Re Australian Teachers' Union and 14 Other Matters; Ex parte The State of Victoria & Ors (M8-93 &

[1994] HCATrans 369

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No MB of 1993
In the matter of -

An application for a Writ of

Prohibition, a Writ of

Mandamus and a Writ of

Certiorari against THE

HONOURABLE JUSTICE MUNRO,

THE HONOURABLE DEPUTY
PRESIDENT WILLIAMS and

COMMISSIONER McDONALD

members of the Australian

Industrial Relations

Commission

First Respondents

THE AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

Second Respondent

AUSTRALIAN TEACHERS' UNION

Third Respondent

Unions(4) 200 9/6/94

Ex parte -

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

VICTORIA

Prosecutors

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 THE

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

AUSTRALIAN NURSING

FEDERATION

Third Respondent •

Ex parte -

THE STATE OF VICTORIA and
THE HONOURABLE 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

KENNETH TURBET, A former

Commissioner of the

Australian Industrial

Relations Commission

Second Respondent

Unions(4) 201 9/6/94

HEALTH SERVICES UNION OF

AUSTRALIA

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE HONOURABLE MINISTER FOR

HEALTH FOR THE STATE OF

VICTORIA

Prosecutors

Office of the Registry

Melbourne	No Ml56 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

Unions(4)	202	9/6/94
Office of the Registry

Melbourne	No M12 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 Respondents

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR HEALTH FOR

THE STATE OF VICTORIA

Office of the Registry Prosecutors

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

Unions(4) 203 9/6/94

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

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

Unions(4)	204	9/6/94
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 .IHI,

HONOURABLE MICHAEL FRANCIS

MOORE, Vice President of the

Australian Industrial

Relations Commission

First Respondent

DAVID ROSS HALL, A former

Deputy President of the

Australian Industrial

Relations Commission

Second Respondent

AUSTRALIAN LIQUOR,

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Prosecutors

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 THE

HONOURABLE MICHAEL MOORE,

Vice President of the
Australian Industrial

Relations Commission

First Respondent

Unions(4) 205 9/6/94

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

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

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

Prosecutors

Unions(4)	206	9/6/94
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 Respondents

DAVID ROSS HALL, A former

Deputy President of the

Australian Industrial

Relations Commission

Second Respondent

AUSTRALIAN LIQUOR,

HOSPITALITY AND

MISCELLANEOUS WORKERS UNION

Third Respondent

Ex parte -

THE STATE OF VICTORIA and
THE MINISTER FOR EDUCATION

FOR THE STATE OF VICTORIA

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~

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondent

Unions(4) 207 9/6/94

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

Ex parte -

THE STATE OF VICTORIA,

THE MINISTER FOR EDUCATION FOR THE STATE OF VICTORIA, DOCKLANDS AUTHORITY and THE

GREYHOUND RACING CONTROL

BOARD

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

Prosecutors

Unions(4)	208	9/6/94
Office of the Registry

Melbourne	No M26 of 1993
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari 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 M30 of 1994
In the matter of -

An application for a Writ of

Prohibition and a Writ of

Certiorari against THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondent

AUSTRALIAN FEDERAL POLICE

ASSOCIATION

Second Respondent

Ex parte -

THE STATE OF VICTORIA, THE

HONOURABLE MINISTER FOR

POLICE AND EMERGENCY

SERVICES and THE CHIEF COMMISSIONER OF POLICE

Prosecutors

Unions(4) 209 9/6/94

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 JUNE 1994, AT 10.16 AM

(Continued from 8/6/94)

Copyright in the High Court of Australia

.MASON ,CJ: Yes, Mr Kenzie.

MR KENZIE:	Thank you, Your Honour. At the adjournment I was putting some submissions about the-.question of
the degree of impairment relevant to the general
limb of the Melbourne Corporation implication, and
in the context of the teachers' interim awards in
MB and Mll I was putting that when one came to
apply the principle one had to focus on the actual
operation and that really meant that you were
looking at the difference, in practice, that the
effect of the federal legislation, whatever it
might be, effected.

If I could say something about Sl(xxxv) in

relation to standard wages and conditions by	reference to the position that the Court was
concerned with in tax cases, the Pay-roll Tax and
the Second Fringe Benefits Tax cases. If one is
looking at the application of the Melbourne
Corporation principle in the context of the tax
power then presumably one is faced with a situation
in which a federal tax is introduced into a
situation where there was no tax beforehand. So
that the degree of impairment is, obviously, the difference between no tax and the level of the federal tax.

In the context of an award in relation to

standard terms and conditions, if one is focusing

attention on the operation of the federal law, you

Unions(4) 210 9/6/94

are looking at the difference between the rates that are being paid, for example, the Victorian public servants before the introduction of the

award, and the conditions that are applicable, and

the effect of the award in practice if the approach
to the Melbourne Corporation case is to focus on

the operation of the law.

BRENNAN J:  Why do you say that? If one takes the Fairfax

approach in the characterization of a law and sees

that its operation is to create a regime of control

where none was there before, why do you look at
what was there in practical terms before in terms

of rights as distinct from the obligations which

were there before?

MR KENZIE:  Your Honour, one is not only introducing a

differential in terms of result, but one is

changing the source of the obligation and the like.

One is creating a new regime.

BRENNAN J:  Why is the difference not, to change my

question, the difference between a regime and no

regime?

MR KENZIE:  Your Honour, I suppose that the answer is

whether one is talking about an award in a Sl(xxxv)

context or a tax, one is, in a sense, introducing a
regime. There is a tax regime and there was not
before and how do you apply Melbourne Corporation?

You have the new regime. What you do then is you

look at the effect of the introduction of that

regime and you look at it in an operational sense.

Indeed, I keep referring to Your Honour's passage

in the Tasmanian Dams case 158 CLR at page 214, and

I submit that that is the practical approach that one must take.

When one gets to the stage of talking about

applying the Melbourne Corporation principle, one

is already faced with the situation that there is

some federal regime which has attracted the

attention of those who wish to debate the

principle, whatever it may be.	It may be in the
context of tax.	It may be in the context of an

award, but there is no magic when one comes to look

at the question of impairment in saying that you

are dealing with an award instead of some other

regime. I have referred to this passage - I was

not going to read it, Your Honours, but it is our

submission that if the implication is to be looked

at in a sensible way and applied then you start

from the proposition that there is federal

intervention, and the question must be, what is the

level of the impairment? There is no other

sensible way to approach it. If you do it that way

Unions(4) 211 9/6/94

then you must focus on the differential that the

new regime introduces.

TOOHEY J: That is a bit simplistic, is it not? In one case

a regime is introduced where none operates; in the
other case a regime is introduced which supplants

the existing one.

MR KENZIE: That may be a difference, but the question

remains as to whether that is a relevant difference

for Melbourne Corporation purposes, because the

fact that you are talking about a new regime or the

supplanting of a regime does not make an effective

difference in terms of those considerations

relevant to a State which the Melbourne Corporation

principle was there to protect.

TOOHEY J: That may be. It was just the analogy that seemed to me to be not very helpful.

MR KENZIE:  I am sorry, Your Honour. I take Your Honour's

point, but we do submit if one is going to focus on

the question of what does this do to the State,
then what we have to say is that one must give it

practical effect. That is the first thing we say.

The sec.end thing we. say is really in response

to something that I think fell from Your Honour

Justice McHugh yesterday, and that is this: if you

get a federal award introduced and it supplants a

system of State regulation, State award and the

like, then it continues. It is not only that you

have a new regime, but on it goes into the future. Your Honour, we make a number of submissions about

that, again by reference to something like

taxation. If you have no federal tax on day one

and you have a federal tax introduced applicable to

State agencies and employees on day two, then,

subject to the will of the federal Parliament, that

will go on into the future.

The difference in relation to awards made

under the industrial power is this, that they are

made as a result of proceedings before a body which
is bound to act in a judicial manner and, when

made, they are not immutable. The State is

entitled as any other party to be heard at the time

that an award is made or before an award is made

and to argue that it should not be made or made in

particular terms and, even if made, the procedure

applicable under the industrial power is one in which, even if the statute continues the award, there are mechanisms for the State or any other

party to appear before the Commission and to say

that the award should no longer be there.

Unions(4) 212 9/6/94

So unlike the degree of intervention or

impairment that you find in relation to the

tax power, we are here dealing with an impairment,

if one likes, which has two other features:

firstly, it is an impairment that can only arise

after the intervention of the independent body of

the Commission; and secondly, when it arrives, if

it arrives, it is subject to further application as

a result of a guaranteed system, a system which

guarantees the rights of the States to participate.

Now those factors, the fact that there is a third

party involved in section Sl(xxxv) as opposed to

the taxation power, are not factors which operate

in such a way as to require the conclusion that

there is some greater scrutiny required, in

Melbourne Corporation terms, to section Sl(xxxv);

if anything, the position is the other way, in our

respectful submission. So we direct attention to

the level of impairment, if one likes, and to the

issues of continuity or non-continuity in general.

BRENNAN J: That seems to me to raise two problems: one is,

you say you equate the two powers because you are

saying there is impairment under both, but is not the hypothesis on which the taxing power operates

that the mere imposition of a tax is not an

·impairment whereas, in this case, that is under

section Sl(xxxv), it is not a case of saying it is

a mere financial impost~ it is control of the

organization of the public service, and the

difference between the two is that under the first,

the State retains the power of control, under the

second, it loses it.

MR KENZIE:  Your Honour, these are ultimately questions of

degree and effect, in our respectful submission. A

tax could, if imposed, bring the Melbourne

Corporation principle into play, in our respectful submission. If the level of the tax was such that it effectively prevented the State from controlling

any activities it would offend.	If the level of
intervention arose from Sl(xxxv) was such as to

have the same effect it would offend. So that

there is no magic distinction, in our respectful

submission, between control and something else. A

tax law is just as capable of offending. So we do

submit and we draw issue with the submissions of

the Solicitor-General from South Australia that

there is something that differentiates the taxation

power from the conciliation and arbitration power

in so far as it authorizes an award which, for

example, involves standard wages. It is only

matters of fact and degree which have to be

considered.

Could I respond to one other matter that arose yesterday. There was some debate about the issue

Unions(4) 213 9/6/94

of paper disputes which Your Honours Justice Dawson

and Justice McHugh raised in the context of State

involvement in a Sl(xxxv) dispute. I accept, of

course, that this is a matter which, when raised,

has to be addressed and has to be addressed

notwithstanding the fact that it was not something

raised in terms by the prosecutors. We do submit

that the decision in the State Public Services

Federation case is relevant and we would submit,

really, determinative in relation to this issue.

Could I give the Court a reference and shortly

take the Court to 178 CLR 249, at page 267 in the

judgment of Your Honour the Chief Justice and

Justices Deane and Gaudron. Of course, in the

context, where what was being sought was a public

service award and a general public service award,

although it was more limited in terms of its

subject-matter but not its extent, if one likes -

not its scope. At 267, Your Honours said, at about

point 2:

Leaving aside questions that may arise with

respect to the parties to a dispute, its

subject matter and interstateness, all that is

necessary to constitute an ·industrial dispute

is disagreement as to the terms or conditions
that should, in fact, apply as between
employer and employee. Obviously,

disagreement of that kind may come about as

the result of a written demand and, thus,
there is nothing inherently artificial about a

"paper dispute".

It is sometimes said that a "paper

dispute" must be a "genuine dispute". That

means no more than that written demands must

be genuine demands. If not - if, for example,

they are part of a hoax or if they are
intended to dress up a purely intrastate

dispute - their rejection will not involve any

disagreement and, thus, will not result in a

dispute at all.

To ascertain whether demands are "genuine

demands", it is sometimes asked whether the

demands are seriously advanced or, in the case

of demands by or on behalf of employees,

whether they are advanced with a view to

"obtaining improved terms and

conditions ••• within the framework of the
claims made". This last formulation is one

that takes account of the doctrine of ambit

and allows that a demand may be genuine

notwithstanding that neither the union making
it nor its members are "intent on obtaining

forthwith every item which is mentioned in the

Unions(4) 214 9/6/94

log of claims or the particular terms and
conditions of employment in the form and in
the amounts in which they are expressed in the

log".

Given the doctrine of ambit and given

that there is nothing inherently artificial

about written demands, or "paper disputes", it

will not often be the case that a written

demand with respect to the wages or conditions

of employees will be other than a genuine

demand -

and so on.	we would also refer to the judgment of
Your Honour	Justice Brennan at 272, in which
Your Honour	said at the top of the page that
Your Honour	respectfully agreed:

with the reasons of Mason C.J., Deane and

Gaudron JJ. for holding that the rejection of

the relevant log of claims served upon the

Crown in right of Queensland ••... did not give

rise to an industrial dispute.

DAWSON J: Those passages do not really tackle the question

which was raised with. you, which is that the mere

serving of a log· of claims on more than one State

does not necessarily give rise to an interstate

dispute because of the self-contained nature of the

separate States, and that is the self-contained

nature of their employment relationship.

MR KENZIE: That is so. That aspect of the decision does

not go to that. That matter is addressed in

another aspect of the decision, to which I will

come when I deal with interstateness.

DAWSON J: But all I am sayung is that those passages do not

tackle that at all.

MR KENZIE:  I accept for the purposes of my submissions

entirely what Your Honour has to say as to that,

but in so far as it was suggested, as I conceived

it to be, that there was something inherently
inconsistent with the utilization of paper demands,
and the involvement of States in interstate
industrial disputes, these passages are relevant,
in my respectful submission. There is no inherent
vice in the use of a paper log to involve a State

in an industrial dispute. Whether, in fact, there

is a genuine interstate dispute will depend on

other considerations which are addressed elsewhere

in the State, and I do come to that in due course,

and Your Honour is, of course, completely correct

in pointing that out.

Union(4) 215 9/6/94

Before corning to the Victorian submissions

there is perhaps only one other thing I need to go

to and it is this: I have put submissions in

relation to the various means which have been

suggested, over the years, for limiting the extent

of the industrial power. I do not revisit that.

But we do recall that in Mr Doyle's submissions, on

behalf of South Australia, it was submitted that

there is scope for indirect intrusion into State

affairs as a result of the valid application of

law. be no complaint, for example, if State

federal It was acknowledged by the could

control were undermined in, presumably, any

relevant respect by virtue of the use of something

like the customs power. That, it was said, was an

indirect effect on the States, and somehow to be

differentiated from the impact on States which

would result from the making of a federal award.

We would respectfully submit that in this

respect section Sl(xxxv) and other heads of power

such as the customs power stand in the same

position and there is no basis for suggesting that

if States can be indirectly affected by the valid

use of the customs power, there is something so

different about the industrial relations power that

prevents such indirect effect. The relevant

authority in this regard is Nationwide News v

Wills, 177 CLR 1. At page 27 of the judgment of

Your Honour the Chief Justice, Your Honour said

this in relation:

to the incidental scope of the power conferred

by S 51 ( XXXV) •

The formulations to which I have just referred are not without their difficulties.

The first formulation impliedly assumes and the second expressly assumes that a legislative power has a main purpose or

object. As very few of the Parliament's

legislative powers are truly purposive powers,

the reference to purpose or object in this

context has a wider meaning. The

ascertainment of what is the main purpose or

object of a particular power may in some cases

be a matter of some difficulty. But in the
case of s Sl(xxxv) no such difficulty arises.

The main, if not the sole, purpose or object

of the power is the prevention and settlement
of interstate industrial disputes and the sole

means of achieving that object is by means of

conciliation and arbitration.

If one approaches Sl(xxxv) in the manner in

which it is approached as per, for example, the

Unions(4) 216 9/6/94

judgments in Lee and you start with the undoubtedly

correct proposition that States and their employees are just as capable of being involved in interstate industrial disputes and giving rise to the evils

against which Sl(xxxv) was designed to protect the

country, then one asks what is there about

section Sl(xxxv) that leads to the conclusion that

it cannot be applied in relation to the States so

as to indirectly - to use our friend's words - give

rise to a result, whereas the same result could be

yet another means of applying some break or

effected by valid use of say, the customs power.

restriction on the industrial power which finds no

basis in the Constitution and is likely, if sought

as a refuge, to give rise to exactly the same sorts

of problems which this Court has grappled with over

the years in the context of industry,

administrative service and so on.

Could I come to the Victorian submissions.

The submissions of the respondent unions in

relation to the Victorian submissions commence at

paragraph 18, and I do not need to go to them in

terms, of course.

The;first·thing we ·wish to say about the Victorian submissions is that if the Court goes to

the Victorian written submissions, the Court will

perceive that they are not really mirrored in an

important respect in the oral submissions that were

made to the Court. By that I mean this, that in

the oral submissions put on behalf of the
prosecutor the foundation, unlike the written

submissions, was said to be in the approach taken by Your Honour Justice Deane in the QEC case. It

was said that an appreciation of the more recent

authorities included that which is contained in

that passage which we have set out in full on

page 5 of our submissions. We have set out there

our analysis of the relevant recent decisions, and

they include Your Honour Justice Deane's

formulation. It is towards the bottom of page 5 of our written submissions, and it is from page 247 of

the report:

It comprises a restraint upon the exercise or use of power or authority. Its

central operation is to preclude the exercise

of Commonwealth legislative or executive

powers "to control the States" or in a manner

which would be inconsistent with the continued

existence of the States as independent

entities and their capacity to function as

such.

Unions(4) 217 9/6/94

If the Court would be good enough to go to the

report of the case at 159 CLR, that will disclose

that Your Honour was the only member of the Court

who focused on or referred to the concept of

control in what I have been referring to, probably

too loosely, as the general arm of the Melbourne

Corporation principle. If the Court would go to

the judgment of Chief Justice Gibbs at page 206,

towards the top of the page His Honour said:

It is clear, however, that there are two

distinct rules, each based on the same

principle, but dealing separately with general

and discriminatory laws. A general law, made

within an enumerated power of the

Commonwealth, will be invalid if it would prevent a State from continuing to exist and

function as such •...• A Commonwealth law will

also be invalid if it discriminates against

the States in the sense that it imposes some

special burden or disability on them.

There is reference to Justice Dixon's judgment in

the Melbourne Corporation case. In the middle of

the page he went on to say that:

the Banking Act was "a law directly operating
to deny to the States banking facilities open to others, and so to discriminate against the

States or to impose a disability upon them".

The nature of a law which infringes this

limitation may be described in various ways;

it may be said that it imposes "a special

burden" on the States, that it is "directed
against" the States, that it "single[s] out"

the States or places "special burdens or

disabilities" upon them or that it is "a law
aimed at [the] restriction or control" of the

States. Similar statements of the law appear in ••••. "the Tasmanian Dam Case").

et cetera. Again, in the judgment of Your Honour

Justice Brennan at page 231, having referred to the

earlier judgment of Your Honour Justice Mason in

the Builders Labourers' case, a little over

half-way down the page:

A prohibition against the making of laws

"which operate to destroy or curtail the
continued existence of the States or their

capacity to function as a government, ie,

their capacity to exercise their powers" is

necessarily implied bys 106 •.... if not from

the nature of a federation. Not only is the
continued existence of the Commonwealth and

the States essential to the ·Federation; their

raison d'etre is their capacity to exercise

Unions(4) 218 9/6/94

the powers reposed in them by the

Constitution. That prohibition is not

relevant in this case.

At the bottom of the page:

The question is whether the Act is within the

scope of the implied prohibition relating to

laws which single out the States so as to

impose some special burden or disability upon

them in the exercise of their powers. The

scope of that prohibition is in issue.

And then at about a third of the way down that

page, Your Honour then really looked at what it was

that was necessary to bring into play the

discriminatory arm of the Melbourne Corporation

case, and in a passage which, I think, may not be

mirrored elsewhere, none the less makes it clear

that Sir Owen Dixon's test of invalidity, in so far

as it was referring to control, was relevant to the

discriminatory aspect of the implication.

Your Honour said:

That the prohibition arises from the necessity to provide a. measure of protection for the

·independence of the States appears from

Sir Owen Dixon's test of invalidity - the law

must be not only discriminatory but be also "a

law aimed at the restriction or control of a

State in the exercise of its executive

authority" ••.•. or "a special attempt to

control the exercise of the constitutional

powers of the States".

And, in that passage, Your Honour appears to

actually be saying that it is not enough that the

law be discriminatory, but it must also bear the

character that would be sufficient to attract the
other arm of the implication, a matter which we

would respectfully submit is not necessary to

address to finality in this case. All that we

desire to point out is that those judgments - I

have not referred to Your Honour the

Chief Justice's judgment, which is neutral in this respect, because the text of if proceeds on more

general grounds - but the thrust of the case shows
that the only member of the court to use the word
"control" in the sense now fastened upon by the

Victorian Government Prosecutor was Your Honour

Justice Deane. In our respectful submission, in

the Melbourne Corporation case, when Justice Dixon

was focussing on the concept of control of the

States, as the passage which has been read a number

of times now on page 83 discloses, His Honour

appeared to be focussing on the concept of

Unions(4) 219 9/6/94

legislation aimed at the States, discriminatory in

that sense.

Now, it is true that His Honour, at that stage of things, may not have been focussing upon what

today we would equally regard as a discriminatory

law; that is one which did not have the

characteristic of a law that was actually aimed at

the States, but one which had a discriminatory

effect. We would accept, within the description of

discriminatory law, a law which was of the latter
category, even though His Honour Justice Dixon did

not seem to be focussing on such a law. But the

Melbourne Corporation case does not provide, in our

respectful submission, a basis for suggesting that

a law which operates to control the States, as

such, is offensive under the general arm of the

Melbourne Corporation case; when Sir Owen Dixon

used the word "control" he, in our respectful

submission, was looking at the other arm of the

Melbourne Corporation case.

Your Honour, that does raise, it seems to us,

the question raised by Your Honour Justice Dawson earlier in these proceedings as to the respective

scope of ·the two a·rms .o·f the. implication.

Your Honour a·sked - and I am doing Your Honour an

injustice by trying to paraphrase it, I am sure:

if the general arm is more limited, what is the

justification for the broader arm or why is there

not the same justification for both arms? Our

answer to that, Your Honour - and I think it is the

same answer that the South Australian

Solicitor-General gave in debate - is that the

authorities seem to suggest that discrimination

itself is a vice and although there may be no logic

in terms of the actual reach of the implication,
subject to Your Honour Justice Brennan's approach
in Queensland Electricity Commission, the different

answers to the implication arise for different

reasons and have different results. Discrimination

has a vice in itself. A law which is of general

application and which is not discriminatory, if

bad, is bad for different reasons and on different

occasions.

There is a passage in the judgment of the

Court in Leeth v the Commonwealth which is relevant

in this respect and if I might give that to the

Court at some later time I would seek to do so.

Your Honours, coming to the Victorian written

submissions, as opposed to the oral submissions,

which proceed on the basis of a construct which

depends upon Your Honour Justice Deane's judgment,

we can make and do make a number of general

submissions.

Unions(4) 220 9/6/94

Firstly, the Victorian written submission, of course, proceeds on the basis that there is some

distinction able to be maintained between trading

and non-trading activities, a distinction which the

respondent unions suggest is not useful. It

proceeds on the basis that trading activities are

non-governmental, that non-trading activities are

governmental and the respondent unions' approach is

to say that all government activities are

governmental and that it is a useless search to

attempt to perpetuate some distinction between

trading and non-trading functions.

The Victorian submissions encounter a number

of difficulties, in our respectful submission. We

have done our best to deal with them in our written

submissions, but may we mention two things. There

is a steadfast resistance to deal on their part

with the impact of cases such as the Australian

Railways Union case and the impact that the

Engineers' case had on the Railway Servants' case.

In the years before 1920 the implied immunities

doctrine came complete with a trading exception.

That was recognized by the Court in the

Engine-Drivers' case, which we have referred to on

the bottom of page 24 of our .written .submissions.

The principles before·1920 wer.a that the immunities

principle held full sway, but not in relation to

trading activities.

Before the Engine-Drivers' case the Railway

Servants' case had resulted in a decision that

there was no federal power that authorized the

making of an award to cover Victorian railway

servants. That authority stood because of the

acceptance that railways were not trading. It

would have been inconsistent with the

Engine-Drivers' case for there to have been a valid railway servants' award if the railways were

engaged in trading.

The fact of the matter was that before 1920

trading activities were within the reach of federal

power but railways were not, and they were not

because in 1906 the High Court rejected the

contention, put on behalf of those seeking to

support the validity of the coverage of railway

workers, that railways were trading activities.

So, there is no room for manoeuvre in this regard. Railways were regarded before 1920 as non-trading

activities, hence the Railway Servants' case. With

the Engineers' case there was then opened up the
opportunity which arose in the ARU case in the late
1920s for federal coverage of railway servants.

As we point out in paragraph 19 of our submissions, what the prosecutors' submissions

Unions(4) 221 9/6/94

invite by exempting trading corporations from their

submissions is a return to the position that

prevailed in this Court in 1911 at the time of the Engine-Drivers' case. What the prosecutors invite

is a return to a situation in which there will be

federal coverage of State employees except trading

people exempted in the Engine-Drivers' case.

If no distinction is able to be made between

trading and non-trading activities undertaken by

governments, and we contend that there is no

distinction that can be made, then the logical

result of the prosecutors' submissions would be

that you go back beyond the Engine-Drivers' case,

earlier into the 20th century, and you wind up with

D'Emden v Pedder and the Railway Servants' case and

so on. We submit that that would truly be a return

to a doctrine which has been discredited, and

discredited on a number of occasions.

We point out that the Victorian submissions

pay no real regard to the Merchant Service Guild of
Australasia case referred to on page 25 of our

submissions. That was a case which was handed down

on the same day as the Engineers' case. If

Your Honours look at the Victorian written

submissions you will find the submission made that

they do not involve any clash with the Engineers'

case because the Engineers' case was confined to

trading activities.

Our response, in addition to what we have

already said, is to say that that simply flies in the face of what happened. Immediately after the Engineers' case there was argued the Merchant

Service Guild (No 2) case. That case involved, on

any view, activities which were non-trading and on

the same day as the Engineers' case the High Court

upheld the validity of federal prescription in

relation to those parties, something which again

happened in relation to non-trading persons in the

ARU case later in the 1920s. Your Honours, this aspect was picked up

really, in terms, by Justice Taylor in the

Professional Engineers' case, and if we could take

a very short moment to remind Your Honours of what

His Honour Justice Taylor said about this at

107 CLR 256. At point 6 of the page Justice Taylor

said this:

In reaching their conclusion in the

Engineers' Case the majority of the Court

expressly overruled the Railway Servants'

Case, but in doing so they did not express any

view on the question whether the dispute in

that case was an "industrial dispute". But

Unions(4) 222 9/6/94

there can be no room for doubt that if it had

been necessary to pronounce on this question

the decision would have been that it was an
"industrial dispute". Even if this does not
sufficiently appear by implication from the

decision in the Engineers' Case itself it must

be taken to have been put beyond doubt by the

decision in Merchant Service Guild of

Australasia v Commonwealth Steamship Owners'
Association [No 2). The argument in this case

took place immediately after that in the

Engineers' Case and the judgment in each case

was delivered on the same day. The effect of

the decision was that the dispute which the

Commonwealth Court of Conciliation and

Arbitration had found to exist was an

"industrial dispute" of which the Court

properly had cognizance and in respect of

which it might make an award. The dispute in

question was between the Merchant Service

Guild on the one hand and, on the other -

and I do not list the parties, but the point, we

think, is about as clear as it could be. And

His Honour said at 257 point 3:

If a,dispute as to the conditions upon which

these authorities might employ masters,

engineers and officers constituted an

industrial dispute then there could be no

reason for thinking that a dispute between the

Commissioner for Railways and his employees

with respect to conditions of employment in

the service of the Commissioner did not.

That approach really explained the subsequent

ARU case.

Your Honours, we do not find it necessary to

supplement the balance of our written submissions

in relation to the Victorian prosecutor's

submission other than reminding Your Honours of the

decision of the majority in The Second Fringe

Benefits Tax case, referred to at page 29, of our written submission and to the text of Your Honour Justice Brennan's decision in the same case, which

we refer to on pages 29 and 30 of our submissions.

If I could take a moment to go to that decision

because it does, being the only - the decision,

which involves some differentiation on the basis of

status or function, is relevant to the debate that

has been had in this case.

If Your Honours go to page 362 of

Justice Brennan's approach, having referred to

Justice Dixon's judgment in the Melbourne

Unions(4) 223 9/6/94

Corporation case, His Honour said at the bottom of

that page:

The essential organs of government - the

Governor, the Parliament, the Ministry and the

Supreme Court - are the organs on which the

"existence and nature" of the body politic

depends. (I mention only the Supreme Court,

for that is the court of general jurisdiction in which, subject to the jurisdiction of this

Court, the laws of the State are finally

interpreted and the constitutional and

administrative law of the State is applied.)

The existence and nature of the body politic

depends on the attendance to their duties of
the officers of the essential organs of

government and their capacity to exercise

their functions •..•. it is a tax on what is

done to secure the continued existence and

functioning of the government of the State.

It may be objected that, if a State must have the services of the officers of the

essential organs of government, equally it

must have a public service and yet, in the wages paid to the public service was upheld.

In that case, an argument founded on the necessity for employing servants of the Crown

was rejected.

Your Honours have had the benefit of

Justice Menzies' judgment and parts of

Justice Gibbs' judgment in the Pay-roll Tax case

before, and I do not go to that. At the bottom of

the page Your Honour said:

I would respectfully agree that a diminution

in the States' resources by paying a
non-discriminatory federal tax is insufficient

in itself to establish the invalidity of the

impost upon them. However, the employment of a public

service does not have the same significance

for the existence and functioning of the

government of a State as the securing of

attendance to their duties by the officers of

the essential organs of that government. When

a tax falls on the employment of a public

service, a test of practical impossibility of

continuing the employment may be the

appropriate criterion of invalidity. But a

test of practical impossibility is far too

onerous to be applied to determine the

validity of a tax which falls on the

emoluments provided in respect of the

Unions(4) 224 9/6/94

"employment" of the officers of the essential

organs of the government of a State. A tax of

that kind is in substance a tax on a State's

essential organs of government and is, in my

opinion, an undue impairment of the State's

capacity to perform its functions .

Again at about half-way down the page there is a

reference to -

the State's freedom to benefit the officers of the essential organs of government and thereby

to ensure or facilitate the performance by

those organs of their respective functions.

So that we point out really what is obvious,

that the majority did not draw that distinction but

held, in relation to a general tax, a

non-discriminatory tax, that persons who fell within the categories exempted by Your Honour

Justice Brennan were caught because of an expanded

definition of "employee" or "person caught" in the

legislation, without offence or involvement of the

.Melbourne Corporation principle.

Even in the judgment ·o·f · Your Honour, where

there is a differentiation attempted for the

purposes of that exercise, one which we have put

our submissions about in relation to this case,

that exemption was so confined and proceeded on the

basis that a general tax which applied to the
public service as a whole was permissible without

infringement of the .Melbourne Corporation principle

or implication because the employment of the public
service did not have the same significance for the

existence and functioning of the government of the

State.

DEANE J: What would you say about the second sentence in

that paragraph that you read in its application to

this case? The one:	When a tax falls on the employment of a public
service, a test of practical impossibility of
continuing the employment -

What I have in mind is the application of that sentence to an award that controls who may be

employed and controls termination of employment.

MR KENZIE:  Your Honour, we would accept the second sentence

of that paragraph, if one is talking about what we

apprehend His Honour Justice Brennan was talking
about in that paragraph, which is a prescription

which is a general application. So that if one is

talking about "the public service" as a whole, a

tax which has the effect of making it practically

Unions(4) 225 9/6/94

impossible to continue the employment of the

persons who are the basis of the tax would attract

and certainly be capable of attracting the

principle.

But, we say, there is nothing in either that

passage or principle which entitles one to take the next step which is that any prescription which has, in any particular case or for whatever limited

period, an impact in relation to a person or a

particular class of persons within the public

service, thereby attracts the principle.

If I could give an illustration: we would

accept that an award of general application which

had the impact that we apprehend His Honour was

talking about here, obviously going well beyond

administrative services and the like, would involve

the principle because it would prevent the

government functioning in any way.

DEANE J:  I was not really directing my question to that

aspect. What I had in mind was that if one draws a distinction between wages and working conditions on

the one hand and employment and termination of

employment on the other, it seems tome that the

'·thought underlying· that sentence has some

application to this case.

MR KENZIE:  We agree, Your Honour, with respect, but we do

submit that an award would not offend and bring

into play the principle because, in a particular

case or cases, that award had the effect of

practically making it impossible to continue the

employment of a particular class or classes of

persons that the State wished to employ.

DEANE J: Or, alternatively, taking out of the control of

the State the ability to determine whom should be

employed and whose employment should be terminated.

MR KENZIE:	Yes, Your Honour, it could bite at either end of the employment contract: qualifications on who
should be employed or, alternatively, restrictions
on who can be dismissed. The intrusion into
control in that sense is the same. But we would
submit that the applicability of the Melbourne Corporation implication in such a case would again
be dependent upon the operational impact of an
award. So that, to take the circumstance which we were debating yesterday, the interim award made in
the Teachers case, if in the context of resolving
an interstate industrial dispute and to deal with
the situation in which there was mass dislocation
or perhaps proposals for mass redundancy of State
schoolteachers on an interstate basis or any basis, an interim award was made by the Commission which

Unions(4) 226 9/6/94

had a limited effect, the effect of saying, "Well,

as an interim measure, until these issues can be

finally resolved, no dismissal shall take place

save on these terms, without going to any

particular terms at the moment".

That would not of itself bring the principle

into play simply because, although it would be an impairment, it would not be a relevant impairment.

It would not in the terms, I think, of Your Honour

the Chief Justice's judgment in the Tasmanian Dam's

case amount to a substantial interference with the

operations of the State, although it would amount

to some interference, but it is not every
interference. Again, it is a pointless exercise,

in our respectful submission, to attempt to resolve

these matters by recourse to the subject-matter
addressed, just as it is to address the matter by

reference to the identification of persons to whom

an award might be addressed.

It is yet another way of erecting some formal

restriction or barrier to the exercise of federal

power which does not address the question. In the case that I postulate the question is, "How is the

State impaired?", in our:respectful.submission.

You-dG> not get the answer-by saying, "Well, look, here are the sorts of people that applies to alone." You do not get the answer by saying,

"Well, what sort of award is it alone?"

For example, if a redundancy award was made and it applied to manual workers at a State

instrumentality and, in fact, the award that was

made covered and had application only to 15
employees, and the claim was only made in respect

of a limited number of employees, how could that

ever be said to provide a foundation for the

application of the Melbourne Corporation principle. We approach it in a different way, Your Honour, and

we do so because we say that those inquiries, if I

might say so with respect, have the same vice as

the administrative services exception.

DEANE J: But, Mr Kenzie, while I am diverting you, may I

ask you a question which really has nothing to do

with your present submission, and it is, yesterday

you made a point that one of the awards being

challenged was a consent award.

MR KENZIE: Yes.

DEANE J: What is the relevance of that? I mean, who is

challenging that award? Is it somebody who

consented to it?

MR KENZIE:  Yes.

Unions(4) 227 9/6/94

DEANE J:  Does anything turn on that, in proceedings for

prerogative relief?

MR KENZIE: Well, Your Honour, I suppose that at the end of

the day the answer to Your Honour's question is,

"Yes." The Court, in relation to that award, is

faced with an application by the Victorian

prosecutor - - -

DEANE J:  Is it a consent award in the context where

something worse from the prosecutor's point of view

had happened and the consent was effectively to

modify what had happened? Or, is it, as you

suggested, simply a straight case of a consent

award?

MR KENZIE: 

Your Honour, I do not contend that the issue of

consent has relevance in terms of the entitlement
to prerogative relief for this reason: that

although it was a consent award, as I am instructed

by those who I think had some involvement in the

proceedings, it was a consent award which

specifically preserved the right of those to

challenge it. So it was not an award that was
made -

DEANE J: So it was more a consent as to form than a consent

to the making of the award? Let us not take time

on it now. If you are content that it disappears

from the case, that answers my query.

MR KENZIE:  I put no submission that the prosecutor is

prevented, or should not be entitled to relief,

because of the consent nature of the award. I am

instructed that - this appears in the application

book in Mll at page 116 - the award contained a

term that:

The State of Victoria will not, during

the operation of the award, terminate the

employment of employees subject to the award

other than -

in the terms stipulated -

without prejudice to the appeal as to

jurisdiction being all that contained in

Part A -

and so on. So, my observation that it was a

consent award, I would think would be dismissed as

a lawyer's flourish, in the circumstances,

Your Honour, and certainly was not intended -

DEANE J: Well, it had some impact on me at the time.

MR KENZIE:  I apologize for that, Your Honour.

Unions(4)	228	9/6/94
DEANE J: Not at all.

MR KENZIE:	I then pass beyond the general thrust of the Victorian submissions. In paragraph 28 of our
submission we do address one aspect which was
touched upon in debate, and that is the assertion
that the effect of a federal award on States must,
by definition, be different from the effect of such an award on private sector employers. This is on page 30 of our submission.
We have, in fact, put submissions in relation to this yesterday. The only thing we add to our
submissions here, is this, and that is that the
question of whether an award impacts on a State in any way which is greater, different or less than it
impacts on anyone else, will be a matter of a
question of fact.  If an award is made against us
in proceedings which involve a State and private
employers and it provides for a minimum wage, one would submit that it impacts on the State in the
way that it does in relation to private employers;
the obligation is the same.
Private employers may be affected to a greater or lesser extent by that award. Some employers may
not have·the money to meet the standard, and they
go out of business, or they may have to make
alternative arrangements; others may not be
troubled. But there is nothing in the nature of
the award that tells you that it impacts
differently on different parties.

Similarly, a federal award may be made on a

State and may only cover, and be designed to cover,

a handful of employees. One cannot get to the

stage of saying, "Look, because this award is made

in respect of a State it must inevitably involve

this sort of discrimination and impact on a State

in a different manner to the way in which it

impacts on private employers. In a case where the proceedings involve States

alone, there is no point of reference, there is no

point of comparison. It is impossible to say in

respect of an award that applies to States alone

that those awards impact on States in a manner
different to the way they would impact on imaginary
awards or other awards if made in respect of

private employers. There is no point of reference. In a case where a proceeding involves public

employers and private employers there is a point of

reference but it is yet another question as to

whether the impact is any different, and it is

certainly not necessarily any different at all.	It
might be because there might be more people

Unions(4) 229 9/6/94

affected. There might be less. But in any event I

think the Court has our submissions.

I should remind the Court of this: it does

not affect the submissions we make, but some of the

cases, contrary to an impression I may have left

yesterday, some of these cases do in fact involve

claims made against private employers. So do not.

So the submissions we make are on the basis that

they do not, but some in fact do. In some cases
there would be a point of reference, in some cases

there would not, but I should correct that

impression if the Court had it.

I can pass then beyond the Victorian

submissions and go to the submissions of the

intervening States. We have no submissions that we

feel that we need to deal with in relation to the

Tasmanian submissions other than those that we have

put before the Court in our written submissions.

There are a couple of matters arising out of the

New South Wales submissions that I should refer to.

In paragraph 35 of our written submission we deal

with the American authorities and, in particular,
with Garcia's case.

·The Solic·it·or-General for New South Wales

yesterday submitted that Garcia's case, when

properly understood, was explained on the basis

that there were political safeguards in the

Constitution of the United States and thus far in our history, and in the history of judgments of

this Court, you do not find a recognition of

similar political safeguards for the States. The

fact that, for example, the system of electing

representatives of the States to the Upper House

has not resulted in a protection for the States as

might have been envisaged at the days of the

framing of the Constitution and because of the

party system and so on, those considerations it

would be said, do not allow the sort of ultimate

recourse to political safeguard that was had in

Garcia.

We do not seek to debate that aspect of the case and we make it clear that all that we are

doing - and we do this in paragraph 35 of our

submissions - we are not seeking to get more from

Garcia's case or the American authorities than we

say is legitimate. What we say is legitimate is

that part of those cases which involves a rejection

of the approach which we see mirrored in the
Victorian prosecutors' submissions in this case.

In Garcia, the Court, because one member of the majority in Usery's case had appreciated that

the distinction sought to be made was, in truth,

Unions(4) 230 9/6/94

not maintainable, rejected the sorts of

distinctions that are again proffered to the Court

here.

It is not productive to reagitate that debate,

it has been had, but that is all that we seek to

get from Garcia's case. We do not say that our

approach is justified because of other aspects

which may or may not have been relied on by the

Supreme Court of the United States.

In paragraph 37 of our submissions, we refer

to the submission of New South Wales which suggests

that there might have been some distinction in

Garcia between employees of the State and employees

of a metropolitan transit authority, an

instrumentality, and we would simply invite the

Court to the conclusion that Garcia's case admits

of no such distinction.

Incidentally, the decision in Garcia's case

involved an overturning not only of Usery's case

but a restoration of the earlier decision in

Maryland v Wirtz. That case had earlier held at a

Fair Labor Standard's Act validly applied to public

schools and hospitals. If Your Honours would note

.·from ·,Garci•a and 'from the US Reports at page 533

point 7, in relation to paragraph 37, that that was

one of the consequences of Garcia's case.

We would also remind the Court of our submission in paragraph 38. Mr Mason submitted

that Garcia's case involved an effective

abandonment by the Supreme Court of the field.

MASON CJ:  We have got the benefit of your written

submission.

MR KENZIE: Yes, Your Honour.

MASON CJ:  Garcia and Usery are really on the outer margins

of this case.

MR KENZIE:  We rest content with our submission and we would

only ask Your Honours to note a typographical error

on page 34 of our submission at about eight lines

down, the reference to Justice Brennan's judgment

after the Second Fringe Benefits Tax case. That

page should be 360 and not 358. we pass beyond the American authorities and we, similarly, do not need

to add to what we have had to say about the

Queensland submissions.

As to the South Australian submissions, we

have already put our position in relation to the

unsuitability of the South Australian approach.	It
is just as unsuitable as any of the other

Unions(4) 231 9/6/94

approaches that have been suggested. It involved a

search for truth amongst various classifications

and it may be differently described, but it has the

same vices and would be productive of confusion if

sought to be put into practice. The Commission

would be put in the position of undertaking the

exercise that the South Australian Solicitor-

General suggested, or undertook before the Court

yesterday, and that led to the result dictated by

the Melbourne Corporation case in any event.

The only other thing that we would seek to do

in relation to the South Australian submission is

this: could we ask Your Honours to actually go to

paragraph 21 of the South Australian submission

itself. This submission was pressed in oral

argument. It was submitted there on the bottom of

page 9 of the South Australian submission:

that the integrity and autonomy of a State

requires that it be free of Commonwealth

control in this respect. That would extend to

employment and dismissal, the management of

employees -

et cetera.

It is submitted that as a matter of principle the Executive must be free from Commonwealth

control in this respect. It is not for the

Commonwealth or for a Court to make an

assessment as to when the interference is

compatible with the autonomy of the State.

The exercise of that power by the Commonwealth

or by the Court is itself destructive of the

autonomy of the State, because it is

tantamount to holding that the State Minister

will have such freedom as is granted to him by

another entity.

Your Honours, we do submit, with respect, that that

submission in so far as it suggests that the

application of the Melbourne Corporation principle

by this Court would involve an interference with

the integrity of the State is, we would

respectfully submit, unmaintainable. It would
invite the conclusion that the Melbourne

Corporation principle is really non-existent, or if

non-existent, non-applicable. The Melbourne

Corporation principle is a principle which must

proceed on the basis that this Court is the court

which will decide the question which, in this case

we are all here to decide, the submission that the intervention, the decision by this Court, involves

an interference with the integrity of a State is,

in our respectful submission, not maintainable.

Unions(4) 232 9/6/94

Your Honours, could I come to those

submissions that we make in relation to enforcement

of industrial awards which appear on pages 42 and

following of our submissions, and say this: again

we are, subject to anything that Your Honours have,

generally content to rest on what we have to say.

We just desire to make it clear that our submission

proceeds on the basis that the enforceability of

federal awards, as we put it, or absence of

enforceability, is dependent not ultimately on some

inherent limitation on Commonwealth power, but

really dependent upon the current state of federal

law, if I can make that a little clearer.

We have pointed to the statutory means which would be there at the moment which might arguably

provide a basis for the enforcement of federal

awards against a State faced with the reality of

what the High Court pointed out in the ARU case as

to the incapacity of the federal Parliament to

compel a State to make appropriation to meet the

wages and salaries or other conditions of those

affected by federal prescription. But it is not to

be thought that the federal Parliament could not take steps, for example, such as steps which are

appropriate .in relation to taxation legislation, to

facilitate enforcement by some more indirect means. The taxation legislation contains a regime for

effective enforcement of the federal taxation laws,

and it can take effect in relation to a State by

means of the interception of debts and funds owing

to a State, and so on, without there being drawn

into the equation the question of whether the

federal power can extend to compelling a State to

make appropriation. There is no such regime in

relation to the industrial power at the moment, but

there could be. The same considerations

theoretically apply in relation to tax,

conciliation and arbitration and any measure in

which the Commonwealth is actually saying to a

State, "Either pay or make arrangements to pay to

someone else". In relation to a tax law, if the

Commonwealth taxed the States and ultimately sought

to enforce in a direct way against the States,

presumably the same considerations that

Justice Dixon and others were describing in the ARU case would arise. But the measures are different

measures and constitutionally supportable as they
would be if introduced under Sl(xxxv).

All that we are doing in these paragraphs is this: we are saying that in the current state of

the law, there is no legal impairment and, in the

absence of a legal impairment, it is difficult to

see how the Melbourne Corporation principle is

attracted. It is, we would conceive, not to the

Unions(4) 233 9/6/94

point to argue that as a matter of reality the

States would be expected to comply because there

would be the opprobrium of not complying and the

like. What the Melbourne Corporation principle

protects against is impairment. If there is no

legal impairment, it is difficult to see how there

is Melbourne Corporation impairment.

BRENNAN J: Perhaps if one looks at practical operation, one

comes to the stage where you simply would not have

a public service.

MR KENZIE:  If one looks at practical operation, one is left

with the situation that there may or may not be

such a practical operation.

BRENNAN J: The alternative to not having a public service

is a compulsory, in practice, requirement to

appropriate.

MR KENZIE:  Yes. A federal award which imposed standard

wages and conditions, or wages and conditions in

respect of parts of the public service, for

example - and I am using examples because awards

have not been made in many respects - might lead to

one of a.number of ,results .in practice. Depending

on the nature of the award, it might have different consequences. But at this stage of proceeding, the

only thing one can focus on is the potential - the

only thing one knows about is what would or would

not be the legal consequence. What might be the

practical consequence might depend upon the nature

of the award. If it was a general award, if it

purported to apply to everyone, then the practical

consequence might be as Your Honour suggests. If

it was a different form of award, although it might

be said to have offended otherwise, it might not.

It would be strange, to say the least, if the

first application of the Melbourne Corporation

principle arose in a context where the law in
question did not impose a legal obligation.	I do
not think I can put it any higher than that,

Your Honour. It is possible to say, "Well, look at

the practical effects," and we accept that.

BRENNAN J: That would not be quite accurate, would it? It

would impose an obligation which was not

susceptible of enforcement.

MR KENZIE:  I am sorry, that is quite so, because in the

ARU case the Court was careful to say that although

there were the difficulties of enforcement that

were adverted to, it was none the less a perfectly

valid exercise of the judicial power of the

Commonwealth, and gave rise to the appropriate

results of the exercise of that power, and I stand

Unions(4) 234 9/6/94

corrected, Your Honour. But, in any event, the

Court has our submission - it is not our first

submission - but we do say that at the end of the

day if one is talking about applying the Melbourne

Corporation principle then there has to be,

presumably, some justification advanced for

applying it, and there is an ultimate safeguard in

a context where there is no ultimate legal

obligation to meet the requirements or, at least,

there is no enforceable aspect to the award.

Your Honours, we have not heard the State of

Victoria in relation to this, we do not know

whether there is any dispute about any of these

matters, as a matter of law. We have referred to

the legislation which we say is relevant, and we

have identified the Crown Proceedings Act in

paragraph 58 of our submissions. It might be said

that there are alternative sources of available

funds within the meaning of the Commonwealth

legislation, and I should give the Court a

reference for completeness to the Victorian

Appropriation 1993-1994 No 1 Act 1993, Act No 75 of

1993, which relates to the current appropriation

and there is provision for recurrent expenditure,

and wor~s .and services expenditure, that might be

.sa.td to be an al·ternate source.

Our point remains the same that, at the end of

the day, if there be appropriation, if it is under

the Crown Proceedings Act and gives discretion to

the governor, it is discretionary. If it is under

the Appropriations Act and it goes through the
treasurer, it is the exercise of a discretion on

the part of the treasurer and there the matter

rests, in our respectful submission. We do not

otherwise seek to add to our submissions in that

regard, Your Honour.

BRENNAN J:  Mr Kenzie, I just want to raise one other

question with you in relation to enforcement.	If
the practical operation of an award is to require

appropriation in order to satisfy the terms of the

award, is that an operation of a Commonwealth law

which purports to infringe section 106?

MR KENZIE:  The answer to Your Honour's question is, if it

is, then that leads to a similar consequence in

relation to the taxation legislation. I suppose

the answer is the same in both cases, Your Honour.

There is no difference in principle. I know that is not a direct answer to Your Honour's question,

but it would call for a re-evaluation of the
taxation cases, if that be so, Your Honour.

Now, could I deal as briefly as I can with our submissions in relation to section 106 and submit

Unions(4) 235 9/6/94

these things, Your Honours. Section 106 was

referred to in the State Public Services Federation

case, and by Your Honour Justice McHugh earlier in

these proceedings, as well as by Justice Dixon in
the ARU case, as possibly being relevant to an

understanding of the extent of a federal power.

Earlier in these proceedings Your Honour

Justice McHugh referred to at least four possible

ways in which solutions might be discovered.

In these proceedings, it appears to us that

the South Australian submissions seem to be in
general accord with the approach of the respondent
unions, as to section 106, in recognizing that the

thrust of section 106 is within the Melbourne

Corporation principle. That approach is

consistent, we do respectfully submit, with the

approach of Your Honours Justice Deane and Toohey

in Leeth's case.

Other submissions have been made which tend to suggest that perhaps section 106 might more closely

mirror the Melbourne Corporation principle but,

subject to some submissions which we want to make

about Tracey; Ex parte Ryan, it does not appear to
.have.been suggested that-there are aspects of

s·ection 106 which are wider in their operation than

the Melbourne Corporation principle, but I will

come to Tracey; Ex parte Ryan briefly in a moment.

We broadly have four things to say about

section 106: firstly we refer to the loop that is

there because of the commencing words of both

section 106 and section 51, and accepting that the

Port MacDonnell Fishermen's case, referred to in paragraph 62 of our submissions, was, on one

analysis, singular because of the nature of the

power in section 5l(xxxviii), none the less, there

are pronouncements of members of this Court which

are supportive of our fist contention that

section 106 is to be read as subject to relevant

parts of section 51, and we concede that there are

things that can be said about section 5l(xxxviii)

that might not be able to be said about other

aspects of section 51, and we have referred to the

relevant page in the Port MacDonnell case, where
those things were said. But, none the less, we

have referred on page 49 of our submissions to

those judgments which are supportive of our general

submission, which is that section 106 is,

notwithstanding the loop, to be read subject to

section 51. We call in aid, not only the passage

which we have set out in full from

Chief Justice Latham's judgment in the	First Uniform Tax case on the top of page 49, where
he expressly and generally said that section 106
was to be read subject to Commonwealth power. I do

Unions(4) 236 9/6/94

not read the passage, but we have set it out in

full there.

We also refer to like comments in Barger's

case, the Seas and Submerged Lands case, in 1975 in

the judgment of the Chief Justice and, in support

of that, we have given Your Honours a reference to

the Melbourne Convention Debates which related to
the introduction of section 106, and without going

to that page of the debates at this stage, it is

quite apparent, from a reading of those debates,

that when section 106 was introduced it was

introduced in a context in which it was generally

assumed that the interpretation of the Constitution

would not be affected by the introduction of

section 106.

If Your Honours have the relevant page of the debates, we have referred to page 645 and in

column 1 of that page Mr Trenwith says:

If this clause were not in the Bill at all, would not the Constitution still remain the

same?

MR BARTON-I am not quite.sure of that, and

there are a great many people who, reading a

Federal Constitution, are apt to call out, as we constantly hear them crying out in the

colony from which I come - "They want to take

from us our rights and liberties under our

Constitution, and give us nothing back." That is to say, there is a considerable demand for an express declaration on the face of the Federal Constitution that the states shall

keep their Constitutions, and also have power
to alter them if they want to do so.

So the circumstances in which 106 was introduced were not circumstances suggestive of a further

grant of power or of an intrusion into what

otherwise would be valid areas of federal law, but	to the contrary, and that approach has the support
of those members of the court that we have referred
to on page 49. So that is the first thing we have
to say about section 106.

Now, the learned Solicitor-General for

New South Wales did hand to the Court yesterday an article by - I hope I do not do him a disservice -

Mr Gilbert on Federal Constitutional Guarantees of the States, and in the interest of pressing on

Your Honours the submission that the Court would

proceed carefully in relation to offerings such as

this, may we direct your attention to a couple of

aspects of the article. Page 353 of the article,

at the top of the page, the author says that:

Unions(4) 237 9/6/94

the interpretations of "State Constitution"

discussed so far are, without exception, drawn

from cases in which section 106 was not in

issue. The section has been directly raised

in few cases in the High Court, and in only

one of those - Stuart-Robertson v Lloyd - was

the question of the definition of "State

Constitution" considered.

I have not come to this yet, but in our next

paragraph of our submissions the Court will see

that that is simply wrong; that this issue was

directly considered in the context of section 106

by some members of the Court in McCawley's case and

we have set out the passages in full.

Secondly, if the Court would be good enough to

go to page 361 of that article in the second column

at about point 7 on the page, the author says:

So much for possible interpretations.

One must next ask: what do the cases say? One

is met with the unfortunate fact that

section 106 has scarcely featured in decisions

of the High Court; indeed there.would seem .to

.be .only two cases. in. which ~.section 106 has

received some (not very substantial) mention:

ARU v Victorian Railways Commissioners and

Stuart-Robertson v Lloyd.

Now, Your Honours will immediately perceive that

the author has proceeded without regard to the

cases that we have referred to in our submissions

and rely on, namely the First Uniform Tax case,

Barger's case and the Seas and Submerged Lands case, all of which were well and truly decided by

the time that this article appeared. So we do

offer that submission by way of a note of caution. In the next paragraph of our submissions, I

simply refer the Court to it, we deal with

McCawley's case in relation to the meaning of the	Constitution in section 106 and which support our
contention that the reference in section 106 to the Constitution is a reference to the Constitution Acts in the sense discussed at page 52 of our
submissions.
The New South Wales Solicitor-General submitted that the reference to the Constitution
had to be understood in more of a conceptual sense,
as a collection of ideas or concepts. We do submit
to the contrary, and we say that the learned
Solicitor-General's submissions do not sit happily
with the closing words of section 106 itself, which
words contemplate the alteration, in the sense of

Unions(4) 238 9/6/94

section 106. amendment, to that thing which is the subject of

The third thing we have said about

section 106, Your Honours, is that it brings into

focus questions of inconsistency and as we submit

in paragraph 69 of our submissions, section 106

involves a limitation on legislative power on the

assumption that is pressed against us and we say

that if that be the assumption the restraint should

be construed in accordance with the meaning given

to the notion of repugnancy in 1900 and there is

some authority which we have referred to which we

say is supportive of that. In other words,

inconsistency, without the benefit of covering the

field, approaches and the like.

It has not been suggested, so far as we are

aware, that any of the awards in existence in this

proceeding involve repugnancy in the sense

contemplated by those authorities, that is direct

inconsistency, a direct inconsistency in the sense

that was discussed in Tracey and Ryan on the basis

that the Constitution included the supreme court

jurisdiction in Tracey and Ryan. So the Court has

our _submissions ,in relation to -,that.

We do make a final submission about Tracey and Ryan, Your Honours. We are obliged to, having

regard to the way in which we have put our

submissions under section 106. Tracey and Ryan, as

the Court will be well aware, involved the defence

forces legislation and provisions in federal

legislation which were designed to prevent double

jeopardy or the risk of subsequent conviction in

circumstances where a defence forces' member had

been dealt with by the federal Defence Forces'

Tribunal.

Your Honours, immediately, one sees, from

Tracey and Ryan, that the interference in terms of

the State activity was an interference to that much

of the jurisdiction of the State supreme court as

was relevant to the subsequent trial of a defence

forces' member.

It was not contended in Tracey; Ex parte Ryan

that there was some interference or inconsistency

with a constitution of a State in the sense

contemplated by Mccawley. In McCawley's case, the
members of the Court to whose judgments we have

drawn attention, drew a clear distinction, one

which appears to have gained the support of the

put them and what were described by some of Privy Council, between the constitutions as we have the Supreme Court Acts.

Unions(4) 239 9/6/94

If that be right, then the question arises,

"How is a federal law that has the effect of

preventing the exercise of that much of the supreme

court's jurisdiction in an important criminal area,

but whatever it may be, an interference attracting

section 106?" We say these things: firstly, the

issues that have been put to the Court here do not

appear to have been put to the Court in Tracey; Ex

parte Ryan, and certainly a reading of the report

will indicate that there was no such debate, and we

are fortified by inquiries that we have made that

what we have put to the Court is correct.

Secondly, if Tracey; Ex parte Ryan is correct,

then it would presumably logically follow that any

interference with the jurisdiction of the supreme

court or a State court would attract the protection

of section 106 regardless of how great that

jurisdiction turns out to be either now or in the future. There is no core judicial functions that

would be protected by such a principle. Either the

jurisdiction of the court is protected or it is

not. There is no basis for looking, in the context of section 106, for lines in the sand such as those

which have been otherwise explored in this c.ase. So we do, with respect, say that if Tracey; Ex

parte Ryan be correct, then it may provide a basis

for saying that in one respect the reach of

section 106 is greater than the Melbourne

Corporation principle because one would have thought that the degree of interference in Tracey;

Ex parte Ryan, that is, the prevention of the State

very defined case, was not such as to attract the supreme court from exercising its jurisdiction in a

Melbourne Corporation principle. But Your Honours

have our submissions. We do say that the matter

was not developed in Tracey; Ex parte Ryan, and so

on, but the success of that submission is not vital

to our submissions as otherwise put.

Your Honours, that leaves only the issue of

interstateness and I can hopefully deal with this

quite briefly. The prosecutor has submitted that

an industrial dispute between a State and its

employees engaged in the performance of the State's

governmental functions cannot form part of an

industrial dispute under Sl(xxxv) and the

submission of the Victorian prosecutor, it is

important to remember, itself depends upon the

maintenance of governmental and non-governmental

functions. The Victorian prosecutors' submission

is this: a State can get involved in a Sl(xxxv)

dispute as long as it is in relation to trading

functions but otherwise it cannot. In our

respectful submission the issue is effectively

foreclosed by the SPSF case again. Could I remind

Unions(4) 240 9/6/94

Your Honours of what appears in 178 CLR 249 and
commencing with the judgment of Your Honour

Justice Toohey at 294 to 295 where there is a

treatment of the question of interstateness. This

is interstateness in the context of the service of

a log which concerns not trading employees, but

public servants. The subject-matters dealt with in

the log do not matter for the present purposes.

Your Honour Justice Toohey said in the middle

of 294:

If, as I have held, the Commission erred

in concluding that there was an industrial

dispute, the question whether there was a

dispute "extending beyond the limits of any
one State" does not arise. Nevertheless, it
is as well to say something about the notion
of "interstateness" ..... since it was dealt

with as a discrete aspect by the Commission -

Then Your Honour referred to the effect of the

amalgamation of the two unions in that case. It is

not necessary to revisit that. At about point 3

on 295 Your Honour says:

The present situation is different but it

·might with equal justification be said that

whether there is an industrial dispute

extending beyond any one State is to be

assessed by reference to the terms of the

constitution of the relevant employee

organization, in this case SPSF, at the time

the Commission reaches its decision. Despite

what was said by counsel for the Queensland

employers, the question is not one of SPSF
being a successor in title •..•. At the time of

the proceedings before the Commission there

was one organization which had constitutional

coverage •••..

Once it is accepted, as it must now be,

that many, if not all, of the employees sought

to be covered by the proposed award are

engaged in an industry, it is hard to resist

the conclusion that there is "common cause"

made between SPSF and the three States in

question. It is true that the log of claims
cannot be treated as a demand for a national

public service award as SPSF would have it,
primarily because only three States are

involved. But the relationship between the

employers in those States and the various

categories of employees employed by the States

and their instrumentalities and the

constitutional coverage of SPSF establish a

sufficient degree of interstateness to satisfy

Unions(4) 241 9/6/94

that element of an industrial dispute within

the meaning of the Act.

Those words were picked up in the judgment of and Gaudron at page 271 point 5 where Your Honours

said:

It is, however, appropriate that we indicate

our agreement with what has been written by

Toohey Jin relation to the other arguments

advanced in support of their claim for relief.

In particular, we agree with what His Honour

has written on the question of interstateness

and the contention that the log of claims in

the SPSF matters sought to impose a special

burden -

on three States. So we do rely on those passages.

We say that the other fundamental flaw in the

Victorian prosecutors' submission is that it

attempts again to draw a distinction between

trading and non-trading activities for

constitutional purposes and, as we have said, that

is not appropriate, in our submission.

Next we have referred to the judgment of the

Court in the Aberdeen Beef case on page 56 of our

submissions. I will not trouble the Court with the

passages other than a reminder that in Your Honour

Justice McHugh's judgment which we have extracted

relevantly at page 57 of our submissions, this

appears at about point 8:

Obviously, a wide range of factors is or can be relevant in determining whether employers

have such a community of interest in resisting
the demands of their employees that they can

be regarded as being engaged in a single

industrial dispute. Relevant factors may

include the presence or absence of a common

industry or calling, but presence or absence

of competition between the employers, the
presence or absence of common demands and the

presence or absence of an economic connection

between the employment conditions of the

employees. Similarity or dissimilarity of

work is also a relevant factor as is

similarity or dissimilarity of skill and the

ease with which employees can be transferred
from one class of work to another.

They are not exhaustive. Obviously, evidence in

relation to all of those matters is not in the

proceedings before the Court, nor was it, in

relation to all of those matters, in the

proceedings before the Commission, but there is

Unions(4) 242 9/6/94

certainly evidence of the matters to which

Justice Toohey was referring in SPSF, namely that there was a demand made by an organization

representative of these groups and it was made on

an interstate basis and was appropriately regarded

as founding an interstate industrial dispute.

So that, for those reasons, we do submit that

the attack made on the lack of interstateness is

misconceived. If there be in subsequent

proceedings, if it is desired on the part of the

prosecutors to submit that there are some

particular groups, for example, at a senior

executive level, which are not relevantly mirrored

interstate because their duties are singular, their

relationship with the State is singular or unique,

can apply to have a dispute varied to

then those are submissions that can be made by the prosecutor

exclude persons that it says on evidence are

unique, and the debate that Your Honour

Justice Brennan adverted to in SPSF can be had.

They are our submissions, if it please the Court.

MASON CJ:	Thank you, Mr Kenzie •. Mr Shaw.
MR GRAHAM:	If the Court pleases, I wonder if I might

intervene for a moment to seek to deal with a
housekeeping matter that we were not able to deal

with at 10.15 this morning for lack of having

completed the document we wish to place before the

Court. Would that be convenient?

MASON CJ: Yes.

MR GRAHAM:	If I could just ask the Court to look at the booklet of appendices that we gave to the Court
which had four tabs to it setting out the minutes
of the orders that we sought. The Court will see,
starting with the orders sought in matter Mll,
there are some words appearing on page 2 in bold
type.  Now the reason why that is so appears in a
note at the end of the document under tab 4, at the bottom of page 9. The orders that are identified
in bold type in the various matters are not referred to in either the order nisi in those cases
or the notice of motion because they are orders of
the Commission which post-date the proceedings as
initiated in this Court.
Generally speaking, this matter is the subject of appropriate documentation in the application
books. It came to our attention last night, however, that in four of the matters the subsequent
awards of the Commission, which are referred to in

Unions(4) 243 9/6/94

the words in bold type, are not in the application

books. We would seek to hand to the Court a

document which provides those subsequent awards so

that they may be before the Court.

The matter is of particular significance in

matter Mll because there was an award made by the

Commission on 23 December 1993 in relation to persons employed in the health and welfare services

area which may be of importance so far as my

learned friend Mr North's submissions are

concerned. We apologize to the Court for that

oversight, and we would seek to remedy it in the

way which I propose. If I could hand those

documents to the Court, but I do not wish to say

any more about them.

MASON CJ: Thank you, Mr Solicitor. Mr North, I should have

called on you before Mr Shaw.

MR GRAHAM:  I had thought that you were going to call upon

Mr North at that stage, Your Honour, that is why I

intervened then.

MR NORTH:  If Your Honour pleases, in answer to the States'

.contention that,the two, and I think now three,

interim-awards single out Victoria and, thereby,

discriminate unjustifiably against Victoria, we
contend that the awards apply to Victoria by reason

solely of the fact that the particular situation

within the context of the overall disputes arose in

Victoria alone. We contend, therefore, that there

is no real discrimination in those circumstances,

and we have set out on pages 63 to 65 the

submissions we make in respect of this point

together with the authorities upon which we rely.

One way, in our submission, of assessing

whether Victoria has been singled out in a relevant

sense is to look at the reasons of the Industrial

Relations Commission for making the awards. We

desire to supplement the written submissions now by

providing references to those reasons which show

that the Commission made the awards for the reason,

and with the object of dealing with a particular

situation in Victoria, and did not aim at the

States in the sense that the authorities use that

term.

The first references relate to Mll and if I

might give the Court reference to the application

book without going to it but briefly summarize what

is there. In relation to the interim award made on

14 December 1992, the Commission made specific

findings which are set out at pages 94 and 95 and

whilst we ask the Court to have regard to the

entirety of the reasons, the findings set out at 94

Unions(4) 244 9/6/94

to 95 are a convenient short summary of the

Commission's approach.

What they disclose is that the Commission, at

the end of 1992, was concerned primarily with two

overriding factors; one was the circumstances in

which the voluntary redundancy packages were

offered. It considered witnesses' evidence, it

considered a fairly comprehensive factual

examination at the time of the circumstances in

which real life employees in the health area were

asked to volunteer to become redundant. It made

findings about the atmosphere in the workplace, the

amount of time that was given to consider the

acceptance of the package, the information which

the employees had been given and came to a general

conclusion that there were unsatisfactory aspects

of the way in which these packages had been put to

the employees.

The second overriding consideration with which

it was concerned and about which it made findings

as set out at those pages was the fundamental

change to the employment terms of health workers at

the time, a change from statutory permanency to a

situat.ion in which by a .new Act of Parliament the .ri.ght was ·given to a departmental head to dismiss

at will.

It was, in other words, with respect to the

particular situation appertaining to specified

employees at the time to which the interim award
was moulded and directed and it is far, we say,

away from a set of reasons for decisions which

select out the State for particular treatment. The

Commission was concerned with a particular

situation, the details of it, the way in which it

applied to individual employees and not with an

aiming at, a singling out or an imposition of a

special burden on Victoria.

In relation to the consent award which

followed the 14 December award, that was, of

course, made by consent so there are no decisions

to demonstrate the position in relation to it.

BRENNAN J: But how do you distinguish this from the

QEC case?

MR NORTH: Well, for a start, Your Honour, this is an award

rather than a statute that is under consideration.

Here the Commission was concerned with a very

specific particular situation, and that falls, we

say, Your Honour, within what Your Honour said in

the QEC case, that - - -

BRENNAN J: In dissent.

Unions(4) 245 9/6/94

MR NORTH: 

Yes, Your Honour, but in principle Your Honour

was, in our submission, when Your Honour said, as
we have set out at page 65, that formal

discrimination might spell invalidity, that is to

say different treatment, but if it is, as

Your Honour put it, calculated to provide for a

particular circumstance affecting the State alone,
it will not be relevant discrimination. That is no
different, with respect, from the position of the

majority which, to use Chief Justice Gibbs'

formulation, was - and we set this out at page 64 - "Obviously enough, laws may distinguish between the

different needs of the various States".

Now, I mean, no award could go to the other

States which had been logged, because the
particular situation had not arisen there, although

a claim in relation to the regulation of

termination had gone to a number of both States and

private employers. So, Your Honour, in our

submission, the point of distinction with the

Queensland Electricity case is that it cannot be

said within the authorities that there was any

singling out of Victoria for treatment by reason of

it being a State; it was dealt with because it was

an.employer of.persons who were treated by their

employer in a particular way.

Your Honour Justice Gaudron observed yesterday

in relation to the interim redundancy awards that

they were in an unusual form, not in the ordinary

form often - indeed, which is by now a standard of

the Commission. Can I refer Your Honour to page 97

in the application book in Mll for the explanation.

Deputy President MacBean there says at line 15,

after saying that he has decided to grant the

award:

In coming to this decision, I have concluded that the circumstances are so special and extraordinary to be almost without precedent

and not to act on the evidence, though not

final, would be grossly unfair to those many
employees who now look to the Commission to

provide some degree of fairness and equity in
the difficult circumstances they now find

themselves. If nothing more is achieved in
terms of redundancy, employees will at least

have had the dignity of considering their
future in less stressful circumstances.

DAWSON J: That is not relevant to anything. The fact is

that a State is singled out. Is that not

discrimination?

MR NORTH:  It is singled out, Your Honour, true, but it is

singled out because - - -

Unions(4)	246	9/6/94
DAWSON J:	It does not matter why.	The fact is it is

treated in a way which discriminates against it as

compared to the others.

MR NORTH:  Your Honour, it treats it differently.

DAWSON J: And that is what discrimination is.

MR NORTH: Relevant discrimination, with respect, is not

just different treatment. Your Honour, to use, if

I could, the explanation in Queensland Electricity

given by Chief Justice Mason:

And it may be that action on the part of a

State or its agencies may be of such a kind as

to call for a special exercise of a particular

federal power in circumstances where that

exercise involves no real discrimination

against the State.

"No real discrimination". There cannot be

discrimination - - -

DAWSON J:  I do not understand that in this context. There

is a real discrimination here. Here the State of

Victoria is precluded from doing something that the other States can do.

MR NORTH:  Only because - - -

DAWSON J: It does not matter why; that is the fact.

MR NORTH:  The consequence, Your Honour, of the

interim - - -

DAWSON J:  No doubt the Commission thought it was desirable

and no doubt the State thought it was not.

MR NORTH:  But, Your Honour, what the other States can and

cannot do cannot be the test of discrimination.

DAWSON J:	Why not?
MR NORTH:	Because they can have individual legislative schemes which amongst themselves differ. Some
provide one thing; some the other.

DAWSON J: What they do not have is an award directed to them telling them what they can or cannot do in

this respect.

MR NORTH:  In that sense they are differently treated, yes.

DAWSON J: And there is a discrimination. It may be that in

industrial matters you can discriminate. You can

discriminate on a State basis if you like, but when

you get into the area of constitutional law it is a

Unions(4) 247 9/6/94

different area. It is no good saying that this is

the way the Arbitration Commission works. It is

desirable sometimes to look at things on a State

basis or an individual basis, it may be, but that

is no answer.

MR NORTH:  Your Honour, it is an answer given in Queensland

Electricity - - -

DAWSON J: No, it is not.

MR NORTH:  - - - by reference to the definition of "real discrimination".

DAWSON J: Real discrimination was what happened there, that

is, a choice was removed in relation to one State,
and that is discrimination. Here a choice is
removed by the award in relation to one State.

What is the difference?

MR NORTH:  Your Honour, if that is so, then the mere

exposure of Victoria to award governance is

discrimination.

DAWSON J: No, not at all, not in this area.

.MR NORTH:  M±ght I give the Court references in relation to

the same matter in respect of MS in the teachers'

case.

DEANE J:	Mr North, one thing that it seems to me may be of some relevance is, contrary to what Justice Dawson
was suggesting to you, and that is the absence of any discrimination in Mr MacBean's decision in that
he treats the State as if it were just any other
company, and as if the facts that it had a parliament and a government and so on were simply
irrelevant.

MR NORTH: Precisely, Your Honour, and indeed that is more

obviously shown in the teachers' matter in MS.

DEANE J:  I do not think what I am putting to you was

helpful.

MR NORTH: With respect, Your Honour, I took it this way:

that if one treats all employers equally - - -

DEANE J:  But that may well be a good argument in terms of

answering the discrimination aspect of Melbourne

Corporation, but is it an unhelpful answer in terms

of the general thesis of Melbourne Corporation when

you have a government instrumentality in an area

such as this treating a State as if it is

Parliament, government and so on, were simply to be

equated with the board of direc-tors of any private

company or so on.

Unions(4) 248 9/6/94

MR NORTH:  Yes well, Your Honour, I suppose that gets back

to the matters previously raised with Mr Kenzie.

DEANE J: Yes, I am moving you out of your field of

operation perhaps.

MR NORTH: Yes, I am concerned to remain within the field of

operation of discrimination in the sense that the
decisions do in fact, as Your Honour rightly says,

treat the States in no different position to any other employer, and we then rely on the QEC case

for - - -

DEANE J:  I follow what you are saying, and time constraints

I think mean that I should be encouraging you

rather than diverting you from that approach.

MR NORTH:  Yes. Your Honour, in relation to the teachers

might I then say this, that we do seek to refer the

Court to a number of references demonstrating that

there was here a particular situation where

intervention was needed and it was done on the

basis of dealing with employees' immediate

concerns, quite without regard to the status of the
employer, and if I can just give the Court

references to pages in the appeal book in MS -	and
I·will not go to these - page 88 line 20 makes
findings about the adverse effect on teachers of taking the voluntary departure package. Page 89

line 34 and page 95 line 9 about the general level

of pressure, stress, tension and confusion and

page 91 at line 35 the element of unfairness in the

system adopted.

DAWSON J: This was an evident attempt to put what was

governmental policy at the time.

MR NORTH:  That is, of course, a way of looking at it,

Your Honour. But what it perhaps was seen by the

Commission as doing was to provide a holding

position, a true interim award, to allow the

Commission, in the exercise of what it regarded as

jurisdiction, to settle the interstate industrial

dispute by looking to the conditions and the

fairness or otherwise of them and that, in its

conception, was just exercising its ordinary

jurisdiction.

DAWSON J:  But it is still is an attempt to cut across the

implementation of a policy determined by an elected

government; this is where the discriminatory aspect

comes in.

MR NORTH:	No doubt, Your Honour, that is a way that it can be put. The constitutional issue has been
agitated, Your Honour, but in determining whether
the State was singled out specially for

Unions(4) 249 9/6/94

discriminatory treatment or, on the other hand,

whether - - -

DAWSON J:  I am taking you over old ground.

MR NORTH: If Your Honour pleases.

Now, the only other matter, Your Honours, I would seek to put is to correct the record by

announcing my appearance at this late stage in M12

with MR R.W. HINKLEY for the Health Services Union

of Australia; I omitted to do that. (instructed by

Maurice Blackburn & Co)

In relation to this point, Your Honours, of

going to the reasons of decision for the interim

awards, can we say that the material that my

learned friend, the Solicitor-General for Victoria,

has just produced, that is the third interim award

and in the health area and in a number of others, and the affidavits that accompany them, of course

have just been produced. We do not accept the

factual correctness of the affidavits and that is

because we simply have not had time to carefully
look at them, although, in the short time, we have
been able to identify some_factu~l:errors.

We would also see it as relevant that the

reasons for decision of the Commission, in relation
to each of the interim awards that were made, are
before the Court for the reason that I have just
put, that we say there is point in looking at them

in assessing whether there has been relevant

discrimination, and I understand that efforts will

be made to produce those to the Court shortly after

lunch.

MASON CJ:  Is it not possible for the parties to agree on

whether it is right or wrong?

MR NORTH:  Your Honour, we are happy to engage in that

exercise, it is only - - -

MASON CJ: Perhaps that is the best way to do it.
MR NORTH: Yes, if Your Honour pleases.

MASON CJ: Thank you, Mr North. Mr Shaw.

MR SHAW: If the Court pleases. Your Honours, we have filed

some short supplementary written submissions in

matter M30. As Mr Kenzie began by saying, his

submissions are also filed in that matter.

Your Honours, we rely upon the submissions filed.

we are content, with one exception, to adopt

Mr Kenzies' submissions as our own. Your Honours,

the only other matter I wish to advert to is to

Union(4) 250 9/6/94

give the Court one reference. It is a further

reference to Re Lee, and it is in this context,

Your Honours: our case is one where it concerns

not an award or a log of claims but an extension of

eligibility rules under section 204 of the
Industrial Relations Act.

So, in our submission, we are a long way from

any impairment of State rights by way of award
making processes. The reference we wanted to give

is to a discussion of registration of organizations

in this same constitutional context, and it is

Re Lee, 160 CLR 430, and to a passage at the bottom

of page 450 going over to the top of 451; this is

in the joint judgment of Your Honour Justice Mason,

Justice Brennan, Justice Deane. I do not think it

is necessary for me to read it but, we would

submit, that that passage, directed as it is to the

registration process of organizations in this same

constitutional context, is applicable to show the lack of any constitutional difficulty or the lack of any vice when all that has happened is the

approval of an extension of an eligibility rule

pursuant to section 204.

BRENNAN J:	Do you say that you h·ave, by·the ·making of a demand on more than one State government, the
capacity to generate an interstate industrial dispute with respect to the terms and conditions of employment of police officers of the State?

MR SHAW:  We would say that, Your Honour, yes. Even though

that has not happened, that no such demand has been

made.

BRENNAN J:  Is it relevant to M30 to consider whether that

proposition is valid or not?

MR SHAW: In our submission, no. In our submission it would

be premature because the only statutory power

making powers and their application to State police	actual occasion for the determination of the award-invoked is the one concerned with rules and the
officers has not yet arisen. But, if the court
took a contrary view, we would submit, for all of
the reasons that Mr Kenzie has advanced, and that
award-making power would be present.

BRENNAN J: It may be that there are special considerations

in relation to police officers in the sense that

they are the enforcement arm of government.

MR SHAW:  Yes. Our written submissions are intended to deny

any such special quality or mystique attaching to

the police forces, Your Honour, as the Court would

appreciate and, in our submission, the only basis

upon which some special attention or some

Unions(4) 251 9/6/94

differentiation could be validly directed at police

forces would be the essential functions of
government reasoning and, in our submission, in the

light of the strength of the passage at page 452 in

Re Lee, that essential functions of government

distinction is not one which, in our respectful

submission, the Court would apply at this point in

history.

That apart, there may be other special factors

attaching to police officers, but those matters which are raised in the rule nisi are not being pressed in the current hearing, and paragraph 2 of

the Victorian Government's written submissions

directed to M30 makes it clear the limited nature

of the argument that the prosecutor is directing in

this particular hearing. So, in our submission,

there is nothing in terms of impairing the

functions of the States, there is nothing in the

constitutional issues which are presently being

argued which put police in any separate category

from other servants of the Crown.	If the Court
pleases.

GAUDRON J: 

Mr Shaw, would I be right in thinking that the

ultimate question is whether under section 188(1)
of the Industrial Relations Act you have members

who are capable of being engaged in an industrial

dispute as that is defined again by that Act?

MR SHAW: Yes, I accept that, Your Honour. I should say

that in relation to the organization, it would not

be disputed that at least in relation to federal

police officers the organization meets that test.

It has had a long-standing registration, and the

Industrial Relations Act expressly deals with

federal police officers, and it would not be

disputed that it is validly registered in respect
of at least one class, although we would say more

than one class, of persons who can be the subject

of an interstate industrial dispute.

GAUDRON J: What is the precise legal question? I have

looked only at the registration provision. What

is, in fact, the precise legal question that arises

on your application to amend ••••. eligibility rule?

MR SHAW:  That requires looking at section 204, Your Honour.

I think really there is not articulated in that

section any relevant legal test, any legal test

which arises here, but I think one would accept

that the organization would need to remain an

organization which met the description of

is relevant, but the organization would need

section 188 as Your Honour began by putting to me. which

to remain one which meets the description of

Unions(4) 252 9/6/94

section 188. In our submission, it does that. If

the Court pleases.

GAUDRON J: Thank you.

MASON CJ: Thank you, Mr Shaw. Mr Bell.

MR BELL:  The Court has my written submission also. I adopt

the submissions made by my learned friend,

Mr Kenzie, with the exception of the argument he

put in relation to enforcement. I do not wish to

add any more than paragraph 1 of my submission does

on that subject. In relation, however, to the

validity of section lll(l)(a) of the Industrial

Relations Act 1988, I do wish to supplement my

written submissions and to respond to some of the

additional points made by the written outline filed

on behalf of Victoria yesterday.

To do that, can I dwell for a moment on the

text of section lll(l)(a) and remind the Court that

it is but one section of three introduced to amend

the Industrial Relations Act relevantly when the

Industrial Relations (Legislation Amendment) Act

1992 (No 2) was introduced. The first amendment was to introduce a new object into that Act, the

object of facilitating access to conciliation and

arbitration.

The second was to prevent discontinuance of

dispute proceedings on grounds of the availability of State arbitration unless that State arbitration included a power of compulsory arbitration. The

third was to prevent discontinuance of dispute

proceedings on grounds of the public interest

unless compulsory arbitration was available at the

State level.

These provisions left entirely intact the substantive power of the Commission under

section 90 to have regard, indeed it is obliged to

have regard, to the public interest in exercising

its ordinary functions, and it is apparent from the

amendments that they were procedural in focus and

not substantive, and were directed to particular

proceedings, indeed, rather than to the exercise of
substantive award making functions or the exercise

of other functions by the Commission. Therefore,

any focus on section lll(l)(a) would be misplaced

if it were not to have regard to the relationship
between the other two provisions that were
introduced at the same time.

Secondly, in relation to identifying the proper operation of section lll(l)(g) it is

important to observe that, neither as it was nor as

it does, does section lll(l)(g) confer the right to

Unions(4) 253 9/6/94

make an application to proceedings on some parties

but not on others. The actual operation of the
provision was one that might be triggered by an

application by any party, say a union or an

employer, just as any party can notify a dispute under section 99. In respect, therefore, of the

manner in which the power to discontinue is

triggered there is no discrimination as between the

parties upon whom that right is conferred.

Moreover, the Commission itself might exercise

or trigger the exercise of the discontinuance power

because under section 33(a) of the Act the

Commission can exercise any of its powers under its

own motion. Therefore, I would suggest, as the

Victorian submission does, that there is any

particular discrimination on one party as against

another, say an employer - in that submission - is

not supportable by reference to the text of the

provision itself.

Two things emerge from an analysis of the text

of the provisions which are as follows: firstly,
the amendments operate generally; no particular

State; no particular employer; no particular union; no party to the dispute is .singl.ed out for special

treatment. The provision may therefore be
favourably distinguished from the provisions at

issue in the QEC case. The second thing that

emerges is that the provisions are procedural in

nature. They alter the procedural machinery by

which dispute proceedings are dealt with in order

to meet the requirements of particular proceedings

defined by reference to objective indicia, and

those objective indicia are, in particular, the

definition of "compulsory arbitration", to be found

in section 111(4).

It is therefore my submission that the

amendments, and more specifically,

section lll(l)(a), fall squarely into the category

of the general law affecting a particular State

only as it affects other relevant parties. Such

law being permissible according to the principles

enunciated in such cases as QEC ana more latterly

in SPSF and also the other cases to which I refer

in paragraph 7 and paragraph 12 of my outline.

The argument put by Victoria descends below

that argument in this respect: Victoria also

submits that section lll(l)(a) is objectionable,

even though general in terms, because it is in

reality aimed at Victoria or, in the alternative,

it submits, aimed at Victoria and any State

enacting legislation like Victoria's industrial

legislation.

Unions(4) 254 9/6/94

Now, in my submission, the answer to that

submission lies in the crucial constitutional

distinction between a law which is aimed at a State

and a law which is aimed at a legitimate federal

issue arising in that State. My submission is that

a law is not objectionable by reason of being aimed

at, in the sense of singling out, a State because

the need to address a legitimate federal issue is

made manifest or created by developments in that

State. I submit that the corollary of that

proposition is that it is constitutionally

permissible for a federal Parliament to respond to

developments occurring in a particular State

particularly, I might add, in relation to

historically significant constitutional issues like

compulsory arbitration, provided that the means

adopted are appropriate, that is to say, objective
and applying not partially, as to which the tests

enunciated in QEC are determinative.

Now, if that submission be right, it is

necessary to identify two things: firstly, the

legitimate federal issue and secondly, the

appropriate means adopted to address that issue,

though the issue occurred in only one State, so the

argument goes. In my submission, the legitimate

federal issue at which the amendments are aimed and

which the Victorians say arose only in Victoria,

are the implications for the procedures of the

Commission and the prompt resolution of industrial

disputes affecting the national interest of the

fact that compulsory arbitration might not be

available in a particular State.

The means adopted to address that issue were

to alter the general procedural machinery in the

Act by reference to the indicia whether or not

compulsory arbitration existed, as I have

submitted. Therefore this legislation does no more than (a) address a legitimate federal issue arising

or made manifest in a State; (b) in a manner

appropriate to the addressing of such an issue. Lastly, Victoria argues that the impact, that

is to say, the actual affect of section lll(l)(a)

unions.

is discriminatory, in that the burden of the law

falls unequally upon Victoria and it says its

Now this argument, in my submission, is

misconceived in that it ignores the operation of

section lll(l)(a) in so far as it applies in

respect of all parties, not just Victoria as an

employer or Victorian employers but accepting for a

moment that the burden might fall on employers, my

Unions(4) 255 9/6/94

submission is the legislation is not

discriminatory.

The reason I submit that is that if the

legitimate federal issue is defined in terms of the
implications for federal regulation of the absence

of State compulsory arbitration, then it is

logically inevitable that a rational and

proportionate solution or, to use the words of

Justices Deane and Toohey in Leeth's case, a
"rational and relevant solution" will impact upon

that State or those States where such arbitration

is absent because the legitimate issue is defined

in terms of the absence of that kind of arbitration

in that State.

Secondly, I would submit that it would have

been equally discriminatory to leave

section lll(l)(g) untouched after the amendments

were introduced, or the amendments proposed to be

introduced in Victoria, were made manifest.	And
that is that upon the introduction of those

amendments section lll(l)(g) would have operated

universally in respect of all parties to disputes

in Australia, whether or not those parties had

access to compulsory arbitration in their relevant

State. Thus the change of scene in Victoria would

have introduced an inquality of treatment in the

actual operation of the section in the case of

Victorian parties, as compared with parties in

other States or, indeed, in relation to parties in

any States where compulsory arbitration was

removed.

I therefore submit that there is no

discriminatory impact and the contrary is true.

However, I have given an example in my outline of

argument of how the amendments do apply in other

States, and I have referred to the West Australian

example as such a one. I have made submissions, in my outline of

argument, in relation to Victoria's submissions

concerning the logical connection between public

interest and the lack of compulsory arbitration,

and I do not desire to add to what I say in my

submissions in relation to that subject. If the

Court pleases, they are my submissions.

MASON CJ:  Thank you, Mr Bell. Mr Rose. Mr Rose, can you

tell me how long it will take to present your

argument?

MR ROSE:  Not more, I think, Your Honour, than 50 minutes.

Unions(4) 256 9/6/94

MASON CJ: In those circumstances, we will adjourn

until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.14 PM:

MASON CJ: Yes, Mr Rose.

MR ROSE:  If the Court pleases, Your Honours have copies of

our written submissions and I do not propose to

repeat anything that is in those. I do wish to

make some specific submissions on points that have

arisen out of submissions made during the hearing

and also to make some elaboration, but hopefully

without any repetition, of a couple of points that

are in the written submissions.

May I begin with a preliminary point in

relation to the submission by my friend, Mr Kenzie,

the written submissions of the union contained in

paragraphs 52 to 63, concerning appropriations.

The Commonwealth's position, in that respect, is

that we do not suggest that because an

appropriation is essential before a State can make

a payment, that the Commonwealth imposition of a

legal liability on the State is therefore

constitutionally unobjectionable. It would be

unthinkable for the Commonwealth not to take every

step it could to meet a judgment debt after all

avenues of appeals had been closed.

The same should, in our respectful submission,

be expected of the States. It is simply an aspect

of the rule of law. So, for the Commonwealth it

the question of the validity of the imposition of
the legal liability without regard to those aspects

of appropriations that my friend raised.

Secondly, if the Court pleases, may I make a

brief submission concerning the position of

appropriations in relation to the are several enforcement provisions. Section 179,

if I could take the Court to it, provides a cause

of action for wages due under an "award or order".

Constitutionally, in our submission, it poses

no problems in relation to appropriations because

if an action for wages resulted in a judgment

against the State, under the present law it could

Unions(4) 257 9/6/94

not be enforced by execution. My friend,

Mr Kenzie, has already made reference to section 65

of the Commonwealth Judiciary Act. The only remedy

would be to produce a certificate of the judgment

to the State Treasurer, who would be required by

section 66 of the Judiciary Act to "satisfy the

judgment out of moneys legally available" which, of

course, means moneys for which there is an existing

appropriation.

If Commonwealth law purported to go further,

and in some of the hypothetical examples that have
been mentioned purported, for example, to require a

State to appropriate moneys, then we would see a

very serious objection under section 106, if no

where else. If the Commonwealth went further and

purported to provide for execution against State
property, then, in our submission, there would be
serious questions depending perhaps upon the nature

of the property that was sought to be seized.

There may be a distinction between purporting to

seize a State Parliament House, for example, at one

extreme, and at the other Commonwealth law

providing for execution against State waste lands,
but it is not necessary for me, in my submission at

this stage, to explore the limits of that

particular difficulty.

But, in our submission, there is a problem

with section 178 of the Industrial Relations Act,
which provides for penalties for breach of an award
or order. In that regard, may I mention the ARU
case - reference has already been made, 44 CLR - to
the judgments of Justice Dixon, and there is a

reference that I will mention in the judgment of

His Honour Justice Starke. At pages 392 to 393

Justice Dixon raises the question whether there are constitutional problems in the imposition of

penalties upon a State for breach of an award, and

Your Honours will see at the end of

Justice Starke's judgment at page 390, the similar

reference to the question of penal sanctions. As we would see it, with respect,

Your Honours, there would be a real problem of

validity in relation to section 178 in relation to
the States if there was no appropriation by the

State of the necessary money to meet the order for

the penalty. There would be a problem with regard
to the State, but there would be a reading down

exercise to be undertaken which is now facilitated

by the recently inserted section 7A of the Act.

This proposition about penalties and so on is

a general one. It is not limited, of course, to

the Industrial Relations Act. It would apply, for example, to any Commonwealth penalty or offence or

Unions(4) 258 9/6/94

other sanction for failure to pay money under a

Commonwealth law. So if, for example, in the

Pay-roll Tax case the Commonwealth had done more

than impose a legal liability to pay the pay-roll
tax, if it had gone to the further stage of

imposing a penalty for non-payment of the tax, and

if the State was unable to pay because it lacked an

appropriation, then that penalty provision would,
in our submission, probably be ineffective against

the State.

Similarly, if I can, with respect, explore it

just a little further, an order requiring payment,

an order in the nature of a mandatory injunction,

for example, could not be enforced against the

State Crown servant, to use a happily anachronistic metaphor, "to chop off a State Crown servant's

head", for non-payment of non-appropriated moneys

would be a means of seeking to compel the State to

appropriate moneys, which we accept the State

probably cannot do.

If I could turn now, with respect,

Your Honours, to the question of general laws and

awards, leaving until later the question of awards

limited to States or to a particular State,

focusing at this stage on general laws and leading

in from the proposition that Your Honour

Justice Dawson put at an early stage in the

hearing, with respect, the correct proposition that

a general law or award may discriminate if it

treats relevantly unlike people in the same way.

It was suggested that a general award applying

to States and other employers alike would

discriminate against the States because it would

treat in the same way two classes that are

fundamentally unlike in that they suffer very

different kinds of consequences. But in my

respectful submission, the fact that one suffers

different consequences from the other does not

necessarily mean that there is discrimination. In

my submission, there is discrimination only if the	consequences are more onerous for one than the
other. That seems, in my submission, to be a very
difficult test to apply if one approaches this
through the concept of general laws as
discriminatory in some applications. Although, for
example, a State will suffer different consequences
perhaps amounting to inability to exercise
particular State powers, there are real problems in
deciding whether this is more severe rather than merely different in kind from the consequences
suffered by private employers who might be put out
of business in an extreme case.

Unions(4) 259 9/6/94

So, in our submission, the discrimination

approach involves some complex difficulties in so

far as it involves seeking out and evaluating

differences and similarities. It does seem

unnecessary, too, because even if one did conclude

on some basis that the impact on a State was

comparable with that on private employers, in our submission, one needs to ask: why should it save

the Commonwealth law if there is a substantial

impediment to the State?

That brings me to the question, "What are the

alternatives to a discrimination approach to the

application of general industrial relations laws?"

We have rejected, in our written submissions, tests that have been suggested such as administrative

services of the State, the South Australian

suggestion that the class of services rendered to

government, as compared with services for the

public is the protected class that is completely

immunized. There was also at one stage a

suggestion that there be a test of cumulative

effect. So that if award liabilities have become

so burdensome as to impair the capacity of the

State to operate, or if there are so many awards

made at once as to have that effect. That seems to

imply, for example, as I think it was suggested by

one of Your Honours, that the first 20 awards might

be valid but not the 21st. That does seem, in my

respectful submission, to be a plainly unviable

test.

My learned friend, the Solicitor-General for Victoria, suggested another test of

comprehensiveness, and that seemed to be largely

put on the basis that awards dealing

comprehensively with terms and conditions of State

public servants is all the greater burden. But, in

my submission, that too is not a satisfactory test

for distinguishing the valid from the invalid

because awards that are much less than

comprehensive could well be burdensome to such an

extent - as I will be explaining later - as to

infringe the .Melbourne Corporation principle.

Also the objection to a comprehensive award was, as I understood the submissions, put on the

basis that the mere fact of transfer to a

Commonwealth regime would be enough, given that the

State would no longer be able to legislate contrary

to the Commonwealth award. That transfer to a

Commonwealth regime would be equally true of

non-comprehensive awards.	So in itself it is not a
sufficient criterion.

If I might next, with respect, make a

submission concerning Your Honour Justice Gaudron's

Unions(4) 260 9/6/94

suggestion yesterday that the legislative

incapacity of the State that results from the

transfer to the Commonwealth regime might be an

impairment of State capacity in the Melbourne

Corporation sense. With respect, that, too, does

not seem, in my submission, to be an adequate test

in the sense that impairment of State legislative

capacity also results from any other exercises of

Commonwealth legislative power that have an

overriding effect under section 109. So what is

needed is a criterion that is applicable here.

But the notion of the comprehensive transfer to a Commonwealth regime does indicate a possible

approach, one that emerges also from some questions

asked by Your Honour Justice McHugh. A

comprehensive log of claims, such as those here,

might be characterized not as a series of genuine

present claims but, rather, as a means of bringing

the Union under the Commonwealth industrial

relations system for the purpose of the future

treatment by the Commonwealth of actual disputes.

· Now, if that description is correct, the vice,

if such it be, is that it is not an industrial

dispute. The reason is not a constitutional one.

It is the reason given in a passage in the SPSF

case, 178 CLR. If I could invite Your Honours'

attention to page 270. It is somewhat analogous,

in my submission, to what is being dealt with there

by the Court at page 270 by Your Honour

the Chief Justice and Your Honours Justices Deane

and Gaudron. There Your Honours point out that:

Thus a claim that the Commission should have

or should exercise general regulatory power,

whether made in terms which predicate an

improvement, a reduction or, even, maintenance

of existing wages and conditions, is not a

claim that gives rise to an industrial dispute

as defined ins 4(1) of the Act.

That is because, as Your Honours have said

immediately above that at the beginning of the

paragraph, that it is not a dispute that comes

within paragraph (b) of the statutory definition.

That is, it is not a dispute about matters

pertaining to the relationship between employers

and employees. It is too remote from the claims

made in an actual present dispute. If that is the

concept which is engaged by the nature of the
claims in this case - and for the purposes of my

submission I do not propose to explore further the

question of whether that really is the correct

characterization - Your Honours, in that paragraph,

in enunciating the principle, of course, say that

the position is well-established, and the cases

Unions(4) 261 9/6/94

Your Honours had in mind were, no doubt, cases such

as the Reg v Portus; Ex parte City of Perth and

Re Ranger Uranium and so on, a well-established

principle.

That is a non-constitutional issue and, as I understand it, in these cases the consequences of

that may be a matter not for me to pursue here, but

if I can just mention that the Industrial Relations Commission has found that industrial disputes exist

in most of the cases we are concerned with, and
that the orders nisi do not challenge on the ground

that the matters fall outside paragraph (b) of the

statutory definition. They are on the grounds that

there is no interstate dispute rather than that
there is no industrial dispute because of coming
outside paragraph (b). Of course, if this is a

defect in the present logs unions, for example,

could avoid it by directing their claims at any

time to the particular points of actual dispute.

Your Honour Justice McHugh raised questions

concerning this comprehensiveness aspect in
connection paper disputes but, in my submission, it

is not limited to paper disputes. The same kinds of claims could conceivably be an issue in actual

disputes where people are on strike over it.	It is
just, perhaps, the ordinary position that it is

easier to make claims by way of paper demands but,

in principle, that characterization, if it be

correct, on the basis I have mentioned, would not

turn on it being a paper dispute. The question, in any case, is the true nature of the claim. That at

least some kinds of federal awards can apply to the

States has long been established in the cases that

have been already canvassed in argument, and I do

not wish to - - -

McHUGH J: 

Mr Rose, what about claims that seek to control

the appointment, promotion and termination of
senior advisers to ministers and people in that

category? 

MR ROSE: Yes, I shall be coming to that, Your Honour.

McHUGH J: Yes.

MR ROSE: If I can just anticipate that, our submission

would be generally along the lines put by my

friend, Mr Kenzie, but it all depends upon the

particular claims being made, the particular

circumstances of the case and I will be submitting

that such cases could well be invalid.

My friend, the Solicitor-General for Victoria,

did seek to distinguish the earlier cases such as
Engineers', ARU, Professional Engineers', Social

Union(4) 262 9/6/94

Welfare Union, on the basis they they did not involve the cumulative or global aspects of the

present cases, but I have submitted that those

criteria are unsatisfactory.

What then, in the search for a viable

criterion, is likely to prove satisfactory. In our

submission, the preferable solution is that the

second limb of the Melbourne Corporation principle

should be held to invalidate a law imposing a

direct and substantial impediment to a State's

acquisition and use of the services needed to

exercise its powers in the way it chooses. So that

if, just for example, it is left with the power to

build a darn, the Commonwealth industrial relations
legislation cannot validly impose a direct and

substantial impediment to its engagement of the

necessary labour and its deployment of the

workforce in the way it chooses.	It all depends
upon the particular circumstances.

If I can illustrate by reference to some

categories of claims, submit first, with respect,

that wages and allowances would be unlikely, as my

friend from South Australia submitted, in the

context of a general system to attract the

principle. The objection, generally speaking,

would be that increased wage awards require extra

expenditure from the State but the State is
operating within the context of the general economy

and must accept, in our submission, increases in

wages in the same way as it would have to accept

increases in prices that might have been directly

imposed by a Commonwealth law fixing minimum

prices for goods which it could do under the
corporations power, in our submission or, if the

State suffers from increases in other inputs that it needs to carry out to exercise its constitutional powers.

If I can just add to what has already been put

to the Court by my friends for the respondents, if

I can just direct the Court's attention to the

Pay-roll Tax case, 122 CLR 392. At the bottom of

page 392 Your Honours will see that Justice Menzies

has been discussing the effect of a payroll tax

that was in issue there.

McHUGH J:  One of the problems of his judgment, particularly

on that page, is that he distinguishes between the

direct operation of law and economic consequences

of it which is not a doctrine that would find much

approval these days.

MR ROSE:  But in our respectful submission, Your Honour, if

payroll tax is still valid, then it has the

consequence that the State must pay out money and,

Unions(4) 263 9/6/94

with an increase in awards, the position is exactly

the same. The point of my drawing the Court's

attention to that particular page at the bottom of

page 392 is that His Honour Justice Menzies makes

exactly the same analogy.	Reading about six lines
from the bottom, he says:

The same sort of consequence follows, if, by

reason of the imposition of a customs duty, a

State has to pay the Commonwealth tax - - -

McHUGH J: Yes, but it is in the context where he is saying:

At this point, I think, the argument for the

State moved from the operation of the laws to

their economic consequence -

and then he gives the various illustrations. It is

not a very satisfactory form of reasoning

constitutionally in 1994.

MR ROSE: Perhaps not, Your Honour, with respect, but the

fact remains that the Court did unanimously uphold

the validity of the payroll tax, and in the course

of the judgment Justice Menzies saw no difference

between imposition of a payroll tax and what I was

about to read:

or if, by reason of an award of the

Commonwealth Conciliation and Arbitration

Commission, a State has to pay its railway employees higher salaries.

So I partly refer to that passage because of the

argument of my friend from South Australia, that

Mr Doyle was endeavouring in his submissions to

isolate the tax power from other powers. My

submission is that when it comes to wages and other

monetary payments under an award, there really is

no satisfactory way of distinguishing the

imposition of a legal liability upon a State for

tax and a liability for these monetary payments

under an award.

There is some reference in The Second Fringe

Benefits Tax case, I think by Your Honour

Justice Brennan, at page 356 where the caveat is

raised - and, in my respectful submission, properly

raised - that even a tax law could be so onerous as

to reach the point where particular activities for

a State became a practical impossibility.	But that
is highly unlikely in the area of industrial

relations where we are postulating at this stage of

my submissions a general law, so we are postulating

award increases that apply generally in the private

sector as well. So the prospect of having to deal

with an award that reached the level of concern to

Unions(4) 264 9/6/94

which Your Honour Justice Brennan's example related

seems extremely remote.

Other terms and conditions of awards are not

likely to impose a substantial impediment upon a

State, for example, the leave entitlements for workers within the limits that we are talking

about, or working conditions, for example, the

example that Your Honour Justice Deane mentioned, I

think, yesterday of an award requiring greater

washing facilities for the workers. Terms like

those in awards will require the State to engage in

some extra expenditure, and no doubt some

administrative organization of the construction of

the extra facilities, and perhaps some minor

disruption in their buildings while that is being

done. But in my submission, those sorts of things

could not in the ordinary circumstances amount to

anything that could be reasonably characterized as

a substantial impediment to the States in doing

what they want to do.

Another example would be terms of an award

prohibiting racial and sex discrimination. That,

of course, is done by direct Commonwealth law. It
need not be done now through awards, if it ever was

done through awards. But there could be no

reasonable doubt, in my submission, about an award

prohibiting an employer, for example, from
dismissing workers on the grounds of their race or
sex or a number of other criteria that are now in

the industrial relations arena; or in relation to

dismissal and retrenchment, if I can come to

Your Honour Justice McHugh's earlier concern,

awards merely imposing fair procedures for

approaching dismissals and retrenchments,

procedures requiring consultation, and so on, as

distinct from procedures which, except perhaps on

an interim basis, which was the subject of my

friend, Mr North's submissions, as distinct from

what I call permanent prohibitions on States

dismissing workers where they find them surplus to

requirements. That, in my submission, would truly

engage the principle that it would be imposing a

substantial impediment.

I should perhaps emphasize that in our submission the test is the nature of the

impediment, not the number of instances in which it

applies. I think some submissions that have been put to the Court have, with respect, seemed to be along the lines that if the award affects a large

number of workers, then it is more likely to be

invalid than if it affects only a small number in

relation to forced retention.

Unions(4) 265 9/6/94

In my submission it is not the numbers that

are of concern. If it was the numbers affecting by

the award it would be a curious criterion indeed

because at the time it is made an award might only

apply to one person; shortly afterwards it might

apply to 100; later on 1000 perhaps, depending on

what has happened in the circumstances to which the

award relates. Validity would come and go like the

Cheshire cat in Alice in Wonderland. That could

hardly be a satisfactory criterion. My submission,

therefore, is that one must have a criterion that

is capable of application at the time the award is

made, and this test of looking at the kind of the

impediment, in the particular circumstances, of

course, having regard to the nature of the

employers' undertaking and so on, is the way to go.

Furthermore, the criterion, which is the subject of my submission, would apply across the

board. I have indicated earlier that we would

respectfully oppose - or think unsatisfactory - any

criterion that seeks to draw distinctions between

administrative services and nurses and so on. This

criterion would apply not only to those and

whatever are the administrative services of the

State, but to nurses, teachers, clerks, police or

any others. It is basically the test of a

substantial impediment, having regard to the nature

of the restriction.

If I can turn now, with respect, Your Honours,

having been dealing with the approach to general

laws, to some submission on the specific aspects of

disputes that involve only States and their

employees. Perhaps it is repeating things that

have already been said by some of my friends but

our submission is that the application of the

Industrial Relations Act to such disputes does not discriminate against the States, if the Act is

applied to them as employers and consistently with

the general principle of the industrial relations

system under the Act. If I can take Your Honours again to the SPSF

case, 178 CLR. My friend, Mr Kenzie, referred

yesterday to the judgment of Your Honour

Justice Toohey, at pages 295 to 298, where

Your Honour was dealing with this issue in relation

to these claims which, of course, were brought by

three States - only by three States.

Mr Kenzie mentioned that Your Honour

Justice Toohey's judgment was agreed with in that

respect by Your Honour the Chief Justice and

Justices Deane and Gaudron, at page 271. I should

add, with respect, that Your Honour Justice Dawson

also agreed on that point. If I can refer the

Unions(4) 266 9/6/94

Court to page 280, about the middle of the page - really, the last two sentence of Your Honour's

judgment:

The demands upon the relevant

instrumentalities in these applications are

made in relation to the terms and conditions
of employment which they provide in common
with other employers who are subject to the
same system under the Industrial Relations

Act.

Now, it was not that the State employers were

joined with other employers in these proceedings,

because the only employers were the States. The

point that Your Honour Justice Dawson was making was, in my respectful submission, the one that I

put just before referring to it, namely that there

is no discrimination if the award, albeit limited

to State employers, is made in respect of them, as

employers, and not as States, not in a reference to

any distinguishing characteristics of them as

governments, and if the application to them as

employers is applied consistently with the general

principles of the industrial relations system under

the Act.

And similarly, in my respectful submission, it

is no objection that the Industrial Relations

Commission proceeds to settle an interstate dispute

involving only States by a State by State process;

again the criterion is the same. As long as the

powers are exercised, as they must be, only for the

purpose of preventing or settling the dispute with

the States as employers and consistently with the
general principles of the system, that is not
exposed to objection on the grounds of

discrimination.

A final point, with respect, Your Honours, in

relation to awards concerning only a single State

would be that it is irrelevant that an award

applies to only one State and not to other States. The basic principle in the Queensland Electricity

Commission case, discrimination, concerned

discrimination or differences between States and

employers generally. The question of

discrimination between States was mentioned in the

judgment, for example, of His Honour

the Chief Justice, Chief Justice Gibbs at the time,

159 CLR. If Your Honours will look at the bottom

of page 206, His Honour the then Chief Justice was
discussing the concept of discrimination in this
context of the Melbourne Corporation principle.

The paragraph beginning at the bottom there:

Unions(4) 267 9/6/94

Although laws which infringe the implied

limitation are often described in the

authorities as "discriminatory", it would be

wrong to think that the word, when used in

this context, is intended to suggest that it

is not competent for the Parliament to make a

distinction, even an adverse distinction,

between various States. Obviously enough, laws may distinguish between the different

needs of the various States. The laws

forbidden by this principle are those which

discriminate against all the States or any one

of them by subjecting them or it to a burden

or disability which is not imposed on persons

generally, a law whose very object is to

restrict, burden or control an activity of the

States or of one of them.

And that description of the Melbourne Corporation

first limb, as concerned with discrimination

between one or more States and employers generally,

was taken up by Your Honour Justice Toohey in the

SPSF case, 178 CLR 296. I will not read the

passage, but at page 296 Your Honour states that

general principle by reference to the Queensland

Electricity case and Your Honour the Chief Justice

and Your Honours Justices Deane and Gaudron agreed,

at page 271. So long as the States are treated as

employers on the principles applicable generally,

in my submission there is no infringement of the

Melbourne Corporation principle.

If I can come now to the issue of

interstateness. On that issue we adopt the

respondents' elaboration of the matters that are

set out in our written submissions and we adopt my

learned friend, Mr Kenzie's oral submissions.

On the discrimination concerning

section lll(lA), we adopt the submissions made by

my learned friend, Mr Bell, concerning the terms of

the legislation and, in our submission, he has

shown that the legislation, according to its terms,

is not discriminatory. It applies in respect of

any employers in any State that does not have the

compulsory arbitration machinery.

There were some further submissions in the

Victorian case, and they go certain particular aspects of this discrimination issue. They involve some difficulty in the sense that, the first of

them - is that it is appropriate for this Court to

inquire, by reference to Parliamentary materials, into the motives of the members of Parliament and particular ministers, so as to shown that despite

that general and non-discriminatory terms of the

Unions(4) 268 9/6/94

legislation on its face, nevertheless, it was

directed at Victoria.

My first submission on that issue is that such

inquiries into motives, in seeking the legislation,

are irrelevant. But even if motives were relevant,

we would submit that the parliamentary debates cannot be used to show motives, as proposed in paragraph 58 of the Victorian submission, and this

is because of the Parliamentary Privileges Act

which retains the provisions of the Bill of

Rights 1688. This is, in my respectful submission,

an obvious contrast between using parliamentary

debates to ascertain the object of legislation for

the purposes of interpretation and also for

purposes such as showing what happened in

Parliament by way of the procedural steps where

issues under section 57 concerning double

dissolutions are concerned, as occurred of course

in the cases in the 1970s; Coimack v Cope and so

on.

To show motives, for a purpose such as

Victoria seeks to show them is, in my submission, outside the scope of what use can be made with

parliamentary debates. Having made that submission

· I cannot myself refer to the debates to show that

the members did not have the motives attributed to

them by Victoria. But I could - I think without

Parliamentary Privileges Act
breaching the - take the Court what was said, and without seeking to
the Court to the parliamentary debates on which

persuade Your Honours to draw inferences from it.

Victoria has suggested that the second reading speech in the Senate and the speech by a minister

in the House show that it was directed against

Victoria. Your Honours should have, from Victoria

I think, the relevant Hansard pages. If not, then

I think all I can do is submit that Your Honours
will have them provided.	My friend from Victoria

did not deal with this issue in his oral
submissions, but we received a notice of use of

extrinsic material, which is attaching the pages on

which they rely and I had assumed that Your Honours

would have them.

I am informed, Your Honours, that they should

be in book M23. Page 68 in book M23, Your Honours.

Perhaps it is unnecessary on reflection to take

Your Honours through it in any detail. Victoria's

written submissions say that the speeches refer to
the abolition of compulsory arbitration in

Victoria. Well, true, the speech in the Senate

does. I do not see it myself anywhere in the other

speech. There is a reference to Victoria but not

Unions(4) 269 9/6/94

in that context. But the speech, although

mentioning that that had happened in Victoria, does

at various points say that it is legislation that

is intended to apply in any State that did the same

thing as Victoria. In an analogy between that and

the Quarantine Act 1908, if there had been an

outbreak of typhoid in Queensland in 1907 when the

general Quarantine Act was passed, was it to be

suggested that the Quarantine Act is directed at

Queensland?

If I can pass on now, if the Court pleases, to the next paragraph in the Victorian submission, at

page 60 of the Victorian submission. The Victorian

submission is, as I understand it, that even if the

legislation survives the discrimination test in

Melbourne Corporation, it falls foul of a different

discrimination test in so far as it applies only in between the State of Victoria as an employer but in the other employers in Victoria as compared with

employers in other States. The principle that is

invoked there is the one that is stated by

Your Honours Justices Deane and Toohey in

Leeth v Commonwealth, and the passage is set out at

the bottom of page 60 of the Victorian submission:

"there is to be discerned in the Constitution

as a whole an assumption of the fundamental

common law doctrine of legal equality which

operates to confine the prima facie scope of
the legislative powers which the Constitution

vests in the Commonwealth."

In Leeth, Your Honours Justices Deane and Toohey

were dissentients from the result in the order of

the Court. A discrimination doctrine was also

adopted by Your Honour Justice Gaudron, also in

dissent. Your Honour Justice Gaudron based

the -

GAUDRON J: It was a more limited - - -

MR ROSE:  A more limited one, Your Honour. It applied only

whether the implication extended beyond

to laws directly at the making of orders by courts, question

and Your Honour found the source of invalidity in

laws of that kind to general substantive laws, and

reserved, I think too, the question whether the

implication extended beyond geographical

discrimination, if I can call it that, to the much

wider concept in the judgments of Your Honours

Justices Deane and Toohey of a general substantive

equality, so that any legal distinctions between

persons by Commonwealth laws are invalid unless

they can be reasonably seen to be based on rational

Unions(4) 270 9/6/94

and relevant grounds. Your Honour Justice Gaudron,

as I have indicated, limited that to laws directed

at orders of the courts. Your Honour

Justice Brennan in the majority did refer to an

implied principle prohibiting geographical

discrimination, but held that in the circumstances

of that particular case the legislation did not

infringe it.

The principle is, in my respectful submission,

of quite profound constitutional importance, and it

has been raised here by Victoria as an objection to

the application of the industrial relations case in

this respect because of the differences introduced

by section lll(lA). Because of its importance, and

I do need to pursue it in some detail but I hope not too long, if I may hand up some materials to Your Honours.

If the Court pleases, in Leeth itself

Your Honours the Chief Justice and Justices Dawson

and McHugh denied that there was any such implied

constitutional requirement of substantive equality,

whether geographical or general. 174 CLR at

page 467 contains Your Honours' reasoning on that

issue which emphasizes the express constitutional
provisions against discrimination, makes reference

to the historical genesis of the Constitution, and

arrives at, in my respectful submission, the

correct conclusion, that having regard to those

considerations there is no room for implying a

general principle of substantive equality, whether

geographical or otherwise.

In our submission, that conclusion is clearly

supported, not only by the constitutional text but

by the structure. The history of the draft bills

for the Commonwealth of Australia Constitution Act
shows that the framers deliberately rejected an

equal protection of the laws clause of the kind

that occurs in the United States Constitution. It

was considered unnecessary. In that regard I

mention a footnote by Your Honours Justice Deane

and Toohey at page 485, footnote 7, where reference

is made to this issue as to why it was considered

by the framers to be unnecessary.

In our respectful submission, the historical

materials show that it was unnecessary in the sense

that the framers at the time thought that

parliamentary democracy was an adequate safeguard.

We have included in the volume of materials

references to the Adelaide convention debates and

an extract from the book by Professor La Nauze on

The Making of the Australian Constitution.

Unions(4) 271 9/6/94

In my submission, the difficulty with the implication is its profound effect upon the

legislative process. Legislation is very often the

outcome of difficult political compromises. If all

statutory distinctions between people, subject only

to exceptions depending on the nature of the

relevant power, were valid only if considered to be

reasonably capable of being seen to be rational and

relevant or necessary, which is another test that

occurs in the minority judgment in Leeth, there

would be scope for considerable uncertainty and

invalidity of Commonwealth legislation; also of State legislation because my submission will be that it must apply to State legislation as well -

and I will come later to the reasons for that.

The application of that test would depend upon

subjective appraisal upon which minds might very

reasonably differ. It is respectfully submitted

that the doctrine has no sufficient basis. It

should be accepted, in my respectful submission,

only if it has a clear and sufficient basis. Even

if many provisions of an Act, for example, met the
test, other provisions might do so. If they were

inseverable, as would often be the case with

legislative packages like the Industrial Relations

Act or the Native Title Act - to choose two

examples at random - the entire Act would fail.

Political restructuring would have to take place

with continuing uncertainties until the Court had

pronounced on whatever new package had emerged.

In Leeth itself, the divided opinion of the

four Justices who considered whether the

legislation was discriminatory indicates the

fertile field for uncertainty, especially as the

three of Your Honours who decided against validity

took an approach which, in my respectful

submission, seems very much wider than that taken

by the United States Supreme Court in its

application of the Tenth Amendment on equal

protection of the laws. If one looks at what

happens in the United States under the Tenth

Amendment, the enormous amount of litigation and

elaboration of extraordinarily complex principles

by the Supreme Court, the disadvantages of such an
implication become, in my submission, quite

apparent. These consequences would be so far

reaching that the implication should be rejected in

the absence of the clearest basis.

Arguments have been given of course in the

judgments in Leeth as to why there is a sufficient

basis in the opinion of some of Your Honours for

that implication. We have included in the volume

materials relevant to the suggestions in those

judgments that the preamble, for example, provide

Unions(4) 272 9/6/94

the sufficient basis, the preamble providing that

the people are united in a federal Commonwealth.

In our submission an implication of

substantive equality, either general or geographic,

is not supported by the preamble. The reference to

the uniting of the people seems a very slender
basis on which to discover such an implication.

Nor does the concept of a Federation imply any

requirement of equality in federal laws. I should

say in relation to uniting, one finds, for example,
the same reference in the United States

Constitution's preamble, which we have included in the volume. Before the Tenth Amendment it does not

seem that the word "uniting" in the preamble there

was seen to be a basis for anything like a kind of

implied Tenth Amendment.

Similarly, the concept of a Federation does

not imply it. The Canadian Federation is an

example. There is a long line of cases in Canada,

including some which must have been in the minds of

the framers of our Constitution. We have given

them in the volume, I will not take Your Honours to

the detail, but they establish clearly that there
was no objection to federal Canadian laws applying

in some areas of Canada and not in others. If the

words. of the preamble were sufficient to raise this

implication against Commonwealth laws, my

submission would be that they should be equally

effective to raise a similar implication concerning

State laws, but I will come again to that.

Another suggestion in the judgments in Leeth

is that the implication can be supported by
covering clause 5, that Commonwealth laws are
binding on the courts, judges and people of the

Commonwealth. In my submission, too, that is

inadequate. When one looks, for example, at the

materials from Quick and Garran that we have

included it is seen that the purpose of covering

clause 5 was to distinguish our constitutional

system from the United States Confederation which

preceded the United States Constitution. Under

that system the laws made by the central body did

not have effect locally until they were adopted by

the State legislature. The purpose of covering

clause 5 was to give Commonwealth laws direct

effect as part of Australian law. In my respectful

submission, covering clause 5 does not indicate

anything whatsoever as to the content that

Commonwealth laws must have and, in particular,

does not indicate anything on the question whether

they may be discriminatory, whether they may make

legal distinctions between persons in different

States.

Unions(4) 273 9/6/94

Other reasons which were suggested in Leeth as

supporting the implication refer to the state of
the common law around the turn of the century, and

the fact that there was a process of developing the

common law by way of similarities and treating like

cases alike and so on. In my respectful submission

the response to that is that another principle
around the turn of the century was the sovereignty

of Parliament, and the notion that the common law

could be changed by Parliament, and that it would

be surprising indeed if the framers thought that,

by implication of this kind, they were subjecting

the States to a test of this nature.

We have included in the volume I think all the materials on the list that we would regard as

primarily relevant to those arguments. The

remaining and important argument by which the

implication is sought to be supported is

Chapter III but, in my submission, that too is inadequate to sustain the implication. The idea

that Chapter III requires justice to be done, of

course, in my respectful submission, does need to

be qualified by the remark that it is justice

according to law; it requires the Court to apply

all valid substantive laws. And when stated in

that way, it does not provide any criteria for

deciding whether laws are valid.

I said earlier that if there is such an

implication in relation to Commonwealth laws, it

must apply to the States as well and it is for this

reason: that if the implication is derived from federal jurisdiction cannot be required to - or

that the laws must be such that courts cannot be

doing other than applying laws that distinguish

only on relevant and rational grounds. The same

would be true where a Federal Court or a State

court exercising federal jurisdiction is dealing,

as it often may be, with a State law. It would be

anomalous to say that the State courts, for

example, exercising federal jurisdiction, need not
matters in State jurisdiction, but because of	apply the implication when they are hearing the the implication then. In fact, it becomes even
more acute when one reflects that the matters might
even be the very same ones as those pending in the
accrued jurisdiction of federal courts.
There might even be a problem in relation to appellate jurisdiction; cases coming to this Court,
for example, on appeal from a State court,
originally exercising State jurisdiction and
applying a State law. Would this implication mean
that when the matter gets to this Court the State

Unions(4) 274 9/6/94

law must be struck down on grounds of

discrimination. Maybe one might argue that the

concept of appellate jurisdiction in section 73

requires the appellate court to give the same

answer that the State court should have originally

given, but that may be providing an interpretation

of the earlier section in order to arrive at a less

unpalatable result concerning the general

implications from Chapter III. The point remains,

as regards original jurisdiction, there would be

the anomaly that if this implication is derived

from Chapter III which is, as I understand it, is

advanced as one of the main sources in the
judgments of Your Honours Justices Deane and Toohey

and also in the judgment of Your Honour

Justice Gaudron, the same point would arise. A

State law directing a court to make an order of a particular kind would have to be held invalid if it

infringed this discrimination implication.

Having regard to the limit of time available,

if the Court pleases, I have glossed over some of
the details but I have endeavoured, in those
submissions, to put the main points and the volumes
contained in the material should provide

Your Honours with all the necessary references that we respectfully see as supporting those

submissions. If the Court pleases, that concludes

my submission.

MASON CJ: Yes, thank you, Mr Rose. Mr Solicitor for

Victoria?

MR GRAHAM:  I have asked my learned friend, Mr Young, to reply, Your Honour.

MASON CJ: Yes. Mr Young?

MR YOUNG:  If the Court pleases. We have a few brief points

in reply, which we address to the basic submissions

made by the respondents. Those submissions were

twofold: the first was that no question of the
application of the Melbourne Corporation principle

can arise unless and until an award is made; the

second submission was that once an award is made,

whether or not Melbourne Corporation is attracted

depends upon the practical operation of the award

viewed in isolation.

Those latter words are important because they

are quite critical to the submissions put on behalf

of the respondents. As we would understand it, the

Commonwealth adopts similar submissions both as to

prematurity and the way in which the validity of an

award is to be tested. Now, in our submission,

each of those submissions is misconceived.

Unions(4) 275 9/6/94

The source of the jurisdiction which the

Commission has traces back to the finding of an

interstate industrial dispute. Now, in each of the

cases before the Court, other than M30 concerning

the police, such a finding has been made. The
findings are to the effect that in each matter

there is a single interstate industrial dispute,

constituted by the service of the log of claims and

its non-acceptance within a specified period.

Hence it follows that the jurisdiction of the

Commission, as it has found it to exist is, in

essence, defined by the log of claims and the

parties by those upon whom it has been served.

In our submission, it is at that point that

the significance of the paper disputes doctrine and
the ambit doctrine can be seen to have a special

effect upon the States. What it means is that at this stage of dispute finding, the Commission has

assumed a broad and indefinite jurisdiction over

virtually every aspect of the public service of

Victoria, including appointment, transfer,

termination, wages, retrenchment, redeployment,

et cetera.

In the real world, that jurisdiction has

already been assumed. If and when it is exercised,

by award, the award will, on prevailing doctrines,

override pre-existing State laws.

DEANE J: Can you demonstrate the point you are making by

reference to a particular dispute finding?

MR YOUNG:  I think it follows, Your Honour, from M24.

DEANE J:  I was not questioning the accuracy. It would help

me if I could see it.

MR YOUNG:  Yes, I would direct Your Honour to the M24

volume. The log of claims commences at page 17.

The dispute finding is at page 42 and the initial

list of respondents, at least, commences at
page 43.	I think my learned friend, Mr Graham,

directed the Court to the dispute finding and the
list of respondents in Victoria and South

Australia.

DEANE J: What is operating in my mind is this: assume for

the moment in your favour, but not completely in

your favour, that the Commission possesses power to

make an award binding the State in relation to some

of the matters sought in the log but does not

possess power because of Melbourne Corporation

implications to make an award granting all of the

matters in the log. The first question that arises

is if the log seeks more than the Commission can

grant, can one say there is a relevant interstate

Unions(4) 276 9/6/94

industrial dispute in terms of the area that the

Commission can grant?

Assume against yourself that the answer to

that is, ttYes". The fact that a log asks more than

the Commission can validly grant none the less does

not prevent there being an industrial dispute as to

the matters that the Commission could grant. Where

would that lead your argument?

MR YOUNG:  The steps would be as follows, Your Honour: the

first step, in our submission, would be to grant

certiorari quashing the existing finding.	The
reasons of the Court may make it clear what

categories of matter within the embrace of the

initial dispute finding are beyond power and what

may be within power. Then it may be for the

Commission to proceed to determine whether there exists an interstate industrial dispute in relation

to those matters within power. But we would say it

ought not to be assumed, having regard to the paper

origin of the dispute, that there is an interstate

industrial dispute as to limited matters without

the matter going back to the Commission.

DEANE J:  Let me give you another example. Assume you have

a log of claims that asks for 100 things, all of

which are within power, and 101 is compulsory

unionism in a form that is outside power. Is your

submission that a dispute finding which says "The

matters in dispute are the 101 items" is bad

because it should have said "The dispute finding is

about the 100 matters that we have power, and in

relation to the 101 we really make no finding about
that because there's an argument about our

jurisdiction"?

MR YOUNG:  The answer, Your Honour, would depend upon two

things. It will depend in the first instance upon

the applicability of the doctrines of paper dispute

and ambit and so forth in the context of the

particular case being considered but, assuming

there is no difficulty in that regard, the second

question then really would be whether the Court
could be satisfied on the material before it that

if this one matter were to be severed there was

sufficient evidence of an interstate industrial

dispute subsisting in relation to the balance. If

all one has is a service of a comprehensive log

including that one matter and a non-response within

a period of time, one does not know whether the

non-response is attributable to the one matter that

was beyond power or whether it is any one

combination or another of the particular matters in
the log. Perhaps that is partially to avoid the

point by saying it depends on the circumstances

Unions(4) 277 9/6/94

but, in our submission, it is almost inevitable

that one gets that response.

Here, Your Honours, where you have such a mesh

of matters concerning redeployment and retrenchment

and other matters that might be found objectionable

intertwined with perhaps some matters that might be

thought to be less objectionable, then there is no

such easy solution as to say there is necessarily

an interstate industrial dispute that can go

forward in terms of the Commission making interim

orders and so forth as to the balance.

Your Honour, can I add as well that we would say

something similar happened in Professional

Engineers', and I will come to that shortly.

DEANE J: That was the final delaying question I was going

to ask you, and that is, what is the best authority

so far as you are aware that supports your approach

to treating the dispute finding effectively as a

global thing which stands or falls in accordance
with the power of the Commission to grant

everything.

MR YOUNG:  Your Honour, Professional Engineers', in this

Court, gives the best guidance. I cannot go so far

as to say that it supports exactly the approach

that I have suggested. It was a case in which

there were several dispute findings that were made but it is not clear the dispute findings were made in every one of the matters before the Commission.

A preliminary point was taken to the effect that

Professional Engineers' in the employ of State

government departments were, for that reason, not

engaged in an industrial activity. That point was

taken across all of the matters in the Commission.

It went as a preliminary point to the Full Bench.

The Full Bench determined that, in respect of

certain departments, the Commission had authority

to proceed. In respect of other departments, it
did not. That is the reason why orders nisi for both

prohibition were sought by one camp and mandamus by

the other camp. In the result, having determined
that the bare fact of employment by State

departments was not an answer, what the Court did

was to make absolute the order for mandamus thereby

referring the matter back to the Commission, in

effect, to make dispute findings in accordance with

the reasons for judgment of the Full Court. That

is why I say it provides guidance, although perhaps

not exactly supporting the submission that I put.

DEANE J: Thank you, Mr Young, I follow the way you put it.

Unions(4) 278 9/6/94

TOOHEY J:  Can I just ask a question arising out of that,

Mr Young? It is in relation to your use of the

term "ambit", which I understand when it is used in

relation to claims which are not necessarily sought
in their entirety or demands which are not

necessarily sought at a particular stage of the

industrial dispute. You seem to be using it rather

more widely as if the doctrine of ambit would

somehow protect a log of claims or make it

unnecessary to consider questions of the power of

the Commission to deal with the subject-matter of a

log of claims so long as in broad terms there was

enough to keep the log of claims afloat. Does the

doctrine of ambit really permit that sort of

exercise?

MR YOUNG:  The way in which I was putting it is this,

Your Honour: these logs of claims have an ambit in

several directions. One is the range of matters

and the character of demands made in respect of

each of those matters. There is an ambit element

to that in that there may be demands in the area of

superannuation, for instance, that are not

immediately pursued. There may be demands in the

area of redeployment that are there and can be

pursued at some stage thereafter but are not, and

normally they will be expressed in terms that leave

it open to the union ultimately to seek a lesser

version of the same thing.

TOOHEY J: It was not the lesser version - I really was

trying to focus on a particular subject-matter of

the log of claims where it was contended that that

was outside the power of the Commission to grant.

MR YOUNG:  The way in which I was using it, Your Honour, was

to illustrate both breadth of topic, strenuousness

of demand and quantum of demand to indicate that

there is a field that by this device is put within

the jurisdiction of the Commission, and then
thereafter it is open to the Commission to make any

award within that broad field. The field is so

broad and high in terms of quantum that what it

provides is effectively a long-lived source of

jurisdiction.

TOOHEY J: Yes, I just have difficulty with the notion that

the doctrine of ambit, as it were, draws into the

Commission a matter which is patently outside the

power of the Commission to deal with at all.

MR YOUNG:  No, I was not using it in that sense,

Your Honour. The sense in which I was using it is

really this, that in the real world the effect of

ambit claims and paper disputes is to confer upon

the federal Commission an indefinite jurisdiction,

both in terms of width of matters that may be

Unions(4) 279 9/6/94

covered simply because it is co-extensive with the

width of the log, and of indefinite duration

because the log may make monetary claims, to use

Mr Justice McHugh's example, of a $1 million

salary, and they go on sourcing their particular

demands for an award, five, six, ten, if not

300 years later, back in that paper demand.	The
demand is put so high so that the log has a
longevity. It remains a continuing source of
jurisdiction.

When you have got a State faced with such a

paper dispute and an ambit claim it effectively

does transfer on a continuing basis, control and

jurisdiction over every aspect of its public

service into the hands of the Commission, in the

sense that the Commission has a jurisdiction
co-extensive with a log and continuing for so long

as one can say that the log has not been satisfied

or abandoned. That is compounded, we would say, by

section 148 which gives awards that are made an

indefinite operation. So, you not only have the
longevity conferred by the nature of the claims in

the log, you have section 148 of the Act saying

that once an award is made it effectively continues

indefinitely.

All of that, we say, is relevant to an

understanding of what is the effect or consequence

upon a State of these dispute findings, and we would add that none of that is defeated by the

proposition that the Commission thereafter proceeds

segmentally. To make an award about redundancy, to

make an award about superannuation, to make an

award concerning rates of pay, each of them limited
to particular categories of employee within the
public service. At the end of the day, to use my
learned friend Mr Rose's example, you will get to
the 21st award and you will suddenly find that the

entire public service, in most of its aspects, is

now covered by awards by the Commission. The argument against us is that you cannot

look at the matter globally; you have got to wait

for an award to be made and then, in isolation,

assess the impairment of constitutional function

brought about by that award in isolation, without

regard to different awards that have gone before

and without regard to what sort of awards may

follow.

Now, in our submission, that does ultimately

render nugatory the constitutional implication

protecting the continued existence of the States.

If you can only look at an award when made, one by

one, in isolation from the others, then by stealth

one can take the public service out of the hands of

Unions(4) 280 9/6/94

the States. Now that ultimately is the effect of

the prematurity argument put against us and for

that reason, we say, it must be wrong.

If it is the finding of an industrial dispute,

which is critical to the attraction of

section Sl(xxxv) power, as it must be, because it

is a machinery provision setting up processes of

conciliation and arbitration for the prevention or

settlement of industrial disputes, constitutionally

it must be the existence of the interstate

industrial dispute which lies at the heart of the

question of power and, if that is right, then it is

at that point that Melbourne Corporation ought to

be applied, and not forestalled until it is

rendered ineffectual by a piecemeal invocation and

exercise of the jurisdiction by the Commission, and

one can see that that is what is already happening.

There have been interim awards, and it may be

said that because of the subject-matter with which

they deal, namely directions as to employment,

retrenchment, non-termination and the like, they

trespass upon critical State functions. But they

are at the end of the day only illustrative of the

problem. They are the sort of awards that will go

on being made one by one and ultimately, we would

say, it is not a question of waiting for them to be

made and separately assessing the impairment

attributable to a particular award. One should go

back to the finding of an industrial dispute and

apply Melbourne Corporation at that point of time. That is the first submission I wish to make.

It is in that context, we say, that paper disputes

in ambit has a significance in the context of

States. It is the significance of those matters

that we referred to in our original outline.	Now,
it may be that another way of approaching the
problem is to say that the doctrine of paper

disputes needs to be re-examined in the context of

a State because otherwise these sorts of problems

follow. But if that doctrine is applicable and

interstate disputes can be created in this way,

then there is all the more need for Melbourne

Corporation to be applied at the point of time at

which jurisdiction arises.

Your Honour Justice Deane, can I give

Your Honour references to the relevant pages of

Professional Engineers that deal with the matter I

raised earlier, 107 CLR 208: in the judgment of

Sir Owen Dixon, the relevant passages are at

page 240 point 3 to point 7; at 242 point 2

Justice Fullagar agreed with the Chief Justice; in Justice Kitto's judgment the relevant passages are

Unions(4) 281 9/6/94

at 252 point 7 and 253 point 1; in Justice Taylor's

judgment, the passages are at 257 point 9 and 262.

The second submission we would make is this

observation from seeing the respondents'

submissions. Because of their reliance upon the

prematurity argument, my learned friend, Mr Kenzie,

avoided giving any content to the Melbourne

Corporation principle in relation to the findings

of industrial dispute that have been made. He was

prepared to answer the matter theoretically in

relation to the wages of parliamentarians but not

particular matters raised by the log, such as

county court judges. He was prepared to deal in

the abstract with the possible invalidity of

particular restrictions, such as those concerning

termination or continued employment but only in the

abstract.

My learned friend, Mr Rose, in his

submissions, adopted a similar tack, but ultimately

we would say that what they fell back upon saying

was that those sorts of things may be invalid if

they are in a broad general award that operates
across the board, because then you can detect

impairment of capacity. But if it is only in an

award related to particular employees, then that

will not by itself impair capacity. Our submission

is that it will and it is a stage in that

impairment all deriving from the assumption of

jurisdiction.

The third matter I wanted to raise is this,

and I will not take the Court to it: in the

interim awards in MS and Mll the critical
paragraphs are those that prohibit termination and
those that require the State to accord to the
relevant employees wages and terms and conditions
as they existed at an earlier date. The relevant

dates are dates in late 1993. The effect of

that - - -

McHUGH J: Or was it 1992? I may be wrong. I thought it

was November 1992, from memory.

MR YOUNG: 

It is 1993 in the case of MS, 20 October 1993,

and as a result of the further award that was
handed up this afternoon, Your Honour, it is

20 December 1993 in the case of Mll. There is a

section in Mll dealing with voluntary departure

packages. That was an interim processing of those

packages that for relevant purposes is now spent,

and it is really a distraction to look at that.

The critical paragraphs are the ones that I have

mentioned.

Unions(4) 282 9/6/94

DEANE J: Can I ask you this:  is the effect of the current

interim awards to preclude termination for

redundancy in the absence of misbehaviour or

something like that?

MR YOUNG:  The answer is yes, Your Honour. There are

exceptions made in each of those interim awards by reference to now repealed legislation, essentially the old Public Service Act and the old Teaching

Act.

DEANE J:	I guess that was disciplinary reasons?
MR YOUNG:	Yes, very limited grounds.

DEANE J: So, unless you can justify by misbehaviour or

something in that area, the effect of both interim

awards is to preclude involuntary retrenchment by

reason of redundancy?

MR YOUNG:	Yes, Your Honour.
GAUDRON J:	Even if a package is offered?
MR YOUNG:	The packages are now, really, of historical

relevance only, Your Honour. There were voluntary

departure packages that were accepted. The consent

award was made to enable, over a limited period in

1993, the processing of accepted packages. The

terms of the awards imposes a duty not to terminate
that employment, otherwise than in accordance with

the provisions of the old legislation which

afforded only very limited grounds for termination.

The next matter is a very brief one that I

wanted to raise. There has been reference to the

issue of whether it is appropriate to treat the

State as any other corporate employer. It is part

of our submissions to say not. There is a

reference which is of assistance in

Sir Owen Dixon's judgment in the ARU case at
page 391.	I mention it because the Court was not

taken to that passage but rather to a passage on

the proceeding page.

BRENNAN J: What is the volume?

MR YOUNG:  It is 44 CLR 319 and the passage commences at

page 391 at about point 6 on the page.

BRENNAN J:  Thank you.

MR YOUNG: Lastly, I should draw the Court's attention to a

provision of the Industrial Relations Act 1988

making special provision for the Australian Federal

Police.	The relevant provisions are section 4(10)
which takes one to Schedule 1 clause 3.	The effect

Unions(4) 283 9/6/94

is to greatly narrow the matters in respect of

which the Commission has jurisdiction in relation to the Australian Federal Police.

DEANE J: Could I interrupt you yet again?

MR YOUNG:  Yes.

DEANE J: In relation to the federal police matter, I follow

the application of the argument if you were to

succeed completely and it were held that the

Commission could have no jurisdiction at all in

relation to members of State police forces. But

assume for one moment that you have a degree of

success that do not succeed completely in that

contention, in other words, it was held that the

Commission could, for example, fix a minimum wage

for members of the police forces. That would be

the end of that application, would it not?

MR YOUNG:	It would, Your Honour; it stands in a different position from all the others, because the issue is,
as Justice Gaudron put it, whether members of a
State police force are capable of being involved in an industrial dispute, because unless they are so capable, there is no occasion for the amendment of the eligibility rule, but if they are capable, that is the end of it.

DEANE J: There is a bit of the problem also in that for you

to succeed in that case you have to persuade us

that it is impossible to conceive of circumstances,

do you not?

MR YOUNG:  Effectively yes, Your Honour. We have to

persuade the Court that under no circumstances

would the State police force be capable of being

involved in an interstate industrial dispute.

DEANE J: Thank you, Mr Young.

MR YOUNG:  I said "lastly", but I should mention one final

matter. We did notice that there was some minor

errors in the minutes of orders that my learned

friend, Mr Graham, handed up. What we have done is

to provide copies to the Court's Associate and they

can be distributed hereafter. It was simply a

question of correcting some typographical errors.

MASON CJ: Thank you, Mr Young. That covers the discussion

that was going to take place between you and

Mr North, does it, in respect to the material that

was handed up by the Solicitor-General earlier

today?

MR YOUNG: That immediate remark did not, but I can tell

Your Honour that there is no difficulty in that

Unions(4) 284 9/6/94

regard.	Mr North wants to provide to the Court
copies of decisions of the Commission.	We have no

objection to that course, and I am not sure whether

copies are already in hand to do that.

MASON CJ:  No, we were seeking to avoid the handing up of

the decisions and we were hoping that an agreement

could be reached between the parties, rather than

have ourselves burdened with more material.	But if
that is not possible then we will receive the
decisions.

MR YOUNG:  We have not been able to reach any agreement

because we have not had access to the decisions,

that has been the difficulty.

MASON CJ: Perhaps you will get access

MR YOUNG:  Yes, we will endeavour to reach agreement,

Your Honour.

MASON CJ: And then you can let us know what the result of

the discussions is.

MR YOUNG: Yes, Your Honour. If Your Honour please.

MASON CJ: Thank you, Mr Young. Yes, Mr North.

MR NORTH:  Your Honour, I wonder if I might be able to just

flag an issue in relation to something that has

arisen in reply. The question was asked of

Mr Young whether the present position is that there

is anything in the interim awards which prohibits

the offering of voluntary redundancy packages,

and -

DEANE J: That was not my question. My question was, "Is

the effect of the two interim awards, that we have

been referred to, to preclude involuntary

termination by reason of redundancy for other than

reasons of a disciplinary or misbehaviour kind?

MR NORTH:  And, Mr Young's answer was, "Yes".

DEANE J: Yes.

MR NORTH:  There is an issue between us. We would say,

"No," and I can, very briefly if I might, tell the

Court why that is so. In relation to the health

workers, the answer is found in the contents of the
interim redundancy award on page 115 in the

application book in Mll, on the following page on

116, paragraph (b) of the award provides:

The employer may make offers of the VDP

on or after -

Unions(4) 285 9/6/94

a particular date, so there is an open-ended right.

DEANE J: What happens if the employee rejects it?

MR NORTH: If the employee rejects it?

DEANE J: Yes.

MR NORTH:  Then the right to terminate is restricted in

terms of paragraph 4.

DEANE J: As I understand it that is what Mr Young said.

MR NORTH: We were concerned only to make clear that the

ability to offer voluntary departure packages

continued.

DEANE J: No, I was concerned with whether there could be

involuntary determination on the grounds of

redundancy.

MR NORTH:  That is the position in relation to the health

workers. In relation to the teachers, we should

draw attention to the Court of a decision in
relation to the interim award by the Full Bench of

the Federal Court, (1993) 49 IR 149, but I think

that the point remains true in respect of that as

well that it applies to voluntary departure

packages only.

Your Honours, in relation to the affidavits that were handed up by my learned friend,

Mr Graham, we now have no objection to those, and

the factual problems, I think, are of no

significance. We do and would wish to afford to

the Court hereafter copies of the Commission's

decisions in relation to the award that were

referred to in the affidavits that were handed up

by Mr Graham.

TOOHEY J:  Do you mean they are not covered by the further

award material we were given earlier in the day?

MR NORTH:  No, what was handed up was the awards themselves.

The reasons for the decision in each case are not before the Court and we would want the Court to see

those reasons. It is not a great volume of

material - perhaps 20 pages in all. Perhaps we

could undertake to do that within 48 hours?

MASON CJ: Very well.

MR NORTH:  Thank you, Your Honour.

Unions(4)	286	9/6/94
MASON CJ:	Thank you, Mr North.	The Court will consider its

decision in these matters.

AT 3.49 PM THE MATTER WAS ADJOURNED SINE DIE

Unions(4) 287 9/6/94