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

The High Court of Australia considered two related matters: *The King v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria*, where the State of Victoria and its Public Service Board sought prohibition against the Commonwealth Court of Conciliation and Arbitration and Judge Kelly regarding a reference by the Minister for Labour and National Service; and *Victoria v. The Commonwealth*, where the State of Victoria and its Attorney-General challenged the validity of certain Commonwealth National Security Regulations. The core dispute concerned the extent to which Commonwealth regulations, particularly the National Security (Industrial Peace) Regulations and National Security (Supplementary) Regulations, could apply to the employment conditions of State public servants in Victoria.

The legal issues before the Court were whether the matters referred to the Commonwealth Court of Conciliation and Arbitration constituted "industrial matters" within the meaning of the National Security (Industrial Peace) Regulations, and whether those regulations, or specific provisions of the National Security (Supplementary) Regulations, were validly enacted under the Commonwealth's defence power. Specifically, the Court had to determine if the Commonwealth had the constitutional authority to regulate the holidays and remuneration of State public servants not engaged in war-related work, and if the definition of "industrial matter" in the National Security Regulations extended to such State public service employment.

The Court reasoned that the expression "industrial matter" in the National Security (Industrial Peace) Regulations should be interpreted consistently with its meaning in the Commonwealth Conciliation and Arbitration Act 1904-1934. It held that questions relating to the employment of State public servants engaged in ordinary governmental departments did not fall within the scope of "industrial matters" as defined by that Act. Furthermore, the Court found that certain provisions of the National Security (Supplementary) Regulations, specifically sub-regulations 8, 9, and 10 of regulation 29, which purported to control the holidays of Victorian public servants not involved in war work, exceeded the ambit of the Commonwealth's defence power. The Court concluded that the regulation of State public servants in their ordinary governmental functions was a matter for State, not Commonwealth, control.

Consequently, the High Court made orders absolute for prohibition in the first matter, restraining the Commonwealth Court of Conciliation and Arbitration and Judge Kelly from further proceeding with the reference. In the second matter, the Court found that the challenged sub-regulations of the National Security (Supplementary) Regulations were invalid in so far as they purported to apply to State public servants not engaged in war work, thereby upholding Victoria's challenge to their validity.