R v Connell; Ex parte Hetton Bellbird Collieries Ltd

[1944] HCA 42

69 CLR 407

CONNELL AND ANOTHER Ex PARTE THE HETTON BELLBIRD COLLIERIES

LIMITED AND OTHERS. National Security-Economic organization-Remuneration " in respect of any employ-

ment"LAlteration by any industrial authority prohibited by Regulations- Coal-mining industry-Disputes-Members of Industrial Federation--Industrial Authorities appointed under statute passed subsequent to Regulations-Applic ability of Regulations-Statutes-Implied repeal-Coal Production (War-time) Act 1944 (No. 1 of 1944), 88. 5, 29-35, National Security (Economic Organiza- tion) Regulations (S.R. 1942 No. 76-1944 No. 52), regs. 4, 16, 17-National MELBOURNE, Security (Coal Mining Industry Employment) Regulations (S.R. 1941 No. 25- 1944 No. 48), regs. 7, 14, 18. National Security-Economic organization-Coal-mining industry-Rates of reminer

ation - Anomalous - Industrial authority - Satisfied - Jurisdiction DecisionProhibition-Award requiring approval of Minister-- Award filed Commonwealth Court of Conciliation and Arbitration--Decision according to equity and good conscience-The Constitution (63 &64 Vict. c. 12), S. 75 (v.)- Coal Production (War-time) Act 1944 (No. 1 of 1944), SS. 31, 32 (1), 34 (1) (c), 35, 40-National Security (Economic Organization) Regulations (S.R. 1942 No. 76-1944 No. 52), regs. 16, 17.

Regulations 16 and 17 of the National Security (Economic Organization) Regulations* prohibited, with certain exceptions, the inclusion by an Industrial Authority in any award of any provision altering in respect of any employ- ment the rates of remuneration applicable to that employment on 10th Feb- ruary 1942.

Held, by the whole Court, that the Central Industrial Authority and the Local Industrial Authority appointed under the Coal Production (War-time) Act 1944 were Industrial Authorities within the meaning of the National

* Statutory Rules 1942 No. 76 as from time to time amended up to and including Statutory Rules 1942 No. 490, since repealed and replaced-see Statutory Rules 1945 No. 11.

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Security (Economic Organization) Regulations and bound by regs. 16 and 17; these regulations were not impliedly repealed by the Coal Production (War- time) Act 1944 in relation to the Authorities constituted under that Act.

Regulation 17 1 (b) of the National Security (Economic Organization) Regulations provided that an Industrial Authority might alter any rate of remuneration "with the approval of the Minister, if the Industrial Authority

Held, by the whole Court, (1) that to be "anomalous" within the meaning of reg. 17 (1) (6) a rate of remuneration must be incongruous with some general rule; and

2 that an Industrial Authority is not "satisfied" within the meaning of that regulation, SO as to found its authority to alter existing rates, if its opinion is based upon a misconstruction of the regulation.

A Local Industrial Authority appointed under the Coal Production (War- time) Act 1944, after hearing evidence in a dispute in which alteration of rates of remuneration was claimed, stated that he was satisfied that "an anomaly exists" and awarded increased rates of remuneration for certain duties to shift men employed at certain collieries. His award was approved by the Minister in accordance with reg. 17 (1) (b) of the National Security (Economic Organization) Regulations and filed in the Commonwealth Court of Conciliation and Arbitration pursuant to SS. 35 and 31 of the Coal Production (War-time) Act 1944. By these sections a Local Industrial Authority is to act according to equity, good conscience and the merits of the case without regard to tech- nicalities and by S. 40 the decision of an Industrial Authority appointed under the Act is not to be subject to prohibition on any account whatever.

Held, by Latham C.J., Rich, Starke and Williams JJ. (McTiernan J. dis- senting),

1that having regard to the terms of the claim, the evidence, and the award the Local Industrial Authority was not properly "satisfied" that the rates of remuneration were "anomalous" within the meaning of the regula- tion; and 2that prohibition lay against him in respect of his award. Per McTiernan J. The Local Industrial Authority was functus officio after his award was approved by the Minister and filed in the Court and prohibition Held, by the whole Court, that the award of an Industrial Authority is not bad because it does not disclose jurisdiction on its face. ORDER NISI for prohibition. A dispute arose between the Australasian Coal and Shale Employees' Federation on the one hand and The Hetton Bellbird Collieries Ltd., Hebburn Ltd., J. &A. Brown and Abermain Seaham Collieries Ltd., Caledonian Collieries Ltd. and Cessnock Collieries Ltd., proprietors of collieries on the Maitland coal-field, on the other 69 CLR 409

hand, upon a claim made by the Federation that " shiftmen working or timbering in high places shall be paid additional allowance as follows, when called upon to work in places of certain heights - 14 feet to 16 feet-2s. per day extra over 16 feet to 18 feet-4s. per day extra; over 18 feet to 20 feet-6s. per day extra over 20 feet to 22 feet-8s. per day extra; over 22 feet to 24 feet-9s. per day extra at heights in excess of 24 feet-11s. per day extra."

The Central Industrial. Authority appointed under S. 29 of the Coal Production (War-time) Act 1944 referred the claim to Mr. James Connell, a Local Industrial Authority appointed under S. 33 of the Act, for investigation and settlement.

In accordance with the reference meetings were held on 29th May 1944 and 5th June 1944 at which representatives of the proprietors of the collieries, as employers, and the employees respectively were in attendance.

Evidence was given on behalf of the parties to the dispute. In his decision, made on 15th June 1944, Mr. Connell set forth the various contentions submitted to him on behalf of the parties and stated that all such matters and all the evidence submitted had been carefully considered by him. He awarded, ordered and determined that at collieries in the Maitland and North-West Districts of New South Wales (with the exception of the Pelton Colliery) the following shall apply -

1. Where shiftmen are called upon to erect cross timbers at a height of 16 feet or more to make such place safe for working whilst

SO occupied on such work the shiftmen shall in addition to the recog- nized shift rate of wages be paid four shillings (4s.) per shift during the time they are necessarily occupied on such work.

2. Where shiftmen are called upon to erect props 17 feet in length and up to 20 feet they shall be paid one shilling (1s.) per shift extra. Over 20 feet in length up to 24 feet two shillings (2s.) per shift extra. Over 24 feet and more in length three shillings (3s.) per shift extra.

3. Where a mobile loader operates on a fall each member of the crew shall be paid a consideration payment of two shillings (2s.) per shift in addition to the recognized shift rate of wage during the time they are SO occupied.

4. Where shiftmen are called upon to perform work of boring trimming or taking down coal or stone at or near a pillar face and the height of such place is 24 feet or more, whilst SO occupied on such work the shiftmen shall in addition to the recognized shift rate of wage, be paid six shillings (6s.) per shift.

The foregoing reading and construction shall become operative at the Aberdare Extended Colliery as from the 17th day of April

69 CLR 410

OF A. 1944, and at Abermain No. 2 Colliery as from and on the 24th day

of May 1944. At all others as from and on the 26th day of June 1944."

Upon an application made to the High Court on behalf of the colliery proprietors as prosecutors, Williams J. granted an order nisi calling upon Mr. Connell, as Local Industrial Authority, and the Australasian Coal and Shale Employees' Federation to show cause why a writ of prohibition should not issue directed to each of them prohibiting them and each of them from further proceeding upon any of the clauses of Mr. Connell's award. The grounds, SO far as material, upon which the application was based were as follows

1. That clauses 1, 2 and 3 of the said award were made unlawfully because they were made in breach of reg. 16 of the National Security (Economic Organization) Regulations and were not justified by reg. 17 of those Regulations.

2. That clauses 1, 2 and 3 of the said award were made in excess of jurisdiction.

3. That clauses 1, 2 and 3 contain provisions purporting to alter in respect of the employment therein mentioned the rates of remuneration applicable to those employments on 10th February 1942.

4. That Mr. Connell was not satisfied that the rates of remuneration in respect of which he purported to make the said alterations were anomalous.

5. That there was no ground upon which Mr. Connell could be satisfied that the rates of remuneration in respect of which he purported to make the said alterations were anomalous.

7. That clause 3 of the award went beyond the terms of the reference to Mr. Connell by the Central Industrial Authority in that it purported to award a consideration payment (a) to employees other than shiftmen, (b) in respect of work other than work in high places.

The secretary of the Northern Colliery Proprietors Association, of which the colliery proprietors parties to the dispute were members, deposed, inter alia, that he was present at the whole of the hearing of the dispute by Mr. Connell, as a Local Industrial Authority that no evidence was led, no statements were made, and no arguments were put by the representatives of the Federation to Mr. Connell directed to show that the shiftmen's rates of remuneration which Mr. Connell was requested to alter were anomalous that for many years prior to 10th February 1942 the shiftmen's rates of remunera- tion as fixed from time to time by award or industrial agreement and as in fact paid to shiftmen on the Maitland coal-field were

69 CLR 411

rates fixed and paid on the basis that it was part of a shiftman's normal duties to work in high places that, under an award of the Commonwealth Court of Conciliation and Arbitration in force at that date, no extra payment over and above the shiftman's ordinary rate was payable to a shiftman for working in a high place, although in certain collieries an extra payment was payable to shiftmen for certain work in a place where a high fall of coal and/or stone from the roof had occurred; that from a date prior to April 1942 until late in March 1944 Mr. Connell, as chairman of the Local Reference Board (Maitland District) appointed under the provisions of the National Security (Coal Mining Industry Employment) Regulations, refused all of the many claims made to the Board for extra payment for shiftmen called upon to work in high places save where the shift- men were called upon to work in a place where a high fall had occurred; that in a decision given on 20th March 1944 by Mr. Connell as such chairman he stated "In all cases determined by the Board extra payments, where conceded, have been confined to shiftmen where they are called upon to timber and make safe falls of roof above a height of 16 feet" that of the five matters involving a claim for extra payment to shiftmen dealt with by Mr. Connell since he was appointed a Local Industrial Authority, three only were granted, one in respect of certain shiftmen when occupied in doing certain work above the recognized parting another in respect of certain shiftmen at Bellbird Colliery when employed on certain work in pillar extraction, and a third to certain shiftmen at Abermain No. 1 Colliery where they are called upon to work at a height in excess of 16 feet taking down stone roof or floaters, trimming the rib side of lips of top coal or preparing a chanch at a height above 16 feet, or erecting cross timbers or sets of timber to secure the roof. The deponent said, in reference to clause 1 of the award, that for many years past and prior to 10th February 1942 in various mines in the Maitland district it has been in the normal course of the duties of shiftmen from time to time to erect cross timbers at a height of 16 feet or more in places where no fall has occurred in reference to clause 2, that for many years past and prior to 10th February 1942 in various mines in the Maitland district it has been in the normal course of duties of shiftmen regularly and frequently to erect props 24 feet in length and more in places where no fall has occurred in reference to clause 3, that employees other than shiftmen are employed on mobile coal-loaders; that at the hearing of the matter before Mr. Connell no claim was made by representatives of the Federation in respect of employees other than shiftmen; and that for some years past and prior to 10th February 1942 in various mines in the

69 CLR 412

Maitland district mobile coal-loaders have from time to time operated on falls less than 16 feet in height and have operated on falls where such operation is not carried out to make the place safe for working

Upon the return of the order nisi argument was heard on the preliminary question whether regs. 16 and 17 of the National Security (Economic Organization) Regulations apply to a Local Industrial Authority appointed under the Coal Production (War-time) Act 1944.

Further facts and the relevant statutory provisions and regula- tions appear in the judgments hereunder.

Kitto K.C. (with him Ashburner), for the prosecutors. Regulations 16 and 17 of the National Security (Economic Organization) Regulations, although earlier in point of time, do limit and affect the powers, capacities and functions of Industrial Authorities acting under the Coal Production (War-time) Act 1944. There is not any intention shown in the scheme of legislation that that Act should establish a tribunal immune from the limitations of jurisdiction which applied to the tribunal which preceded it, and particularly the limitations which apply to the Commonwealth Court of Conciliation and Arbitration, because the jurisdiction conferred upon the Central Industrial Authority and a Local Industrial Authority is con- ferred by reference to the jurisdiction of the Court and the Court is itself subject to the limitations imposed by the Economic Organization Regulations. These Regulations, having the effect which is prescribed by S. 18 of the National Security Act 1939-1943 notwithstanding inconsistency with any other Act of the Common- wealth Parliament, should be regarded as paramount unless the Parliament has clearly shown the intention that a subsequent Act shall not be construed as limited by an existing regulation. Parlia- ment has not evinced an intention under the Coal Production (War- time) Act 1944 to establish tribunals which, although given powers almost in precise terms identical with those which had belonged to their predecessors, would have a jurisdiction unfettered by a provision which was a fundamental provision under the Economic Organiza- tion Regulations for the economy of the people for war-time purposes. Regulation 16 of those Regulations obviously was passed for the purpose of ensuring that there should be no undue increase in the remuneration of employees during the war and care was taken that no subsequent regulation should limit precisely the cases in which increases might be given. That regulation imposes a general limita- tion, and unless it plainly appears that Parliament intended to abrogate that legislation in regard to a particular field in that one

69 CLR 413

industry, the Court should not hold that it had done SO. It appears from S. 31 of the Act that the Act removes the settlement of a dispute in the coal-mining industry from some tribunals to another tribunal, but it does not alter the law. The Act is a special Act in that it creates a special tribunal, but it does not indicate that that tribunal shall not be within the limitations imposed by law on all tribunals. The provisions of the Act are completely consistent with the con- tinued application of reg. 16 and reg. 17 of the Economic Organization Regulations.

Weston K.C. (with him Conybeare), for the respondent Australasian Coal and Shale Employees' Federation. The Parliament intended by the Coal Production (War-time) Act 1944 to place the matters dealt with by it in a special category for every purpose. It is signifi- cant that this was done by statute and not by regulation. This method was chosen, doubtless, in order that the statute might repeal, so far as there was any inconsistency, not only regulations previously promulgated, but any provision of the National Security Act itself. It was desired, within the limits of the defence power, to ensure that there would be no competitive legislation of any kind, earlier in time, in relation to that statute. The scheme of the Coal Production (War-time) Act 1944 is that it should, as shown by the first step to that end made in statutory rule No. 295 of 1943, place the coal-mining industry outside the provisions of the ordinary industrial law. Reg. 16 of the Economic Organization Regulations is an express provision relating only to the "pegging" of the rate of remuneration in force on the specified date. The absence from the Coal Production (War-time) Act of a similar express provision shows that Parliament intended that the Industrial Authorities established under the Act should have power, inter alia, to deal with remuneration, that is, rates of pay, in the coal-mining industry. Section 3 shows that the paramount object of the Act is to secure the production of coal and that any impediment under existing law against achieving that objective was to cease in relation to the coal-mining industry, even if it meant the paying of a higher wage than the worker in the industry was entitled to, Prices fixed by the Commonwealth Coal Commissioner under the powers conferred upon him by S. 17 (2) (b) of the Act would override any fixation of prices by the Prices Commissioner under the National Security (Prices) Regulations. The Economic Organization Regulations and the Prices Regulations are pro tanto repealed by S. 17 (2) (b). Similarly, the Contracts Adjustment Regulations are pro tanto repealed by S. 17 (2) (g). A Local Industrial Authority under the

69 CLR 414

OF A. Act has the powers, mutatis mutandis, mentioned in S. 31. One of

the additional powers provided by the combined operation of S. 31 and S. 34 of the Act is a right to disregard the "pegging" of wages under the Economic Organization Regulations it is a power to settle a dispute without regard to any pre-existing law. Section 18 of the National Security Act 1939-1943 was meant to deal with pre- existing Acts of Parliament and not future Acts.

Watt K.C. (with him E. J. Hooke), for the respondent Connell, and Sugerman K.C. (with him Dignam), for the Commonwealth (intervening), adopted the argument of Weston K.C. and had nothing to add.

Kitto K.C., in reply. The words " in addition to any other powers conferred on him by this Act" in S. 31 (1) are satisfied by the specific powers conferred by sub-ss. 3, 4 and 6 of S. 31.

The following written judgments on the preliminary question were delivered :-

LATHAM C.J., RICH and WILLIAMS JJ. In this matter the Court has heard argument upon the question whether regs. 16 and 17 of the National Security (Economic Organization) Regulations (Statutory Rules 1942 No. 76 as amended) apply to a Local Industrial Authority constituted under the Coal Production (War-time) Act 1944.

Regulation 16 of the Economic Organization Regulations is as follows :-" Subject to this Part, an Industrial Authority shall not, after the commencement of these Regulations, include in any award, order or determination any provision altering, in respect of any employment, the rate of remuneration applicable to that employment (whether in pursuance of any award, order or determination or other- wise) on the tenth day of February, One thousand nine hundred and forty-two." Reg. 17 provides certain exceptions to the general rule contained in reg. 16.

Industrial Authority" is defined in reg. 4 SO as to include " any

tribunal or person constituted by or under any law of the Commonwealth for the purpose of hearing and determining industrial disputes and making awards or orders in settlement thereof."

At the time when the Economic Organization Regulations were made (19th February 1942) the National Security (Coal Mining Industry Employment) Regulations were in operation. Under those Regulations a Central Reference Board and Local Reference Boards

69 CLR 415

were established which had powers under reg. 7 and reg. 14 to hear and determine certain industrial disputes and to make awards or orders in settlement thereof. Those bodies accordingly were indus- trial authorities within the meaning of the Economic Organization Regulations.

Statutory rule No. 295 of 1943, made on 10th December 1943, amended the Coal Mining Industry Employment Regulations in certain respects, introducing a Central Coal Authority upon which were conferred powers to settle disputes in which the Australasian Coal and Shale Employees' Federation (one of the respondents to these proceedings) was concerned. Other amendments related to the powers of Local Reference Boards with respect to such disputes.

The Coal Mining Industry Employment Regulations included a provision in reg. 18 which prevented the operation of any award of the Commonwealth Court of Conciliation and Arbitration which was inconsistent with an award or order made under the Regulations.

The Coal Production (War-time) Act came into operation on 8th March 1944. (Statutory Rules 1944 No. 48 made on 10th March 1944 made amendments in the Coal Mining Industry Employment Regula- tions designed to remove from the operation of those Regulations the matters for which the Act made special provision.) The Act pro- vided for the appointment of a Commissioner charged with the duty of securing an increase in the production of coal and with wide powers of regulating and controlling the production, handling, marketing, &., of coal. The Commissioner was given a specific power to fix the prices of coal. This power, it is said, can be effective only if the fixation of the price of coal by the Commissioner supersedes any fixation of prices under the more general National Security (Prices) Regulations. It was contended for the respondents that this pro- vision with respect to prices indicates an intention that the Act shall supersede in relation to coal any prior legislation as to prices which applied to coal, and that similar reasoning applies to the powers of Industrial Authorities under the Act. But this proposition can be accepted only in relation to prior legislation which is incon- sistent with the Act. In the case of the fixation of prices it may be that effect could not be given to the later Act conferring price-fixing powers upon the Coal Commissioner appointed under the Act unless his power prevailed over the power of the Prices Commis- sioner appointed under the earlier Prices Regulations. There cannot be at one and the same time two different fixed maximum prices for the same commodity. The later legislation in this case may be inconsistent, in relation to coal, with the earlier Prices regulation. But, even if this should be so, there is no necessary inconsistency in

69 CLR 416

regarding the prohibition contained in reg. 16 of the Economic Organization Regulations as applying to the Industrial Authorities set up under the later statute. They can discharge their functions, subject to the prohibition, in the same way as other Industrial Authorities discharge their functions, subject to the same prohibition.

Section 29 of the Act provides for the appointment of a Central Industrial Authority and S. 30 provides that that Authority shall have cognizance of industrial disputes between the Australasian Coal and Shale Employees' Federation and employers or associations of employers referred to him by the Federation or the employers or associations parties thereto or by the Commissioner. 'Industrial dispute' is defined in S. 5 as meaning any dispute as to industrial matters in relation to, inter alia, wages or rates of pay. The Central Industrial Authority also has cognizance of other industrial matters mentioned in S. 30, including any matter affecting industrial relations in the coal-mining industry which the Commissioner declares is, in the public interest, proper to be dealt with under the Act.

Section 31 provides that the Central Industrial Authority shall have power to consider and determine any industrial dispute or any matter of which he has cognizance, and for that purpose shall have (in addition to any other powers conferred on him by the Act) all powers which are given to the Court or the Chief Judge of the Court as regards an industrial dispute of which the Commonwealth Court of Conciliation and Arbitration has cognizance. Section 32 provides that the award or order made by the Central Industrial Authority shall be binding on the parties, shall be filed in the Court and shall thereupon have effect as if it were an award or order of the Court.

Section 33 provides for the appointment of persons to be Local Industrial Authorities. Mr. James Connell, one of the respondents to these proceedings, has been appointed as a Local Industrial Authority. Section 34 (1) provides that, subject to the Act, a Local Industrial Authority may-" (a) settle disputes as to any local industrial matters likely to affect the amicable relations of employers in the Coal Mining Industry and their employees who are members of the Federation (other than those employees who are excepted by the Commissioner by order); (b) investigate and report upon any industrial dispute or matter or part thereof referred to him by the Central Industrial Authority; (c) settle any local industrial dispute or matter or part thereof referred to him by the Central Industrial Authority for settlement; and (d) inquire into and report to the Central Industrial Authority on industrial matters not covered by any award of the Court or award or order of the Central Industrial Authority."

69 CLR 417

Section 35 provides that, subject to the Act, the provisions of SS. 31 and 32 of the Act shall, SO far as applicable, apply, with such alterations as are necessary, in relation to matters before a Local Industrial Authority in pursuance of S. 34 (1). Section 41 provides that, during the currency of an award or order made by the Central Industrial Authority or a decision of any Local Industrial Authority, no award or order made by the Arbitration Court or any tribunal having jurisdiction in industrial matters in the coal-mining industry dealing with the same subject matter and inconsistent with such award or order shall be effective.

It is contended for the prosecutors in these proceedings that a Local Industrial Authority under the Act falls within the definition of "Industrial Authority" in the Economic Organization Regulations and that therefore it is subject to the prohibition contained in reg. 16, which, to use the ordinary phrase, pegs wages at the rates payable on 10th February 1942, subject to the exceptions provided in the Regulations. This argument is supported by reference to S. 31, which, it is said, confers on the Central Industrial Authority (and accordingly upon a Local Industrial Authority-s. 35) the powers, but only the powers, of the Arbitration Court or the Chief Judge of the Court. Those powers are admittedly subject to reg. 16 of the Economic Organization Regulations, and therefore it is said there is, by virtue of S. 31, an incorporation in the Coal Production (War- time) Act of the limitation of the powers of Industrial Authorities contained in reg. 16 of the Economic Organization Regulations.

On the other hand, it is argued that the Coal Production (War- time) Act is special legislation relating to certain disputes and indus- trial matters in the coal-mining industry which confers on the Indus- trial Authorities appointed thereunder a power to settle those disputes in such way (as to, inter alia, wages and rates of pay) as those authorities think proper, irrespective of any limitations created by the Economic Organization Regulations. The argument depends upon the words of S. 31 and S. 34. Section 31, it is pointed out, is introduced by the words "The Central Industrial Authority shall have power to consider and determine certain industrial disputes. Those words contain the grant of power which, it is said, should be given full operation.

The respondents meet the particular argument based upon the second part of S. 31 by urging that the words which provide that

for that purpose", i.e., for the purpose of considering and deter- mining industrial disputes, the Authority shall have the powers of the Arbitration Court, are ancillary only to the main power granted

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A. in the introductory words. They should not (it is argued) be used

to import, in relation to the coal Industrial Authorities, a limitation imposed by the Economic Organization Regulations upon the power of the Arbitration Court to consider and determine industrial disputes. A similar argument is submitted with respect to S. 34, which contains a positive provision that a Local Industrial Authority may settle local industrial disputes referred by the Central Industrial Authority and other similar provisions. Here again, it is said, there is a general grant of power which should be allowed to operate fully according to its terms SO as to enable the Authority to settle a dispute in such way as it thinks proper, without any limitation upon that power derived from any other legislation.

The particular argument that the latter part of S. 31 confers upon an Industrial Authority the powers of the Arbitration Court as limited by the Economic Organization Regulations does not appear to us to be well founded. There is in the Act (s. 34 combined with S. 31) a grant of power to settle disputes and it is for that purpose that the powers of the Arbitration Court are given to the Industrial Authority. The power of the Authority to settle disputes is derived from the Coal Production (War-time) Act and not from the specifica- tion in the Arbitration Act or elsewhere of the powers of the Arbitra- tion Court.

But this conclusion is not decisive of the question before the Court. The argument for the respondents really amounts to an argument that regs. 16 and 17 of the Economic Organization Regula- tions are impliedly repealed by the Coal Production (War-time) Act in relation to the Authorities constituted under that Act. There is no express repeal of the regulations, and there is no provision that the regulations, though continuing in existence, shall not apply to the Industrial Authorities set up under the Act. The regulations are general in terms, applying to all Industrial Authorities, and the words of the regulations plainly include in terms the Industrial Authorities set up under the Coal Production (War-time) Act. There- fore the regulations apply to those Authorities unless, there being no express repeal, there is an indication in the Act that it was intended that they should not SO apply. Such an indication must be clear, because repeal by implication is never favoured See the cases cited in Halsbury's Laws of England, 2nd ed., vol. 31, p. 561; Flannagan v. Shaw 1. In the present case the contention that the Economic Organization Regulations do not apply to the Industrial Authorities constituted under the Act depends upon what can be described as only more or less dubious inference. There is no incon-

1(1920) 3 K.B. 96, at p. 101. 69 CLR 419

sistency between the Regulations and the Act. The Authorities con- stituted under the Act can perform their functions in relation to wages and rates of pay completely if they are subject to the Regulations, just as all other Industrial Authorities can perform such functions committed to them subject to the limitation imposed by the Regula- tions. It would have been easy for Parliament to exclude, in the case of the new coal Industrial Authorities under the Act, the application of the Regulations. Parliament has not adopted that course, and the Court should not readily impute to Parliament an intention to exclude the application of a provision which in terms is precisely applicable to these Authorities.

For these reasons we are of opinion that the Authorities con- stituted under the Coal Production (War-time) Act are Industrial Authorities within the meaning of the Economic Organization Regula- tions and are bound by regs. 16 and 17 thereof.

Further hearing of this matter will be adjourned until Tuesday, 22nd August, in order to permit the filing of further affidavits, if desired.

STARKE J. The National Security (Economic Organization) Regula- tions prohibited Industrial Authorities-except in cases immaterial here-from altering the rate of wages applicable to employment on 10th February 1942. The regulation, I take it, was necessary to suppress inflation and other evils arising from conditions brought about by the war, and, adapting a passage in Dr. Foster's Case 1, for as much as the Regulations were established with such gravity and wisdom for the advancement of the Commonwealth they ought not by any constrained construction out of the general and ambiguous words of a subsequent statute to be abrogated. It is not surprising that the Coal Production (War-time) Act 1944 No. 1 does not expressly exempt the coal-mining industry from the terms of the regulation, for that would give that industry a more favourable position than other industries and weaken the remedy for the mischief which the regulation was designed to suppress. And further, if the Parliament did not in its wisdom explicitly exempt the coal-mining industry from the regulation, then an exemption by implication is difficult to sustain unless the provisions of the Coal Production (War-time) Act 1944 be SO inconsistent with or repugnant to the provisions of the regulation that the two cannot stand together, which is far from being the case.

In conclusion I would add that I agree with the reasoning of, and the conclusion reached by, the Chief Justice in the opinion prepared by him.

1(1614) 11 Co. Rep. 56b, at p. 63a. 69 CLR 420

McTIERNAN J. In my opinion the question which has been argued at this first stage of the application should be answered by saying that the Central Industrial Authority and the Local Industrial Authorities appointed under the Coal Production (War-time) Act 1944 are bound by reg. 16 of the National Security (Economic Organization) Regulations. I state my reasons without going over again the provisions of the Act, the above-mentioned Regulations and the other statutory provisions and regulations read in argument.

The Central Industrial Authority and a Local Industrial Authority each satisfies completely the description of an Industrial Authority as defined in reg. 4, to which reg. 16 is expressed to apply. The terms of reg. 16 plainly extend to the rates of pay of the employees who come within the jurisdiction of the Central Industrial Authority or a Local Industrial Authority. Parliament has transferred to the jurisdiction of these Authorities a group of employees, consisting of members of the respondent Federation, without expressing the intention in the present Act or elsewhere that the determination of their rates of pay should not be fettered as it was while they were under the jurisdiction of the existing Industrial Authorities by reg. 16. It becomes a question, therefore, whether reg. 16 is excluded by necessary implication. To reach the conclusion that reg. 16 does not bind the Central or any Local Industrial Authority it is necessary to hold that the provisions of the regulation on the one hand and of the present Act on the other are repugnant and incon- sistent provisions.

It seems to me that the constitution and powers of these bodies are not SO different in principle or in any material respect from the constitution and powers of the Industrial Authorities which previously had jurisdiction to determine the rates of pay of members of the Federation, as to afford any substantial reason for presuming that the Parliament intended that the new Industrial Authorities should not be bound by reg. 16. It is obvious that the provisions of this regulation and the provisions under which the rates of pay of members of the Federation had been determined before the passing of the present Act did march together. The provisions of the present Act raise no necessary implication that the Industrial Authorities for which it provides should not be bound by the principle which reg. 16 imposes generally on all Industrial Authorities which fulfil the description of an Industrial Authority contained in reg. 4. The Act does not by necessary implication work any modification or partial repeal of reg. 16. The answer to the question whether any such modification or repeal as would exempt the Central or Local Industrial Authority from reg. 16 is made by the provisions of the

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Act, is governed by the principle which is expressed in Maxwell on the Interpretation of Statutes, 7th ed., (1929), p. 144, in these terms:

Repeal by implication is not favoured. A sufficient Act ought not to be held to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not intend to keep really contradictory enactments on the statute-book, or, on the other hand, to effect SO important a measure as the repeal of a law without expressing an intention to do SO. Such an interpretation, therefore, is not to be adopted, unless it be inevitable. Any reason- able construction which offers an escape from it is more likely to be in consonance with the real intention."

Judging the matter by this principle it is clear, I think, that no modification or partial repeal of reg. 16 is made by the Act. It follows that the rate of remuneration payable on 10th February 1942 to employees coming within the scope of the Act cannot be lawfully altered by an award or order made by the Central Industrial Authority or any Local Industrial Authority except subject to the provisions of reg. 16 and regs. 17 and 18 of the National Security (Economic Organization) Regulations.

Upon the further hearing of the matter In an affidavit filed on behalf of the Federation a record of the whole of the proceedings before Mr. Connell in this matter was put in evidence. The deponent stated that he was present throughout the whole of those proceedings and deposed that evidence was led, statements were made and arguments were put by representatives of the Federation to Mr. Connell directed to show that shiftmen's rates of remuneration which Mr. Connell was requested to alter were anomalous, and he further deposed that there was evidence before Mr. Connell that such rates were anomalous.

A statement containing the written submissions made to Mr. Connell by a representative of the employers was tendered to the Court by way of affidavit.

A letter forwarded on 15th June 1944 by Mr. Connell, as Local Industrial Authority, to the Minister for Labour and National Service was, omitting formal parts, in the following terms: " I attach hereto a draft award on a matter referred to me for settlement by the Central Industrial Authority. The matter is one applicable. to all collieries in the Maitland and North-West Collieries where shiftmen are called upon to work timbering and securing roof and sides in high places. Claims have been conceded by me for 4s. and 9s. per day on the grounds of restoration of previous payments which was made either by agreement or award. Two arbitrations

69 CLR 422

conducted by Mr. Charles Hibble in which he was called to give decisions provided for 3s. 1d. per shift in excess of the shiftman's rate at Bellbird Colliery and 3s. at Cessnock No. 2 Colliery, By local agreement at Abermain No. 2, Aberdare, Aberdare Extended and Aberdare Central shiftmen were conceded 4s. per day for working on falls over 16 feet in height and 9s. per shift extra when such falls extended to the stone roof. Those decisions and agree- ments have been inoperative for many years. In most instances the employees say they were forced to forego some during the depression period under a threat of the colliery being closed down. Shiftmen at other collieries have been conceded equivalent considera- tion payments by decisions of the Local Reference Board (Maitland District), and anomaly proven to my satisfaction. I am satisfied that an anomaly exists inasmuch as there is a departure from the general practice by reason of coal loaders being used to fill away falls, also pillar extraction being to a height of 24 to 30 feet in some of the collieries involved and I see no reason why the claim made by the employees for uniformity in this regard should not be granted and all collieries put on the same basis of rates of remuneration for the extra skill and responsibility involved in this work. Trusting you will give your approval in accordance with the National Security (Economic Organization) Regulations 17 (1) (b)."

On 24th June 1944, pursuant to reg. 17 (1) (b), the Minister approved an alteration in the rates of remuneration paid to shiftmen employed at collieries in the Maitland and North-West Districts of New South Wales when called upon to work timbering and securing roof and sides in high places in the manner set out in Mr. Connell's award, he having stated in his letter that he was satisfied that an anomaly existed.

Further facts appear in the judgments hereunder. Kitto K.C. (with him Ashburner), for the prosecutors. The only matter to which the Court will direct its attention will be the actual proceedings consisting of the reference and the award. On the face of those proceedings a want of jurisdiction appears, and this is SO even if the reasons be looked at. Further, if the letter forwarded by Mr. Connell to the Minister be looked at it still does not appear that Mr. Connell was really satisfied of any anomaly relevant to the case. If he purported to be satisfied he must have entirely misdirected himself and not come to any real conclusion on the subject of anomaly. There was not any evidence upon which a reasonable person could form the opinion that there was an anomaly in the sense of reg. 17 (1) (b) of the Economic Organization Regulations. It

69 CLR 423

is important that when this Court is applied to in the exercise of its constitutional power to grant a prohibition, it should be in a position to see very readily where the particular Authority has kept within the limits prescribed and where it has not. The award should show on its face not only that the rates of remuneration are anomalous but also what constitutes the anomaly (Day v. King 1; Christie v. Unwin 2; Taylor v. Clemson 3 ). This principle has been laid down for the purpose of enabling the superior courts to exercise their prohibition jurisdiction. It does not appear from his stated reasons, assuming they may be looked at, that Mr. Connell was satisfied as to any anomaly. On the other hand a strong inference arises therefrom that at the time the reasons were written Mr. Connell did not regard himself as concerned with whether he had to find an anomaly or not. The letter referred to above does not overcome the difficulty. It does not suggest the existence of an anomaly in respect of shiftmen, or, if it does SO suggest, the nature of the alleged anomaly. The only alleged anomaly defined in the letter is limited to coal-loaders and pillar extraction, and has no relation to the matters now under consideration. The matter of jurisdiction is left to the discretion of the tribunal or person exercising it, and, on challenge, the question is whether that tribunal or person has acted arbitrarily (Australasian Scale Co. Ltd. v. Commissioner of Taxes (Q.) 4; Metropolitan Gas Co. v. Federal Commissioner of Taxation 5; Sharp v. Wakefield 6 ). The fact of the satisfaction of the Local Industrial Authority is a jurisdictional fact. Regulation 16 of the Economic Organization Regulations carves a portion out of his jurisdiction and reg. 17 restores it conditionally upon something happening and of his being satisfied. Regulation 17 (1) (b) is a con- dition of jurisdiction. The proper inference from all the documents is that the Local Industrial Authority did not have any proper apprecia- tion of what was an anomaly and did not really approach that ques- tion. An anomaly involves a departure from a standard, or, in other words, an anomaly is an irregularity of some kind and there can only be an irregularity if there is a regulated course with which the alleged anomaly or anomalous condition can be compared. The evidence shows that the subject work was part of the ordinary normal work of shiftmen. The rates of remuneration as at 10th February 1942 fully covered that work and there is nothing anomalous about those rates because there is nothing exceptional about the work; it was

1(1836) 5 A. &E. 359 [111 E.R. 2(1840) 11 A. &E. 373 [113 E.R. 3(1844) 11 Cl. &F. 610 [8 E.R. 4(1935) 53 C.L.R. 534, at p. 555. 5(1932) 47 C.L.R. 621, at p. 632. 6(1891) A.C. 173, at p. 179. 69 CLR 424

simply part of the normal working. There is not any suggestion the evidence that the shiftmen who work in high places, not being falls, are not doing part of the ordinary work of shiftmen. If, on the facts shown, Mr. Connell's decision be right, then reg. 16 could be rendered nugatory, thereby defeating the whole purpose of main- taining the economic stability of the nation. The decision could be justified only in the absence of reg. 16. The decision or award was in reality outside the Local Industrial Authority's jurisdiction because he was not satisfied, or, alternatively, he could not be satisfied on the evidence shown.

Weston K.C. (with him Downing), for the respondent Australasian Coal and Shale Employees' Federation. References to anomaly- sometimes eo nomine and sometimes merely by stating the fact occur frequently throughout the evidence and, in the main, that evidence is uncontradicted. The evidence disclosed four types of anomaly, namely, (a) an anomaly as between rates of remuneration received by employees in the different mines (b) an anomaly between working in a high place where there has been a fall and where in some instances the employees receive extra pay, and working in equally dangerous places for which they do not receive extra pay (c) an anomaly of the same rate of pay for work in low places as for work in high places although the skill and the risk required for the low and the high work differ and (d) an anomaly of equal pay for erecting long and short props. It is anomalous if an employee should be kept in a position where his rate of pay is less than the degree of skill required for the work he performs. Rates of remunera- tion are anomalous if work utterly diverse in skill, risk and arduousness is recompensed by exactly the same quantum of pay. The anomalies are twofold a difference between rates for similar work and equal pay for work which differs. On the state of the evidence this Court is not in a position to determine what is the normal practice or the abnormal practice. There is not any evidence that the normal practice was not to pay extra money for work in high places after falls, but there is ample evidence that work equally dangerous is paid for at different rates of pay. The cases referred to on behalf of the prosecutors, in support of the proposition that it had to appear on the face of the record that the particular matter was within juris- diction, have no application to this case because there is not in the relevant sense a proceeding in this case and, in addition, under the Act the Local Industrial Authority may inform his mind as to the differences in any way he thinks fit. The discretion vested in the Local Industrial Authority was properly exercised. The Parliament

69 CLR 425

intended that authority to be the sole judge of whether " the rates of remuneration in respect of which the alteration is sought are anomalous (Ex parte Mullen Re Hood 1; Colonial Bank of A/asia v. Willan 2 R. v. Nat Bell Liquors Ltd. 3 ). A/asian Scale Co. Ltd. v. Commissioner of Taxes (Q.) 4 the question considered was whether there was any other evidence in this case however the Parliament has set out to render the decision of the Industrial Authority binding. The jurisdiction of the Indus- trial Authority is derived from reg. 17, not from reg. 16. The jurisdiction SO conferred does not infringe the Constitution. As regards clauses 1 and 2 of the award there is not any warrant for prohibition. The respondent Federation did not ask for a decision in respect of the matter referred to in clause 3 and has never sought to enforce it. There was not any need to apply for prohibition in respect of that clause because it was not approved by the Minister.

Watt K.C. (with him E. J. Hooke), for the respondent Mr. Connell. The argument addressed to the Court by Mr. Weston K.C. is adopted on behalf of this respondent. The function of the Court is not properly exercised in granting a prohibition when the only arguments before it are really only relevant to error and not prohibition. The form of the tribunal is such that this Court has not the authority to deal with the question, because this Court undertakes judicial inquiries and sits as a court of justice, whereas the tribunal appealed from is practically relieved of all forms as a court of justice. The Local Industrial Authority was satisfied that there was an anomaly. Therefore, having regard, inter alia, to the fact that he is given a jurisdiction to inquire free from all legal forms and technicalities and to act according to his idea of equity and good conscience, his decision cannot be inquired into by this Court on prohibition (R. v. Nat Bell Liquors Ltd. 5 Moses v. Parker 6; Colonial Bank of A/asia v. Willan 7 Ince Bros. v. Federated Clothing and Allied Trades Union 8 ). A wrong view of the facts is simply error and is not a matter of jurisdiction.

Sugerman K.C. (with him Dignam), for the Commonwealth (intervening). The Commonwealth adopts the arguments addressed to the Court on behalf of the respondents. Regulations 16 and 17 of the Economic Organization Regulations are merely general rules of

1(1935) 35 S.R. (N.S.W.) 289, at 2(1874) L.R. 5 P.C. 417, at pp. 3(1922) 2 A.C. 128, at p. 158. 4(1935) 53 C.L.R. 534. 5(1922) 2 A.C., at p. 151. 6(1896) A.C. 245, at p. 248. 7(1874) L.R. 5 P.C., at p. 442. 8(1924) 34 C.L.R. 457, at p. 464. 69 CLR 426

A. law directed to a wide diversity of tribunals but not touching the

jurisdiction of any such tribunals. Those regulations apply to all Industrial Authorities as defined by reg. 4. Jurisdiction in this case was derived from S. 31 1 of the Coal Production (War-time) Act 1944. Regulation 16 simply lays down a rule to be followed by the tribunal.

Kitto K.C., in reply. The purpose of reg. 16 is not to lay down a rule of law which tribunals are to apply, but to subtract from the area of their jurisdiction the whole subject matter, that is, of altering rates of remuneration which were in force on 10th February 1942, The whole purpose and intention is to subtract jurisdiction from all tribunals. Although the existence of an anomaly may be a matter for the opinion of the Industrial Authority that Authority is not entitled to make an arbitrary, fanciful or capricious decision (Commissioner of Taxes (Q.) v. Ford Motor Co. of Australia Pty. Ltd. (1) ).

[WILLIAMS J. In Pioneer Laundry and Dry Cleaners Ltd. V. Minister of National Revenue 2 the Privy Council decided very much along the same lines.]

An anomaly arises only where similar types of similar work are paid for at different rates. Notwithstanding the fact that clause 3 of the award was neither asked for nor sought to be enforced by the respondent Federation and that Ministerial approval thereto has not been given, it nevertheless is contained in the award and should be included in the prohibition.

The following written judgments were delivered :-

LATHAM C.J. Return of an order nisi for a writ of prohibition directed to James Connell and the Australasian Coal and Shale Employees' Federation prohibiting further proceeding upon clauses 1, 2 or 3 of an award made by the said James Connell on 15th June 1944 on the ground that the said award was made unlawfully, in that the said James Connell had no power or jurisdiction to make it.

The award was made by James Connell acting as a Local Industrial Authority under the Coal Production (War-time) Act 1944. The award applied only to collieries in the Maitland and North-West Districts of New South Wales, with the exception of Pelton Colliery. Clauses 1 and 2 of the award were as follows:-"-1. Where shiftmen are called upon to erect cross timbers at a height of 16 feet or more to make such place safe for working whilst SO occupied on such work

1(1942) 66 C.L.R. 261, at p. 274. 2(1940) A.C. 127. 69 CLR 427

the shiftmen shall in addition to the recognized shift rate of wages be paid four shillings (4s.) per shift during the time they are neces- sarily occupied on such work. 2. Where shiftmen are called upon to erect props 17 feet in length and up to 20 feet they shall be paid one shilling (1s.) per shift extra. Over 20 feet in length up to 24 feet, two shillings (2s.) per shift extra. Over 24 feet and more in length three shillings (3s.) per shift extra." Clause 3 dealt with mobile coal-loaders operating on falls. It is admitted that this matter was not referred to Mr. Connell under the Act, nor was his decision in respect of it approved by the Minister, and that therefore he had no power to include it in his award. Clause 4 relates to a matter which admittedly was within his jurisdiction.

It has already been decided by the Court in this case that Local Industrial Authorities acting under the Act are subject to the provisions of regs. 16 and 17 of the National Security (Economic Organization) Regulations. Regulation 16 is as follows

16. Subject to this Part, an Industrial Authority shall not, after the commencement of these Regulations, include in any award, order or determination any provision altering, in respect of any employment, the rate of remuneration applicable to that employ- ment (whether in pursuance of any award, order or determination or otherwise) on the tenth day of February, One thousand nine hundred and forty-two."

Regulation 17, SO far as relevant, provides that :- " 17. (1) Notwithstanding anything contained in this Part, an Industrial Authority may, by any award, order or determination, alter any rate of remuneration-"

(a) [The provisions contained in this paragraph are immaterial

for the purpose of this case. (b) with the approval of the Minister, if the Industrial Authority

is satisfied that the rates of remuneration in respect of which the alteration is sought are anomalous." The challenged award admittedly increases rates of payment which were applicable to the employment in question on 10th February 1942 by awarding extra payment for work in high places, which had, prior to the award, been performed without any such extra payment. Mr. Connell formed the opinion that the rates of remuneration in respect of which the alteration was sought were anomalous, and accordingly submitted his award for the approval of the Minister. The Minister approved the award SO far as the clauses now in question (clauses 1 and 2) are concerned. The question now is whether the award was beyond the jurisdiction of the Local Industrial Authority constituted by Mr. Connell, in view of the

69 CLR 428

A. limitation or definition of the powers of the Authority by regs. 16

and 17 above quoted.

Mr. Connell was appointed a Local Industrial Authority by the Minister under S. 33 1 of the Coal Production (War-time) Act. Section 34 (1) (c) provides that, subject to the Act, a Local Industrial Authority may settle any local industrial dispute or matter or part thereof referred to him by the Central Industrial Authority for settlement. A dispute in relation to the matters dealt with by clauses 1 and 2 was SO referred to Mr. Connell. A Local Industrial Authority has power to consider and determine any industrial dispute, and for that purpose has the powers of the Commonwealth Court of Conciliation and Arbitration, and an award made by the authority is binding upon the parties to the dispute (ss. 35, 31, 32).

Section 40 of the Act provides that a decision of the Local Indus- trial Authority shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction in any court on any account whatever. This section is similar in terms to S. 31 of the Commonwealth Conciliation and Arbitra- tion Act 1904-1934. It has been held in the case of the Arbitration Act that this provision does not deprive the High Court of the juris- diction conferred upon it by the Commonwealth Constitution. S. 75 (v.), to grant prohibition against an officer of the Commonwealth. No Commonwealth statute can deprive the Court of a power conferred on it by the Constitution: See the Tramways Case [No. 1] (1), which has been applied on many occasions. Mr. Connell, appointed by the Minister under S. 33 of the Coal Production (War-time) Act, is an officer of the Commonwealth, and accordingly there is juris- diction in this Court to grant a writ of prohibition if a proper case is made out.

The Local Industrial Authority is plainly not a court. It is not concerned with the determination in accordance with law of rights or duties arising under the law. The function of the Authority is to formulate rules for future conduct in industrial matters. Further, the Authority is not constituted by a person holding office with the life tenure required by the Constitution, S. 72, in the case of all courts created by the Commonwealth Parliament (Waterside Workers' Federation of Australia v. J. W. Alexander Ltd 2 ). It cannot be said, in the present case, that the Authority is a court which has power conclusively to determine a question upon the answer to which its jurisdiction depends See Amalgamated Society of Carpen- ters and Joiners v. Haberfield Pty. Itd. 3-a case in which it was

1(1914) 18 C.L.R. 54. 2(1918) 25 C.L.R. 434. 3(1907) 5 C.L.R. 33. 69 CLR 429

held that a court of limited statutory jurisdiction itself had power to determine a question upon the answer to which its jurisdiction depended.

Prohibition may be directed to persons, bodies or tribunals other than courts if they perform quasi-judicial functions. Upon this basis it has long been the practice of the High Court to grant a writ of prohibition against the Commonwealth Court of Conciliation and Arbitration in relation to its awards, if they are beyond its jurisdiction, though the awards are not made in the performance of judicial functions in the strict sense of the term: See Waterside Workers' Federation of Australia v. Gilchrist, Watt &Sanderson Ltd. 1, and particularly the reference to the history of this subject in the judgment of Starke J. 2-See also R. v. Electricity Commis- sioners 3, where Atkin L.J. said Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs."

Upon an application for a writ of prohibition the Court does not consider the merits of the case. It does not ask whether the order made was right or wrong. Where the application is founded on alleged want of jurisdiction it considers only whether the challenged order (or in this case the award) exceeds the powers conferred upon the authority which made it.

In the present case the powers of the Industrial Authority are derived from the Coal Production (War-time) Act as limited by the Economic Organization Regulations. Regulation 16 provides in general terms that an Industrial Authority shall not alter the rate of remunera- tion applicable to any employment on 10th February 1942. If that provision stood by itself it would operate to limit the powers of the authority by preventing any alteration whatever of rates applicable on the date mentioned. But reg. 17 limits the prohibition contained in reg. 16 by permitting an authority to alter such rates with the approval of the Minister " if the Industrial Authority is satisfied that the rates of remuneration in respect of which the alteration is sought are anomalous." The subject matter with which the Indus- trial Authority deals is, inter alia, rates of remuneration. There is power to deal with this subject matter in respect of rates of remunera- tion which existed on the specified date only if the authority is satisfied that the rates in question are anomalous. Unless this condition is fulfilled, the authority cannot act-it is a condition of

1(1924) 34 C.L.R. 482. 2(1924) 34 C.L.R., at pp. 551 et seq.

The respondent Connell is a Local Industrial Authority appointed under the provisions of the Coal Production (War-time) Act 1944, Part V., Div. 2, and the award that has been challenged was made by him in the purported exercise of the powers conferred upon him by S. 34 of that Act and in particular of that conferred by S. 34 (1) (c), to settle any local industrial dispute or matter or part thereof referred to him by the Central Industrial Authority for settlement.

Seven grounds are referred to in the order nisi but of these I need only set out grounds (1), (2) and (5).

(1) That clauses 1, 2 and 3 of the above award were made unlaw- fully because they were in breach of reg. 16 of the National Security (Economic Organization) Regulations and were not justified by reg. 17 of those Regulations; (2) That these clauses were made in excess of jurisdiction; and (5) That there was no ground on which Connell could be satisfied that the rates of remuneration in respect of which he purported to make the alterations provided for by the award were anomalous.

The first ground has already been disposed of as a preliminary point to the extent that it has been decided that the Industrial Authorities set up under Part v. of the Act are bound by regs. 16 and 17 of the National Security (Economic Organization) Regulations. The questions that still remain for decision may be compendiously stated as follows :-1. Whether there was any evidence upon which Connell could be satisfied within the meaning of reg. 17 (1) (b) of the Economic Organization Regulations that the rates of remuneration in respect of which the alterations were sought were anomalous; and 2. If there was no such evidence, whether the existence of an anomaly in fact was required to give him authority to make the award SO that the award was made in excess of jurisdiction or whether his finding that there was an anomaly was simply an erroneous conclusion upon a fact committed to his jurisdiction to be adjudicated upon in the course of the inquiry.

69 CLR 453

The material facts are, shortly stated, that, on 10th February 1942, the date mentioned in reg. 16 of the Economic Organization Regulations, the rates of pay for shiftmen first and second class in the northern district of New South Wales were fixed and paid on the basis that it was part of their normal duties to work in high places

SO that no extra rate was allowed on that account except that in certain collieries an extra payment was made to shiftmen for certain work in high places where a high fall of coal or stone from the roof had occurred. The claim made by the employees as amended pur- suant to which the award was made was that shiftmen should be paid additional allowances when called upon to work in any places above certain heights.

On 15th June Connell made the award already mentioned. On the same date he applied to the Minister for Labour and National Service to approve the award in accordance with reg. 17 1 (b) of the Economic Organization Regulations. On 24th June the Minister approved of the alterations provided for by the award in the case of shiftmen.

In view of the decision on the preliminary point it is now conceded that clause 3 of the award, which relates to mobile coal-loaders, cannot be maintained, because in their case the Minister did not approve of the alteration.

Mr. Kitto contended that in order to determine whether the award was made in excess of jurisdiction, the Court is only entitled to look at the amended claim and the award; and that, since it does not appear on the face of these documents that the alterations were sought and made to cure an anomaly, the record on its face shows a want of jurisdiction. But I think that the question whether a lay body like the present in exercising quasi-judicial functions, especially where it is expressly authorized to proceed in the manner provided by S. 31 (2) of the Act, has exceeded its jurisdiction must be deter- mined as one of substance and not of technicality, and that the way in which the Privy Council approached a similar problem in Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust (1) is ample authority to show that in examining the proceedings of such authorities in order to ascertain whether they have exceeded their jurisdiction, a superior court is entitled to look at the whole tran- script including the evidence and the reasons, if any, which the authority has given for making the award. From the transcript in the present case it is apparent, to my mind, that it was claimed and found that it was anomalous that extra pay should be awarded to shiftmen who worked in high places where a fall had occurred while no extra pay was awarded to shiftmen who worked in similar places

1(1937) A.C. 898. 69 CLR 454

where no fall had occurred, there being evidence that in both cases the work involved extra danger, exertion, and wear and tear on the nervous system. But this evidence is not, in my opinion, evidence of an anomaly within the proper meaning to be attributed to that word in reg. 17 (1) (b). The dictionaries give as meanings of "anomaly" unevenness and inequality of condition, exceptional conditions or circumstances, a deviation from the common rule. The purpose of reg. 16 was plainly, subject to certain express and limited exceptions, to "peg" wages at the rates existing on 10th February 1942. One exception, embodied in reg. 17 (1) (b), was that an Industrial Authority might alter any rate of remuneration, with the approval of the Minister, if satisfied that the rate of remuneration in respect of which the alteration was sought was anomalous. On 10th February 1942 it was a recognized condition of employment that shiftmen did not receive extra pay, with one exception, for working in high places. There would only have been an anomaly, therefore, if, in the case of the collieries owned by the prosecutors, shiftmen were not receiving extra remuneration for working where there had been a high fall, SO that to award extra rates to shiftmen in these collieries for doing work that had always been included in the work to be rewarded at ordinary rates would be not to cure an anomaly but to create one. This does not mean, of course, that the anomalies included in reg. 17 (1) (b) are necessarily confined to those which existed on 10th February 1942. An anomaly could be created by change of circumstances after that date, as, for instance, by the introduction of new methods of working a mine creating extra hazards, or because workmen who were working in an area that had become dangerous through enemy action were still receiving the same remuneration as workmen who were doing the same work in a safe area, but the evidence in the present case given in support of clauses 1 and 2 of the award does not disclose any circumstances which have altered the general conditions with respect to shiftmen which existed in the coal-mining industry in the Maitland and North-West districts on 10th February 1942. The evidence, therefore, did not, in my opinion, justify a conclusion by Connell that the rate of remuneration in respect of which the alteration was sought was anomalous.

The remaining question is whether, there being no anomaly in fact, the award was made in excess of jurisdiction. It was contended that Connell derived his jurisdiction from the Coal Production (War- time) Act, and that, in the exercise of this jurisdiction, the provisions of the Economic Organization Regulations were simply part of the general law, as to the true effect of which he could fall into error in the same way as in the case of other matters which he had to take

69 CLR 455

into account in hearing the claim and making or refusing an award. We were referred to the case of R. v. Nat Bell Liquors Ltd. 1. In that case Lord Summer, in delivering the judgment of the Privy Council, cited the well-known statement by Coleridge J. speaking for the Court of Exchequer in Bunbury v. Fuller 2 :-------- "No court of limited jurisdiction can give itself jurisdiction by a wrong decision on a point collateral to the merits of the case upon which the limit to its jurisdiction depends; and however its decision may be final on all particulars, making up together that subject-matter which, if true, is within its jurisdiction, and, however necessary in many cases it may be for it to make a preliminary inquiry, whether some collateral matter be or be not within the limits, yet, upon this preliminary question, its decision must always be open to inquiry in the superior court" 3.

In the present case reg. 16 of the Economic Organization Regula- tions placed a clear limitation upon the jurisdiction of every Indus- trial Authority. It deprived those Authorities of jurisdiction in settling a dispute to alter any rate of remuneration existing on 10th February 1942. Regulation 17 (1) (b) then engrafted an express exception upon that limitation by empowering Industrial Authorities with the approval of the Minister to alter the rate of remuneration where they were satisfied that the existing rate was anomalous. The existence of this satisfaction was therefore made an essential condition of jurisdiction to alter the rate of remuneration. In the present case the claim was for an increase in the rate of remuneration payable on 10th February 1942 to shiftmen employed on work above certain heights in the prosecutors' mines. The merits of that claim could only be gone into if Connell was satisfied that there was an anomaly. His satisfaction on that point was therefore an essential preliminary to his jurisdiction to hear and determine the claim. If the regulation had simply stated that an Industrial Authority could alter the rate of remuneration if an anomaly existed, the jurisdiction of the superior court to examine whether there was evidence on which Connell could have held that there was an anomaly would, I think, be established, but the question still remains whether the provision that it is the Industrial Authority that must be satisfied can make any difference, On this question the circumstances are very similar to those with which the Privy Council had to deal in the case of Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust 4. There the respondent Trust was empowered by an ordinance, whenever it appeared to the Trust that within its administrative area any

1(1922) 2 A.C. 128. 2(1853) 9 Ex. 111, at p. 140 [156 3(1922) 2 A.C., at P. 158. 4(1937) A.C. 898. E.R. 47, at p. 60]. 69 CLR 456

building which was used or was intended or was likely to be used as a dwelling place was of such a construction or was in such a condition as to be unfit for human habitation, by resolution to declare such building to be insanitary. The Trust in purported exercise of this power made a declaration that a house belonging to the appellant was insanitary within the meaning of the ordinance. Lord Maugham, in delivering the judgment of the Privy Council, pointed out that the Trust in condemning the house had acted perfectly honestly but had applied a different test to that which was open to it under the ordin- ance, or in other words had applied a wrong and inadmissible test

SO that it was acting beyond its powers and the declaration was unenforceable 1. Applying the reasoning of their Lordships, mutatis mutandis, to the present case it appears to me that Connell, whose good faith is not challenged, adopted a wrong view of the meaning of anomaly in reg. 17 (1) (b), and that, if he had adopted its true meaning, there was no evidence on which he could have been satisfied that an anomaly existed. He therefore adopted a wrong and inadmissible test and acted beyond his powers, SO that clauses 1 and 2 of the award are void and unenforceable. The case is to my mind indistinguishable in principle from the recent decision of this Court in R. v. Foster Ex parte Crown Crystal Glass Co. Pty. Ltd. 2, in which it was held that the Women's Employment Board could not, by placing a wrong construction upon the meaning of the words "work which, immediately prior to the outbreak of the present war, was not performed in Australia by any person" in reg. 6 (1) (c) of the Women's Employment Regulations, give itself a jurisdiction which it would not have had upon the true construction of the expression See also Church v. Inclosure Commissioners 3 R. V. Income Tax Commissioners for City of London 4.

For these reasons I would make the order absolute.

Order absolute. Costs of prosecutors to be paid

by respondent Federation. Solicitors for the prosecutors, Sparke &Helmore, Newcastle, by Gill, Oxlade &Broad.

Solicitors for the respondent Federation, W. C. Taylor &Scott. Solicitor for the respondent Connell and for the Commonwealth (intervening), H. F. E. Whitlam, Crown Solicitor for the Common- wealth.

1(1937) A.C., at pp. 913, 917. 2Ante, at p. 299, 3(1862) 11 C.B. (N.S.) 664 [142 4(1904) 91 L.T. 94