Re Australian Nursing Federation & Ors; Ex parte The State of Victoria - [1993] HCATrans 112

No judgment structure available for this case.

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml0 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against 1l:!E,
HONOURABLE JOHN WILLIAM
MACBEAN, a Deputy President
of the Australian Industrial
Relations Commission

First Respondent

and
KENNETH TURBET, a former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent

and
AUSTRALIAN NURSING FEDERATION

Third Respondent

Unions(3)

1

11/5/93

Ex parte -
THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH FOR THE
STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No Mll of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOHN WILLIAM

MACBEAN, a Deputy President
of the Australian Industrial
Relations Commission

First Respondent

HEALTH SERVICES UNION OF
AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH FOR THE
STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No Ml2 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against
COMMISSIONER BEVAN JOHNSON
and SENIOR DEPUTY PRESIDENT
JOSEPH RIORDAN, members of
the Australian Industrial

Relations Commission

First Respondent

KENNETH TURBET, a former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent

AUSTRALIAN NURSING FEDERATION
AND HEALTH SERVICES UNION OF
AUSTRALIA

Third Respondent

Unions(3)	2	11/5/93
Ex parte

THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH

Prosecutors

Office of the Registry

Melbourne No M13 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOSEPH MARTIN
RIORDAN, a Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

and
STATE PUBLIC SERVICES
FEDERATION OF AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and THE
MINISTER FOR HEALTH FOR THE
STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne

No M14 of 1993

In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOSEPH MARTIN
RIORDAN, A Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

Unions(3)

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THE HONOURABLE JUSTICE PAUL
MUNRO, THE HONOURABLE DEPUTY
PRESIDENT SIMON WILLIAMS and
COMMISSIONER McDONALD

Second Respondents

HEALTH SERVICES UNION OF
AUSTRALIA

Third Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR
THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No MlS of· 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION

First Respondent

KENNETH TURBET, A former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent
HEALTH SERVICES UNION OF
AUSTRALIA

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Prosecutors

Unions(3)

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Office of the Registry

Melbourne No M17 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOSEPH MARTIN
RIORDAN, A Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

HEALTH SERVICES UNION OF
AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR
THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No M16 of 1993
In the matter of -

An application for a Writ of
Prohibition and a Writ of
Certiorari against 11m
HONOURABLE JOHN WILLIAM
MacBEAN, A Deputy President
of the Australian Industrial
Relations Commission

First Respondent

KENNETH TURBET, A former
Commissioner of the
Australian Industrial
Relations Commission

Second Respondent

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11/5/93

AUSTRALIAN NURSING
FEDERATION

Third Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR
THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No M20 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE MICHAEL MOORE,
Vice President of the
Australian Industrial
Relations Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION
FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Unions(3)	6	11/5/93
Office of the Registry

Melbourne No M21 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against nm,
HONOURABLE JOSEPH MARTIN
RIORDAN, A Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne No M22 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against

COMMISSIONER BERNARD FRAWLEY
of the Australian Industrial
Relations Commission

First Respondent

THE AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION

Second Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

Third Respondent

Unions(3)	7	11/5/93
Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION
FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne No M23 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE PAUL ROBERT
MUNRO, THE HONOURABLE COLIN
GEORGE POLITIES and KENNETH
JOHN McDONALD of the
Australian Industrial
Relations Commission

First Respondent

AUSTRALIAN LIQUOR,
HOSPITALITY AND
MISCELLANEOUS WORKERS UNION

Second Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne

No M24 of 1993

In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOHN WILLIAM
MacBEAN, A Deputy President
of the Australian Industrial
Relations Commission

First Respondent

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AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION

Second Respondents

STATE PUBLIC SERVICES
FEDERATION

Third Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION
FOR THE STATE OF VICTORIA

Applicants/Prosecutors

Office of the Registry

Melbourne No M25 of 1993
In the matter of -
An application for a Writ of
Prohibition and a Writ of
Certiorari against THE
HONOURABLE JOSEPH MARTIN
RIORDAN, A Senior Deputy
President of the Australian
Industrial Relations
Commission

First Respondent

STATE PUBLIC SERVICES
FEDERATION

Second Respondent

AUSTRALIAN MUNICIPAL,
TRANSPORT, ENERGY, WATER,
PORTS, COMMUNITY AND
INFORMATION SERVICES UNION

Third Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR POLICE AND
EMERGENCY SERVICES FOR THE
STATE OF VICTORIA

Applicants/Prosecutors

Unions(3)	9	11/5/93
Office of the Registry

Melbourne No M26 of 1993
In the matter of -
An application for a Writ of
Prohibition against
COMMISSIONER ROBERT
MERRIMAN, A Member of the
Australian Industrial
Relations Commission

First Respondent

THE PRINTING AND KINDRED
INDUSTRIES UNION OF
AUSTRALIA

Second Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR FINANCE FOR
THE STATE OF VICTORIA

Prosecutors

Office of the Registry

Melbourne No M27 of 1993
In the matter of -
An application for a Writ of
Prohibition against
COMMISSIONER JOHN LEWIN, A
Member of the Australian
Industrial Relations
Commission

First Respondent

NATIONAL UNION OF WORKERS

Second Respondent

Ex parte -
THE STATE OF VICTORIA and
THE MINISTER FOR BUSINESS
AND EMPLOYMENT FOR THE STATE
OF VICTORIA

Prosecutors

Applications for a stay

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McHUGH J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MAY 1993, AT 10.33 AM

Copyright in the High Court of Australia

MR A.G. UREN, QC: If Your Honour pleases, I appear in these

matters with my learned friend, MR L. KAUFMAN, for

the State of Victoria. (instructed by Victorian
Government Solicitor)

MR R.C. KENZIE, QC: If it please the Court, I appear with

my learned friend, MR R.W. HINKLEY, for the
Australian Nursing Federation in matters Ml0, M12

and M16. (instructed by Ryan Carlisle Thomas)

MR R.A. CASTAN, QC:

May it please Your Honour, I appear

with my learned friend, MR R.W. HINKLEY, for the Hospital Services Union of Australian in matters
Mll, M12, M13 in which we are an intervener, Ml4,

M15 and M17. We also appear for the Printing and
Kindred Industries Union of Australia in matter
M26, if Your Honours please. (instructed by
Maurice Blackburn & Co)

MR K.H. BELL:

If Your Honour pleases, I appear on behalf of

the Australian Liquor, Hospitality and
Miscellaneous Workers Union, which is the third
respondent in matter M20, the second respondent in
matter M21, the second respondent in matter M22,
and the third respondent in matter M23.
(instructed bys. Masselos)

MR R.W. HINKLEY:

May it please Your Honour, I appear for

the Australian Municipal, Transport, Energy, Water,
Ports, Community and Information Services Union,
commonly known as the Australian Services Union,
Your Honour, the third respondent in M25.
(instructed by Ryan Carlisle Thomas)

MR S.R. MARSHALL:

May it please the Court, I appear for the

State Public Services Federation in matter numbers
M13, 24 and 25, and in M27 I appear for the

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National Union of Workers. (instructed by Gill
Kane & Brophy) and (instructed by T. Pallas)

MR A. ROBERTSON:

May it please the Court, I would seek

leave to intervene on behalf of the
Attorney-General for the Commonwealth to put some
short submissions should it become necessary as to
how the matters might be dealt with bearing in mind

Service Federation case. the Court's reserved judgment in the State Public

MASON CJ: What would the submissions be about?

MR ROBERTSON:

Your Honour, I could make the whole

submission in about two minutes. Perhaps it would
be easiest if I did that at the beginning rather
grounds in the substantive constitutional challenges would, one would think, be disposed of
than at the end. There are three propositions, the
by the reserve judgment of the Court which, as I
understand, was reserved at the beginning of June
last year, and then the remaining constitutional
issues, if any, such as survived the reasons for
hearing towards the middle of the year, August, say, 1993, perhaps in anticipation of the Court's reasons - - -
judgment of the Court, could possibly, subject to

HIS HONOUR:

But this is the sort of argument that you want

to put, is it?

MR ROBERTSON: Well, those are the submissions, and so going

to those matters of how - even if all the other
criteria for a stay were satisfied, that there
might be a practical and expeditious course for the
hearing of the balance of the matters and that
would have an impact, in my submission, on the

question of a stay in each of the matters.

HIS HONOUR:

No, I will not grant you leave to intervene, Mr

Robertson. I will refuse leave.

MR ROBERTSON:

As Your Honour pleases.

HIS HONOUR: That is not to say, Mr Robertson, that if some

matter arises during the course of argument that
you would like to renew your application to
intervene in the proceedings, but I certainly would
not give you leave to intervene on the stay
application in respect of the matters - - -

MR ROBERTSON:	As Your Honour pleases.
HIS HONOUR:	Yes, Mr Uren?

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MR UREN:

If Your Honour pleases, the applications which are

made to Your Honour are for stays of the various
matters that have been listed before Your Honour in

the Industrial Relations Commission. The
applications are being made under both the inherent

of Order 55 rule 10. jurisdiction of the Court and under the provisions
All of these matters have been before

Your Honour on other occasions. Some of the
matters were before Your Honour in Canberra, I
think numbers Ml0 to 13, and the other ones were
before Your Honour in Hobart a short time ago.

When the matters which were before

Your Honour in Hobart, it was indicated to
Your Honour at that stage that stays were not
sought in respect of those matters because the
State of Victoria, seeing, with respect, the
viability and wisdom of some of the things
Your Honour had said in Canberra, had endeavoured
to take some proceedings or had, in fact, taken
some proceedings in the Commission by way of
obtaining a reference Full Bench from the President
and that that reference Full Bench has in fact
sat - not on all of the matters which are before
Your Honour, but on some of those matters - and it

has recently delivered its reasons. So those
reasons - - -

HIS HONOUR:

Mr Uren, in the affidavit material there seems

to be a dispute as to what was referred. Is that
still a matter of contention between the parties?

MR UREN:

I do not think so, Your Honour. At least I am not

aware that the dispute as to what was referred.
There is a dispute, I think, as to the effect of
what was done.

HIS HONOUR:

Yes.

MR UREN:

Yes.

Now, what we say, of course, is that the

Full Bench in fact conducted its proceedings by way
of what you might call a test case of general
application - setting down principles of general
application, not only in the cases before it, which
included some of ours and a lot of others, but laid
down principles which were referable and were
expressed by it to be referable to other matters
which raised the same issues.
So our submission is that the reference Full

Bench which sat, in fact expressed principles which
relate to all of the matters which are presently

before Your Honour. Now, there may be some dispute
as to whether the Bench did so, and we will take

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Your Honour shortly to the reasons why we say the
Bench took that course.
At any event, the Bench refused the

applications for stays in the proceedings that were
before it. Those applications having been made
basically upon the grounds which had been advanced
to Your Honour earlier, which were those of
uniqueness, the importance of the constitutional
issue, the fact that the constitutional issue is
before this Court already, and that this Court has
currently reserved judgment, and the undesirability
in the circumstances of changing the industrial
situation which currently pertains, and the
desirability in those circumstances of all of the
matters being adjourned until the constitutional
issue and one other issue could be satisfactorily
determined.
Now, the Full Bench, when I said it did not

grant the stays, it, I think, unconditionally did
not grant the stays in the matter which raised the
main constitutional of constitutional point. With
respect to what I would call the, let us say,
relatively minor, although hopefully not completely
minor, constitutional point, that is the point
which -

HIS HONOUR:

The lll(lA) point.

MR UREN:

The ll(lA) point, yes.

The Full Bench said that

we should go back to Your Honour, or at least to
this Court and see what this Court thinks of that
point and, I think also, see what this Court thinks
about the granting of a stay. So we were, I think,
unconditionally refused with respect to the major
issue, but with respect to the other issue the refusal was, in a sense, either conditional or
temporary, but the matter was sent back to this
Court.

So, in a sense, it is a bit unsatisfactory, I

suppose, for Your Honour to be telling us to go to
the Commission and the Commission to be telling us
to come back here, but we do in fact have to go
somewhere so we are back before Your Honour because
we cannot go any further so far as the Commission
is concerned.
Now, what we have done, Your Honour, in order

to, hopefully, expedite the submissions that we
have made which, to some degree, involve a
repetition of the submissions already being made to
Your Honour and we do intend to make them again and
to urge them again but hopefully in a way which
will not involve large amounts of time, and for
that purpose what we have done is compile a fairly

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substantial note of the arguments that we will put
which, I think, I can run through reasonably
quickly and with the assistance of the - - -

HIS	HONOUR: Well, that will be of great assistance but,

first of all, might I just attend to some formal

matters. You move in these cases on the affadavit
of Mr McArdle in each matter?

MR UREN:

Two affidavits of Mr McArdle, yes.

HIS HONOUR: Two.affidavits, yes.

MR·UREN:

And there are some affidavits in reply, some of

which were delivered to us yesterday, and others
which were only delivered to us this morning.

HIS HONOUR:	Yes.
MR UREN:	The ones which were delivered to us yesterday, I

may say, the contents, I think, of Ml4 and Ml7 are
the subject of some disagreements of substance and
an affidavit in reply is currently under
preparation which has not yet arrived and I may
seek leave to read that at such time- as it does
arrive.
The affidavits in the other matters which were

delivered to us this morning we have not really had
time to digest, but such reading as we have been
able to make of them does tend to indicate that
they relate to matters of timetable and history in
the Commission and so forth and may not present any
substantial difficulties in just being looked at on
the spot as it were.
I must say, apart from one issue, the

affidavits, I do not think, say anything particular
which would, I think, deny the efficacy of the
arguments that we will put if Your Honour thinks

are efficacious. In other words, they largely
relate to matters which we think are peripheral but
there is one issue which some of them raise - I
think perhaps, only one M17 - the question of
continuing industrial disputation, if there is any.
Now we do have some disagreements with what is said
in that affidavit in that regard but our primary
submission, in any event, would be that in the
context of this case it does not matter even if
there has in one case been some industrial
disputation which it is said would be desirable if
there be no stay so that the Commission can deal
with it.
So at the moment, I would deal with the matter

just on the basis of the affidavits currently filed
and ask leave to read the other one later but

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indicating to Your Honour that it may not be of any
great moment in the context of the arguments that
we are putting.

HIS HONOUR: Well, I should get the affidavits of your

opponents before you start your submissions
formally.
Mr Kenzie, what affidavits do you rely on?

MR KENZIE:

We will rely on three affidavits of Mr Gardner:

an affidavit in M12, the affidavit of Mr Gardner in
Ml0 and M16, all being the affidavits sworn on
10 May. ·

HIS HONOUR: That is the totality of your affidavit

evidence?

MR KENZIE:

That is the totality of the affidavit evidence,

Your Honour.

HIS HONOUR:	Mr Castan.
MR CASTAN:	Your Honour, we rely upon an affidavit of

Mr Langmead, sworn in each of matters Mll, M14,
MlS, M17 and M26.

HIS HONOUR:	Thank you. Anything further?
MR CASTAN:	I am reminded, Your Honour, there are, in fact,

two affidavits in 11 and 14, not a single
affidavit, but that is the totality of the material
on which we rely.

HIS HONOUR:

Yes.

Thank you.

Mr Bell.

MR BELL:

If Your Honour pleases, I rely on the affidavit of

Frank Raffaelli, sworn 7 May 1993, in each of the
matters in which I appear, namely, M20, 21, 22 and

23. I only have one affidavit from my learned

friend, Mr Uren, of Mr McArdle. He mentioned two,
but I have but one. If Your Honour pleases.

HIS HONOUR: Yes. Mr Hinkley.

MR HINKLEY:

Your Honour, in matter M25 we rely upon the

affidavit of Ross Leslie Rankin, sworn 10 May 1993.

HIS HONOUR:

Thank you.

Mr Marshall.

MR MARSHALL:

Your Honour, in M13 I rely on the affidavit of

Mr Felmingham, and in M24, the affidavit of sworn on 10 May this year.
Ms Owen, in M25, the affidavit of Mr Haynes, and in

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HIS HONOUR:

Thank you, Mr Marshall. Yes, thank you

Mr Uren.

MR UREN:

Yes, Your Honour.

In relation to the affidavits

that have recently been filed, which Your Honour
may not have had much of an opportunity for
reading, I think they - - -

HIS HONOUR:

I have not looked at any of the affidavits that

were delivered today.

MR UREN:

Yes.

Your Honour, the affidavits which Mr McArdle

swore, which were sworn for the purpose of today's
proceedings, I think basically bring matters up to

date in a chronological way. They refer to the
Full Bench's hearing, and attribute a particular characterization to that, and then they say, "Well look, the disputes which are the subject-matter of the proceedings in the Commissioner are what you
call 'paper disputes' and have not given rise to
any particular industrial disputation". That was a
matter which we thought would be relevant for the
purposes of the stay application.
The responses to that appear to come under the

following sorts of headings. Firstly, in some of
the response affidavits it said, "Well look, the
applications which were made to the Commission were
not made in our case". To which our answer is,
"Well, look the Commission was dealing with the
points as globally and was promoting a test case".
So, that is one thing that is said in the answering
affidavits.
Another thing which was said in the answering

affidavits is, "Well look, there were all these
proceedings in the Commission including ours, and
you did not make any particular applications for

stays in the Commission. Our response to that, I
think, by way of argument, rather than by way of
assertion in an affidavit, is that the proceedings

which we have taken are not piecemeal proceedings, but are what I might call the sort of overall
proceedings which are designed to deal with the one
issue in a coherent and authoritative manner.
Consequently, it cannot be said against us

that we did not make particular applications before
particular commissions or particular benches, when
the matter was before the Commission.
Another thing that is said, "Well look, we did not appear before the Full Bench on the reference

hearing". To which our response would be, "Well
look, the ACTU appeared, presumably generally, on
behalf of all unions, and anyhow, other people
could have sought to intervene if they had wanted

Unions(3)

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11/5/93

to". It is also said that there is an expectation
of federal awards. This is said not in all of
them, I think, but some of them, to which we will
make a response by way of argument, but it is said
I think, that because there is an expectation of
federal awards, therefore a situation has arisen
which makes it undesirable that there be a stay. It
is also said, I think possibly only in M17, but
perhaps to some small extent in M14, that there has
in fact been some industrial action in respect of
the matter to which that proceeding applies.
Also, another thing which is said too, is that in some of the cases timetables are given of what
has happened and what has been set down to happen,
and I think that timetable indicates that there are
award hearings which are imminent in a number of
cases, and if my note is correct, they are M13, 17,
20, 22, 23, 24 and 25, and M24 I think, is an
application for a variation of an award which is

currently in existence. I do not think the
answering affidavits go any further than the
matters that I have just indicated to Your Honour.
I wonder if I could have handed up to

Your Honour an unfortunately relatively large set
of papers, but none the less, one which might cause
the oral argument to be somewhat shorter. It is a
note of the argument that we will put to
Your Honour, a summary of the applications which
are before Your Honour in the same form as the
summary which Your Honour was given in Hobart to
set out a little chronology, and a note of our
argument on the constitutional matter, that is, the
wider constitutional matter involving the
constitutional implications, and a note of our
argument on the section lll(lA) and
section lll(l)(g)(iii) point. I think I could
speak to those fairly quickly without taking -

HIS HONOUR:	Thank you.
MR UREN:	If we could hand those to Your Honour, and also

one to our learned friends.
While our learned friends are getting their

copies, I wonder if I could indicate to Your Honour
that Your Honour's judgment in the matter in
Canberra, which I thought was unreported, but is

now reported in - - -

HIS HONOUR: It is in 112 ALR.

MR UREN:	Yes, that is right, Your Honour, at page 177. If Your Honour does not have a copy of that, I have a
spare copy here I could hand to Your Honour.

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HIS HONOUR:	No, I have got a copy.
MR UREN:	Your Honour, if I could start off with the summary

of the applications, merely to dispose of it in the
sense of just indicating to Your Honour that it is
in a similar form to the - or I think it is the
same, apart from one or two additions, of a
chronological nature as the one which Your Honour
was given and was using in Hobart.
The matters which were before the reference Full Bench, I think, were only Ml3, M24, and M25.

HIS HONOUR: Matters that were or - - -?

MR UREN: Were, yes. Yes, Ml3, 24, 25 and 27, and I have

just mentioned that to Your Honour in order to
dispose of that document, and if I could then
proceed with the argument.

I have mentioned to Your Honour the decision of the reference Full Bench. The point which we
make in the third paragraph of our note of argument is that the reference Full Bench did, in fact, deal with the matters that were before i.t by way of a
test case for all of the matters which raised the
same issue and we submit that that is the case
because of what was said by the Bench on page 3 and
33 of the print of the reasons of Their Honours for

their decision. I think Your Honour would have a

copy of that. It is an exhibit to one of the -

HIS HONOUR:	Yes, yes.
MR UREN:	- - - I think, to a large number of the recent

affidavits.
Your Honour, on page 3 of the print, the Full

Bench said in the first paragraph starting at the top of that page:

Each matter concerns a dispute or alleged dispute arising from the service and rejection
of a log of claims upon employers and the
dispute or alleged disputes concern Victorian
employers in a variety of ways that are
apparent when we consider each matter in
detail. We are aware that a significant
number of other disputes or alleged disputes
with the same character are also being dealt
with by the Commission.
We propose to consider shortly each of

the matters referred under section 107
separately though from that consideration

emerges what, in our view, is an appropriate

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approach to be adopted by members of this
Commission in matters of this type.
The result of the application of that

approach by any member of the Commission will
clearly depend upon the nature of the matter
and the circumstances prevailing at the time
that the issue is considered.

And then, the Bench went down, at the bottom of
that page and the top of the preceding page to give
the grounds upon which the application for
adjournment was made which, of course, are grounds
which are common to all of the applications before
Your Honour.
Now, if I went to page 33, the Bench said in

the last paragraph on page 33:
By this decision we have made clear what

we consider should happen to the matters
before us which we consider is an appropriate
approach to be adopted by other members of the
Commission dealing with similar matters. As a consequence, these and other matters raising the same issues will continue to be dealt with by the Commission subject to review in the way
we have discussed in the preceding two
paragraphs.

And indeed, on the preceding page, page 32, the
Commission even indicated it might be possible to
have only treated the first matter before them as
one which could have gone to this Court as itself a
test case, as it were, for the matters which were
before the -

HIS HONOUR: That was Ml3, was it?

MR UREN:

Yes, they were the matters before the Commission
but we thought it perhaps undesirable to take that
course bearing in mind everybody else would have
wanted to attend anyhow and made their submissions
so we have bought all of the matters up before
Your Honour. But, in our submission, the Full
Bench was aware of all of the cases and dealt with
the cases before it as a test case with respect to
all of them, and not only does it appear from this
print that the Full Bench was so aware but the
letter that was sent to the President has been
exhibited mentioning the matters that were before
Your Honour.
Now, the next point that we make in the note

of argument is that it is apparent from what the could one say that it was not put that there were

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any features which were specific to any of the
cases before them which were of any relevant
significance with respect to the granting of a
stay, and it is put that that is not likely to be
the case in a paper dispute type of case either,
and that the matter was dealt with by everybody
before the Full Bench and the Full Bench on the
legal grounds advanced.
So then we make reference to what Your Honour

had said as one of the reasons why the matter
should go back to the Full Bench, or back to the
Commis.sion so that any individual relevant matters
could be considered, but it would appear that there
were none of those and that the Full Bench dealt
with the matter on a basis of general principle.
Now what the Full Bench held is set out in the balance of the first page and part of the next
page. They dealt with the administrative services
argument point and said that the employees in
question were not in the administrative services of
the State, although it appears, we would think,
from the pages which are referred to there that, if
the Commission had been of the view that the
employees in question and what the Commission
called the occupations which are reserved by the
previous decisions of this Court, in the sense that
previous decisions of this Court had identified
possibly the - - -

HIS HONOUR:

Yes, I think that is right.

They said, in

effect, did they not, that the Commission should not make an award unless it was reasonably clear
that they fell within the general class.

MR UREN:

Now, of course, the assistance we get from that is

that, if what the Full Bench was really saying was,
"Look if you have got a reasonably arguable case
that you fall within the ambit of the protective

Full Bench said that they would not do that in implications, then we would give a stay." Now, the respect of the wider argument, because they did not
know what the High Court might do in respect of ~he
wider argument. But, none the less, the assistance
that we get from paragraph 1 is that if the true
principle upon which the Bench operated was that if
there is, let us say, an arguable case for the
application of the implications, then a stay should
be granted. Then, of course, that approach should
also be adopted in respect of the wider
constitutional argument which we put. In other
words, the approach cannot be limited only to the
question of administrative services of the State,
and indeed - - -

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HIS HONOUR:	Well I do not think they were dealing with the question of stay, were they? What they said was
that it would be inappropriate for the Commission
to find a dispute or to make an award, if it is not reasonably clear that the employees concerned are not within the class reserved for further consideration in the CYSS case.
MR UREN:	Yes, they certainly said that, Your Honour, but

that has a wider point behind it which is that if
it is, let us say, reasonably arguable that the
constitutional implications are protective of a
particular activity, then a stay should be granted
and what the Bench went on to say was, "Well look,
the High Court has said, in effect, that that is
so, with respect to administrative services, and
therefore we will consider - if these were
administrative services, we will grant a stay
because there would, on the decisions of the
High Court so far, be a reasonably arguable case
for the application of the protective implication."
But, we would say, firstly, that general

principle ought to apply to any reasonably
available valid argument with respect to the
application of the constitutional implications and
not merely to administrative services; and
secondly, certain members of this Court have cast,
what I would call, cold water on the administrative
services reservation, to make it appear that that
is not, let us say, possibly likely to be the
preferred approach of the High Court in any event.
There is sufficient number of references in the judgments of this Court to the likely inviability
in practice of such a distinction as to make that
argument perhaps one which is the less attractive.
So the point that we make is really that the

Bench, although it may not have realized it, was in fact operating on the basis of the following

circumstances of these matters, unique as they are, general principle, namely that, if there is, in the a reasonably arguable case that the making of an
award is not within the power of the Commission
because of the protective implications, then the
Commission should hold its hand pending the
decision of the High Court.
Now that is the principle which we apprehend

that the Commission was operating on, but which
they in fact did not apply as they should have with
respect to the wider approach which we submit is
quite arguable and which the Commission did not itself dilate on the arguability of, but merely observed that they were not sure what the
High Court might do with the wider argument that we

put and that therefore they would proceed. In our

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submission, they should have applied the principle
which they would have applied in the reserve
categories case to the wider category, because our
submission is we do in fact have quite an arguable

case with respect to the wider point and in fact • • • I
in our submission, a very strong case, plus also
the fact that Your Honour has also said, at the
very least, that there is an arguable case in
granting the orders nisi that Your Honour has
already granted and that is presumably also the
view of the other Justices of the Court who have
granted orders nisi, Justice Toohey or
Justice Brennan, I think, and Justice Gaudron and
Justice Dawson. Your Honour, I think, on the last occasion,
thought that perhaps some of the circumstances of

those cases were not the same as here. Your Honour
is, no doubt, right, with respect, in that regard
with respect to the stay portions, because there is
no doubt that the legislative situation is
different. But, with respect to the arguability of
the case matter, a number of Judges in this Court, including Your Honour, have said that there is an arguable case, let us say, that teachers and
whoever else was involved - I forget which in one
of the other cases - were within the protective
provisions and Your Honour has said that, with
respect, to a number of the matters that were
before Your Honour on the last two occasions, and
in respect of some others, has reserved the matter
for the consideration of the Full Court.
So, we do submit we do have a respectable point to raise which the Commission, operating on
the principle which it said it was operating on, in
fact, ought to have applied to the wider argument.
Now then, as paragraph 3 indicates, on page 2,

on the section lll(lA) point, the Commission

directed us to go back to this Court to see what it thought about the question of whether there should be a stay on that ground, and also on the question
of what the Court thinks of the point in any event.
The Commission also said, "Look, anyhow, with

respect to the section lll(lA) point, if, in fact,
we are wrong on that, and section lll(lA) either is
invalid or, alternatively, is able to be raised
because of its own interpretation at the dispute
finding stage, and you miss out your change by
virtue of the view which we take, you can ask for a
revocation of the dispute finding under
section 111, or you can ask for a setting aside of
the award under section 113", and we will say
something about that momentarily, but that seems to
be what the Commission had said, and as we observe,

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11/5/93

that they dealt with the matters on a global and
non-specific basis.
Our general points are that, with respect to the wider constitutional point, we have an arguable
case, and we refer to our note on that, and we
refer also to the orders nisi and stays.

HIS HONOUR:	But as for the lll(lA) point - no doubt you have read the judgment much more carefully than I
have at this stage - but I did not, on my reading of it,_ understand the Full Bench to be saying, "Go
back to the High Court to see what it says about
the stay".

MR UREN:

I might get a copy of that and see.

I thought

that that was what ~hey did say, actually. I have
got reference here to pages 10 to 13 and 32.

HIS HONOUR: Well, they certainly spoke on the basis that an

application might be made, and it might succeed,
but in my recollection of the judgment, it is a bit
strong to say that they said, "Go back to the High

Court and see what it says about the stay".

MR UREN:

Yes, it is at the bottom of page 14, I think.

I

think this may be it, I think I have got the right
page.
So far as we are aware, the Court has not yet taken an opportunity to fully consider whether
to stay proceedings in the Commission, because
these issues of validity and construction
arise in•related proceedings in the Court.

Now, I take it the word "because" there means, "by reason that" -
these issues of validity and construction
arise in related proceedings in the Court. If

that opportunity arises, then it may be open
to the Court, if it is thought relevant, to
pay regard to whether the challenge to the
validity of lll(lA) and the argument about its
construction are likely to succeed, then -

HIS HONOUR: Well, that certainly does not support your

proposition that it said, "Go back to the High
Court and see what it says about the stay". I
mean, clearly, the Full Bench contemplated that you
might be coming up here and, indeed, on one view, it might be said that they encouraged you to come

up here in respect of the matter M13. It is only a
small point, but - - -

MR UREN:

Yes, I am sorry if I had gone too far in that

respect but I must say that I thought the - yes, if

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11/5/93

Your Honour would look at page 32, in the second
paragraph up from the bottom, the Commission said:
This decision will be reviewed upon

application. If the High Court stays the
proceedings concerning the first matter, or
any other matters, for reasons relating to the
challenge of the validity of section lll(lA)
and the construction of it, presently adopted
by various members of the Commission.

Yes I take Your Honour's point, that may not go so
far either.

HIS HONOUR:	Yes.
MR UREN:	Yes, and there is a reference on page 15 to:

We follow this course so as to enable the
Court in the event that an application is made
to take what steps are thought appropriate
having regard to the strength of the argument
as to the invalidity of section lll(lA) and
the question of its construction and our
decision that the matter should not be
adjourned.

Well, it may be that one submission has gone a
little too far, but they did seem to be - the
Commission did seem to be indicating that one
should go back to the court and this Court, in the
course of making some decision on the question of a
stay or otherwise, would take into account the
strength of the argument with respect to
construction and invalidity of (lA).
Now then, the points that we will make in

respect of (lA) are that we do have an arguable
case, that orders nisi have already been granted

which would indicate that that is so, and that the status quo will not, or may well not be able to be
restored in the way in which the Commission thought

it could.

HIS HONOUR: Well, I want to hear you on the point that you

say you have got a strong case because quite
frankly, Mr Uren, having regard to the authorities
in this Court, although your point is arguable, I
must say I do not think, at this stage, that it is

likely to succeed. I say that to you so that you
will have a full opportunity to persuade me to the
contrary.

MR UREN:

Yes, well I am grateful to Your Honour for that

observation because there is no doubt that if our
argument is bad it is bad, and if it is good it is
good and there is an opportunity to persuade

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11/5/93

Your Honour of it is, I must say, a highly
satisfactory situation.

HIS HONOUR:	Just before you do can I just get from you a summary of the employees who are covered, or who
~re the subject of these disputes. Is the summary
in the document headed order nisi application
summary sufficient for your purposes?
MR UREN:	Yes, I think it is, Your Honour.
HIS HONOUR:	Yes.
MR UREN:	That leads me to a matter which I will mention

later, but the other thing is, with respect to the
extent to which one has to persuade Your Honour
there is a strong case or otherwise - - -

HIS HONOUR: Well, it is only a factor - - -

MR UREN:	Yes, I agree with that, yes.
HIS HONOUR:	You will recall that Chief Justice Gibbs said in the Builders Labourers Case that the likelihood of success was a matter that had to be considered
and Mr Justice Mason, also,in one of the Builders
Labourers Case took the -
MR UREN:	Yes, Your Honour, I just wish to remind

Your Honour it is in a sense a balancing exercise in which one has on one hand the likelihood of
success and on the other hand, one has a number of
miscellaneous considerations relating to the
particular case.
Now, ultimately we would say thatur case was

arguable but not strong, none the less the other
considerations in favour of a stay is sufficiently
strong to require the granting of a stay, but while

on the constitutional point is quite a strong one saying that, we do adhere to the view that our case and the reason for the rather longish document
headed "Note of Argument on Constitutional
Implications Point" is to basically put that in a
detailed form.

HIS HONOUR: Well, I also want to hear some fairly detailed

submissions from you on this question of the
balance of convenience. I must say what occurred before the Full Bench was not what I had expected
would occur. I assumed that you would have put a
case on balance of convenience calling or putting
on affidavit evidence or other evidence to suggest
that the inconvenience to your clients and lack of
inconvenience to the employees concerned, that does
not seem to be the way the case was conducted.

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11/5/93

MR UREN:

Not by anybody, not by anybody, Your Honour, and

we lay the stress on "anybody", because the
submission we made to Your Honour, I think in
Canberra, has in fact turned out to be let us say
justified by subsequent events. This is a truly -
this is a case in which it is the global matters
which are of significance not the individual ones,
and that is indeed likely to be the case where I
think all, probably all, of the disputes in this
case are paper disputes and they themselves are
more liable to be not susceptible to let us say
individual - - -

HIS HONOUR: Well, is that so, Mr Uren? I mean, for

example, take the question of employment contracts.
What sort of employment contracts are being offered
to workers? Do they affect wage rates? Do they
affect conditions concerning sick leave, annual
leave? What would happen if a stay was granted?
Would it mean that employees' annual leave
entitlements would be the less; their sick leave entitlements would be the less; that their wages
would be the less? These are all matters in which
there does not seem to me to be any real evidence
on, if there is any at all?

MR UREN:

Your Honour, possibly because, in the view of the

parties, there is no real difficulty. I would like
to deal with this at a later stage, I do not want
Your Honour -

HIS HONOUR:	These are the matters that concern me.
MR UREN:	I hope I will deal with them all successfully.

HIS HONOUR:

Yes.

Your case seems to me, at the moment, and

please correct me if I am wrong, in effect to say,
"Well, we have got constitutional points involved
here. We say we have certainly an arguable case,
and even a strong case, and on that basis a stay

should be granted."

MR UREN:

Yes. Plus other matters but, in substance, yes.

We have taken on board what Your Honour has said, and I wonder if I could deal with those convenience
matters at the end of the -

HIS HONOUR:

You proceed in your own orderly fashion, but I

interrupted you at the stage where you said that
you had a strong case, you were dealing with point
1 of your note under the heading "Our Response",
and you carry on from there, Mr Uren.

MR UREN:

Yes.

If I could take Your Honour to the note of

our argument on the constitutional point. The
first paragraph merely mentions, in a convenient
form, the principle which was stated by

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11/5/93

Mr Justice Mason in the QEC case with respect to
the implications against impairment of the capacity
to function of the States and against
discrimination.

HIS HONOUR: Well, that is the other - stopping there with

that point - now, has any material been filed in
these proceedings as to the potential effect on
State budgets, have we got any evidence at all as
to what percentage increases of wages and

conditions. Has anybody attempted to make
any - - -

MR UREN:

Yes, there is a global statement in Mr McArdle's

affidavit which has not been controverted. Now,
the material is being prepared for the case when it
is finally heard, which goes to the matters that
Your Honour has just mentioned, but for the
purposes of the order nisi, there is a global
statement of Mr McArdle's which has not been the
subject of any disputation.

HIS HONOUR:	Where is that? Which one is -
MR UREN:	Perhaps if I can take Your Honour to Ml0, that

probably is a more convenient one.

HIS HONOUR:	Yes.
MR UREN:	In the first affidavit of his which was sworn, I

think, on 15 March. He sets out there the, let us
say in paragraphs - - -

HIS HONOUR:

The affidavit of 15 March?

MR UREN:

I think

it is the 15 March. Anyway, the first one

in Ml0. Mine unfortunately, is undated. I may
have got the wrong - it must be before the 8th,
yes.

HIS HONOUR:

The second of March.

MR UREN:

Yes, that would be right.

If I could take

Your Honour to paragraphs 13 to the end - this
matter concerns community health centres - - -

HIS HONOUR: Yes, I appreciate that. Well, I recollect all

that material, Mr Uren. Indeed I refer to it in my
judgment, but - - -

MR UREN:

Yes.

Then in paragraph 15, it is said that the

provision by the State of Victoria of those
services for public purposes and as a public
service for funds from the public revenue is a
function which the State of Victoria has undertaken
together with those other functions which it
performs for public purposes and for the public

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11/5/93

service, not for profit as a business. It is for
that reason a function of the government of the

State of Victoria as a matter of fact. In
exercising that function the government of the
State of Victoria, as a government, takes into
account expenditure for consolidated revenue,
budgetary considerations, the efficient and
appropriate deployment of its financial human and
organizational resources, relevant government
policy, the raising of money by State taxation and

the like. The making of an award would, of
necessity, impinge to a significant degree upon
those matters, and would thus inhibit or impair the
capacity of the State of Victoria to function, or
to function as an independent body politic within
its own constitution.

HIS HONOUR:

Yes, but that really does not add anything to

what one knows as a matter of general knowledge.
Obviously awards in relation to railway workers, in
relation to teachers, in relation to people
employed by Main Roads Departments and so on, must
impact on a State budget. But, hitherto, it has
never been thought that the making of awards in
those cases impairs the capacities ·of the States to
function.

MR UREN: Well, can I take Your Honour - that has been

HIS HONOUR:

So, I mean, can I just try and understand how

far you are going. Is this really an attempt to
overthrow the Engineers' case?

MR UREN:

No.

HIS HONOUR: It is not?

MR UREN:

No, for reasons which, if Your Honour would go to

the next several pages of the note of argument
would be made, if not plain, in any event the
reasons will be made plain, whether they are right

or wrong.

HIS HONOUR:	Yes.
MR UREN:	Your Honour, we mention the general principle

in in QEC case.
which was stated that passage the slightly different words but the essence, in our

submission, is the same. Now, the present case, as
it is put, involved departments of States and
public institutions, which it is said then fall
within the description of "agencies of the State"
for present purposes on the test which was proposed
at page 218 in the QEC case which appears on
page 2.

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Paragraphs 1 and 2, I daresay, are non-contentious in the sense that it is not being
contended, I think, that the principle is not as
set out in paragraph 1 and nor has it been
contended so far that those organizations which are
the subject-matter of these proceedings which are
not departments of State in themselves are not
within what I might call the protective ambit of
the implications on the ground that they are
agencies.
However, we do rely on what is said by the

Chief Justice on page 2 for a reason which appears

in some later paragraphs. I will not read it at
the moment but I will go to paragraph 3 and go back
to what His Honour had said.
In paragraph 3 we put it that the protected

effect of the implications is by reason of its
actual practical effect and operation of the
impugned laws and not restricted to merely textual
matters, and the submission we make is that one
must look at substance and not form, and I will not
take Your Honour to those pages of those cases
because that proposition perhaps would not be one
which would be disagreed with.
Paragraph 4 says that with respect to the

conciliation and arbitration power in the making of
awards the application for the protected
implication is to deny the Commission the power to
make an award which offends against the
implications, because if the conciliation and
arbitration power itself cannot go so far, neither
can - - -

HIS HONOUR:

But does that not tend to invert what was said in Lee? In Lee's case, at least three members of

the Court - if I recollect correctly,
Justices Mason, Brennan and Deane, said that if on

its proper construction a power such as

paragraph Sl(xxxv) extends to the States, then it

tends to deny the implication in that situation.

MR UREN:

Yes, we deal with Lee's case later, Your Honour,

and I wonder if I might - - -

HIS HONOUR:

Yes, certainly, you come to it.

I was just

taking you - - -

MR UREN:

Yes, I understand what Your Honour says and our

view is, very shortly, that the view which was
expressed there was not shared by the other members
of the Court and is contrary to what is said in
some other decisions of this Court including, I
think, members of the group which Your Honour has
just mentioned.

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11/5/93

HIS HONOUR:	Yes.
MR UREN:	In any event, subject to what Your Honour has

said -

HIS HONOUR:

It is certainly not the last word on the

subject.

MR UREN:

Lee is a very difficult case, Your Honour.

I just

hesitate to say it is kaleidoscopic, but none the
less, the light it sheds could be, in any event,
used by a lot of people for a lot of purposes, not
all c6risistent.
The next point we make, and which is an

important one, partly because of something
Your Honour had said in the Canberra case, is that
we are not looking here at a characterization of
employer/employee relationships or the nature of
the employee's work as has been the case with the
industrial cases. In other words, we are saying
the point is really quite different. In the case
of constitutional implications, a relevant matter
concerns the relationship between the State and its
citizens, or the characterization of the services
which the State provides its citizens, and that the
description of the work done by the employee,
whether it be any of those categories or anything

else, is quite irrelevant. The question is how,
why and what it is which the State does for its

citizens, using the services of those people. The
question is, how, why and what is it which the
State does for its citizens using the services of
those people.

HIS HONOUR:	What about the provision of roads?
MR UREN:	Your Honour, the broad proposition which we would

advance, whilst not indicating a non-reliance on
the administrative services principle, whatever

that means, is that what the State takes on board
as a public service is in fact a function of
government and - - -

HIS HONOUR: That is a large proposition.

MR UREN:	Yes, and it is, in our submission
HIS HONOUR:	Doei that include teaching?
MR UREN:	It includes teaching, if done as a public service,

if not done as a business.

HIS HONOUR:

Does that mean that Lee is wrongly decided?

MR UREN:

No, Lee is not wrongly decided.

Lee did not

involve this point at all. There may be some

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31

11/5/93

passages in Lee which are inconsistent with it I

do not disagree with that. '

HIS HONOUR:	What about the actual decision?
MR UREN:	The actual decision? Well, the difficult thing is

the actual decision did not involve this
consideration, but the actual decision may perhaps
be wrong.

HIS HONOUR: Well, that is the problem I have with what you

are putting. It seems to me that you want to
approach the matter on the basis of, in effect, a
new principle. Is that fair?

MR UREN:	A currently unrecognized principle.
HIS HONOUR:	Not current; well, that is a different

principle.

MR UREN:

However, the point we make is this: at the current

stage it cannot be said that the state of the law
in this regard is satisfactory; when I say that, it

is settled. It cannot be said whether it is
satisfactory or not, one is not too· sure what the
state of thq law is, but in any event the fact that
it is not settled is unsatisfactory and it cannot
be said that there is a satisfactory settled
result.
It is also clear that decisions of the Court,

including things which were said in Lee and things
which are said in other courts, make it clear that
as a result of the widening of the view of what is
taken about industrial matters, a whole new can of
worms or Pandora's box, however one wants to
describe it, has been opened.

HIS HONOUR:

It seems to me though that your argument is

have to face up to that you are going to have to leading you to a position where you are going to

attack Engineers. Take a State which has railways,
is running at a loss, as certainly the railways of
some States have for many years - they are being
subsidized out of State budgets. What is the
difference between a provision of railways and
employing people in the railways and the sort of
case you are seeking to make here now?

MR UREN:

Because the Engineers' case involved government

trading organizations, and it has been so

characterized in one case in this Court. In all of
the matters that Your Honour has mentioned we have
in any event thought of so far, and they are dealt
with in succeeding paragraphs. If we could just
take Your Honour through the document, and the way
in which we deal with them will appear.

Unions(3)

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The next point we make is that the implications have to have some practical effect.
It is not possible, in our submission, to reduce
them to nothing by saying they will upset the
Engineers' case or anything of that sort - not that
we say they do, but none the less they have got to
have some practical effect. They can only have
practical effect if the powers which are enumerated

are powers which are subject to the implications.
If the contrary was the case, then of course you
would just construe the power.
If you construed the power as a merely textual

matter without consideration of the implications,
then of course the implications would always be
subordinated and would be then seen to have no
effect whatsoever. If they are there and have some
effect, they must have an effect which is prior to
the enumerated heads of power.

HIS HONOUR:	I follow the force of that.
MR UREN:	That is in fact what we think is what was said in

the passage in Victoria v BLF that we have referred

to, in Lee and in the ACTV case. If I could go
back a square, the passages we have referred to in
Lee's case come from the judgments of the three
other members of the Court, I think Chief Justice
Gibbs, Mr Justice Brennan and - - -

HIS HONOUR: Chief Justice Mason.

MR UREN:

Yes, but not from the judgment of the three

members of the Court that Your Honour mentioned. I

just forget who was who in that regard. The joint
judgment was by Mr Justice Mason,

Mr Justice Brennan and Mr Justice Deane. The
passages that are referred to there must be then
from Chief Justice Gibbs, Mr Justice Wilson, I

think probably Mr Justice Dawson. The interpretation which we put on the
passages at those pages is that the implications
are logically prior to the heads of power. That,
we think, is what was said by both Your Honour and
the Chief Justice in the ACTV case and also in
Victoria v BLF, I think by Mr Justice Mason, as he
then was. Indeed, the logic of that point must be
apparent unless the implications are to mean
nothing.

HIS HONOUR:

The powers of section 51 are conferred subject

to - - -

MR UREN: Subject to the Constitution, yes, and that must

mean the implications which the Constitution
contains as a document which recognizes and in fact

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insists on the continued existence of the States.
What we go on and say in paragraph 7 with respect
to the Engineers' case is that that doctrine did
not concern the implications which are in question
which we would put as commercial and profit-making he7e. It concerned only State trading companies,
companies, and that aspect may be a limiting
factor.
The organizations in the Engineers' case

provided services to the State as well as services

to the public by way of trading. However, it is
clear -from the statement of the case in the
Engineers' case that the Court was there dealing
with organizations which were of a commercial or
profit-making nature. In Coldham's case the
Court - this is the entire bench, I think -
said - - -

HIS HONOUR:	I do not think they were of a profit-making nature, were they?
MR UREN:	One expects they made profits, but in any event

the services provided were not provided as a public
service, which is the distinction which - I cannot
lay my hands on it at the moment, but the statement
of the case in the Engineers' case makes it
absolutely clear that the organizations with which
the Court was concerned were in fact trading
organizations.
It may be that through mismanagement they did not make any profits, but one suspects that if
government goes out to, in fact, trade in the
commercial market, as it were, it does hope to make
a profit. Anyhow, in the case of Coldham the whole
Court said:
The doctrine of intergovernmental immunities
was overthrown in the Engineers' case where it
was decided that a dispute between an

organization of employees and a Minister of
the Crown for a State acting under the
authority of a State statute as an employer in
the conduct of a trading enterprise was an
"industrial dispute".

Of course, the Court said that in a context in
which all it was doing was summarizing the effect
of that case, but it did, none the less, use the
words "trading enterprise" and it may have done

that advisedly. But the point we make is that the
Engineers' case can remain, subject to that
characterization of what it really was, completely
untouched by any of the - - -

HIS HONOUR:

What about Professional Engineers?

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MR UREN: Professional Engineers was a case which

deliberately did not involve this point, and it was
said, I think expressly, that that was not argued.
It only involved the question of what was
industrial. There again, there may be passages in
that case which support the view that the
conciliation an~ arbitration power is very wide,
and we do not dispute that there are passages in
the case which say that. However, that is an old
case and the full effect of these implications has
arisen relatively recently, and especially in view
of the recasting, as it were, of the industrial
scene by the view currently taken of what is meant
by "industrial".

Engineers case later, but in substance what we say We will take Your Honour to the Professional
about it is it deliberately did not involve this
point and it decided only in terms a relatively
narrow issue which is not the current issue.

HIS HONOUR:

The key to your whole argument seems to be

contained in paragraphs 8 and 9 of your
submissions, does it not?

MR UREN:	Yes, that is the point we wish to make.
HIS HONOUR:	I understand that, but that really is a

dramatic change in the constitutional law of this
country if those propositions are accepted, is it
not?

MR UREN:

It is difficult to say yes or no to that,

Your Honour, the reason being what has been asked
in the past is not so much in the following
question: does the conciliation and arbitration
power extend to the States? But discrete portions

of the power have been the subject of argument. In
other words, it has been said, for instance: is
this an industrial function, or is it not an
industrial function? Or: is this an interstate

matter or is it not an interstate matter? The
cases, we think, do not answer the wider point that
we are referring to here. They only answer
individual narrow ingredients because nobody has been prepared so far, it seems, perhaps for very
good reason, not to put the wider point.

HIS HONOUR:	I appreciate the way you put it and that these points have not been rejected by the Court in the
past, but what I am putting to you is that in a
whole series of decisions, both in this Court and
in the Industrial Relations Commission which
purports to apply the constitutional doctrine of
this Court, could not possibly stand if your paragraphs 8 and 9 are accepted.

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MR UREN:

Your Honour, perhaps in result but not in

reasoning.

HIS HONOUR:	No, but certainly in result.
MR UREN:	But not in reasoning.
HIS HONOUR:	No.
MR UREN:	But that is no derogation on our submission from

the force of an argument if it, in fact, has
logical attraction. Things are either correct or
incorrect so far as logic is concerned, and if a
logical set of arguments drive one to a particular
conclusion, then the fact that other cases might
result in different results if, in fact, the
argument had been put which it had not been, and
those cases only concerning individual points, none
of which consider the global issue, then they
would -

HIS HONOUR:

But current constitutional doctrine concerning

the States in relation to industrial matters could
not stand consistently with your paragraphs 8 and
9 .

MR UREN:

Your Honour, I do want to disagree with that

because what we see as current constitutional
doctrine merely goes to individual ingredients of
the conciliation and arbitration power and not to
its overall effect in the light of the

implications. Now, there is no constitutional
doctrine so far which settles the effect of the
power in the light of the implications. This is in
a sense a new thing, because it has arisen fairly
recently in the constitutional life of - - -

HIS HONOUR:

But large areas of activity are, and have been

for a long time, governed by awards of the federal
conunission which would fall to the ground if your

doctrine was -

MR UREN:

Yes, we would certainly agree with that

proposition, yes. There is no doubt that that is
right but when one talks about the constitutional
doctrine, one asks for the reason why those awards

are there. The point that we make is the reason
why they are there is because of the fact that all
that has been argued in the past is the questions
relating to particular ingredients of the
conciliation and arbitration power. It has been
said: these are industrial or these are not, or
these are interstate or they are not interstate, or
they are genuine or they are not genuine, or
something of that sort.

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HIS HONOUR:

Well whatever might have been the precise ratio

in the Engineer's case in a technical sense, the
fact is that for close on 70 years, perhaps
73 years, it has been taken as authority for the
proposition that, speaking generally, employees of
the States are the subject of the arbitration
power, subject to some exceptions which, as you
would point out, have never been precisely defined.

MR UREN: Well, Your Honour, the Engineer's case was never

taken to have the broad effect that Your Honour has
mentioned until there was a review about what was
meant by "industrial". For a large number of years
all of the employees of the State were not covered
by the, let us say, what the Engineer's case was
thought to do.

HIS HONOUR:

It depends on what you mean by the exception, I

suppose, but people who pursued industrial
pursuits, bricklayers, State brickworks, drivers,
labourers, fettlers, all sorts of railway workers,
were all regarded as clearly within the
constitutional power. And there were exceptions
arising from the State School Teacher's case and
cases like Pitfield v Franki.

MR UREN:	Which covered a large number of workers.
HIS HONOUR:	No doubt it did, but the current doctrine, of course, goes beyond that as a result of the CYSS
case and Lee's case. But your doctrine, if
accepted, would seem to go back almost to a pre-
Engineer's case situation.

MR UREN:

No, Your Honour, we do not agree with that.

We

would think that for the larger portion of the
history of industrial law it has been recognized
for good or bad reasons that there are large areas
of State employment which are not covered by the
conciliation and arbitration power. Everyone was
quite happy with that until the review of what was

meant by "industrial". In other words, the country
got along quite well with large numbers of people
involved in State employment not being - the State
industrial laws not being the subject of federal
industrial laws.
So it cannot be said that the industrial history of this country includes all, or perhaps
even most of State employees being covered by the
Commission, or its predecessors. Now, of course,
because of the view which was taken about
"industrial", the reasons which motivated the
situation which then existed have gone. But the
situation still remains in which I think it might
fairly be said it is not unreasonable that there
may be a search for a different reason why State

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employees should not be covered by the conciliation and arbitration power because it might be that when
the Engineers case and other earlier cases were
decided, the concept of paper disputes had not
either been thought of or alternatively reached its
full flower.
It may well have been thought that there would be no genuine elements of interstatedness in any
dispute involving State employees. There may be
reasons relating to the nature of work which State
employees did at that time, they may have expanded
with the expansion of State activities at the

moment. A whole lot of reasons why circumstances
spring up which give rise to a different view being
taken. But none the less there has perhaps been a
fairly consistent view that there ought to be a

State excision to some degree. Now, what the
degree is has been a matter of concern.

HIS HONOUR:	But can I just give you an illustration. For example, even prior to Engineer's, municipal workers, people following in so-called industrial
pursuits were regarded as within the power. But on
your paragraphs 8 and 9, a cleaner at the hospital,
the labourer building the roads, would all be
outside the federal power?

MR UREN:

Yes, they would.

Basically on the basis that

government service is quite different from private
service and there is no particular - - -

HIS HONOUR:

Yes, I understand that.

MR UREN:

We agree with that.

We agree with the proposition

that Your Honour asserts.

HIS HONOUR:

It is a radical argument.

I do not use that in

any critical sense.

MR UREN:

Your Honour, it may be that the argument itself

may not be radical but the extent to which it would
apply would certainly have the effect that
Your Honour has referred to, there is no doubt, but
that may not be an unreasonable respect. Looking,
for instance, at paragraph 8 of our submission, if
you were to ask yourself, let us say just broadly,
what impairs State functions, that is not a matter

of law, really, that is a matter of fact. Now, you
may say, what are State functions, but surely that
is a matter of fact too. State functions, of
course, can vary depending on whether you have got
a full blown Communist state or whether you have
got an absolutely minimalist state, and you can

take any number of situations in between. However,
the common factor of them all is that they do
manage public affairs, and a second factor of them

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all is that they carry out public functions for
public purposes, that is as a public service.
Now, those matters are able to be ascertained

as matters of fact in any given case and do not
depend on an abstract view of a philosophical or
politically philosophical nature of what the
functions of government are.
Now, the difficulty which we have discerned,

or at least we think we have discerned, in the
various cases that relate to this issue, is that
some excision of State functions, as it were, from
the conciliation and arbitration power is seen to be desirable or likely or something of that sort.
Now, certainly certain members of this Court seem
to have expressed the view that there may be such

an excision. Then members of the Court have
expressed not so much views but, one hesitates to
say musings, that would be a disrespectful word,
but have put positions as to what the distinction
might or might not be and have posed the
distinctions which past members of the Court have
referred to, one of which is, for instance, this
excision with respect to the administrative
functions of the State.
Now, it seems to us, with respect, that

members of the Bench have very largely poured some
cold water on the viability of administrative
functions of the State because who can say what
they are, and they say quite justly, "What is the
relevant distinction between a typist who is typing
under the heading of administrative function and a
typist who is typing in the offices of our learned
friends' instructing solicitors".

HIS HONOUR: Well, it may be confined to those who are

concerned with high policy, advising ministers,
formulating policy,. giving advice to ministers, top
level public servants.

MR UREN:

None of whom, presumably, the extent of the

State's finances and so forth of them, though, is
likely to have very little effect on the impairment
of the State to function if it was ordered that
they be paid more or less money or they work more
or less hours. It is unlikely - - -

HIS HONOUR:

But they are two different tests, are they not?

One is the administrative service is an exception
of its own, and another way of putting it is the
way it was put by Mr Justice Mason in Lee's case,
that you cannot use a federal power to impair the
capacity of the States to function, which is a
different test altogether.

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MR UREN:

Your Honour, the view which we really took was

that one is either driven to saying this excision
let us say in respect of any particular class of'
State employee, either has to go altogether because
it cannot be given any sensible definition, or
alternatively it applies to such a restricted
number of State people that it has no real effect
whatsoever, or alternatively it has to be given an
actual practical effect, and the only way to give
it an actual practical effect, in our submission,
is to adopt the argument which we put as the
correct one. All you do is you say, "Look, the
State must function, the Constitution says that the
States must be able to function and function

independently". You just then ask, what are in
fact the functions of that State, the particular State in question? What is it doing as a State,
and what effect will there be on the independence
of it doing those things? What will be the effect
on its independence in doing those things, rather,
if in fact it is subject to the Commonwealth
constitutional power with respect to conciliation
and arbitration, bearing in mind, of course, the
extent to which industrial matters are currently
held to go. Almost anything could be covered. It
could be said that manning levels are to be twice
what they currently are; it could be said that
wages will be twice what they currently are; in
theory almost anything could be said. It could be
said that rostering will be half what it currently
is, and almost any particular matter these days
would seem to be able to be put under the
description of industrial.
Proposition 8 is really based on a simple

application of the concept of impairment of State

functions. You ask what they are, in fact, with
that particular State, and you ask will they be
impaired by the possible exercise of Commonwealth
government power, and whether this is considered to

have a radical effect or not, none the less - - -

HIS HONOUR:

Well, you need not spend much more time on it.

I understand your point and I think you concede it is a radical point and I think that its acceptance
must inevitably mean the rejection of both the
reasoning and the result in Lee's case.

MR UREN: Well, we will go to Lee's case momentarily, but I

understand what Your Honour says, but could we say
though, if the point that we are putting is only
answered on the basis of, let us say, oblique
authority rather than direct authority, but itself
has what we hope is a logical attraction, and
perhaps a great logical attraction, ·then that is
really all we need to show, and if the point that
we make cannot be logically attacked as a matter of

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sensible application of the implication to the
Constitution, then the case is very strong indeed,
whatever may have been said in other cases in which
the point was not advanced.

HIS HONOUR:

My position is, I have got to ask myself, among

other questions, what is the likelihood of this
argument succeeding, having regard to a
constitutional doctrine of the Court in this area?

MR UREN: Well, Your Honour, the Court has in this area

upset constitutional doctrines before with which it
was not ultimately happy and in fact the Court, in

pursuance of its duties - - -

HIS HONOUR:

No question about that and Cole v Whitfield is

the classic situation.

MR UREN:

And the section 92 case as well.

I mean, in other

areas, where the Court considers that as a result
of what has been perceived to have happened in the
past, a state of unsatisfactoriness is reached,
then the Court, unless compelled to hold its hand
by some compelling circumstance which would incline
it to say, "Well look, despite the fact that we think the result ought to be A, we are going to
stick with B", which would not be the case here,
then the Court is certainly - - -

HIS HONOUR: Mr Uren, it is a large proposition for a Judge

of this Court sitting alone to say, "This argument
is extremely attractive; it is so attractive that
in my view there are strong prospects that this
Court will, sitting as a Full Court, will overturn
70 or 80 years of decisions and reasoning".

MR UREN: Well, I suppose, Your Honour, it depends on its

attractiveness with which the author has a view,
but none the less we would be interested to see
whether our learned friends can say that there is

anything logically unviable in the propositions we

assert. Now, if all they are going to do is rely
on authorities on which the point was not
considered, then we would consider that we do have
a very strong case indeed and there is no reason
why the members of this Court should not recognize
the viability of a logical proposition,
despite - - -

HIS HONOUR:

But Mr Justice Gibbs once said you cannot treat

the Commonwealth Law Reports as though they contain
blank pages

MR UREN: Well, Your Honour, I certainly would never do

that.

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HIS HONOUR:

- - - and that is, in effect, what you are

inviting the Court to do.

MR UREN:

Was it Mr Justice Higgins who said, I would rather

be ultimately right than perpetually wrong, I
think, but - - -

HIS HONOUR:	Mr Justice Isaacs, I think.
MR UREN:	Yes. At any rate, I know what Your Honour says,

and we take on board Your Honour's point, but at
the moment we do not have to persuade anybody that
we are going to win, that is not the point I am
making; we just have to persuade the Court that
there is a sufficiently strong argument.

HIS HONOUR:	Well you have certainly got an arguable case, I have no doubt about that and I said so on the
previous occasion.
MR UREN:	Well, when Your Honour said so on the previous

occasion and Your Honour did expressly refer to the

HIS HONOUR:

Yes, on the previous occasion I thought that

you were - - -

MR UREN:	- - - talking about what the employees did.
HIS HONOUR:	Do and what the effect would be of an award

that the Commission would be on State budget; that
was the sort of case I thought you advanced.

MR UREN:

Your Honour, that is the case we advanced, but I

think in the report of Your Honour's decision in
the Canberra matter, Your Honour had talked about
the distinction between the work which various

State employees do. Now, our distinction is not
based on the work which State employees do; it is
based on the characterization of what the State

does for its citizens and whether that is a public
service or not and if it is, then what effect
Commonwealth control of it would have on the State

as such. So that is the point we make there.

HIS HONOUR:	Yes.
MR UREN:	Now, apart from a logical analysis which we would

hope is attractive that we have just been talking
to Your Honour about, I think we have also made in
argument the point we make in paragraph 10 and we
sought some assistance with respect to the point
that we make from what Mr Justice Mason said in the QEC case, which was previously referred to and what was said by this Court in the Anti-Cancer Council
case, which is referred to in paragraph 12.

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The point that we have referred to, the QEC

passage and the Anti-Cancer Council passage, for
is set out really in paragraph 13, which I might'
read before going to the two passages under
consideration.
What we put is that in those two cases, the question which was concerned there was the proper
characterization of the bodies in question, and we
put that the tests which were used for those
purposes, directed an inquiry into what part those
bodies played in the functions of government. The
identification of the functions of government was
not dependent upon any a priori classification, but
on the public nature and public purposes of the
functions which were undertaking, and we would then
put it that there is no reason why the test of
functions of government, which seem to be referred
to, perhaps under different words, in those
passages for the purpose of characterizing those
bodies ought to be any different from the test of
functions of government for the purposes of
constitutional implication.
Now, just looking, for instance, at the

passage from the QEC case at page 2 of our note.
The thing which protected the agency in question, gave it the protection of the implication against discrimination, was that it was an agency of the
State, namely, it was formed:

to carry out public functions -

and was:
brought into existence for a public purpose. That appears from the underlined passages, and:
The object of the implied prohibition is to protect the State in the exercise of its

functions.

It may not necessarily follow that things which are done for a public purpose and as a public function, in fact, are the things which define, let us say,
the extent of the constitutional implications, but
none the less, it is certainly an arguable
proposition that that it is so, that these
considerations, which were seen to be the reasons
why an agency is subject to the same protection as
the State is protected against the Commonwealth, by
virtue of the implications, provides the clue as to
the thing it is which the protection operates on.
In other words, it operates on, and to protect the exercise by the State of those functions which

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are public and carried on for a public purpose, and
that is partly where we obtain the argument which
we have advanced from. Now, we agree that case is
not directly in point in that regard, but none the
less it is very helpful in that respect.
Looking at the passages on page 6 from the

Anti-Cancer Council case which, I think, involved a
whether the employees, or some of them, of the
question of the interpretation of the rules of the
Anti-Cancer Council were, in fact, involved in a
"State instrumentality", or whether they were
involved in a "public authority".
The definition of a "State instrumentality"

seemed to be that one looks at:
the purpose or end served, so that a body is a
State instrumentality if it is empowered to
and does, in fact, serve some State government
purpose" -

which, we think, is a passage which is in line with
what had been said by Mr Justice Mason, the QEC
case. And then, the following passage on what is a
"public authority". Perhaps just looking at the
bottom of page 6 at the moment, the public
authority:
should carry on some undertaking of a public
nature for the benefit of the community or of
some section or geographical division of the
community and that it should have some
governmental authority to do so".

And then on the following page, there is a
reference to the need for:

exercised for public objects" ...... "power
"public functions" ..... "duties to be

to act on behalf of the public or the State" - and these features would, perhaps, identify the

body as being a public authority. Now, those
features which identify the body as public, in our
submission, are really features that go to what,
let us say, is true State government activities and
they are delineated, not by some classification
task, but merely by an application to what is
carried on by the State of the considerations of
whether, what is being carried on, is an
undertaking, let us say, of a public service
nature, which is basically the way we have already

put our point. So we get some assistance, in our
submission, from those passages.

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Then we go on in paragraph 14 to the practical

effect which we say there would be on the
independence of the States of fixing terms and
conditions of employment. If I could stop there
and say that what we have done in the preceding
paragraphs is addressed ourselves to the question
of what are State functions, and we then go on to
consider the practical effect on them of terms and
conditions of employment being fixed.
We notice also that this was one of the matters that Justice Gaudron was asking about
specifically - I think it was she - in the case
which the High Court has already heard but
reserved. We refer here to the views which were
expressed in Victoria v The Commonwealth, a case
which I think has been often mentioned, never with
disapproval and perhaps even with approval but
never with disapproval. It concerned the attempted
use of the defence power, so as such of course it
is of no assistance with respect to the arguments
put in paragraphs 1 to 13. But it is the effect on
the States of the Commonwealth having power to
control the terms and conditions of employment of
their workers which was referred to in that case
and in others by members of the Bench. At page 507
of that case the passage set out from the judgment
of Chief Justice Latham at the top of page 8 of our
note appears. His Honour said:
The existence of the defence power in the
Commonwealth Parliament and the exercise of
that power do not mean that all governmental
power in Australia may, by the action of the
Commonwealth Parliament, be concentrated in
Commonwealth authorities. The Constitution
cannot be made to disappear because a
particular power conferred by the Constitution
upon the Commonwealth parliament is exercised
by that Parliament. Indeed, the grant of the
power to legislate with respect to defence is

made expressly "subject to this
Constitution" -

Can we stop there and say of course so is the
conciliation and arbitration power, and everything
which is said in respect of the defence power here
can, in our submission, be as a matter of fact
applied to the exercise of the conciliation and
arbitration power. His Honour went on to say:
If, under the defence power, the Commonwealth can control the pay, hours and duties of all
State public servants, it is obvious that the
Commonwealth can take complete control of all governmental administration within Australia.
The result would be the abolition, in all but

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name, of the federal system of government
which it is the object of the Constitution to
establish - preamble and clause 3 of the
covering clauses of the Constitution.

It is true that His Honour referred to governmental
administration, but we do not take His Honour's use
of those words to limit the views which he was
expressing to, let us say, the administrative
functions of government. His Honour referred to
controlling "the pay, hours and duties of all State
public servants", and indeed the same
considerations would apply, in our submission, to
any State public servant. Then Mr Justice Starke
said, perhaps in a way which is less completely
applicable to our case, but none the less, that:
The maintenance of the States and their
powers, as I have said before, is as much the
object of the Constitution as the maintenance
of the Commonwealth and its powers. It is
inconsistent with the Federal system set up by
the Constitution that the Commonwealth should
enact legislation compelling the States, as
such, to take or to refrain from taking any
action -

It may be that the views which His Honour is
expressing could be regarded as relating to the
States as such, although we do point out that in
Victoria v Foster, which was a case referred to at
the bottom of page 8, Mr Justice Starke referred
with approval to the views which were expressed by
Chief Justice Latham, I think ih Victoria v The
Commonwealth, but if not Victoria v The
Commonwealth, certainly in Pidoto's case in which Chief Justice Latham referred to what he had said in Victoria v The Commonwealth when he said that
the exercise of the power which the Commonwealth was seeking to exercise there, namely to provide

were not designated as holidays by the State, for additional payment for working on days which
utilizing the defence power, that to exercise that
sort of power would in fact involve the practical
abolition of a State.
His Honour of course was not referring, nor

were any of Their Honours, merely to the question
of what effect would it have on the State that they
were forced to give workers payments for working on
days not designated as holidays. Their Honours
were talking about the broad extent of the power,
not to its particular application.
What they were saying was, "Well, look, the

exercise of the power to do those sort of things
would mean you can say goodbye nurse, as it were,

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to the States". And, going back to Victoria v
Commonwealth, page 533, to what Mr Justice Williams and Mr Justice Rich said:
The Commonwealth Parliament cannot interfere
with the exercise by a State of its
legislative, judicial or executive functions.
Questions such as the days and hours of work
and of the remuneration of public servants of
a State engaged upon duties incidental to the
execution of such functions arise solely
between the State and its public servants.
They are beyond the ambit of any power
conferred upon the Commonwealth Parliament by
the Constitution.

Now, of course, it is true that Their Honours there
were talking about, let us say, the legislative,
judicial or executive functions, in what they meant

by the concept of public servants. However, the
point that we rely on these passages for the
purpose of citing is not the extent of the
implication, but the recognition of what effect
there is on the independence of a State of taking
control of the wages and terms of work of its
public servants.
From the point of view of the strength of the

constitutional argument, it does not, of course,
matter whether we are approaching the Court with
only one small union with five members who cost the
State $20,000, or whether we are approaching the
Court with the entirety of the workforce of the
State costing the State its entire budget.
Because, in actual fact, for the purpose of the constitutional argument, we are approaching the
Court with the entirety of the State, because the question is, where can the power extend.
Now, even in Lee's case, His Honour the

Chief Justice referred to the significant

subtraction from the autonomy of the State. I go
back a square. That was Mr Justice Mason,
Mr Justice Brennan and Mr Justice Deane referred to
the significant subtraction from the autonomy of
the State which the full ambit of the subjection of
the State to the conciliation and arbitration power
would give rise. Thus, even Their Honours there
who may, on one view, have put Commonwealth power
at its highest in this regard, none the less
recognized the practical effect of what they were
doing; namely, there would be a significant
subtraction from the State autonomy, which was
exactly what was said by the members of the benches
in the other cases referred to.

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Now, from the point of view of practicality,

if we have to say, "Well, look, how can this affect
the autonomy or independence or what have you of
the States, these passages are sufficient authority
if that be needed for our purposes.
On page 9 we refer to the reasonableness of the distinctions that we seek to make, what the

distinction we seek to make will do. It will
divide the trading or business activities of the
State from others, which will not be the provision
of a public service, and will thus be consistent

with the Engineers' case. We also suggest that the
distinction is sensible because there is no real
reason why a dispute in the true public sector
should be sold in tandem with the ones in the
business sector.
For instance, the Commonwealth Government

Solicitor pays less to barristers than does private
enterprise. In other words, for whatever reasons,
the public sector has, we would submit anyhow,
traditionally been seen as a different sector from
the private sector, and one could draw a sensible

distinction on that basis. We mention there how
far the constitutional implication can go,
utilizing what happened in the Australian Capital Television case for that purpose where, it seemed
to us, that the responsible government principle
which was in fact what the Constitution recognized,
then allowed what was considered necessary to its
end to be protected.
So, it was not so much the principle of

responsible government which was protected, it was
those things which were necessary for the principle

of responsible government to work; in other words
for the things that are further removed than the
principle itself which were protected by the
implication.

So in other words what was protected was what

was in fact necessary for the thing protected to
operate and so we would say here, as well, that
what is protected is the things which are necessary
for the State to be able to operate independently
as a State government and that must, at the very
least, going no further, be its public service.
Whatever the extent of its public service is is a
matter for it and there would be seen to be no good
reason why, if let us say the "internal public
service" of the State, if it employs typists,
should have its typists governed by any different
rules than, let us say, the external public service of the State like the provision of roads and things
like that.

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They all have the common feature that they are paid for by the public purse and their provision is subject not to commercial but to political
considerations. Let us take perhaps another
example: if the State decided that it wanted to
privatise a lot of its services it heretofore
provided, by which I take it that means get out of
the area and let somebody else do the work, there
would be little doubt perhaps that the full extent
of the industrial powers currently considered would
extend to the Commission making awards which would
make that very difficult, if not financially

unlikely that the State could ever do that. It
might say that certain people can only be dismissed
for fault or because they can no longer do the work
because they are ill, as in fact one of the awards
before Your Honour has done. It has in fact said,
"We cannot dismiss certain categories of employees
except for fault or physical incapacity." Now, if
that is the extent to which the industrial power
goes, the State could be compelled to keep many
people on board which it would rather not keep on

board. Now, that must have a substantial effect on
the State's political considerations by which -
small "p" political - namely the way it governs the
State.
It may not want any longer to govern the State

by providing certain services; it may prefer to
leave them to be provided elsewhere. However, the
ability for them to do that could be considerably

hindered if not perhaps impeded completely by the
full exercise of industrial power and, of course,
it is no good to say, "Look, the Commission might
not do it if it was unreasonable"; the point really
is can they do it, and that is the thing that we
are answering.
Then we go on to deal with Lee's case and

Lee's case was one which concerned only a limited

portion of the industrial relations power, namely I
think the power to register associations. It did not go to the question of the extent of the power
once it was utilized. In other words, it did not
go to the question of whether an award could be
made or not, whether the conciliation and
arbitration power went to that extent. And indeed,
in the judgment of Mr Justice Dawson, at page 473
of the report of that case at 160 CLR, His Honour
said:
Any question which might arise at a later

stage whether those members can be covered by
an award does not arise now. That question
may raise the matters which are referred to in
the passage which I have cited from the
c.Y.S.S. Case, but they are not raised by this

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case. When this became apparent during
argument, counsel were heard no further upon
the extent of any implied limitations upon the
conciliation and arbitration power, either in
relation to the teaching services of the State
or otherwise. In these circumstances it is
inappropriate to express in this case any view
upon the existence or extent of those
limitations which, as was recognized in the
C.Y.s.s. Case, have not been completely and
precisely formulated. In offering abstract
observations upon matters of high
constitutional importance without the focus
provided by a factual setting and without full
argument, there is at the very least a danger
of prejudging issues which have yet to arise.
At worst, to do so may be to substitute
doctrine for decision. In my view it is
something to be avoided.

So it would appear that not only did the

question which the current case gives rise to not
arise in that case, it did not arise not only
because of argument but because it was not the

point at issue in the case. The point of issue in
the case was merely whether the conciliation and
arbitration power allowed there to be a
registration of particular organizations, not
whether an award could be made but later on.
In other words, it covered - the case itself

did not decide anything with respect to the full
extent of the content of the conciliation and
arbitration power and indeed it would appear that,
if Mr Justice Dawson is right, that it was at the
invitation of the Court that counsel was heard no
further upon the issue which is the subject of the
instant proceedings and consequently there is no
difficulty perhaps with the result in Lee's case
standing with the argument that we would urge on

Your Honour, or perhaps there may be but none the
less what we point out is that Lee's case only goes
to a relatively small and unimportant point.

HIS HONOUR: But, nevertheless, in the actual decision in

Lee was that State school teachers are not part of
the administrative services of the States.

MR UREN:

Yes, which is the second point we go to, which is

on page 10 in iitem (b), that all that was argued
in that case was the administrative services point.
In other words, there was no wider point put. All
that was said was, "Look, teachers are within the
administrative service reservation and what was
held was that they were not."

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HIS HONOUR: But, sitting here as a single Judge I am bound

by what the Full Court has decided and it seems to
me very difficult to distinguish the precise decision in that case from the categories of

employees in this case. What are we concerned
with? We are concerned with employees in health
services, employees engaged in government school
cleaning, employees engaged in child care services,
teachers' aides, employees engaged in government
c~eaning and security, professional,
administrative, clerical, computing and technical
staff engaged in schools, firefighting employees,
government printers and storemen and packers in
various government departments and agencies.
Now, as a matter of principle, how can you

distinguish those categories of employees from
those of teachers and say, "Well, teachers are not
part of the administrative services of the States
but nevertheless these other categories are"?

MR UREN: Well, that is not the point of our wider argument.

HIS HONOUR: Well, I appreciate

MR UREN:

The point of our wider argument is we do not care

whether they are or not. They may well not be.

HIS HONOUR:	No.
MR UREN:	The situation that we point to is that all that

Lee decided was - and our case may well be
consistent with it - that the extent of the
conciliation and arbitration power goes so far as
to allow organizations to be registered which cover

State employees. Now, that is what Lee said.
Actually, if one is to look at Lee for the

purposes of some statement of principle, I wonder
if I could take you on to page 453 to the two
sentences - I should say not the last incomplete

paragraph, the paragraph above it and the
second-last sentence in this paragraph:
On the view which we are presently inclined to
take of the implied limitations, they do not
protect the States from the consequences of
the exercise by the Commonwealth of the powers
granted to it by the Constitution which
contemplate their application to the States.

Now, Your Honour, with the greatest of respect,
that does not provide one with very much assistance
and with respect to what is actually a power which
the Constitution contemplates be applied to the
States.

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The other thing too is, it says nothing about

the extent of the powers. Now, from the point of
view of Lee's case, it may well be accepted that the implication does not protect the States from
having their employees being members of registered
organizations, because one might ask, "Well, how on
earth can that affect the State?" The answer must
be it cannot. So, there is no problem there, but
the wider question of the content of the power is
one which we would think that Lee's case did not
concern.
Whether or not there are passages in it which

are helpful or unhelpful to us is not to the point.
There can be no doubt that Lee's case did not
decide anything, we submit, with respect to the extent of the power granted. It did to a small
extent, namely, that. It said the conciliation and
arbitration power allows you to register
organizations of State employees, but it went no
further than that. So to the extent that it says the conciliation and arbitration power applies to
the States, we could accept that with no

difficulty. But it does not say everything you can
do to private employees you can do to the States
without offending the implications, or because the implications do not apply. So the question of the content of the power is the important thing which
we think, with respect, that Lee's case did not

concern. We do point out the fact also that orders
nisi have been granted in teaching service cases
despite Lee's case itself being a teaching service
case, I think.
So Lee's case, in our submission, is not perhaps the bogey which it might otherwise have
appeared. Having said that, certainly there are
passages in it which would seem to go somewhat
further than we would like, but none the less, the
point we make is that Lee's case did not concern

the full extent of the conciliation and arbitration
power.

HIS HONOUR:

But if you go back to CYSS, literally

construed, and apart from the administrative
services qualification, it covers this case
precisely.

MR UREN:

But not in terms of its reasoning.

HIS HONOUR: Well, in terms of the basic principle upon

which it is decided.

MR UREN:

I think all that was put in that case if memory

serves me right is the administrative services
argument.

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HIS HONOUR:

But it purported to state a principle, an all

embracing principle, which, if it stood unfettered,
would have swallowed up State public servants, but
the Court left a possible exception. That is all
it was, was it not?

MR UREN:

Your Honour, in our submission, on its true

interpretation, all that case answered really was
the question of what is an industrial matter and
not the question with which we are concerned here
which, indeed, the Court, I think, reserved on

page 313, 153 CLR. The Court says:
It is also unnecessary to consider

whether or not disputes between a State or a
State authority and employees engaged in the
administrative services of the State are
capable of falling within the constitutional
conception. It has been generally accepted,
notwithstanding the Engineers' case, that the
power conferred bys 5l(xxxv) is inapplicable
to the administrative services of the States.

HIS HONOUR:

Yes, I know, but you are starting at the wrong

end, are you not, Mr Uren, because the principle is
really expressed at page 312:
that the popular meaning of "industrial
disputes" includes disputes between employees
and employers about the terms of employment
and the conditions of work.

On that description of the power, public servants
would be within the federal power. However, the
Court says it is unnecessary to consider whether
the constitutional conception covers public
servants, and so they leave it open and they leave
open the possibility that it does not apply -
inapplicable to the administrative services of the
State.

MR UREN:

In our submission, Your Honour is, with respect,

going too far by saying that when the Court decides
that "industrial disputes" means something and not
something else, it is making a wider decision as to

the extent of the power. In our submission it is
not and, in fact, at page 313, in the last sentence
in the major paragraph, the Court said:
If at least some of the views expressed in those cases are accepted, a Commonwealth law
which permitted an instrumentality of the
Commonwealth to control the pay, hours of work
and conditions of employment of all State
public servants could not be sustained as
valid, but as Walsh J pointed out in the
Pay-roll Tax Case, the limitations have not

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been completely and precisely formulated and
for present purposes the question need not be
further examined.

That is the question which now arises for

examination. But none the less in that case all
of the members of the Court - - -

HIS HONOUR:

Yes, I know, but the prima facie view is that

all employment is within the conception of

industrial disputes. However, the Court leaves
open the question of the application of the power
to the public service of the States.

MR UREN:

Which is where we are now.

HIS HONOUR:

Which is where we are now.

But you take

Coldham head on; you say that this is not an
exception at all, this is not the way to approach
the subject. You start from your paragraph 8 and
that is the end of the matter.

MR UREN:

Your Honour, we do not take Coldham head on

because all that Coldham said head on was that
these matters are industrial disputes or industrial
matters; disputes are industrial disputes and the
matters are industrial matters. But it was
recognized in Coldham's case, we think, that the
power was subject to the implications - - -

HIS HONOUR: There is no doubt about that.

MR UREN:

And that of course is contrary to what appeared to

be said by the members of the Court in the joint
judgment in Lee, the three members, but not by the
others. But the point we are making is that
Coldham's case decided only the minor and not the major point and recognized that the major point was
not decided by the minor one. That is the
significance of the passage that we have referred

Your Honour to, they recognize that the major point
was not decided by the minor one, that the major
point did not, for reasons which I am not clear
about, did not arise for consideration in that
case.
It may be that no one wanted to argue it, or it may be that it was held that - I think in that
case the question was about the dispute finding.
It may have been said that the mere finding of a
dispute was not something which itself affected the
autonomy of the States. But making an award, of

course, is of a different nature. So Coldham helps
us to a significant degree.
Could we take Your Honour a little off our submission and go to the Professional Engineers

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case which is reported at 107 CLR 208. I think if Your Honour goes to page 233 of that report it can
be seen that the question at issue was of an
expressly limited nature. Can I go to the bottom of
page 232 for the sake of completeness:
In terms none of the learned counsel

representing the interests of the States
attempted to contest or to qualify the
principles laid down in Amalgamated Society of
Engineers v Adelaide Steamship Co as explained
in Australian Railways Union v Victorian
RaLlways Commissioners. In other words there
was no denial of the general rule that apart
from certain qualifications not presently
material, unless the contrary intention
appears a legislative power of the
Commonwealth is to be interpreted as extending to operations of the States so far as
otherwise they fall within the subject matter of the power. And there was no denial of the
specific application of the rule to s.5l(xxxv)
of the Constitution which had been made in the
Engineer's case. That means that the
Parliament may make laws which apply to the
States and to agencies of the States with
respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any
one State. Where the legislation giving
authority to the Commission applies it is
enough that there is an industrial dispute
extending beyond the limits of any one State
and it is not an objection to the exercise of
the authority that a party affected bears the
character of a State or an agency of the
State. But while in terms all this was left
uncontested by the learned counsel for the
States the condition that the dispute must be industrial was insisted upon and the character
of the State and the agencies of a State was

used as showing that in the case before us the
condition could not be fulfilled.
So what counsel did there was resile from the

task of showing that the industrial power did not
extend to the States but to address himself to the
industrial issue using an argument which he, let us
say, could have put, as it now appears, on the
question of extent of power, but on a different
question, namely, whether something is industrial.
What counsel there said was, the character of the
State and its agencies shows that the matters are
not industrial.
Now, what we say is that the character of the

State, let us say in its agencies, means that the

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constitutional implication comes into effect. so
the Professional Engineers' case was not a case

which concerned the matter which is the subject of present consideration.

HIS HONOUR:

What about page 234? There is much in there,

on pages 234 and 235 for that matter.

MR UREN:

At the top of the page?

HIS HONOUR: Well:

Nevertheless constant resort in the argument to the notion of "governmental function" as a category almost inevitably effected a tacit

re-introduction of the same tests - which were in use before the Engineers case.

I
mean, that is what your paragraph 8 of your written
submissions seeks to do.

MR UREN: Well, the answer to that is no, on a proper view.

What was said in the Professional Engineers' case
was because of these tests which were said, let us
say, to be immunity tests and tests that the State
should - - -

HIS HONOUR:

I mean, Sir Owen Dixon, at pages 234 and 235,

gives an illustration. He says: "Well, you might
say the land tax assessors are not engaged in
industrial disputes with their employers, but it is
not because it is a governmental purpose that they
are pursuing", and he goes on to illustrate the
case of lift attendants and office cleaners and the
like employed in the same department.

MR UREN:

And of course it is quite easy to see why you

cannot draw any distinction between any of them
with respect to what is meant by "industrial
dispute". So what the Court was saying there was,

firstly - the Chief Justice said, the wider point
was not put, that is the first thing he said. Then
he said, "Well, let's look at the narrower point".
Now, the narrower point, he said, is pretty
hopeless because when you look at what workers do
for employers and what employers' relationships
with employees are, what possible difference does
it make that one is governmental and one is not,
and I do not think much of governmental anyhow
because what are the inalienable functions of

government?" Now, all of those things we would
wholeheartedly agree with. What are the
inalienable functions of government? And one may
ask that question and never get an answer, but that
is not our point.

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56

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HIS HONOUR:

But the point he was making is that to describe

something as "governmental" is not the negation of
it being industrial.

MR UREN:

We agree with that, but that does not carry the

argument against us because it does not negate
something being industrial but the point that we
ask is a quite different question, namely, what is
the effect of doing something on, let us say, the

independence of a State. Now, that is a different
thing, quite a different question.

HIS HONOUR:

That was said at a time when the argument was

that what was governmental could not be regarded as

industrial. Now, you come at it a different way.
You say, "Well, what is governmental is outside the
industrial arbitration power, not because it is not
industrial but because there is an implication in
the Constitution that you cannot control the
governmental functions of a State".

MR UREN:

Your Honour, we are not corning at anything in a

different way. We are not perhaps even saying in
terms or perhaps even in effect that the
Commonwealth power construed without the
implication or not subject to the implication would

not cover our situation. It seems to be held by a
number of cases in this Court that all these things

might well be industrial. The Court has referred
to the utilization of the implication simply
because it has recognized that unless the
implication was there, the conciliation and
arbitration power would go to cover every employee
of the State because no possible reasonable
distinction can be drawn between employees on any
basis which depends on the interpretation of the
words of section 5l(xxxv). That may well be
accepted but that is all that the Professional
Engineers' case did.
Whether the true doctrine is that you have to

read down placitum (xxxv) because of the
implication or whether it is said it retains its
ordinary meaning but its exercise is restricted by
the implication does not matter for our purposes.
It may well be the second and if it is the second,
then that provides an even greater reason for

saying the Professional Engineers' case has got
nothing to do with our case because all that
decided in terms, let us say going to the furthest
degree, which we might not accept, but none the
less, all it might have decided and could have
decided was that the words of the power cover this
situation. But they say nothing about other
clauses of the Constitution to which the exercise
of the power which might otherwise be given by the
words would be subject.

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Indeed, in the Professional Engineers' case,

the use of that wider consideration was expressly
denied by counsel appearing for the States. The
case itself depended upon other issues going purely
to the meaning of the words of the power itself.
We do not have to attack the meaning of the words
of the power given in any case; we can leave it
alone. Perhaps the better view is that one does
not read down the meaning of the power but that one
asks what other paragraphs is it subject to, just
as if in any contract you had a clause and in a
preceding or subsequent paragraph it was said,
ttClause 15 is subject to this paragraph". You
would not necessarily read the other one down; you
would just say it does not apply in certain
circumstances.
In our submission, if the true view is that

the conciliation and arbitration power does not
apply in the full force which it would otherwise
have in certain circumstances because of a
constitutional implication denying its application,
then there is nothing in the Professional
Engineers' case which says that that is not an
available argument or which would be able to be
used against it except, to take a point which might
be behind what Your Honour has been putting to me,
that no one has thought of it before.
In other words, that is why they have not used

it, presumably. But it has been thought of now and

not by us. It has been thought of by members of
this Court in the raising of the implication in
other cases and its utilization in this case is
dependent purely upon what we would hope is a
logical and principled approach to the use of the
implication. That is really all we say. There is
nothing in the Professional Engineers' case, in our
submission, against that approach.

That, Your Honour, I think covered - I see it

is quarter to 1. I was going to go on to another
matter. Is Your Honour rising at quarter to l? If
not, I ,will keep going.

HIS HONOUR:	I think I will sit on .till 1 o'clock.
MR UREN:	Your Honour, we then were going on to another

matter which is the matter contained in
paragraph 19 of our submission with respect to the
implication against discrimination which involves
placing upon the State special burdens or
disabilities.
The submission that we make is - this goes to the section lll(lA) point. This does not depend on
purely textual matters, such as the mentioning of a

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State by name, but goes to matters of practical
operation, and to decide otherwise would allow a
law to be tailored to fit a State without
mentioning it by name.
In the QEC case, of course, the State of

Queensland was mentioned by name but, in the
statute with which one is concerned here, namely
the statute which inserted subsection (lA) in
section 111 - I wonder if I can give Your Honour my
copy of that, if Your Honour does not have the -
could I hand this up?

HIS HONOUR:

Yes.

MR UREN: Section lll(lA) provides that:

Subparagraph (l)(g)(iii) -

that is the public interest paragraph -

does not apply to proceedings so far as they
may affect terms and conditions of employment
of a particular kind that are applicable to a
particular class of employees,.·if:

and then follow two ingredients which we submit are Victorian ingredients. In other words, they are an ingredient which only apply to Victoria.

HIS HONOUR:

Yes.

I think you said on the last occasion

that there was no other State or Territory to whom
this would apply.

MR UREN:

That is right. Now, then, the point we make is

this. You cannot get out of the implication
against discrimination merely by not naming the

State. If you tailor the law to suit the State, as
in the law of defamation, where a question of
whether something is published of, or aimed at
somebody, does not depend on him being named, as

long as you can see what is referred to -
andperhaps, in this sort of case too, the question
is not looking at what someone intended to refer
to, but the question is a practical effect of what is done, so you would look at the practical effect
of what is done and that - - -

HIS HONOUR:

What would be the situation if every State fell

within the terms of the new lll(lA)?

MR UREN:	Then there would not be any discrimination - - -
HIS HONOUR:	No.

MR UREN: But, if they all do not.

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HIS HONOUR:

Why does the Commonwealth have to wait until

they all do it, or a number of them do it?

MR UREN:

Because it is a question of whether something is

discriminatory or not. In other words, if in fact
there is a situation where there is a special
burden or disability, then that is what is
prevented, and it is not, in our submission,
sufficient to say, "This is capable of applying to
any State which does A, Band C". If one looks at
the practical effect_of what is done, then the fact
that the law is capable of catching everybody who
might step into it - - -

HIS HONOUR:

But this is a very different case from the QEC

case, is it not? In the QEC case the legislation
was directed at instrumentalities of Queensland.

MR UREN:	Yes, and Queensland was mentioned specifically.
HIS HONOUR:	This is not directed at any instrumentality of

a State.

MR UREN: In application it is. It would not.want to be

unduly uncharitable to take the view that in
intention it was as well, but none the less, from
the point of view in application - - -

HIS HONOUR:

I do not think there could be any doubt that

this was aimed at the industrial situation in
Victoria.

MR UREN:

To deprive Victoria of a benefit which is

available to everybody else, because of something

that Victoria had done. Now, if that is not
discrimination, one does not really know what is.

HIS HONOUR:

But it applies to private employers, it applies

to everybody, does it not?

MR UREN: In the State, yes. But so far as the rest of the

country is concerned, there are large numbers of
people, namely every other State and Territory and
every other - - -

HIS HONOUR:	But the point I am making to you, Mr Uren, is that it is not directed at the Victorian
Government, as such, is it? It may be said that it
is directed at employees in Victoria.
MR UREN:	Because of something the government has done which

is - in other words, that helps us in that respect,
in that because of what the Victorian Government
has done, everybody in Victoria, including the
Victorian State, is to be subject to a particular disability, namely not being able to utilize the public benefit provisions of the statute which are

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available to every other person in the
Commonwealth. Now, in our submission, that is just
a straight statement of a discriminatory situation.
Whatever criteria are utilized may not matter very
much but - also, for reasons which do not seem to
us to have anything to do with the benefit which is
taken away. In other words, what has it got to do
with the public interest ground of lll(l)(g) that
these particular criteria deny one the use of it.
But in any event, what has happened is that there
has been enacted a law which says that the State of
Victoria - and everybody else in Victoria, every
other-employer in Victoria, but none the less the
State of Victoria - because of some law which the
State of Victoria has passed is denied the ability
to rely on a beneficial provision of the
Conciliation and Arbitration Act which is open to
everybody else. Now, in our submission, that is to
impose a special burden or disability on the State,
because awards can be made against it in
circumstances where they would not be made in
respect of other States, whether one takes - - -

HIS HONOUR:

Yes, but that is not to - I mean, your argument

may succeed but all I am doing is pointing out to
you that the way you are seeking to argue this
point is not within the existing doctrine of the

Court. When one talks about singling out a State,
in the cases one has talked about requiring the
States to bank with the Commonwealth Bank, for
example, as in the State Banking case, or in the
QEC case you were selecting the electricity
authorities of the State to do something, but this
is not that sort of legislation. Supposing
Victoria had a law that prohibited everybody from
smoking and the Commonwealth passed a law under its
bounties power giving a bounty to those who smoked?
would that be a discriminatory law?

MR UREN:

It would not seem to impose a special burden or

disability on Victoria.

HIS HONOUR: Well, Victorians would not be eligible for the

bounty.

MR UREN:

Your Honour, I think that is a little far though

from -

HIS HONOUR:

It may be, but I just do not know how far this

goes. I mean it is an interesting argument, and
may well succeed, but it does not seem to me to be
covered precisely by cases like State Banking or
QEC, or Capital Television for that matter.

MR UREN:

That certainly may be so, but if one was to ask

oneself just broadly, "Is there a special
disability imposed on Victoria by a law which says

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that you cannot utilize the provision of another
law of the Commonwealth, if your industrial
arbitration system is, as you have enacted it to
be."

HIS HONOUR:

But you change your terms, do you not? You

said "imposed on Victoria"?

MR UREN:	Yes.
HIS HONOUR:	But it is not imposed on Victoria, is it? It is imposed on organizations or employers, I
suppose, in Victoria, irrespective of whether they
are private or public employers.
MR UREN:	But on none elsewhere in the country, no.
HIS HONOUR:	I know, .but it is a law that you would say with

some force, discriminates against private and
public employers in Victoria, but what
constitutional doctrine supports that proposition?

MR UREN:

I think what we were relying on was the practical

effect. The practical effect of the law is, in the
circumstances in which it operates, that Victoria
is denied a benefit which everybody else is able to
use by reason of a circumstance which relates to
the nature of the industrial regime which is
lacked. Now, it is true that the statute does not
in term say "Victoria", and it in terms is capable
to operating with respect to any State which does
the same thing. But if one was to ask what, in
practice, it does, in practice, because of what
Victoria has done legislatively, namely as a
State - it says that Victoria shall not have the
ability to raise a matter which is considered to be
relevant in respect of every other State and every
other employer outside Victoria.
One either takes the view that that is

discriminatory or it is not but, in our submission,
one does not have to have the word "Victoria" in
section (lA), to either see what it was aimed at or
to judge its discriminatory effect in respect of
Victoria, and the - - -

HIS HONOUR:

No, I think, having regard to the history of

the legislation in your State, you use the
expression Mr Justice Kitto once used, "a court
would have to be blind to see that it was not
directed towards Victoria".

MR UREN:

My father would say, "You would not need to be a

Philadephia lawyer to see that".
If, in the Queensland Electricity case, for

instance, it had been said every State

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instrumentality north of a certain point - and let
us say Queensland was the only one that had one -
would that have been non-discriminatory? Well, one
hopes that the result of the case would not have
been different.

HIS HONOUR:	No.
MR UREN:	In other words, the points about discrimination

which we make I think are really covered there
anyhow.

HIS HONOUR:

I see it is 1 o'clock, Mr Uren.

I will adjourn

until 2.15.

AT 12.59 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

HIS HONOUR:	Yes, Mr Uren?
MR UREN:	Your Honour, I think that is all I wanted to say

about the discrimination point. The points we
wanted to make are in paragraph 20 of our main
submission, and I think I have possibly already
made them to Your Honour orally.

HIS HONOUR:	Yes, thank you.
MR UREN:	Then one goes to the question of the

section lll(lA) point on the construction issue,
the constitutional issue having been already dealt

with. Your Honour, section lll(lA) in terms
provides that:

Subparagraph (l)(g)(iii) does not apply to
proceedings so far as they may affect terms
and conditions of employment -

thus leaving it to be the situation that that
subparagraph does apply to proceedings which are
not of that class. The short point that we make
here is that a dispute finding is not of the class
of proceedings that may affect terms and conditions
of employment because the dispute finding being, as
we submit, a proceeding or a dispute finding being
made in a proceeding is and has been held by a
decision of this Court to be only procedural and not substantive, and it is a prerequisite to the exercise of substantive powers but not itself
substantive, and so itself .as a proceeding is not

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something which may affect terms and conditions of
employment.
The point we make there is set out in

paragraph 2 of our submission in this regard and we
make a reference to the Citicorp case which
appeared to accept that the dispute proceeding
findings are in fact made in proceedings and
certainly did hold that they were only procedural,
not substantive and, as we would put it, that
therefore means that they are not such as may
affect.the terms and conditions of employment. I
think, Your Honour, I should delete the reference
to Isaac's case, the last case mentioned in

paragraph 2. I do not think that has got, on a
maturer consideration, any real relevance. It may
of course be said that the view which we are
putting here introduces an anomaly into the
situation, and it may be said why can you not -
what is the sensible reason for distinguishing
between dispute finding proceedings and proceedings
for the purposes of making an award.
We would say two things to that. Firstly, one must take the text of the statute as it is and
secondly, it does not necessarily introduce an
anomalous situation because it may be thought to be
the case that it is desirable that the point only
be raised once, and that is at the dispute finding
stage and not at any later stage in the
proceedings. But in any event, if the textual
argument is correct, then there is no escape from
it me~ely on the basis that if those who drew the
statute had thought about it, they might have done
something else.
The next point that we make is that because of the effect of Citicorp and section lll(lA), on the
assumption that section lll(lA) is valid, if it
bears the meaning that we submit it does and allows

then they cannot be raised after the dispute section lll(l)(g)(iii) matters to be raised at all, finding because Citicorp says that a dispute
finding is not necessarily a prerequisite, I think,
to the exercise of the substantive jurisdiction and
if section lll(lA) if it is valid prevents the
public interest matters referred to in (l)(g)(iii)
from being raised in respect of proceedings that do
affect terms and conditions of employment but
allows it to be raised in ones which are not of
that nature, the only one which is not of that

nature really is the dispute finding. So it would
be too late to raise section lll(l)(g)(iii) except,
on our interpretation, as part of the dispute
finding procedure.

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Now, it appears clear according to paragraph 4

from what the Commissioner said that on the view
which it takes of section lll(lA) both as to
construction and validity, it will exercise its
powers without taking (l)(g)(iii) matters into
account, and so our proposition is that it may be
too late for us to raise those matters afterwards,
even if section lll(lA) is held to be invalid, or
even if it is held to have the interpretation that
we say it has. In other words, it may be too late after the
Commission has exercised its substantive powers to
raise any of these issues in the event that our
arguments are right, or it might be more difficult
to do so, and the reasons why those things may be
correct to set out in (1) to (6) of the
subparagraphs of this paragraph.
Now, firstly, if powers have already been

exercised, perhaps by the making of an award, it
may be said that the very exercise of those powers
themselves alters the public interest balance for
the purposes of (l)(g)(iii) and will make it a lot
more difficult for us to rely on (l)(g)(iii) in the
event that we are held entitled to do so.
Now, we submit that it is not clear - although

the Commission thought that it could, but it is not
clear that an award could be set aside under
section 113 on the ground that (l)(g)(iii) matters
were not considered at the dispute founding
stage.It might be said, quite sensibly, that we
have made a substantive hearing which - given a
substantive hearing, made a substantive order,
which was to determine a dispute, and now you are
asking us to go back and deal with a non-
substantive and procedural matter merely on the
basis that a particular ingredient, which could
have been considered was not, and it may be said
that an award would not, or probably would not, be

set aside on that basis.
The same considerations may well apply if an award is made and it is sought to appeal it on the
basis that this Court has come to a view of lll(lA)
satisfactory to the applicants here and the same, I
think, might apply if it was sought to, let us say, revoke a dispute finding which had previously been
made even if no award had been made because it
might be said, "Well look, we have made the dispute
finding and that is something which has occurred in the past, and that finding is a prerequisite to the exercise of our further jurisdiction and why,
indeed, should we revoke it?" and, indeed, it may be that it could not be revoked except on grounds
related to the question of whether there was or was

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not a dispute. Now, it may be the fact that
(l)(g)(iii) has not been argued is not a special
ground for revoking a dispute finding.
The Commission itself has said that it would

only exercise revocation power in a rare case
except where in other than changed factual
circumstances. They said that on page 20 of the
print, and then section lll(l)(g)(iii) in terms
only applies to further proceedings and once a
dispute finding is made, of course, the dispute
finding becomes a past proceeding not a further

proceeding. It may then be not possible to go back
and utilize (l)(g)(iii) once the dispute finding
has, in fact, been made.
Now, the Commission has said it could revoke

the dispute finding but it is not clear that that

is necessarily the situation and, of course, as we
point out in paragraph 5, if the Commission goes
onto make an award, of course, it will be much more
difficult to obtain any stay after that is done and
irremedial prejudice may be suffered if an award is
made which should not have been because, let us
say, the dispute finding should not have been made
because of section (l)(g)(iii) matters. Rights
will be given; they will be exercised; the parties

may not be entitled to them in actual fact. It
would be impossible to have the parties restored to
their previous position in the sense that no

benefits will presumably be restored. However, if
no award is made pending the resolution of these
proceedings, the parties' positions can be
preserved by making it retrospective.
The point we make there is that the employees

can have the benefit of a retrospective award. It
is very unlikely that any benefits which are given

by the way of an award which perhaps ought not to have been made because of public interest points,

that those benefits will be returned.

I think
what we have done there to some degree is strayed
not only into the interpretation question, but also
into some questions relating to the giving of a stay with respect to the lll(lA) argument. The
most powerful one, in our submission, is really the

last one. The last one is a powerful one, but it
is also a powerful consideration that ahead of
irremedial prejudice may be that it may not be possible to go back and redo the thing in fact. That is the point we make in paragraph 4(1) to (6),
apart from the question that really it would be
impossible in practice to have restored benefits
which have been given pursuant to an award which
should not have been made.

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Having said those things, could I go on to the

general points made in paragraph 3 of our head
submissions, of which there are ten, and I will go

through them quickly without dilating on them to

any large degree. We are bearing in mind, of
course, the fact that the applications which are
made to the court are in some cases made under the
inherent jurisdiction, and in some cases made under
the jurisdiction contained in the rules. There
have been said, of course, to be - I think it is
said it is more difficult to exercise the inherent
than the other jurisdiction; but the circumstances
of all of these cases are such, in our submission,
as to get over any hurdles which that consideration
might give rise to.
The first is that these cases and their

circumstances are unique. That, in our submission,

must clearly be the case. They are unique and in
that sense extraordinary because it has possibly
never been the case before that there has been an
attempt to remove large sections of the State
public service from the State system to the federal
system, purely for reasons related to the policy of
the State with respect to industrial matters and
industrial relations relating to its own servants
going no further than them; and that does raise a
situation which is, in our submission, quite
extraordinary.
The cases here do not fall within the Re

Griffin class of case. This is really a case where
there have been paper disputes created by logs and

non-acceptance of them. Some of them have been
ambling their way through the Commission with less degree of despatch than others. Some have clearly been engendered by the existence of the State
legislation, or that is likely to be the case in
any event. This is not the sort of case where
people are depending on getting another $5 or $10 a
week or $20, or whatever the case may be, and

industrial peace and their own individual financial
circumstances require a speedy resolution of the
matter. They are quite outside that category of
case. Indeed, the first award principles would
tend to deny any large increase of benefits in any
event.
Point 3 is one we have already made. Point 4:

there is no urgency to proceed further.

HIS HONOUR:

But there is, is there not? Section 99 of the

Act directs - - -

MR UREN:

Yes, I know it says you have to be quick, but

every court has to be as quick as it can be.

Unions(3)

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HIS HONOUR:	Yes.
MR UREN:	I presume nobody can be prosecuted for a breach of

that section. In other words, it is a counsel of
conduct. It is not a rule of behaviour.

HIS HONOUR:

Mr Uren, these points seem to be premised on

the view that parties have got rights to stay
proceedings, when the true rule surely is that
proceedings should take their ordinary course in
accordance with the legislative steps, and that
superior courts should intervene to stay
proceedings in lower courts and tribunals only with
great caution and sparingly, and when a strong case
is made out.

M..~ UREN:

Your Honour, we understand that and we are not,

with respect, approaching the matter on the basis
we have a right to a stay. But all we do point out
is an ingredient in the total equation, that apart
from, let us say, the statutory injunction to be as
quick as possible, that the matter itself is not
one which gives rise to considerations of necessity
or urgency. In other words, the subject-matter of
the disputes themselves are not such.

HIS HONOUR: Well, there may well be. In one of the matters

I dealt with back in March, Deputy President
MacBean gave as one of his reasons for refusing a
stay, I think it was the fourth reason, that there
was or could be detriment to employees.

MR UREN:

Yes, he did that, but whether he did that on any

factual rather than a hypothetical basis is another
matter.

HIS HONOUR: Sorry?

MR UREN:

He did that, in our submission, on a hypothetical,

not on a factual basis. When these matters

were - - -

HIS HONOUR:

I am not sure that is my recollection.

I

remember reading his judgment. I thought
that - - -

MR UREN:

He said - I am looking at Your Honour's judgment,

actually, at 112 ALR 188. The fourth matter was,
and I quote:
The cessation of the awards for nurses sought
to be covered by the award before the
commission may result in the detriment to
existing conditions of employment for these
nurses in the absence of any award of this
commission.

Unions(3)

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In actual fact there can be no detriment to existing conditions of employment for the nurses
covered by the award because they are covered by a

statutory contract in the same terms. So we are
not quite clear what His Honour meant by that
matter.
Also it has not been put by anybody who has

got an interest in doing so, either before this
Court or before the Commission, of any situation
where words in that paragraph would be appropriate,

with respect to old employees. New employees are
in a different category and that has not been resilved from and that was a matter mentioned
before Your Honour on the previous occasion. But
the point made in respect of them is that their
numbers and situation is not likely to be such as
to make it undesirable that there be a stay, if a
stay was otherwise desirable.
The fifth point we put is that the order that

we seek with respect to a stay would in fact serve to reserve the status quo. I know Your Honour was
of the contrary view on the last occasion, but we do reiterate the point that in our-submission the
status quo is remaining under the State system with
respect to State public servants and there is no
doubt that the award sought would be to the
contrary of that situation.
In paragraph 6 we refer to the views which

Mr Justice Dawson expressed in the Kennett case as
to the effect of uncertainty as to validity giving

rise to a reason why there should be a stay. we
repeat in this regard what we said to Your Honour
last time, which is that if there is some
significant doubt as to the validity of the
exercise of Commonwealth power in this area, then
it is a very undesirable situation that people
proceed and obtain the benefits and expectations
and rights which they would get from the exercise

of that power if they are not entitled to them;
also if there is uncertainty as to how those rights
and benefits may be got in the extent that they are
denied.
In other words, will a prosecution be valid?

Would proceedings be valid for recovery of any
benefits? Where should they be taken? Are people
committing offences against the federal legislation
is they deny them on the basis of the
constitutional points which are being raised here?
These are matters which we think exercised
His Honour and they are, in our submission, matters of significant concern.

Unions(3)

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In paragraph 7 we point to the doubts that there are as to whether the status quo can be
preserved with respect to the section lll(lA)
point, partly on the basis that benefits will be
given which may not be in practice recoverable, or
probably would not be, and also partly on the basis
that the rights to rely on the
section lll(l)(g)(iii) point may well be lost
irretrievably in practice, even if not in law.
Paragraph 8, I think, relating to the first

award principles, goes to show that there will not
be any great detriment to the people who are
currently covered by contracts in the same terms as
prior awards because the benefits will not be much
greater, if at all.
We mention in 9 something relating

specifically to Mll in which there was an interim
and partial award made, but even if that award was

allowed to remain in force, without a stay, there
is still the question of further proceedings for a
total award.
We refer in paragraph 10 to the cases where

orders nisi have not been granted. In some cases,
Your Honour did not do so as a matter of
convenience; in some Your Honour referred the
matters to the Full Court and they should, in our
submission, be dealt with on the same basis as the
others. Those are, I think, the points that we
want to make there.
Now, the last thing I would like to mention,

Your Honour, I mentioned, I think, that we were
going to ask Your Honour's leave to file two
shortish affidavits which cover some assertions
which are made in M14 and Ml7 and if Your Honour
will allow us to do that, I will have those handed

to Your Honour and read them.

HIS HONOUR:	Yes.
MR UREN:	Now, the first affidavit, Your Honour, refers to

an affidavit of David Cameron Langmead, which was
sworn on 10 May, and refers to paragraph 4 of that
affidavit. If I could take Your Honour to
paragraph 4 of Mr Langmead's affidavit, he said
that - I will go back a square.
In Mr McArdle's last affidavit in all of the

cases, what he basically said was, there is no
particular industrial disputation here, except that
created by the paper dispute, and therefore there
is no particular matter which needs the urgent
attention of the Commission.

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Paragraph 4 of this affidavit is an answer to

that. Paragraph 4 said that the industrial dispute
is about hours and rosters, and a particular
manifestation is the attempt of the employer - - -

HIS HONOUR: Sorry, Mr Uren, which one are we talking about?

MR UREN:

Ml4.

HIS HONOUR:

Ml4, sorry I have got Ml7 here.

Yes, thank

you.

MR UREN:

It is paragraph 4, on page 2. He said the

industrial dispute in this matter is about hours
and rosters and a particular manifestation is the
attempt of the employer, being the Crown in right
of the State of Victoria to unilaterally change

rosters. I am informed by Rob Elliott, an
industrial officer employed by the HSUA, and
believe the employer has announced unilaterally new
rosters at a number of workplaces where HSUA
members are employed.
I am informed by the said Rob Elliott, and

believe, that as a result there have been stop work
meetings at various places and in a number of areas

where HSUA members are employed. He is informed
and believes that the HSUA will seek further
assistance of the Commission to avoid further
industrial action occurring.
The answer which is made to that is that, in

paragraph 3 of Mr McArdle's affidavit:

on 17 February a memorandum was sent to all
Chief Executive Officers of Intellectual
Disability Services, Drug Services and
Psychiatric Services informing them of the
Decision of Senior Deputy President Riordan
dated 12 February 1993. Enclosed with the
memorandum was an extract of that decision

which stated that with respect to roster
changes consultation was to occur. Further,
guidelines as to the process to be followed
were also enclosed. Rostering changes are
occuring and continuing in line with this
decision. There have been no recent stop-work
meetings on this issue.
It would appear in any event that, if such

industrial disputation as there is there is related
only to the question of the changing of rosters,
and according to our position, in any event, the
decision of the Senior Deputy President was that
consultation was to occur and the position that we
put is that rostering changes were occurring in
line with the decision of the Senior Deputy

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President and there have not been recent stop work
meetings.
Then, if I could take Your Honour to David

Cameron Langmead' s af_fidavit in Ml 7. Mr McArdle' s
affidavit in that matter, sworn today, refers to
paragraphs 12, 13, 14, 15 and 17 of that affidavit.
I am sorry, Your Honour, in paragraph 12,

Mr Clancy, an industrial officer has apparently
said that:
the Peter Maccallum Hospital began to engage
new employees on contracts of employment which
prescribed the terms and conditions
substantially lower -

than those -

previously prescribed by awards -

and that the:
Conditions which were substantially inferior
were less annual leave, less sick leave, less
penalty rates and less payments on public
holidays. This practice caused members of the
HSUA to take industrial action -

and thee matter came before
Deputy President Riordon, and:
the Commission caused the parties to
conciliate and confer and eventually an
agreement ..... was reached whereby the Hospital
would maintain the previous conditions -

and he believes that if the Commission had not
assisted, then this would have not been resolved. The answer which was made to that is that all
new employees at the Peter Maccallum Cancer
Institute are employed under the former award conditions; that a draft document was prepared
which proposed marginally less beneficial
conditions. It was not implemented because there
was no agreement about it, and the dispute at Peter
Maccallum was about restructuring of the orderlies'

area. The proposed contract was only a peripheral
issue and it was settled on certain undertakings
being given about restructuring and about employing
the new employees under the previous award
conditions.
Then, in paragraph 13 of Mr Langmead's

affidavit, he says:

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that the William Angliss Community Hospital
has engaged new casual employees on loadings
of 15% instead of the 25% loadings which were
prescribed by the previous awards -

and he is informed that this has lead to industrial

unrest. What is said in respect of that is that
only new casual employees who are not currently
covered by awards are by mutual agreement receiving
15 per cent casual loading, and that there has been
no dispute about this matter.
In paragraph 14 of Mr Langmead's affidavit he

says:
that at the Preston and Northcote Community
Hospital and the Geelong Hospital that where a public holiday falls on an employee's rostered
day off that the employee is paid ordinary
time, whereas under the awards -

he is entitled to time and a half, and that the
Health Department:
is advising hospitals not to pay
employees ..... time and a half and -

he suspects that the practice is widespread amongst
hospitals and is causing industrial unrest amongst
members.
The answer which is made to that is that the

two hospitals concerned pay time and a half to
employees where public holidays fall on their
rostered day off, and this is what the Department
of Health has advised to be done.
Then there is paragraph 15 of Mr Langmead's

affidavit where he says that he has been told that
at Preston and Northcote they are engaging:

new employees on terms and conditions of
employment substantially lesser than those -

previously prescribed. He mentions a number of

ingredients; no superannuation, no experience
payments, no penalty rates, one week less annual
leave, sick leave reduced, no allowances, no rest
breaks, and new employees can be rostered at any
time without penalty rates, and other matters which
has lead to industrial unrest.
The answer which is made to that is that new

employees are employed as per the previous
conditions, and this was agreed after discussions
between the hospital and the HSU, with the

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exception that new employees get 10 days sick leave
instead of 21, and there is no dispute about that.

Then he refers to paragraph 17 of

Mr Langmead's affidavit where it said that there
was a stop work meeting on 5 May. The affidavit
attributes that to a general protest against the
Victorian government, in which a lot of unions
participated, and thus is a political matter rather
than an instant industrial one, and I think there are other affidavits which have been filed by the respondents, which in some parts say that the
employees are expecting federal awards, and that is
an expectation that has been built up in them.
Can we make sever-:::.. very short points about

these industrial matte~3. Firstly, the last one in
any event is political ,.:.__;d not industrial. In none
of them are there any interstate elements involved, so they do not involve the problems with respect to the reason by the constitutional power is regarded
as being efficacious.
Secondly, they appear to be generated by

purely local matters, that is, by the Victorian
legislative situation. They only apply in any
event to new employees, because old employees are
on the old basis, and. we would also submit that the
matters which have been referred to in the various
affidavits, are, in fact, not part of the dispute

created by the refusal of the log. They are, in
our submission, properly interpreted new disputes
with no interstate elements, the nature of whic~ is
purely referable to the State industrial systemt
and thus would, in any event, be outside the ambit
of Commonwealth power, unless perhaps, some new dispute was created in respect of them. If the Court pleases, that is all we wanted to say.

HIS HONOUR:

Thank you, Mr Uren.

There is no need to

trouble other counsel.
These matters raise questions of general
importance and are of some complexity, but I have
had the benefit of a clear, full and able argument
from Mr Uren and I am in a position to give
judgment now.
The matters involve applications for the stay

of 16 proceedings pending in the Australian
Industrial Relations Commission. In 16 proceedings
commenced in this Court, the applicants, the State
of Victoria and the Minister for Health for the
State of Victoria, seek to challenge the
jurisdiction of the Commission to find disputes and
make awards in each of the 16 matters which are
before the Commission.

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Proceedings for the issue of orders nisi for

writs of prohibition and certiorari have been

before me on two occasions. On the first occasion,
I heard four matters and granted the orders nisi

sought. I refused to order a stay of the
proceedings in the Commission in those four
matters. In two of the matters the Commission had

already made awards. The proceedings on that
occasion are now reported under the name Re
Australian Nursing Federation and Others; Ex parte
State of Victoria and Another, (1993) 112 ALR 177.
The remaining applications were subsequently heard
by me in Hobart where I granted a further two
orders nisi. In respect of the remaining ten
matters, I either adjourned the proceedings
generally or ordered that the prosecutors make
application by way of notice of motion to the Full

Court. No application for a stay was made in
respect of any of the matters which I heard in
Hobart.
Subsequently, the applicants made applications in the Commission for a stay of the proceedings in
the Commission. Pursuant to the provisions of
section 107 of the Industrial Relations Act, the
President referred some of the matters to a Full
Bench of the Commission. There is a dispute
between the parties as to whether all 16 matters
are governed by the subsequent decision of the Full
Bench but, for present purposes, that dispute, such
as it is, is irrelevant. In the result, the Full
Bench dismissed all the applications for a stay of
proceedings which were before it. Its judgment
indicates, however, as Mr Uren Q.C., who appears
for the applicants, contended, that the decision of
the Full Bench was intended to govern all 16
matters.
The formal grounds upon which the stay is

sought are, broadly, that the employees concerned
in the disputes, or parts of the disputes, are

employed in the administrative services of the State of Victoria and are outside the federal
arbitration power. It is also contended that an
award regulating their employment would inhibit the
capacity of the State of Victoria to function as a
government or would inhibit the continued existence
of the State as an independent entity and is
therefore outside the federal arbitration power.
It is further contended that the provisions of

section lll(lA) of the Industrial Relations Act
deprive the prosecutors and other persons in
Victoria of important procedural rights in
proceedings before the Commission and that that
subsection is invalid because it discriminates
against the State of Victoria. It is also

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contended that, even if section lll(lA) is a valid
law of the Commonwealth, it does not, as the
Commission has held preclude the Commission from
invoking its powers under section lll(l)(g)(iii) of
the Act. That paragraph empowers the Commission to
dismiss a matter or part of a matter, or refrain
from further hearing or from determining an
industrial dispute or part of an industrial
dispute, if it appears that further proceedings are
not necessary or desirable in the public interest.
Accordingly, it is submitted that proceedings

in the Commission should be stayed until these
issues are determined by this Court.
The power of the Court to stay the proceedings

which is invoked by the applicants is the power
conferred by Order 55 rule 10 of the Rules of Court
together with the power to stay derived from the
inherent jurisdiction of the Court.
The power of the Court to grant a stay of an

award of the Commission or to stay proceedings made
under an award, is a power which is rarely
exercised by this Court. Indeed, in Re Marks:

Australian Building Construction Employees and
Builders' Labourers' Federation (1981) 55 ALJR 391,
at page 396 Mr Justice Mason pointed out that the
power to stay an award or order as opposed to a
stay of proceedings under an award or order appears
to be unknown.
In the present case, two of the proceedings

involve matters where awards have already been made

by the Commission. They are matters Mll and Ml2.
For the reasons given in my previous judgment,
there seem to be very strong reasons why, in any
event, no stay should be granted in those
particular proceedings whatever the outcome of the
other applications.

However, only two of the 16 matters involve
proceedings where awards have been made. In the
remainder of the matters, although for the most
part disputes have been found, the Commission has
not proceeded to make awards. That being so, the
applications in those matters have to be determined
under the general provisions of Order 55 rule 10 in
cases where orders nisi have been granted or under
the inherent jurisdiction of the Court in cases
where the applications have been adjourned.
Under the inherent jurisdiction of the Court,

power to grant stays of proceedings are to be
exercised sparingly and with caution, as
Mr Justice Dawson pointed out in Re the State
Public Services Federation and Another; Ex parte

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Kennett and Another, an oral judgment delivered on
15 September 1992. What His Honour said on that
occasion applies equally to applications for the
exercise of the power conferred on the Court by
Order 55 rule 10.
Furthermore, in Re Ludeke; Ex parte Builders

Labourers' Federation, (1985) 62 ALR 58,
Chief Justice Gibbs, when hearing an application
for a stay of proceedings in the Commission,
pointed out that one matter that can possibly be
important in determining whether or not a stay
should be granted is whether a challenge to the
validity of legislation appears likely to succeed.
In re Marks, to which I have already referred,
Mr Justice Mason also considered the likelihood of
success in the proceedings. Accordingly, it is
necessary in the present case to give consideration
to the likelihood of the applicants succeeding in
the proceedings brought in this Court for
prerogative relief.
Since the decision in Reg v Coldham, (1983)

153 CLR 297, the settled doctrine of the Court is
that the term "industrial disputes" in paragraph
(xxxv) of section 51 of the Constitution includes
disputes between employers and employees concerning
the terms and conditions of their employment. In
that case, the Court clearly intended to hold that
employment by the State was within the
constitutional conception of an industrial dispute,
but it left open (at pages 313-314) the question
whether State public servants engaged in
administrative services are capable of falling
within the constitutional conception.
In Coldham, it was specifically held that an

organization of social workers, employed by
community youth support schemes in various parts of
the Commonwealth, were within the constitutional
power conferred on the Commonwealth by

section 51(xxxv). In Coldham, the Court also
overruled the State School Teachers' Case in 41 CLR
569, where it was held that school teachers were
outside the conception of an industrial dispute
within the meaning of section 5l(xxxv) of the
Constitution.
Then in Reg v Lee ex parte Harper, (1985)

160 CLR 430, the Court applied Coldham but held
that State school teachers were not employed in the
administrative services of the States. Chief
Justice Gibbs said (at page 443):
"The expression 'the administrative services
of the State' in that context cannot have been
intended to include all employees of the State

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who happen to do some administrative work, but
its intended scope is rather obscure. If it
was intended to refer to 'Crown officials
engaged in administering true, essential
governmental authority', to use the words of
Isaacs Jin his dissenting judgment in
Federated State School Teachers' Association
of Australia v Victoria (see also R v
Commonwealth Court of Conciliation and
Ar.bitration; Ex parte Victoria), the
distinction which it suggests is an illusory
one ..... But if a description of that kind
could sensibly be adopted, State school
teachers would not fall within it, as Isaacs J
himself held in Federated State School
Teachers' Association of Australia v Victoria. A more appropriate approach is to consider whether the law whose validity is in question would impair the ability of the State to continue to exist and function as such, but
clearly provisions fixing the wages and
conditions of employment of school teachers
would not have that effect."

Mason, Brennan and Deane JJ. said (at page 450)
that:
"Although the precise limitations of the
administrative services of a State are not
easily identified, it is manifestly clear that
class-room teachers are not part of that
service."

Later their Honours stated the current doctrine
when they said at page 452:
"According to the settled interpretation of
the power, it sustains the exercise by the
Commission of its authority in relation to
State employees, at any rate apart from those

engaged in the administrative services of a
State."

Their Honours then went further at page 453
indicating a tentative view that, provided that
there was no discrimination against a State or
singling out of a State, the arbitration power
conferred by section 51(xxxv) would not transgress
any implied limitations on Commonwealth legislative
power if it was construed to apply to State
employees generally.
The present cases are concerned with (1)

employees engaged in health services, including
employees in public hospitals, health care agency

and related bodies, (2) employees engaged in
government school cleaning, (3) teachers' aides,

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(4) employees engaged in child care services,
(5) professional, administrative, clerical,
computing and technical staff in schools, (6)
employees in government cleaning and security
occupations, (7) employees providing fire services,
(8) employees in government printing and
(9) storemen and packers employed in governmental
departments and agencies. Having regard to the
decision in Lee's Case, it will be difficult if not
impossible to hold that the employees concerned in
the present cases are engaged in administrative
services, whatever the scope of the administrative
service exception may be.
Consequently, it seems to me that this is not

a case which, on the current doctrine, is likely to

succeed. However, Mr Uren puts his constitutional
argument on a basis which rejects the current
doctrine of this Court. His argument is that the power conferred by section 5l(xxxv) is subject to the limitation that it does not operate so as to
destroy or curtail the continued existence of the
States or their capacity to function as
governments. In his helpful written submissions he
set out what he meant when he said that a law of
the federal Parliament concerning industrial
arbitration cannot operate so as to curtail the
continued existence of the States or impair the
functions of the State. Paragraphs 8 to 10 of his
submissions state:
"8. As to the implication against impairment
of State functions, its application in
practice does not depend on asking in the
abstract what functions are governmental (as
has been put in past cases), but on asking
what, in a particular case, are in fact the
governmental functions of the State in
question. Governmental functions are,
broadly:

* managing public affairs
* carrying out public functions for public
purposes, ie the performance of public
services.

They are the 'constitutional functions' of the
States.
Some States will adopt more functions as
governmental in this sense than others will
so. But their numerical extent cannot control
their characterisation.
9. Then, all that has to be asked with
respect to the application of the
anti-impairment principle is:

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(1) what, as a matter of fact, the State is
actually doing by way of managing public
affairs, or as a public service
(2) whether, as a matter of fact the purpose
or effect of a Commonwealth law (or an award)
is to impede or curtail or impair the capacity
of the State to do so.
10. The above view has the advantage of
avoiding any philosophical questions of what
is the true function of government, or of
a priori categorisations, or of what are the
inherently 'administrative' or
'constitutional' functions of the State."

It may be that this argument will succeed. But if,
as I think Mr Uren acknowledged in his oral
submissions, it does succeed, it will represent a
radical departure from the reasoning in the cases

hitherto decided in this Court. It would also mean
that large numbers of employees who, both before the decision in Coldham's Case and subsequently, have been considered to be within the scope of the
federal arbitration power, will not be within the
scope of that power because they will be engaged by
the States in carrying out the performance of
public services.
In the argument on the return of the orders

nisi which have been granted, one of at least four
possible results may occur. First, the Court may
adopt the wide nature of the arbitration power
which is tentatively formulated in Lee's Case at
page 453 by Mason, Brennan and Deane JJ. Secondly,
the Court might apply the general reasoning in
Coldham and hold that the administrative services
of the States are outside section 5l(xxxv) and are
to be defined on a case-by-case basis. Thirdly,
the Court may adopt the submissions which Mr Uren

has foreshadowed. Fourthly, the Court may apply
the general proposition in Coldham's Case, that all
disputes between employers and employees about the
terms and conditions of their employment are within
the federal arbitration power but exempt the States
from the full rigour of that principle - perhaps by
adopting an approach such as that which appealed to
Mr Justice Dixon in the Australian Railways Union
Case, (1930) 44 CLR 319, at 391 to 392, when
discussing section 51(xxxv). His Honour said:
"It may be that sec 106 provides the restraint
upon the legislative power over States which
differentiates it from the power over the
subject and that no law of the Commonwealth
can impair or affect the Constitution of a

State. No doubt, sec 106 is conditioned by

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the words "subject to this Constitution" but
so too is sec 51."
Whichever of those four views be accepted and,

no doubt, other views are open, it seems to me to
be clear that the prosecutors cannot succeed in the
present cases unless the submission which Mr Uren
has foreshadowed is accepted by the Court.
However, sitting as a single Judge in this Court,
my duty is apply the existing doctrine, and on that
basis I must hold that the applications are
unlikely to succeed.
The applicants also seek a finding from the

Court that section lll(lA) of the Industrial
Relations Act is invalid. That sub-section provides:
"Subparagraph (l)(g)(iii) does not apply

to proceedings so far as they may affect terms
and conditions of employment of a particular
kind that are applicable to a particular class
of employees, if:

(a) at any time after 7 December 1992, terms
and conditions of that kind and

application have been regulated by an
order, award, decision or determination
of a State industrial authority (whether
made before, on or after that date); and
(b) terms and conditions of that kind and
application:

(i) cannot be dealt with by a State
arbitrator by compulsory
arbitration (but not merely because
an order, award, decision or
determination of a State arbitrator
cannot be changed during a

particular period); and
(ii) are not regulated by an employment
agreement; and
(iii) are not regulated by an award under
this Act.

In this subsection:

'employment agreement' means an agreement
that:

(a) was entered into under a State law; and
(b) regulates terms and conditions of
employment of a particular kind and

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application that, if the agreement had
not been entered into, could have been
regulated by a State arbitrator by
compulsory arbitration; and

(c) prevails over any inconsistent order,
award, decision or determination of a
State industrial authority; and

(d) during a particular period, but only during that period, prevents terms and
conditions of that kind and application
from being regulated by a State
arbitrator by compulsory arbitration."

The Commission has taken the view that section

lll(lA) applies to proceedings in the Commission

before a finding of dispute is made. The
applicants not only contend that section lll(lA) is
invalid because it is alleged that it discriminates
against the State of Victoria, they also contend
that the construction which the Commission has
placed on the subsection is erroneous.
In its judgment, the Full Bench of the

Commission took the view that, even if section
lll(lA) is invalid or that the construction which
it has accepted is erroneous, no prejudice would
result to the applicants if subsequently it was
held that the section was invalid or the accepted

construction was erroneous. The Full Bench pointed
out out that what section lll(lA) does is to
deprive the prosecutors of the opportunity of
putting submissions that the proceedings or part of
them should be dismissed by reason of the

provisions of section lll(l)(g)(iii). The Full
Bench also pointed out that there is no evidence
before it, as there is no evidence before me, that
an application, made pursuant to
section lll(l)(g)(iii), would succeed even if

lll(lA) was not in the Act. Furthermore, the Full
Bench was of the view that even if the subsection is invalid or the construction placed on it by the
Commission is wrong, and it is subsequently so held, the Commission has power to revoke any
finding of dispute or any award made as the result
of a finding of a dispute.
Mr Uren has raised questions as to whether, as

a practical matter, the Commission would be able to
set aside awards or revoke findings already made
even if it has the power to do so.
The view of the Commission concerning its

powers is persuasive. I see no reason why the
combination of the powers conferred on the
Commission by section lll(l)(f) and section 101(1)

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of the Act would not allow the Commission to revoke
a finding of dispute which has been made as a
result of the wrongful denial of an opportunity to
put submissions pursuant to section lll(l)(g)(iii).
Clearly, the power to set aside an award under
section 113 would also authorize the Commission to
set aside an award which had been made after the
wrongful denial of the procedural right given by
section lll(l)(g)(iii). If section lll(lA) is
invalid or if the construction placed on it by the
Commission is erroneous, refusal of a stay is
unlikely to lead to any injustice to the
applicants.
Accordingly, even if I was of the view that

the applicants would succeed in their challenge to
the validity or construction of section 111, having
regard to the principles involved in granting
stays, I would not, exercise the power and stay
these proceedings by reason of the prosecutor's
contentions concerning section lll(lA).
The prosecutors also contended that the balance of convenience for staying the award is in
their favour. First, it was said that_ the

proceedings were unique in the sense that this was
the first occasion in which there has been such a
massive attempt to take public servants out of a
State wages system. However, whether or not the
proceedings are unique in the sense for which
Mr Uren contended does not seem to me to be
relevant to the exercise of this discretion.
Either the applicants make out a case on other

grounds, or they do not. The fact that the
proceedings happen to be unique is no reason itself
for staying the proceedings.
Secondly, it was said that there are

significant questions of constitutional validity
involved in the proceedings, and, so far as section
lll(lA) is concerned, a significant question as to

its construction. However, in the existing state
of the authorities, although there is a significant
constitutional question concerning section Sl(xxxv)
and State public servants, the argument for the

applicants is unlikely to succeed. So far as
section lll(lA) is concerned, I have already said
that on the balance of convenience, it does not
seem to me that the Court should interfere by way

of stay. I should also add that although there are
good arguments in favour of the proposition that
section lll(lA) is invalid, its invalidity is not
manifest. Furthermore, the argument in support of
its invalidity is not covered by any precise
decision of this Court; it depends on general
implications to be derived from the Constitution
and certain decisions of the Court.

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It was also said that there is no necessity or

urgency to proceed further in the proceedings
before the Commission and that the desirability of expedition is present to a much lesser degree than is usually the case. However, section 98 of the
Industrial Relations Act directs:
"The Commission shall perform its functions as
quickly as practicable."

In determining whether or not a stay should be
granted,.that legislative injunction must be borne in mind. The Commission is under a statutory duty

to proceed expeditiously. I assume that it will do
so in this case.
It was also said that the status quo should be

preserved. By status quo, the applicants meant
that the employees concerned should remain in the
State system. In my earlier judgment, I drew
attention to the fact that the status quo in these
proceedings was really concerned with keeping these
employees under award protection. It seems to me
that still is the case. If a stay is granted, they
may lose the protection of the award system which
their organisations seek to invoke.
Next it was put that there would be

significant uncertainty concerning the validity of
any awards which were made in the proceedings.
However, having regard to what I have said about
the constitutional point concerning these public
servants, I do not think that I can act on the
basis that there may be any uncertainty about the
constitutionality of the awards. Whether the
invalidity of section lll(lA) would have the effect
of invalidating an award is a question upon which I
heard no argument but, in any event, it is not by
itself a matter which would justify this Court
interfering in the proceedings in the Commission.

It was also said that, if section lll(lA) was

held to be invalid or the construction placed on it
by the Commission was held to be erroneous, there
would be significant doubts as to whether the
status quo could be preserved. However, the
Commission has taken the view, with which I agree, that its power of revocation concerning disputes
and awards is of sufficient amplitude to restore
the status quo.
Then it was said that the making of a federal

award would not result in any increased benefits.

That seems to me to be a neutral factor. And at
least in relation to new employees, the failure to
make a federal award with expedition may result in

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them not receiving benefits which they would
receive if an award was made.
Accordingly, I am of the view that in the

present state of authorities in this Court, the
applications for prerogative relief are not likely

to succeed. That is not to say that the applicants
do not have an arguable case. Indeed, I have
already held that they do have. But, sitting as a
judge at first instance, I must hold on the
existing authorities that the applications for
prerogative relief are unlikely to succeed.
So far as the balance of convenience arguments

are concerned, they are not sufficiently strong, in
my view, for this Court to take the exceptional
step of interfering with proceedings in the
Commission. Accordingly, for these reasons, the
applications are refused.
Is there anything further?

MR UREN:

No, Your Honour.

AT 3.33 PM THE MATTER WAS ADJOURNED SINE DIE

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Citations

Re Australian Nursing Federation & Ors; Ex parte The State of Victoria [1993] HCATrans 112

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

0

Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150

Australian Railways Union v Victorian Railways Commissioners [1930] HCA 52

R v Coldham; Ex Parte Australian Social Welfare Union [1983] HCA 19

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the State of Victoria.	(instructed by Victorian
Government Solicitor)

which we have taken are not piecemeal proceedings,	but are what I might call the sort of overall
proceedings which are designed to deal with the one
issue in a coherent and authoritative manner.

their decision.	I think Your Honour would have a
copy of that.	It is an exhibit to one of the -

Full Bench said that they would not do that in implications, then we would give a stay." Now, the	respect of the wider argument, because they did not
know what the High Court might do in respect of ~he
wider argument. But, none the less, the assistance
that we get from paragraph 1 is that if the true
principle upon which the Bench operated was that if
there is, let us say, an arguable case for the
application of the implications, then a stay should
be granted. Then, of course, that approach should
also be adopted in respect of the wider constitutional argument which we put. In other
words, the approach cannot be limited only to the
question of administrative services of the State,
and indeed - - -

circumstances of these matters, unique as they are,	general principle, namely that, if there is, in the	a reasonably arguable case that the making of an
award is not within the power of the Commission
because of the protective implications, then the
Commission should hold its hand pending the
decision of the High Court.

directed us to go back to this Court to see what it	thought about the question of whether there should	be a stay on that ground, and also on the question
of what the Court thinks of the point in any event.

that that was what ~hey did say, actually.	I have
got reference here to pages 10 to 13 and 32.

up here in respect of the matter M13.	It is only a
small point, but - - -

on the constitutional point is quite a strong one saying that, we do adhere to the view that our case	and the reason for the rather longish document
headed "Note of Argument on Constitutional
Implications Point" is to basically put that in a
detailed form.

in Ml0.	Mine unfortunately, is undated. I may
have got	the wrong - it must be before the 8th,
yes.

that material, Mr Uren.	Indeed I refer to it in my
judgment, but - - -

citizens, using the services of those people.	The
question is, how, why and what is it which the

members of the Court that Your Honour mentioned.	I
just forget who was who in that regard.	The joint
judgment was by Mr Justice Mason,
Mr Justice Brennan and Mr Justice Deane.	The

of the power have been the subject of argument.	In
other words, it has been said, for instance: is
this an industrial function, or is it not an
industrial function? Or: is this an interstate
matter or is it not an interstate matter? The

anything logically unviable in the propositions we
assert.	Now, if all they are going to do is rely

were not designated as holidays by the State,	for additional payment for working on days which
utilizing the defence power, that to exercise that sort of power would in fact involve the practical
abolition of a State.

Chief Justice referred to the significant
subtraction from the autonomy of the State.	I go
back a square. That was Mr Justice Mason,

course, is of a different nature.	So Coldham helps
us to a significant degree.

previously prescribed.	He mentions a number of
ingredients;	no superannuation, no experience

employed in the administrative services of the	State of Victoria and are outside the federal
arbitration power. It is also contended that an
award regulating their employment would inhibit the
capacity of the State of Victoria to function as a
government or would inhibit the continued existence
of the State as an independent entity and is
therefore outside the federal arbitration power.

application have been regulated by an order, award, decision or determination of a State industrial authority (whether made before, on or after that date); and
(b)	terms and conditions of that kind and

(a)	was entered into under a State law; and
(b)	regulates terms and conditions of

to proceed expeditiously.	I assume that it will do
so in this case.