.Demurrer - on the part of the Commonwealth to a statement of claim delivered in an action by the State of Victoria and its Attorney-General against the Commonwealth claiming declarations that the National Security Act 1939-1940, if and

SO far as it purports to confer power on the Governor-General to make Statutory Rules 1942 No. 407 and No. 422, or, alternatively, if and

SO far as it purports to confer upon the Governor-General power to

1(1929) 41 C.L.R. 569. 66 CLR 512

A. affect by the said regulations persons employed by the State pur-

suant to the provisions of the Public Service Act 1928 of the State, is not authorized by the Constitution Act, that the Statutory Rules 1942 Nos. 407 and 422 are wholly or in SO far as the same purport to affect or apply to persons employed by the State pursuant to the said Public Service Act 1928 are not authorized by the National Security Act 1939-1940, and that upon the true construction of the Statutory Rules the same do not affect or apply to persons employed by the State pursuant to the Public Service Act.

It is necessary to go back to Statutory Rules 1942 No. 242 to under- stand the Statutory Rules 1942 Nos. 407 and 422. Statutory Rules 1942 No. 242 provided that the employer of every establishment engaged wholly or partly in production for war or defence purposes 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 should on every day to which the regulation applied carry on such production in the same manner and to the same extent as would be the case if that day were an ordinary working day. The day to which the regulation applied was any day before 1st December 1942 which by virtue of any law of the Commonwealth or any State or by virtue of any award or order of any industrial tribunal or any industrial agreement was to be observed as a holiday or a public holiday at the establishment or place at which the department or authority carried on its function. Further clauses of the regulation provided for the manner in which the employees should be compensated.

Under the Public Service Act, the public service of Victoria is organized into the first, professional, clerical and general divisions. The first division consists of high officers, including the Under-Secre- tary, Under-Treasurer, Director of Education, and Secretary to the Law Department. The professional division includes the members of the public service who work in such departments as those of the Treasury, Lands, Law, Premier and Chief Secretary. The four divisions are paid annual salaries. Sec. 187 enumerates certain days to be observed as holidays and authorizes the Governor in Council to proclaim other days as holidays. Sec. 192 provides that the permanent head of any department may if he thinks fit certify that in his opinion any officer in the public service in his department is

66 CLR 528

entitled to a gratuity or to a payment for overtime, but no gratuity shall be paid upon such certificate without the authority of the Board. Regulations made under the Act prescribe rates to be paid for such overtime.

The secretary of the Public Service Association made demands on the government for holiday pay in respect of the work done by the public servants in all divisions on these holidays, based on alleged rights to such payments given by the Commonwealth National Security Regulations, and requested the Public Service Board to amend the Public Service Regulations SO as to provide for payment where officers were called upon to work on statutory public holidays, but the Board refused. This refusal was followed by the reference of 20th June 1942.

Reg. 3 of the Industrial Peace Regulations expressly provides that the Act and Regulations shall, SO long as the Regulations continue in force, be construed as if the provisions of the Regulations were incorporated in the Act as amendments thereof. The Act, which is an exercise by the Commonwealth Parliament of its powers under sec. 51 (xxxv.) of the Constitution to make laws for the peace, order and good government of the Commonwealth with respect to concilia- tion and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State, contains in sec. 4 definitions of industrial dispute," industrial matters" and "industry." It has been pointed out by this Court that the words "industrial dispute in the Commonwealth Conciliation and Arbitra- tion Act must be construed SO as not to exceed the ambit of the power conferred upon the Commonwealth Parliament by sec. 51 (xxxv.) (Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association 1; Australian Insurance Staffs' Federation v. Accident Underwriters' Association 2 ).

In Federated State School Teachers' Association of Australia V. Victoria 3, Knox C.J., Gavan Duffy, Rich and Starke JJ. (Isaacs J. dissenting), held that the educational activities of the States carried on under the appropriate statutes and statutory regulations of each State relating to education did not constitute an industry within the meaning of sec. 4 of the Act that the occupation of the teachers SO employed was not an industrial occupation; and that the dispute which existed between the States and the teachers employed by them was therefore not an industrial dispute within the meaning of sec. 51 (xxxv.) of the Constitution and of the Com- monwealth Conciliation and Arbitration Act. Isaacs J., who dissented,

1(1908) 6 C.L.R., at p. 369. 2(1923) 33 C.L.R. 517. 3(1929) 41 C.L.R. 569. 66 CLR 529

held that the art of teaching was an industry; but it is clear from his judgment 1 that he considered that Crown officials engaged in administering "true, essential governmental authority' " would not come within the ambit of the industrial disputes power. He divided governmental functions into two broad classes: (1) those "regal" functions which a State must necessarily undertake, such as the legislative power, the administration of the laws, and the exercise of judicial power, and (2) those functions which a State may volun- tarily undertake and which individuals can and do also undertake, and included education in the latter class. It is clear, therefore, that his Honour would not have regarded public servants engaged in duties incidental to the execution of the legislative powers, the administration of the laws, and the exercise of the judicial powers, as being engaged in industry. So that, if the general body of public servants of two or more States had formed themselves into an inter- State organization and applied to the Court of Conciliation and Arbitration in peace-time for an award, the case can be regarded as a unanimous decision of this Court that the dispute would not have been considered an industrial dispute within the meaning of the Act.

The Industrial Peace Regulations were first introduced by Statutory Rules 1940 No. 290. They contained the following preamble :-

Whereas it is necessary for the efficient prosecution of the present war that peace in industry should be preserved in the Commonwealth And whereas, in order to preserve that peace in industry, it is desirable that certain limitations on the jurisdiction of industrial tribunals constituted under the laws of the Commonwealth should be removed and that provision should be made for those tribunals to deal with industrial disputes with greater expedition." The Regulations are therefore an exercise of the defence power in relation to industry. Reg. 4 provides that SO long as the Regulations continue in force, the provisions of the Act shall be applied and construed as if from the definition of "industrial disputes" in sec. 4 the words "extending beyond the limits of any one State' " were omitted, and the juris- diction of the Court shall be extended accordingly. It was success- fully contended before the learned judge that the definitions in the Act had to be read in peace-time in a restricted sense SO as not to exceed the powers conferred upon the Parliament by placitum xxxv., but that, since in war-time the defence power can also be invoked to justify the legislation, the definitions of industrial matters and industry can be given their ordinary grammatical meaning, which, it was said, is wider than the ordinary grammatical meaning of industrial disputes in placitum xxxv., and capable of embracing

1(1929) 41 C.L.R., at pp. 584, 585. 66 CLR 530

OF A. " all forms of employment in which large numbers of persons are

employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life " (per Griffith C.J. in Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association 1 ).

This contention is in my opinion fallacious. If sound it would involve the extraordinary result that without any amendment of the Act the Court of Conciliation and Arbitration would have power in war-time to make an award on the application of the Federated School Teachers' Association of Australia, although it had no power to do SO in peace-time. In the previous cases this Court has sought to discover the meaning of the word "industrial" in its ordinary and popular acceptation, naturally and inescapably founding its inquiry upon the basis that the word bears the same meaning in the Commonwealth Conciliation and Arbitration Act as it does in the Constitution. The object of the Industrial Peace Regulations, as defined in the preamble and to be gathered from the Regulations themselves, is to extend the provisions of the Act and the Regulations to intra-State disputes and to industrial matters such as industrial unrest, and to provide a speedy method of having industrial questions heard and determined. The Regulations do not attempt to enlarge the scope of the word "industrial" in its new collocations beyond its meaning in the Act. If they did chaos would probably result, because in administering the Regulations resort must be had to many sections of the Act in which the word still having its previous meaning occurs over and over again (Australian Coal &Shale Employees' Federation v. Aberfield Coal Mining Co. Ltd. (2) ).

The true position is, in my opinion, that the Regulations must be construed, as indeed reg. 3 expressly provides, as amendments of the Act, and that the definitions in the Act mean the same thing in war-time as in peace-time. It may be that some of the public servants are engaged in industry within this meaning (Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [No. 2] 3 ), but the reference applies to the whole of the public service indiscriminately.

It follows that, in my opinion, the Minister had no authority to refer the disputes enumerated in the reference to the Court under reg. 9, and that the order nisi should be made absolute on this ground. It is therefore unnecessary to discuss whether the Regula- tions as a whole or reg. 9 in particular are beyond the powers con- ferred upon the Commonwealth Parliament by the Constitution.

1(1908) 6 C.L.R., at p. 333. 3(1920) 28 C.L.R. 436. 66 CLR 531

It remains to discuss the questions raised in the action. Statutory Rules 1942 No. 242 was passed on 28th May 1942. It repealed regs. 29 and 44 of the National Security (Supplementary) Regulations and inserted a new reg. 29. This new reg. 29 was subsequently amended by Statutory Rules 1942 No. 282 made on 25th June 1942, No. 407 made on 23rd September 1942, and No. 422 made on 1st October 1942. Sub-reg. 1 provides that the employer, manager, or occupier of every establishment, factory, mine, dockyard, or workshop, 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 Common- wealth 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. Sub-regs. 2, 3 and 4 provide that an employee engaged on any such production, repair, overhaul or work on any day to which the regulation applies shall become entitled to compensation, that where he is not entitled under any law to compensation he may apply to any tribunal or authority having jurisdiction to determine disputes or claims in respect of rates of pay or conditions of employ- ment in relation to work on which the employee is employed or any Conciliation Commissioner to determine the compensation, and that an employee shall be entitled to sue for and recover in any court of competent jurisdiction any payment to which he is entitled under the determination. Sub-reg. 7 provides that the day to which the regulation applies means any day before 1st December 1942 which, by virtue of any law of the Commonwealth or any State, is to be observed as a holiday or public holiday at the establishment, factory, mine, dockyard or workshop or the place at which the department or authority carries on its functions. Sub-reg. 8, added by Statutory Rules 1942 No. 407, provides that the foregoing provisions of the regulation shall, in respect of the State of Victoria, apply also, on the last Thursday in September 1942 (being Royal Agricultural Show Day), to employers and managers (being persons engaged in the business of banking or of insurance) and to every Commonwealth or State department, or authority of the Commonwealth or of a State, engaged on any work whatsoever and to all employees of any such employer or manager and to officers and employees of any such department or authority. Sub-regs. 9 and 10, added by Statutory Rules 1942 No. 422, provide that (9) if under any law an employee in the State of Victoria would have been entitled to a holiday on the first Tuesday in November 1942, had that day been

66 CLR 532

appointed by proclamation under any law of that State to be observed as a public holiday, he shall, in respect of work in which he was engaged on that day, be entitled to the compensation to which he would have been entitled under the law if that day had been

SO proclaimed, and (10) where an employee who is SO engaged on the first Tuesday in November 1942, is not entitled under any law to additional payment in respect of his being or having been SO engaged, the provisions of sub-regs. 3 and 4 of this regulation shall extend to any such employee.

Royal Agricultural Show Day is one of the statutory holidays under the Public Service Act, but it was cancelled this year, and Melbourne Cup Day only becomes a holiday under the Act if it is proclaimed. It has been the usual practice to run the Cup on the first Tuesday in November and to proclaim this day a holiday under the Act, but only in certain parts of Victoria. This year the Show was not held at all, and the Cup was run on a Saturday. It will be seen that until sub-regs. 8 and 9 were added, reg. 29 was confined to employees, whether of private employers or of the Commonwealth or a State, employed in establishments engaged in production for war or defence purposes or on work associated with the prosecution of the war, but these sub-regulations extended the regulation on the two days mentioned to employees in Victoria, whether employed by private employers or by the Commonwealth or by the State of Victoria, engaged, in the case of sub-reg. 8, when in private employ- ment, in the business of banking or insurance, and in the case of sub-reg. 9 on any work whatsoever.

In the Uniform Tax Case (South Australia v. The Commonwealth)

66 CLR 533

although there is no business to do and the day's work is a total loss. It was suggested in argument that those employers and employees who are engaged on the production or repair of war materials would become restless and dissatisfied if other employers and employees not engaged on such work could take a holiday when they could not, even when the employees who worked received holiday pay as a solatium, a suggestion which would appear to place a grave stigma on the patriotism of war workers. The sub-regulations refer not to actual but to fictitious holidays, and the days in question are ordinary week days. I cannot see how the imposition of penalty rates for work done on these days, especially in the case of employers like the State of Victoria who are not engaged in any industry or any work associated with the prosecution of the war, can conceivably aid in the defence of the Commonwealth. The Commonwealth Parlia- ment cannot interfere with the exercise by a State of its legislative, judicial or executive functions. Questions such as the days and hours of work and of the remuneration of public servants of a State engaged upon duties incidental to the execution of such functions arise solely between the State and its public servants. They are beyond the ambit of any power conferred upon the Commonwealth Parliament by the Constitution.

The decision of the majority of the Court in the Uniform Tax Case

66 CLR 534

Government to legislate with respect to State servants who are not impressed into the service of the Commonwealth, but remain in the employment of a State, and who are not engaged in carrying out duties which are of an industrial nature or connected with or incidental to defence.

For these reasons I am of opinion that the demurrer should be overruled.

The King v. Commonwealth Court of Conciliation and

Arbitration; Ex parte Victoria.-Order absolute. Victoria v. The Commonwealth.-Demurrer overruled. Solicitor for the State of Victoria, the Attorney-General thereof, and the Victorian Public Service Board, F. G. Menzies, Crown Solicitor for Victoria.

Solicitor for the Commonwealth, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.

Solicitors for the Victorian Public Service Association, Maurice Blackburn &Co.