R v Duncan; Ex parte Australian Iron and Steel Pty Ltd

[1983] HCA 29

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy, Wilson, Brennan, Deane and Dawson JJ.

THE QUEEN v. DUNCAN; Ex parte AUSTRALIAN IRON AND STEEL PTY. LTD.

(1983) 158 CLR 535

6 September 1983

Constitutional Law (Cth)

Constitutional Law (Cth)—Commonwealth legislative power—Commonwealth-State legislative scheme—Commonwealth and State Acts—Regulation of coal industry in State—Constitution of Coal Industry Tribunal by legislation of Commonwealth and State—Awards made under Commonwealth Act—Power of Tribunal to vary awards pursuant to power conferred by State Act—Inconsistency between laws—Whether Commonwealth Act covers field—Application of s. 109 of Constitution to co-operative legislation—Whether application to vary award within ambit of original interstate dispute—The Constitution (63 &64 Vict. c. 12), ss. 51 (i), (xxxv),(xxxix), 109—Coal Industry Act 1946 (Cth), ss. 4, 30, 32, 34—Coal Industry Act 1946 (N.S.W.), ss. 4, 36, 38, 40.

Decisions

1983, September 6.
The following written reasons for judgment were delivered:-
GIBBS C.J. Before the Court are applications to make absolute two orders nisi for writs of prohibition. The prosecutor in each case is Australian Iron and Steel Pty. Limited, a company which owns and operates a number of coal mines in New South Wales. The respondents in each case are David Anthony Duncan (the Coal Industry Tribunal), the Australian Coal and Shale Employees' Federation (Miners' Federation), the Federated Mining Mechanics' Association of Australasia (Mining Mechanics), Electrical Trades Union of Australia (ETU), The Amalgamated Metal Workers' and Shipwrights Union (AMWSU), The Federated Engine Drivers' and Firemen's Association of Australasia (FEDFA), Australian Colliers' Staff Association (ACSA) and The New South Wales Colliery Officials' Association, Illawara District (Deputies' Association). Each of the respondents, other than Mr. Duncan and the Deputies' Association, is an association of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended (the Conciliation and Arbitration Act) as an organization of employees. Mr. Duncan constitutes The Coal Industry Tribunal (the Tribunal) under the Coal Industry Act 1946 (Cth), as amended (the Commonwealth Coal Industry Act), and the Coal Industry Act 1946 (N.S.W.), as amended (the State Coal Industry Act). The Deputies' Association is a trade union registered under the Industrial Arbitration Act 1940 (N.S.W.), as amended, as an industrial union of employees. The prosecutor employs, in or in connexion with its coal mines, members of the respondent unions. (at p543)

2. What is sought by the prosecutor are writs of prohibition prohibiting the respondents from proceeding further on decisions and orders of the Tribunal made respectively on 27 October 1982, 29 October 1982 and 12 November 1982. The effect of those decisions and orders will be stated hereunder. (at p543)

3. The prosecutor's collieries in the Wollongong district supply coal to the steelworks at Port Kembla. The steel industry in Australia is today faced with grave problems caused, inter alia, by surplus production throughout the world, reduced domestic demand and considerable increases in the cost of production. Some steel plants have become redundant and the requirements of the steelworks for coal have been reduced. In consequence the prosecutor is unable to find markets for its coal and has found it necessary to reduce its output and to retrench the workforce at the collieries. Accordingly, on 1 October 1982, dismissal notices were given to a number of employees, members of the respondent unions, whom the prosecutor considered to be redundant. Each notice informed the employee to whom it was given that "it is necessary to terminate your services from Friday, 29th October, 1982". The conditions of employment of the employees were governed by awards made by the Tribunal. The awards which related to members of the unions registered under the Conciliation and Arbitration Act were expressed to be made under the Commonwealth Coal Industry Act and provided that the employment of the employees might be terminated by a week's notice or, in one case, by two weeks' notice. The award which related to members of the Deputies' Association appears to have been made under the State Coal Industry Act; its provisions were not before the Court, but it appears to have been common ground that in all cases the notices of dismissal given by the prosecutor were in accordance with the relevant awards. (at p543)

4. The unions promptly responded to the dismissal notices. On 1 October 1982 an application was made to the Tribunal on behalf of all the respondent unions except ACSA to vary the relevant awards by including provisions that would prevent the prosecutor from terminating the employment of any employee on account of redundancy until the finalization of a report by the Industrial Commission of New South Wales on matters concerning the steel and coal industries in New South Wales. On 5 October 1982 ACSA applied to be included in the application. The two applications were listed together. The Tribunal, after hearing argument which extended over a number of days, gave its decision on the applications on 18 October 1982. It held that all of the awards except that governing the members of the Deputies' Association were made under the Commonwealth Coal Industry Act, and that there was no power to vary them because the dispute raised by the respondent unions was not an interstate dispute. However, the Tribunal held that it did have power to vary the award applicable to members of the Deputies' Association, since that award was made under the State Coal Industry Act. However, in view of subsequent developments, the application, so far as it relates to the Deputies' Association, has since been adjourned indefinitely. (at p544)

5. On 22 October a further application was made to the Tribunal on behalf of the respondent unions except the Deputies' Association. The application, omitting immaterial parts, was in the following terms:

"In the matter of an industrial dispute where in the following unions:-

Australian Coal and Shale Employees Federation, Federated Mining Mechanics, Electrical Trades Union, Amalgamated Metal Workers and Shipwrights Union, Federated Engine Drivers and Firemens Association and Australian Collieries Staff Association

and

The New South Wales Coal Association, The Queensland Coal Owners' Association and Cornwall Coal Co., Tasmania and others are parties. AND IN THE MATTER OF an application by the Australian Collieries' Staff Association

APPLICATION IS HEREBY MADE to vary or insert into the appropriate awards the following clause:

RETRENCHMENT AND REDUNDANCY

An employee may only be retrenched or deemed redundant after it has been established by the employer, to the satisfaction of the employee and of the union, that no other alternative exists. Where an employee is retrenched or deemed redundant he or she shall be entitled to - (a) Three months' notification of the cessation of his or her services, and

(b) 12 weeks' pay, at the rate which would have been paid if at work, for each year of service, and

(c) All Long Service Leave entitlements. We wish also, to request that if no determination has been made by Wednesday afternoon, that the Tribunal issue orders extending the terminating date of those members of all unions on threat from Australian Iron and Steel until after this application has been finalised."

On 27 October 1982 the Deputies' Association made a similar application to vary the award applicable to it. (at p545)

6. The applications of 22 and 27 October were heard on 27 October. Argument was advanced at some length on the question of jurisdiction. In the course of that argument ACSA submitted that it had created a new dispute by the service of a new log of claims, but the other unions submitted that their present claim was within the ambit of the disputes raised by the delivery of earlier logs of claims. The Tribunal found itself unable to resolve the question of jurisdiction so far as it concerned the claims by the unions whose members were subject to awards made under the Commonwealth Coal Industry Act, but it held that it had jurisdiction to deal with the application by the Deputies' Association. In relation to that application it made an interim order in the following terms:

"Pending completion of a hearing on that matter I hereby order

(by way of interim order) Australian Iron &Steel Pty. Limited

to extend the notice of, or in the alternative reinstate in its employment members of the New South Wales Colliery Officials Association currently under notice of termination expiring on Friday next 29 October at its Kemira, Nebo, Cordeaux and Tower Collieries. Such extension or reinstatement is for a period expiring on Friday, 12 November 1982 and is for the purpose only of completion of proceedings currently before me."

The Tribunal went on to recommend to the other unions, and to the prosecutor, that the unions should cease industrial action and should bring to an end a "sit-in" which was taking place at the Kamira Colliery and that, subject to those conditions, the employment of all employees of the prosecutor should be extended for a period of two weeks expiring on 12 November 1982 and that miners dismissed for taking part in the sit-in should be reinstated. (at p545)

7. On 29 October the Tribunal heard further argument. The Tribunal held that the claim by ACSA had not been properly served and that the Tribunal had no jurisdiction in regard to ACSA. The Tribunal then proceeded to make a further interim order in the following terms:

"By way of interim order I therefore order - (1) Cessation of all industrial action by mining unions on the issue

(2) The extension of the employment of employees of A.I. &S.

Pty. Limited under notice at Kemira, Cordeaux, Tower and Nebo collieries for a period of two weeks expiring on 12 November 1982. Such extension is for the purpose only of consideration by the Tribunal of certain matters relating to benefits on retrenchment and no other matters."

It appears that this order was not intended to affect the members of the ACSA. (at p546)

8. The prosecutor complied, under protest, with the orders made on 27 and 29 October. In fact, the employees concerned were told that there was no work for them, and that they need not attend for work, but that they would nevertheless be paid. Some of the employees in fact reported for work and some did not. (at p546)

9. On 5 November an order nisi was made in relation to the orders made on 27 and 29 October. On 8 November the Miners' Federation applied to the Tribunal for "the making of further interim orders concerning the men employed by Australian and (sic) Iron and Steel until such time as the case before the High Court has been determined". The Tribunal, misconceiving the effect of an order for a stay made by Mason J. on 5 November when he made the first order nisi, held that it was bound to refrain from dealing with the matter. At a further hearing on 12 November the misunderstanding as to the effect of the order was corrected, and after hearing further argument the Tribunal made a further interim order as follows:

"I hereby order that: 1. The notices, the subject of the existing interim order are hereby further extended for a period of one week, expiring on 19 November 1982; 2. Leave is reserved to the union to argue for retrospectivity at the appropriate time of any final order that may, subject to the High Court proceedings, be issued in this matter."

The second order nisi was made on 23 November 1982 in respect of the Tribunal's order of 12 November 1982. (at p546)

10. The orders nisi are sought on a number of grounds, but it is first convenient to consider a submission advanced on behalf of the prosecutor that the orders of 27 and 29 October were made in disregard of the rules of natural justice. First it was submitted that the order of 27 October was made without affording to the prosecutor a fair and proper opportunity, or any opportunity, to be heard. The proceedings before the Tribunal on 27 October occupied the better part of a day. Early in those proceedings the representative of the Miners' Federation said:

"We have requested that if no determination has been made by this afternoon, that the Tribunal issue orders extending the termination date of those members of all unions on threat from

A.I. &S. until after this application has been finalised."

During the course of argument Mr. Duncan asked Mr. Crawford, who appeared for the prosecutor, whether the company would agree to extend the employment of the people affected. Mr. Crawford said: "Clearly no and at an appropriate time I would like to address you on the question of interim orders, on what the unions have put and jurisdiction also." Mr. Duncan replied: "Yes." Later, Mr. Crawford made his submissions. He adopted some submissions he had previously made to the Tribunal but he went on at some length to address the Tribunal on various aspects of the jurisdictional questions that arose. At the conclusion of his address Mr. Duncan said:

"Now Mr. Crawford, the application that is currently being dealt with is this initial one at the bottom of the application. (The reference can only have been to the request for interim orders which appears at the foot of the application made on 22 October.) You have directed various submissions going to jurisdiction. I take it that they are all directed really to that particular matter. Is that correct? I know other things were covered but is that the point of the submissions at the present time?"

The transcript may be defective, but Mr. Crawford's reply is recorded as follows:

"They are, sir. They are directed to both the application 'coal' and to that aspect of the application because quite clearly if you have any power to make an interim order then it is a question of whether there is a matter before you."

Mr. Duncan replied: "Yes, I follow, yes. The issues are the same in both parts of the application." Submissions by other parties were then heard and the Tribunal, after adjourning for a short period, proceeded to give reasons and make its order. (at p547)

11. The argument for the prosecutor was that before the order was made on 27 October, the prosecutor had not been heard in relation to the making of interim orders. Indeed, it was said that the Tribunal expressed the opinion that it was not necessary to give to persons who would be affected by its orders an opportunity to be heard before those orders were made. This last mentioned submission is based on something that occurred at the hearing on 29 October. Mr. Crawford then complained that he had not been heard on the question whether the interim orders should be made. When the Tribunal came to give its reasons Mr. Duncan said:

"I find it regrettable that the company has refused to accept the recommendations I made on Wednesday. In the midst of an industrially difficult situation it apparently believes that I should determine a host of complex jurisdictional points before I took any initiative to resolve this situation. That is not a view I share. Further, it suggests that I should have awaited further submissions before taking the action I did. I reject that proposition entirely. The Tribunal is not and will not be seen to be an arbitral body which will not take its own initiatives to contain a serious, devisive and complex industrial situation in the coal mining industry."

The concluding words of that statement fall far short of the expression of a view that the Tribunal was not bound to give a proper hearing to persons affected by its orders. (at p548)

12. It appears from what Mr. Crawford said on 29 October that he thought that he had not been fully heard on 27 October. However, it was perfectly clear from the course which the proceedings had taken on 27 October that the Tribunal had been requested to make an interim order and was considering that request. Mr. Crawford was given an opportunity to address the Tribunal and he availed himself of that opportunity. He was not prevented from putting whatever argument he wished to put. It was incumbent upon him either to address to the Tribunal the submissions that he wished to make or to ascertain clearly from the Tribunal whether he would be given a further opportunity to make submissions before an order was made. If Mr. Crawford was under a misapprehension as to the procedure that was being followed, it is impossible to conclude that anything said or done by the Tribunal contributed to his misunderstanding. It has not been shown that the Tribunal on 27 October failed to give the prosecutor a full and fair opportunity to be heard. A party which is given such an opportunity, and fails to take advantage of it, cannot complain that it has been denied natural justice. (at p548)

13. Then it was submitted, in relation to the order of 29 October, that the Tribunal was affected by bias, or at least that the parties or the public might, in all the circumstances, have reasonably concluded that the Tribunal had prejudged the issue, and that it had decided to give the effect of an order to the recommendations which it had made on 27 October. During the hearing on 29 October this exchange occurred:

"MR. CRAWFORD: Well, sir, we are prepared to make submissions to you on the question of interim orders, but, as you have already made an interim order without hearing us on the question, it seems clear that you have already made up your mind. MR. DUNCAN: No, that is not the case at all. MR. CRAWFORD: Well, sir, I do have submissions to put to you on interim orders. MR. DUNCAN: I think that I should remind you of the fact that the authorities in regard to interim awards suggest that reasons should not be given or, if so, should be confined to the smallest detail, but so far as I am concerned anybody who wishes to put anything in relation to the question of orders should put them before the orders are going to be made."

Mr. Duncan went on to say that Mr. Crawford should put whatever he wished in relation to the orders. It is giving altogether too much weight to words spoken in the course of argument to suggest that when Mr. Duncan used the words "before the orders are going to be made" he meant that he had already decided what orders he would make. The context shows that that was not his meaning. No doubt it might reasonably be concluded that a tribunal which had made strong recommendations to the parties would be likely to hope that those recommendations would be adopted. It could not, however, reasonably be concluded that the Tribunal had decided to make orders to give effect to those recommendations, whatever evidence or arguments might be placed before it. In fact Mr. Duncan dealt at some length with the arguments advanced on 29 October before reaching the decision at which he arrived on that date. (at p549)

14. It was submitted that if the orders of 27 or 29 October were bad by reason of a denial of natural justice, those made on 12 November were infected by the earlier invalidity. However, the argument that there was a denial of natural justice in relation to any of those orders must fail. (at p549)

15. The other grounds on which prohibition was sought relate to the constitution and powers of the Tribunal. First, it was submitted that the Tribunal is not validly constituted. As has been said, the Tribunal is constituted under two statutes, one of the Commonwealth and one of the State of New South Wales. Those statutes are, to use the words of Dixon C.J. in Australian Iron &Steel Ltd. v. Dobb (1958) 98 CLR 586, at p 596. , "corresponding enactments of the two legislatures setting up joint or combined authorities by the concurrent exercise of their respective constitutional powers". In that case Dixon C.J. went on to say that it was "not the occasion to inquire into the extent constitutionally to which such a legislative conflation may succeed" (1958) 98 CLR 586, at p 596. The prosecutor submits that this is the occasion to make such an inquiry and that the Tribunal is a hybrid body whose formation the Commonwealth Parliament could not validly authorize. (at p549)

16. The relevant provisions of the Commonwealth Coal Industry Act and the State Coal Industry Act closely correspond. The preamble to the Commonwealth Coal Industry Act records that it has been agreed between the Government of the Commonwealth and the Government of the State that they shall jointly establish authorities vested with power to take action designed to attain the objectives set out in the preamble, which include the taking of measures for securing and maintaining adequate supplies of coal to meet the need for the commodity throughout Australia and in trade with other countries, and for providing for the regulation and improvement of the coal industry in the State of New South Wales. By s. 30(1) of the Commonwealth Coal Industry Act it is provided as follows:

"The Governor-General may enter into an arrangement with the Governor of the state for the constitution, subject to this Act, of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal."

It further appears clear enough from s. 30(2), s. 30(3), s. 31 and s. 31A that it is intended that one person only shall constitute the Tribunal. Section 32 provides as follows:

"(1) In pursuance of agreement between the Government of the Commonwealth and of the State it is declared that any authority constituted under this Part is to have all the powers and functions specified in this Part in relation to that authority. (2) Subject to the Constitution those powers and functions are by this sub-section, but not otherwise, vested in the authority in relation to which they are specified to the extent to which they are not in excess of the legislative power of the Commonwealth."

Section 34 provides (inter alia) as follows:

"(1) Subject to this section, the Tribunal is to have power to consider and determine - (a) an industrial dispute extending beyond the limits of any one State;

(b) an industrial dispute in the State; (c) an industrial matter arising under an award or order of the Tribunal relating to the coal mining industry in the State;

(d) an industrial matter arising under an award, order, determination or agreement continued in force by section 3 of the Coal Industry Act 1951 and relating to the coal mining industry in the State;

(e) an industrial dispute or matter referred to the Tribunal by a Local Coal Authority; and

(f) any other matter affecting industrial relations in the coal mining industry in the State which the Board declares to be, in the public interest, proper to be dealt with under this Act.

(1A) For the purpose of the exercise of the power referred to in sub-section (1), the Tribunal is, subject to this section, to have (in addition to all other powers conferred on it by this Act or the State Act) all powers which are given by the Conciliation and Arbitration Act 1904-1956 to the Commission or to a member of the Commission in relation to industrial disputes before it under that Act. . . . (7) The power specified in sub-section (1) to consider and determine industrial disputes, in so far as that power is vested in the Tribunal by this Act, is declared to be a power exercisable by way of conciliation and arbitration for the prevention and settlement of those disputes."

"Industrial dispute" is defined by s. 4 to mean -

"(a) a dispute (including a threatened, impending or probable dispute) as to industrial matters; and

(b) a situation which is likely to give rise to a dispute as to industrial matters."

"Industrial matters" is defined to mean "all matters pertaining to the relations of employers and employees in the coal mining industry", and without limiting the generality of the foregoing, includes, in respect of that industry, inter alia:

"(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons."

By s. 36(1) an award or order made by the Tribunal by virtue of the powers and functions vested in it by s. 32(2) has effect in all respects as if it were an award of the Commonwealth Conciliation and Arbitration Commission and is binding on the parties, or the persons or whom it is expressed to be binding, including an organization if it is expressed to be binding on an organization, and the provisions of the Conciliation and Arbitration Act under which awards of the Commission may be enforced apply in relation to such an award or order as if it were an award of the Commission. By s.44 it is provided as follows:

"An award, order or determination of the Tribunal or a decision of a Local Coal Authority under this Act 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."

Section 45 provides:

"During the currency of any award or order made by the Tribunal or of a decision of any Local Coal Authority under this Act, no award or order made by any tribunal having jurisdiction in industrial matters in the Coal Mining Industry dealing with the same subject-matter and inconsistent with the award or order made by the Tribunal or Local Coal Authority (except an award, order or decision made under this Act or the State Act) shall be effective." (at p551)

17. The preamble to the State Coal Industry Act is in the same terms as that of the Commonwealth Coal Industry Act. The definitions of "industrial dispute" and "industrial matters" in s. 4 of the State Act are the same as those in the Commonwealth Act. Section 36(1) of the State Act provides as follows:

"The Governor may enter into an arrangement with the Governor-General of the Commonwealth for the constitution, subject to this Act, of a Coal Industry Tribunal and for the appointment of a person to constitute that Tribunal."

Sections 36(2) and (3), 37, 37A, 38, 40(1) and (1A), 42(1), 50 and 51 of the State Act are in substantially the same terms as those of sections 30(2) and (3), 31, 31A, 32, 34(1) and (1A), 36(1), 44 and 45 of the Commonwealth Act, except that where necessary a State authority or statute is mentioned in the State Act where a Commonwealth authority or statute is referred to in the corresponding Commonwealth provisions. The State Act has no counterpart of s. 34(7). (at p552)

18. In the argument on behalf of the prosecutor a challenge was made to the legislative competence of the Commonwealth to create an authority jointly with a State, or at least an authority which derives from a State power which the Commonwealth itself could not confer upon it. It does not seem to me to matter whether the effect of the statutes of the Commonwealth and the State was to create one tribunal which derived power from two sources, or two tribunals, deriving power from different sources, but constituted by one person. In my opinion, it was within the power of the Commonwealth Parliament to follow either course. The Constitution effects a division of powers between the Commonwealth and the States but it nowhere forbids the Commonwealth and the States to exercise their respective powers in such a way that each is complementary to the other. There is no express provision in the Constitution, and no principle of constitutional law, that would prevent the Commonwealth and the States from acting in cooperation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s. 92 of the Constitution, a uniform and complete legislative scheme. Examples of co-operative action of that kind, which this Court has assumed to be valid, are to be found discussed in such cases as Wilcox Mofflin Ltd. v. State of N.S.W. (1952) 85 CLR 488, at pp 508-511, 526-528. Airlines of N.S.W. Pty. Ltd. v. New South Wales (1964) 113 CLR 1, at pp 40, 42, 48, 51-52. and Clark King &Co. Pty. Ltd. v. Australian Wheat Board (1978) 140 CLR 120, at p 179. Further, no reason is provided by constitutional enactment or constutional principle why the Commonwealth and a State or States should not simultaneously confer powers on one person and empower that person to exercise any or all of those powers alone or in conjunction. In one instance the Constitution has expressly recognized the possibility of co-operation of that kind when it enables the Parliament to invest a court of a State with federal jurisdiction: Constitution, ss. 71, 77(iii). It would be an absurd result, for example, if the Commonwealth and a State were unable, by complementary legislation, to empower an officer of police to enforce both the laws of the Commonwealth and the laws of the State, or to give power to a fisheries inspector to act in Australian waters both within and beyond territorial limits, or to authorize a public servant to collect State taxes as well as Commonwealth taxes. There is nothing in the decisions of this Court to provide authority for such a restrictive view of constitutional power. The position of an administrative body such as the Tribunal is no different; legislation of the Commonwealth Parliament, otherwise within power, is not invalid because it establishes, jointly with a State, one body which derives its powers from the State as well as from the Commonwealth. (at p553)

19. Although, as I have indicated, it is not necessary to decide the question, it seems to me that the intention of the two legislatures was to constitute one Tribunal whose authority depended on the combined exercise of Commonwealth and State powers. The Tribunal is constituted by the statutes, rather than by the arrangement between the Governor-General and the Governor. The terms of the arrangement can have nothing to say as to the powers of the Tribunal, since, once an arrangement is made, and a person has been appointed to constitute the Tribunal, the powers and functions of the Tribunal will depend entirely on the provisions of the statutes. I incline to the view that the Tribunal, once constituted, can exercise any of the powers validly conferred on it either by the Commonwealth or by the State Act. In other words, it can exercise both Commonwealth and State powers in the one case. If this is so, it would appear unnecessary in the present case to find the existence of an industrial dispute extending beyond the limits of any one State, even though the awards applicable to the members of the respondent unions which were registered under the Conciliation and Arbitration Act purported to have been made under the Commonwealth Coal Industry Act. As at present advised, I can see no reason why a body which derives power from two sources cannot exercise whichever power appears available and appropriate in any particular case. If, in settlement of an interstate dispute, the Tribunal made an award under powers which it derived from the Commonwealth Coal Industry Act, the Tribunal might later amend that award in the exercise of powers which derived from the State Coal Industry Act for the purpose of settling a purely intrastate dispute. The inconsistency between the original award and the amendment would be resolved in favour of the amendment, since that would be later in time. Section 109 of the Constitution would have no operation, because, on the view which I am suggesting, the relevant law of the Commonwealth, i.e., the Commonwealth Coal Industry Act, reveals the intention that the Tribunal may use powers given to it by the State Coal Industry Act for the purpose of varying an award which it has made in the exercise of power given by the Commonwealth Coal Industry Act. If this view is correct, the prosecutor must fail. However, I shall discuss the case on the assumption that the Tribunal needed to resort to the powers conferred by the Commonwealth Coal Industry Act when it made the orders which it did in the present case. (at p554)

20. A further objection raised to the validity of the provisions constituting the Tribunal was that s. 32(1) and s. 34(1) of the Commonwealth Coal Industry Act attempted to confer on the Tribunal powers which it was beyond the legislative competence of the Parliament to bestow. This argument depends on a view of the construction of s. 32 which cannot be accepted. The argument was that notwithstanding the provisions of s. 32(2), the intention of s. 32(1) was to confer on the Tribunal all the powers specified in s. 34(1) in their full generality. The powers conferred in the later subsection may in some circumstances be within legislative competence, but they will in other circumstances be beyond Commonwealth power. For example, the legislative power of the Commonwealth will in some cases extend to enable it to legislate with regard to industrial disputes within a State (e.g., where the dispute is likely to affect trade with other countries or among the States) but there will be other cases of intrastate disputes which will not attract any of the legislative powers of the Commonwealth. Therefore, it was said, s. 32(1) is too wide and therefore invalid, and it is not possible to sever or divide its provisions, since s. 30 envisages the constitution of a Tribunal which has all the powers and functions which s. 32(1) declares that it shall have. It is a sufficient answer to this argument to say that, according to ordinary principles of construction, s. 32(1) must be read together with s. 32(2). The words "specified in this Part" in s. 32(1) do not simply mean "specified in s. 34(1)", since s. 32(2) appears in the same part of the Act and modifies the effect of s. 34(1). It is clear that the intention of the Parliament was that the powers mentioned in s. 34(1) should only be vested in the Tribunal to the extent to which they are not in excess of the legislative power of the Commonwealth. That this was the intention of the legislature was recognized in Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. (1960) 103 CLR 15, at p 20. , where the Court said: "By this ingenious legislative device the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them." (at p555)

21. For these reasons I hold that the Tribunal was validly constituted. (at p555)

22. It was then argued that the orders were beyond the power of the Tribunal because they were not made in settlement of or in relation to an interstate industrial dispute. This argument can have no application to the order made on 27 October 1982, which related only to members of the Deputies' Association, so that on any view the powers conferred by the State Coal Industry Act were available. The argument that the orders made on 29 October and 12 November in relation to the other respondent unions will be valid only if they relate to an interstate industrial dispute proceeds on an assumption which, as I have already indicated, I am not prepared to make without further examination. However, assuming that it was necessary to the validity of those orders that they should have been made in relation to an interstate dispute, they were so made in the present case. In Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) (1978) 140 CLR 615, at p 624. , Mason J. said:

"It has long been established that Parliament may legislate so as to give the Commission power to vary its awards, even in cases where the proposed variation does not immediately or directly arise out of a fresh industrial dispute extending beyond the limits of a single State."

His Honour proceeded to refer to a number of authorities in support of that proposition. In the same case I said (1978) 140 CLR, at p. 619.

" . . . 'to maintain a settlement made by award of an industrial dispute in an expedient and satisfactory form adjusted to changing conditions' is incidental to the subject described in s. 51(XXXV) of the Constitution. The Commission may be invested with power to make a variation whether or not a new dispute has arisen, but if there is no new dispute the variation of the award cannot go beyond the limits of the original dispute."

If the application made on 22 October 1982 to amend the awards was within the ambit of the original disputes it was an application to the Tribunal to determine the undetermined residue of those disputes, or to keep effective the settlement of those disputes made by the awards. In those circumstances, the Tribunal had power to deal with the application, notwithstanding that it did not arise out of a fresh interstate dispute, because it formed part of the original disputes whose interstate character was not lost. The question then is whether the application was within the ambit of the original disputes. The ambit of a dispute is to be gleaned from the extent of the claim made in the log of claims which the union has delivered to the employer and to which the employer has declined to accede. The logs with which we are concerned in the present case were delivered to the prosecutor by the five respondent unions other than ACSA and the Deputies' Association. They are Exhibits W, X, Y, Z and AA. The logs delivered by Mining Mechanics, and AMWSU contained a claim in the very words of the application of 22 October, except that the phrase "to the satisfaction of the union" appeared in the log where the words "to the satisfaction of the employee and of the union" appear in the application. The log delivered by FEDFA was identical with those of Mining Mechanics and AMWSU except that it claimed six weeks' and not twelve weeks' pay for each year of service. The logs delivered by Miners' Federation and by ETU were less elaborate, but the former contained a claim that any employee retrenched must be given at least three months' notice of such retrenchment and in addition he should be paid twelve weeks' pay for each year of service, and the latter claimed that employment should be terminated by a week's written notice or by paying two weeks' wages in lieu of notice, and further claimed six weeks' severance pay for each year of service. It was clear that in the case of all those unions, except ETU, there was ambit to deal with a claim that an employee deemed redundant should receive three months' notification of cessation of employment. The Tribunal on 29 October found that there was ambit in the case of all unions except ETU. In relation to that union Mr. Duncan said that he was satisfied that there was an actual interstate dispute in existence and went on to say:

"Where the distinction between the unions party to the one award brought about by the terms of the application is so fine I believe that if the occasion is appropriate I should exercise the powers conferred on the Tribunal on my own motion."

It is however by no means clear what power the Tribunal intended to exercise of its own motion. However, although part of the application was outside the ambit of the original dispute to which ETU was a party, some of the claim - including the claim for severance pay up to a period of six weeks - was within the ambit of that original dispute. (at p557)

23. I therefore conclude that the Tribunal had power to consider and determine the applications made on 22 and 27 October, although in the case of ETU the power was limited to a claim for six weeks' severance pay. (at p557)

24. The final question in the case is whether the orders made by the Tribunal were within its powers. No difficulty arises as to the order made on 27 October 1982 in respect of the members of the Deputies' Association. The powers conferred by the State Coal Industry Act were available and ample to enable the Tribunal to deal with the application for an interim order that the prosecutor should extend the period of the notices which it had given, or should reinstate its employees. Such an application was clearly within both the opening words and par. (k) of the definition of "industrial matters": see Australian Iron &Steel Ltd. v. Dobb (1958) 98 CLR, at pp 597-598. Since it was not necessary to establish that the application made by the Deputies' Association was within the ambit of an interstate dispute the Tribunal clearly had jurisdiction to entertain it. In the case of the other respondents, the ambit of the interstate disputes was defined by the logs of claims. The interim orders which were made were not, in terms, in settlement of a dispute raised by the logs. They did not provide for a period of notice of dismissal, or for serverance pay or long service leave, and those were the relevant matters claimed by the logs. However, there can be no doubt that the intention of the Tribunal in making the orders was to preserve things in statu quo until the dispute had been resolved. The question is whether the Tribunal had power to make orders of that kind for that purpose. By s. 34(1A) of the Commonwealth Coal Industry Act, the Tribunal is to have all the powers given by the Conciliation and Arbitration Act to the Commonwealth Conciliation and Arbitration Commission in relation to industrial disputes before it under that Act. By s. 41(1)(b) of the Conciliation and Arbitration Act, the Commission may, in relation to an industrial dispute, "make an award (including a provisional or interim award relating to any or all of the matters in dispute) or give a direction in pursuance of the hearing or determination". By s.4 of that Act "award" includes an order. The orders made in the present case were clearly interim orders. The question is whether they related to the matters in dispute. When a claim is made to vary an award by providing that an employee shall be given notice before he is dismissed on the ground of redundancy, or shall, if so dismissed, be entitled to severance pay, an order which protects the position of existing employees until the dispute arising out of the claims can be determined is related to the matters in dispute. The relationship consists in the fact that the order ensures that if the matters in dispute are decided favourably to the employees, persons presently in employment, but under threat of dismissal, will not be deprived of the benefit of the resulting award. In other words, the order is intended to ensure that a settlement of the matters in dispute, when made, will be effective, and is reasonably adapted for that purpose. It goes without saying that an order that an employee should be kept in employment for the purpose of ensuring that he has notice of dismissal or receives severance pay on dismissal would not be sufficiently related to the matters in dispute if the period for which the employee was kept in employment exceeded the period of notice, or the period of weeks of severance pay, claimed in the dispute, and that the fact that the interim order was made should be given due consideration in the making of the final award. In the present case the employees were kept in employment for three weeks as a result of the interim orders. That result was no different in substance from giving them three weeks' notice of dismissal, or giving them three weeks' severance pay. In other words, the interim orders did not produce a result substantially different from that sought by the logs. (at p558)

25. It was submitted on behalf of the prosecutor that an award, when made, could be given a retrospective operation, and that the interim orders were accordingly unnecessary. It was pointed out that the Tribunal did not extend the employment of the employees concerned after 19 November 1982 notwithstanding that the dispute had not then been determined, and this, it was suggested, showed that the Tribunal eventually acknowledged that the interim orders were unnecessary. When it is said that an award has a retrospective operation, what is meant is that the award imposes a present obligation to pay increased amounts in respect of a past time (cf. Federated Engine Drivers' and Firemen's Association of Australasia v. Adelaide Chemical and Fertilizer Co. Ltd. (1920) 28 CLR 1, at pp 9-11.). The question whether it is possible to vary an award so as to oblige an employer to give notice of dismissal for an increased period to persons formerly employed but no longer in employment was not fully argued and I need not discuss it. Even if the Tribunal was in error in thinking that the orders that it made were necessary to protect the position of the employees, that does not mean that the orders were not related to the matters in dispute. (at p558)

26. The third order, made on 12 November 1982, was objectionable in form. The Tribunal could order the prosecutor to extend the period of employment of its employees, but it could not itself alter notices which had already been given by the prosecutor. However the intention of the Tribunal was clear - namely, to effect a further extention of the period of employment of those affected. Prohibition will not go to correct a mere error of form. (at p559)

27. For these reasons I consider that the Tribunal had power to make the interim orders which it did. It is unnecessary to decide whether the orders were necessary, since the wisdom or expediency of making them does not fall for decision on an application for prohibition. In the view that I take it becomes unnecessary to consider the privative provisions of s. 44 of the Commonwealth Coal Industry Act or the corresponding provisions of s. 50 of the State Coal Industry Act. (at p559)

28. I would discharge the orders nisi. (at p559)

MASON J. In my opinion the Coal Industry Tribunal was validly established by the Coal Industry Act 1946 (Cth), as amended, (the Commonwealth Act) and the Coal Industry Act 1946 (N.S.W.), as amended, and by the appointment pursuant to an arrangement between the Commonwealth and the State of a person to constitute the Tribunal. The joint legislation was enacted pursuant to an agreement between the Commonwealth and the State, the substance of which is recited in the preamble to the two statues. The object of the agreement and of the joint legislation is adequately summarized in the long title of the Commonwealth Act:

"An Act to provide means for Securing and Maintaining adequate Supplies of Coal throughout Australia and for providing for the Regulation and Improvement of the Coal Industry in the State of New South Wales, and for other purposes." (at p559)

2. It is obvious that neither the Commonwealth nor the State could validly empower the Tribunal to undertake all the functions or equip it with all the powers with which the joint legislation seeks to entrust it. By way of example, the powers conferred by s. 34(1)(b) and (f) of the Commonwealth Act could not be sustained as an exercise of Commonwealth legislative power alone, unless the provisions were drastically read down. It is equally obvious that the joint legislation is designed to overcome the shortfall in the respective legislative powers of the Commonwealth and the State by combining the exercise of those powers so far as they are relevant. (at p559)

3. There is nothing in the prosecutor's argument that the executive power of the Commonwealth does not extend to the making of the agreement recited in the preamble or to the making of an arrangement for the appointment of a person to constitute the Tribunal. The executive power of the Commonwealth is not, as the prosecutor would have it, limited to heads of power which correspond with enumerated heads of Commonwealth legislative power under the Constitution. Victoria v. The Commonwealth and Hayden (the AAP Case) (1975) 134 CLR 338 did not decide that the executive power was so limited, though Gibbs J. (1975) 134 CLR, at p 379 said "that the Executive cannot act in respect of a matter which falls entirely outside the legislative competence of the Commonwealth". The scope of the executive power is to be ascertained, as I indicated in the AAP Case (1975) 134 CLR, at pp 396-397, from the distribution of the legislative powers effected by the Constitution and the character and status of the Commonwealth as a national government. Of necessity the scope of the power is appropriate to that of a central executive government in a federation in which there is a distribution of legislative powers between the Parliaments of the constitutent elements in the federation. It is beyond question that it extends to entry into governmental agreements between Commonwealth and State on matters of joint interest, including matters which require for their implementation joint legislative action, so long at any rate as the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution. A federal constitution which divides legislative powers between the central legislature and the constitutent legislatures necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the powers of any single legislature. Accordingly, the agreement recited in the statutes was within the executive power of the Commonwealth. (at p560)

4. In any event it is the validity of the Commonwealth Act that is in question, rather than the validity of the agreement. If the Commonwealth Act be valid, then it is difficult to perceive any ground for concluding that the agreement is invalid. And it is equally difficult to suppose that the invalidity of the agreement would affect the Commonwealth Act, assuming it to be otherwise within power (cf. PJ. Magennis Pty. Ltd. v. The Commonwealth (1949) 80 CLR 382). (at p560)

5. The substance and effect of Pt V of the Commonwealth Act so far as it relates to the establishment of the Tribunal is, first, to authorize the Governor-General to enter into an arrangement with the Government of a State for the constitution of the Tribunal and for the appointment of a person to constitute it (s. 30(1)) and then, once that arrangement has been made, to arm the Tribunal with specified powers and functions (s. 34). It is expressly declared that these powers and functions are by s. 32(2), but not otherwise, vested in the Tribunal to the extent to which they are not in excess of the legislative powers of the Commonwealth. This provision, read in conjunction with its associated provisions, indicates that the statutory design was to create a single office in the form of the Tribunal which was to exercise specified powers and functions sustained as far as constitutionally possible by the Commonwealth's powers and by State legislative power to the extent to which Commonwealth legislative power fell short. (at p561)

6. It seems to me that Pt V is quite inconsistent with a notion that two statutes created two separate tribunals, one a Commonwealth tribunal, the other a State tribunal, each exercising powers and functions derived from its statute. The remarks of Dixon C.J. in Australian Iron &Steel Ltd. v. Dobb (1958) 98 CLR 586, at p 596 do not suggest otherwise. They merely raise the general question as it affected the Local Coal Authority, another tribunal set up by the Commonwealth and State Acts, established by the Commonwealth Act in the context of s. 38(e) of the Judiciary Act 1903, as amended. Likewise, the comments of the Court in Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. (1960) 103 CLR 15, at p 21 related to the jurisdiction of this Court to grant "prohibition to a Commonwealth officer on whom State power as well as federal power is conferred when he acts outside all his powers". However, the Court's judgment in Lydon is important for another reason. It proceeds on the footing that the joint legislation validly sets up the Local Coal Authority. In discussing the joint legislation the Court said (1960) 103 CLR, at p 20.

"By this ingenious legislative device the best is done to give powers expressed almost in identical terms and conferred by the two respective Parliaments a combined operation so that they will operate according to the constitutional validity which each respective Parliament was able to give to them."

And the Court's decision was that the Authority was exercising a power conferred by the State Parliament. (at p561)

7. There have been other cases in which the Court has assumed that Commonwealth and State Parliaments have the capacity by joint legislation to create and confer powers on an authority or to create a combined legislative scheme - see Wilcox Mofflin Ltd. v. State of N.S.W. (1952) 85 CLR 488, at pp 508-511, 526-528; Airlines of N.S.W. Pty. Ltd. v. New South Wales (1964) 113 CLR 1; Clark King &Co. Pty. Ltd. v. Australian Wheat Board (1978) 140 CLR 120. (at p562)

8. In Lydon the Court did not direct its attention to an argument based on ss. 32(1) and 34(1) which is raised before us. The prosecutor says that when these provisions are read together they evince an intention that the Tribunal may exercise all its powers, derived from both sources, Commonwealth and State, in the determination of any industrial dispute, industrial matter or other matter in which it has jurisdiction. This, so the argument runs, is beyond the Commonwealth's legislative power because an award made in the exercise of power conferred by the Commonwealth Parliament cannot be displaced, varied or modified in the exercise of power conferred by a State Parliament. (at p562)

9. Section 34(1A) lends weight to the submission that the Tribunal was intended to have the capacity to exercise all or any of its powers, irrespective of the source from which they are derived, in the determination of a dispute which comes before it. On the other hand, s. 36(1) provides that an award or order made by the Tribunal by virtue of the powers and functions vested by s. 36(2) has effect as if it were an award of the Commission and is binding on the parties and other persons on whom it is expressed to be binding so that the provisions of the Conciliation and Arbitration Act 1904 (Cth), as amended, in relation to enforcement apply to it. This may suggest that powers conferred on the Tribunal by State legislation were not intended to be exercised so as to vary an award made in the exercise of powers conferred by s. 36(2), although I am not inclined to think that there is much force in this argument. (at p562)

10. It is, I think, unnecessary to decide whether the Commonwealth Act evinces an intention that the Tribunal may exercise all its powers, derived from both sources, in the determination of any industrial dispute, industrial matter or other matter. Even if this be the correct construction it nevertheless does not entail invalidity. First, if it be beyond power to confer authority on the Tribunal to exercise powers of State origin in this way, then the result is that the attempt to confer that authority would fail, rather than that the constitution of the Tribunal would fail. (at p562)

11. Secondly, as at present advised, I see no strong reason why the Commonwealth Parliament in the exercise of the conciliation and arbitration power (s. 51(xxxv)) and the trade and commerce power (s. 51(i)) cannot establish a tribunal with powers and functions appropriate to the exercise of those powers and declare that the tribunal has the capacity to exercise such conciliation and arbitration powers and functions as may be given to it by a State Parliament, so that powers derived from both sources may be exercised in relation to the one dispute or matter. (at p563)

12. As I indicated in discussing the executive power, the Constitution, when it divides legislative powers between the Parliaments of the Commonwealth and the States, necessarily contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the competence of any single legislature. As with an exercise of the executive power for a co-operative purpose, Commonwealth legislative action for such a purpose is subject to the limitation that the end to be achieved and the means by which it is to be achieved are consistent with and do not contravene the Constitution. It is an integral element in joint legislation for a co-operative purpose that a legislature, whether Commonwealth or State, can give its authority or office holder a capacity to receive additional powers and functions as may be conferred by another legislature. (at p563)

13. One potential problem which the qualification mentioned calls forth is that of an inconsistency between Commonwealth and State laws bringing into operation s. 109 of the Constitution. This problem can be alleviated, if not eliminated, by a manifestation of intention in the Commonwealth law that it is not intended to occupy the field to the exclusion of State law. Indeed, the potential for inconsistency and the need to avoid it in co-operative legislative action is perhaps another reason for saying that the Commonwealth Parliament can give its authority or the joint authority (one in whose creation it has participated) the capacity to receive additional power from a State, though in the context of inconsistency it is intention, rather than capacity, that in important. But if the Commonwealth statute reflects an intention that the authority is to have capacity to receive powers conferred by State legislation, then generally speaking this will be indicative of an intention not to cover the field to the exclusion of State law. As the Court observed in Aberdare Collieries Pty. Ltd. v. The Commonwealth (1952) 86 CLR 12, at p 30, "in combined legislation of this type . . . the Federal statute should be interpreted as not meaning to occupy the field to the exclusion of the State legislation". (at p563)

14. And if the Commonwealth Act evinces an intention that the Tribunal may exercise all its powers, derived from both sources, in the determination of any dispute in which it has jurisdiction, the Tribunal will be entitled, if it thinks fit, to modify or displace an award previously made by it in the exercise of powers conferred by the Commonwealth. Whether the Tribunal's authority to modify or displace the award should be ascribed to the State statute on the footing that the Commonwealth Act has made the operation of the award subject to such orders as may be made by the Tribunal in the exercise of powers conferred by the State Act or whether the Tribunal's authority stems from a positive conferment of power by the Commonwealth to modify or displace the award does not much matter. (at p564)

15. If for these reasons the problem of inconsistency can be put aside, as I am inclined to think it can, then the difficulty that is said to arise in the exercise of power conferred by the States for the purpose of varying an award made in the exercise of the power conferred by the Commonwealth Parliament seems to disappear. Apart from the doctrine of inconsistency, there is no principle of constitutional law which preserves or protects an award made in the exercise of Commonwealth power from alteration in the exercise of State power by a Tribunal which is intended to exercise any or all of its powers, irrespective of the source of the power. Accordingly, once the issue of inconsistency is set to rest, the only serious objection to invalidity is overcome. (at p564)

16. Nevertheless, because this question was not fully argued I would not base my decision in this case on the ground that the Tribunal is authorized to exercise all or any of its powers irrespective of the source of the power. I prefer to say that the Commonwealth Act conferred jurisdiction on the Tribunal to make the orders made on 29 October and 12 November and to entertain the application made on 22 October for a variation of the federal awards by including in them the "Retrenchment and Redundancy" clause. As the Chief Justice has pointed out, the first order, that made on 27 October, related to men covered by a State award so that its validity is beyond question. (at p564)

17. I reject the argument that the Commonwealth Act confers no power on the Tribunal to vary an award which it has made. By s. 34(1A) the Tribunal is given all the powers which are given by the Conciliation and Arbitration Act to the Commission or a member of the Commission in relation to industrial disputes before it. By s. 59(1) and (2) of that Act the Commission is authorized, for any reason it considers it desirable to do so, to set aside an award or vary its terms. Plainly, despite the prosecutor's argument, the Commission's power to vary the terms of an award is exercisable in relation to an industrial dispute. Indeed, the existence of an industrial dispute is usually the occasion for exercising the power. (at p564)

18. It is well settled that the Commission has power to vary an award, so long at any rate as the variation is made to prevent or settle an interstate industrial dispute, whether the dispute is a fresh dispute or the initial dispute in settlement of which the award was made (Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) (1978) 140 CLR 615, at pp 619, 624). The variation will be a valid exercise of the power, at least when the variation is within the ambit of the initial dispute. For the reasons expressed by the Chief Justice in his judgment, except in the case of the log of claims delivered by the Electrical Trades Union there was ambit in the original logs of claims delivered by the federal unions to consider and determine a claim for three months' notification of cessation of employment due to redundancy, and severance pay. In the case of the Electrical Trades Union the Tribunal had jurisdiction to vary the relevant award by providing for up to six weeks' severance pay. (at p565)

19. As the Cheif Justice has pointed out, the Tribunal is given power to make interim orders by s. 34(1A) of the Commonwealth Act which picks up s. 41(1)(b) of the Conciliation and Arbitration Act. For the reasons which the Chief Justice has stated, the interim orders made on 29 October and 12 November were made in relation to the matters in dispute, that is, the issues presented by the applications to vary the federal awards. Although the order made on 12 November was objectionable in form, it should be understood as an order directing the prosecutor to extend the employment of the relevant employees for a further week. (at p565)

20. I would merely add that the decision in Reg. v. Flight Crew Officers' Industrial Tribunal; Ex parte Australian Federation of Air Pilots (1971) 127 CLR 11 has no application. There the definition of "Industrial matters" in s. 88H of the Conciliation and Arbitration Act was restricted. Here the definition of that expression in s. 4 of the Commonwealth Act is relevantly wider, including par. (k) which is in these terms:

"(K) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons."

By virtue of the definition the Tribunal had jurisdiction to make an order extending employment or reinstating in employment. (at p565)

21. In other respects, and they include the validity of the order made on 27 October, I agree with the reasons of the Chief Justice. (at p565)

22. In the result I would discharge the orders nisi for prohibition. (at p565)

MURPHY J. I agree generally with the reasons for judgment given by the Chief Justice, but will deal briefly with some aspects of the constitutional validity of the Coal Industry Tribunal and its powers. (at p566)

7. The questions whether the relevant provisions of the two Acts are within the respective legislative competence of the Commonwealth and the New South Wales Parliaments and whether there is any relevant lacuna in the combined legislative competence of the Commonwealth and State Parliaments can conveniently be considered together. They can, in the view I take, be resolved by reference to two related general propositions which are to be derived from the terms of the Australian Constitution and from the nature of the federation which it embodies. The first is that co-operation between the Parliaments of the Commonwealth and the States is in no way antithetic to the provisions of the Constitution: to the contrary, it is a positive objective of the Constitution. The second is that, in the absence of any express or implied constitutional prohibition or of any relevant limitations upon State powers persisting from colonial times, it is to be presumed that any legislative power which naturally appertains to self-government and which is not conferred upon the Commonwealth Parliament remains in the States. The existence of a constitutional objective of Commonwealth/State co-operation may, on occasion, be obscured by the fact that cases in this Court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and of one or more of the States. It is, however, unnecessary to do more than refer to the provisions of s. 51(xxxiii), (xxxiv), (xxxvii) and (xxxviii) and of Ch. V of the Constitution to demonstrate the existence of such a constitutional objective. It would be inconsistent with that objective for there to be any general constitutional barrier to concurrent legislation by Commonwealth and State Parliaments. The second proposition requires a little more elaboration. (at p589)

8. The Constitution of Australia was established not pursuant to any compact between the Australian Colonies but, as the preamble of the Constitution emphatically declares, pursuant to the agreement of "the people" of those Colonies. Pursuant to that agreement, there were conferred upon the Commonwealth Parliament such legislative powers as were considered necessary and proper for the purposes of the nation that would be formed by, and would develop under, the federation. Some of those powers were made exclusive; some were made merely paramount. To the extent considered desirable, some specific prohibitions were imposed upon the legislative powers of Commonwealth and State Parliaments. The Constitution did not, however, otherwise modify or abolish the legislative powers of the Parliaments of the States. Rather, s. 107 of the Constitution expressly declares that the legislative powers of the Parliaments of the former Colonies, now States, continue except to the extent that the Constitution otherwise provides. In all these respects, the Commonwealth Constitution generally corresponded with the Constitution of the United States of America where it had long been recognized that, except to the extent of constitutional prohibition, the effect of federation was to share legislative powers between Union and States and not to diminish the amplitude of the totality of legislative powers (see, e.g., Martin v. Hunter's Lessee (1816) 1 Wheat. 304, at p 325 (4 Law Ed 97, at p 102); New York v. Miln (1837) 11 Pet. 102, at p 153a (9 Law Ed 648, at p 668). (at p590)

9. In Attorney-General (Ontario) v. Attorney-General (Canada) (1912) AC 571, at pp 583-584. Lord Loreburn L.C., speaking for the Privy Council, said of the Canadian Constitution:

"In the interpretation of a completely self-governing Constitution founded upon a written organic instrument, such as the British North America Act, if the text is explicit the text is conclusive, alike in what it directs and what it forbids. When the text is ambiguous, as, for example, when the words establishing two mutually exclusive jurisdictions are wide enough to bring a particular power within either, recourse must be had to the context and scheme of the Act. Again, if the text says nothing expressly, then it is not to be presumed that the Constitution withholds the power altogether. On the contrary, it is to be taken for granted that the power is bestowed in some quarter unless it be extraneous to the statute itself (as, for example, a power to make laws for some part of His Majesty's dominions outside of Canada) or otherwise is clearly repugnant to its sense. For whatever belongs to self-government in Canada belongs either to the Dominion or to the provinces, within the limits of the British North America Act." (at p590)

10. The applicability of these remarks to the Australian Constitution was immediately recognized (see Colonial Sugar Refining Co. Ltd. v. Attorney-General (Cth) (1912) 15 CLR 182, at pp 214-215 ). In Smith v. Oldham (1912) 15 CLR 355., both Barton J. and Isaacs J. expressly relied upon the completeness of Commonwealth and State legislative powers as a step in concluding that an impugned section of the Commonwealth Electoral Act 1902- 1911 (Cth) was within the legislative powers of the Commonwealth Parliament. In the course of his judgment, Barton J. said (1912) 15 CLR, at pp 360-361.

". . . If then the Parliament of the Commonwealth cannot legislate upon a matter of this sort there can be no legislation upon it at all. But that we cannot say, for the Constitution in the distribution of powers between Commonwealth and States embraces the whole range of legislative authority within the territorial limits of Australia. And as it is plain that no State can deal with the conduct of citizens of the Commonwealth in respect of federal elections, the power must reside in the Commonwealth."

Isaacs J. said (1912) 15 CLR, at p. 365:

"It is inconceivable that in Australia there exists no legislative authority competent to pass such a law. I said once before of another Statute (R. v. Barger (1908) 6 CLR 41, at p 101): - "The power to pass such an Act must reside somewhere." Recently in the Colonial Sugar Refining Co. v. Attorney-General (Cth) (1912) 15 CLR, at p 214. I quoted the words of Lord Loreburn L.C. in Attorney-General (Ontario) v. Attorney-General (Canada) (1912) AC, at pp. 583-584, laying down the same test. I will not now repeat those words; but in effect the Judicial Committee held that in a completely self-governing Constitution it is to be taken for granted a power naturally appertaining to the self-government conferred is contained

somewhere within it." (at p591)

11. It has not been suggested that either the Commonwealth Constitution or the New South Wales Constitution contains any express or implied prohibition upon legislative power which is relevant for the purposes of the present application or that there is any applicable limitation upon the powers of the State Parliament resulting from outmoded doctrines appropriate to times that are gone. The power of the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State (s. 51(xxxv)) and with respect to matters incidental to the execution of that power (s. 51(xxxix)) sufficed to enable the Commonwealth Parliament to legislate to authorize the Governor-General to enter into the arrangement for the establishment of a tribunal which would be capable of receiving and exercising the particular powers conferred upon it by the Act and the related powers conferred upon it by the concurrent State Act. In that regard, it would seem that in present day circumstances, where modern communications and the common involvement of national organizations of employees or employers make escalation of a local dispute into an interstate dispute far more likely than in the early days of the Commonwealth, the reference to "prevention" in s. 51(xxxv) has become more important, as a source of legislative power, than the reference to "settlement". For its part, the New South Wales Parliament plainly possessed legislative powers adequate to enable the enactment of the provisions of the State Act. Nor, in the light of the underlying constitutional objective of co-operation between Parliaments, is there any valid constitutional ground for refusing to give to the two Acts their full combined operation and effect. In the absence of any constitutional prohibition and of any lacuna in combined legislative competence, that operation and effect is to confer upon the Tribunal power to consider and determine industrial disputes and industrial matters of the relevant type regardless of whether they be confined to New South Wales or extend within and beyond that State. Provided it is acting in the course of considering and determining a relevant "industrial dispute" or "industrial matter" and subject to the under-mentioned qualification, it is unnecessary for the Tribunal to seek to identify or isolate the precise source of the power it is exercising. In particular, if the Tribunal, in exercising a power which is primarily to be seen as conferred upon it by the State Act, makes an order or award which varies an award previously made by the Tribunal in the exercise of power conferred upon it either by the Act alone or by the combined operation of the Act and the State Act, no question of inconsistency between a law of the Commonwealth and a law of the State arises. The reason for that is that the power to vary and thereby partially repeal such an award in the exercise, for example, of the authority primarily conferred by the State Act to consider and determine a purely intrastate "industrial dispute" is conferred upon the Tribunal by the Act when it confers, to the extent of Commonwealth power, authority to consider and determine such an "industrial dispute". It is not a case merely of the Commonwealth indicating a negative intention not to cover the field. It is a case of positive provision having the effect that the Tribunal is, in the exercise of powers conferred by the State Parliament, vested with ancillary powers which the Commonwealth Parliament could alone confer. (at p592)

12. The qualification which needs to be made to the general statement that it is unnecessary for the Tribunal to seek to identify the source of the powers which it is exercising results from the differences between the respective provisions of the two Acts dealing with the nature and content of the Tribunal's supplementary powers and the enforcement of the Tribunal's awards or orders. In exercising powers which are conferred by the Act, the Tribunal is vested with the powers which are given by the Conciliation and Arbitration Act 1904 (Cth) to the Commonwealth Conciliation and Arbitration Commission or to a member thereof (Act, s. 34(1A)); in exercising powers which are conferred by the State Act, the Tribunal is vested with the powers conferred upon the Industrial Commission of New South Wales in relation to an industrial dispute of which that Commission has jurisdiction (State Act, s. 40(1A)). An order or award which is made in pursuance of the Act takes effect and may be enforced as if it were an award of the Commonwealth Conciliation and Arbitration Commission (Act, s. 36); an order or award which is made in pursuance of the State Act shall, when filed in the Industrial Commission of New South Wales, "have effect in all respects and be enforceable" as if it were an award or order of that Commission (State Act, s. 42(1)). Where the supplementary powers conferred by the two Acts differ in relevant respects or where enforcement provisions or proceedings are involved, it may be necessary to identify the source of the particular powers which the Tribunal is exercising or has exercised in making a particular award or order. In a case where the award or order is not being or was not made in the exercise of concurrent or composite powers derived from both Acts with the result that both sets of supplementary powers and enforcement procedures are prima facie available and applicable, it may be necessary to identify the source of jurisdiction in order to determine the nature and scope of available supplementary powers or the identity of the appropriate enforcement procedures In a case where an award or order is being made or was made in the exercise of concurrent or composite powers derived from both Acts, it may be that, within particular areas such as the availability of enforcement procedures, questions of inconsistency may arise. The divergence between the two Acts as regards supplementary powers and enforcement of awards and orders may be productive of inconvenience and difficulty in particular cases. Overall however, the circumstances in which the Tribunal will itself be concerned to identify the source of powers will be rare since the Tribunal will not itself ordinarily be concerned with enforcement procedures and the differences between the supplementary powers conferred by the two Acts are not such as to make it likely that they will ordinarily be significant. (at p593)

13. In the present matters, it was clear from the outset that there was a dispute before the Tribunal between the prosecutor and each of the industrial organizations ("the unions") as to the rights of members of that organization in the event of their retrenchment by the prosecutor. Notwithstanding the fact that that dispute was between a particular employer and an organization as to the entitlements of particular employees, it was an "industrial dispute" for the purposes of the two Acts (see Reg. v. Portus; Ex parte Australian Air Pilots' Association (1953) 90 CLR 320, at p 330). The Tribunal had power to consider and determine that industrial dispute regardless of whether it was an intrastate dispute or an interstate dispute and regardless of whether the Tribunal's order would involve a variation of a previous award of the Tribunal. It was unnecessary for the Tribunal to be concerned with whether the dispute before it came within the ambit of previous disputes which had led to the making of the relevant award. The dispute as to whether the award should be varied was itself an industrial dispute which enlivened the jurisdiction of the Tribunal. Indeed, from the time the prosecutor gave the retrenchment notices, an "industrial dispute" plainly existed for the purposes of the Acts in that there was a situation which was likely to give rise to a dispute as to "industrial matters" in the defined sense. (at p594)

14. In follows that the prosecutor's attack on the constitution of the Tribunal and on the jurisdiction of the Tribunal to deal with the dispute between the prosecutor and the unions fails. The only error as to jurisdiction which the Tribunal made was its ruling on 18 October 1982 that it lacked power to vary the awards of the unions other than the New South Wales Colliery Officials' Association Illawarra District in the perceived absence of an interstate industrial dispute. It is unnecessary to consider whether the Tribunal was in any event in error in its conclusion that no interstate industrial dispute existed at that stage. If it had been necessary to consider that question, it may have been of significance that, possibly as a result of a slip in drafting, the Act, unlike the Conciliation and Arbitration Act 1904, does not include, in the defined area of an interstate industrial dispute, an intrastate situation which is likely to give rise to a dispute as to industrial matters which extends beyond the limits of any one State (see the Act, s. 34 and definitions of "industrial matters" and "industrial dispute" and contrast the definition of "industrial dispute" in the Conciliation and Arbitration Act, s. 4(1)). (at p594)

15. There remains for consideration the prosecutor's attack on the actual orders which the Tribunal made on the ground that those orders were vitiated either by the appearance of bias or prejudgment on the part of the Tribunal or by some other failure of the Tribunal to observe the requirements of natural justice and on the further ground that those orders were, because of their form, beyond the Tribunal's powers. As regards those matters, I agree with the judgment of the Chief Justice which I have had the benefit of reading in draft form. (at p595)

16. It was for the above reasons that I concurred in the discharge of the orders nisi. (at p595)

Orders

Order nisi for writs of prohibition discharged with costs.