Re Dingjan; Ex parte Wagner

[1995] HCA 16

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

RE DINGJAN AND ORS EX PARTE WAGNER AND ANOR

(1995) 183 CLR 323

16 March 1995

Constitutional Law (Cth)—Judicial power of Commonwealth—Australian Industrial Relations Commission—Power to set aside or vary harsh and unfair contracts for services—Whether judicial power—The Constitution (63 and 64 Vict c 12), Ch III—Industrial Relations Act 1988 (Cth), ss 127A, 127B. Constitutional Law (Cth)—Powers of Commonwealth Parliament—Corporations—Australian Industrial Relations Commission—Power to set aside or vary harsh and unfair contracts for services—Jurisdiction extended to contracts between natural persons which related to business of constitutional corporation—Whether law with respect to corporations—The Constitution (63 and 64 Vict c 12), s 51 (xx)—Industrial Relations Act 1988 (Cth), ss 127A, 127B, 127C.

Orders

Order nisi for writs of prohibition and certiorari made absolute.

Decisions

MASON CJ I would discharge the order nisi for the reasons given by Gaudron J, with which I agree.

2. I adhere to the view, which I have expressed on previous occasions, that the corporations power is not confined in its application to the trading activities of trading corporations and the financial activities of financial corporations (1). The power must be construed as a plenary power with respect to the categories of corporations mentioned in s.51(xx) of the Constitution. On this view, the power is not limited to the regulation of the functions, activities and relationships of constitutional corporations, using that term in the sense in which it is used in the Industrial Relations Act 1988 (Cth) ("the Act"), which can be described as business functions, activities and relationships. Further, in my view, the power extends to the enactment of laws dealing with activities undertaken for the purposes of the business of a constitutional corporation (2).

3. I reject the prosecutors' argument, based on my observations in Actors and Announcers Equity Association (3), that the provisions are invalid because their direct legal operation is not on constitutional corporations. The proposition that the characterization of a law is to be determined by reference to its direct legal operation according to its terms means that the character of the law is to be ascertained by reference to the nature of the rights, duties and privileges which it creates, changes, abolishes or regulates (4). But this is not to deny the validity of a law which exhibits in its practical operation a substantial or sufficient connection with the relevant head of power (5).

4. Section 127C(1)(b) allows the Australian Industrial Relations Commission ("the Commission") to exercise its power to review: "in relation to a contract relating to the business of a constitutional corporation". I do not consider that considerations of context or constitutional power require that s.127C(1)(b) be read as if it refers to a direct legal relationship. All that the provision requires as a matter of language is a relationship between the contract and the business of the relevant corporation. A direct legal relationship is not prescribed. And ordinarily a practical relationship would suffice to satisfy the requirement of connection signified by the expression "in relation to". There is certainly nothing in the context of a relationship between a contract and the business of a corporation which would require a more direct connection.

5. The consequence is that a relationship which falls short of a direct legal relationship may be sufficient as, for example, where the work to be performed or the services to be provided by the contractor can be identified as work or services rendered as, or for the purposes of, the corporation's business operations, even if the corporation is not a party to the contract. Thus, where a corporation enters into a contract with a principal contractor to perform work or provide services constituting part of the business activities of the corporation and that contractor enters into a subcontract for the purposes of that work or the provision of that work or those services, the contract "relates to" the business operations of the corporation in a substantial and significant practical sense, even if the relationship is only indirect. What the subcontractor does in performing the subcontract is ultimately done for the purposes of the corporation and constitutes a relevant part of its business operations.

6. In that situation, which is the essence of the present case, the contract "relates to" the business operations of the corporation in a substantial and significant practical sense. Hence, the exercise of the power falls within constitutional limits. There is, however, the problem that not every relationship between a contract and the business of the relevant corporation will be as substantial or significant. There may be some such relationships which are beyond power. But, as Gaudron J observes, that problem can be avoided by recourse to reading down. To the extent to which s.127C(1)(b) may have an application or applications beyond power, s.15A of the Acts Interpretation Act 1901 (Cth) requires that the provision be applied distributively so that it is read as covering those applications within power (6).

7. In the light of the view which I take of the scope and extent of the corporations power, the Parliament can enact legislation which regulates the provision of work and services by a subcontractor for the purposes of the business operations of a constitutional corporation. One aspect of the relevant statutory provisions in this case that should be mentioned is the circumstance that the Act confers power to review, not the provision of the work and services, but the subcontract, and on the grounds that it is unfair, harsh or against the public interest. Just as the power extends in the circumstances to regulate the provision of the work and services, so it must extend to review the subcontract which provides for the performance of work and the rendering of services. It is evident that the motive or policy which inspired the conferring of the power to review is industrial, the motive being to protect the independent contractor rather than to protect or benefit the corporation. In the case of a subcontract to which a constitutional corporation is not a party, the fact that the contract may be unfair, harsh or contrary to the public interest may not be attributable to the corporation or any conduct on its part. However, it seems to me that, because the contract provides for the performance of work or the provision of services as, and for the purposes of, the business operations of the corporation, that is enough to bring the exercise of a power to review on the grounds mentioned within power, even if the motive which inspired the provisions is to protect the interests of independent contractors (7).

BRENNAN J This application arises from circumstances which Gaudron J sets out in her reasons for judgment. Three questions are posed for determination. First, whether ss.127A and 127B of the Industrial Relations Act 1988 (Cth) ("the Act"), when their application is as prescribed by s.127C(1)(b), are a law supported by s.51(xx) of the Constitution; second, whether the power conferred by s.127B(1) is judicial power; and, third, if the power is validly conferred, whether on the true construction of ss.127A and 127B the power can be exercised to vary contracts that have been terminated.

ARE SS.127A, 127B AND 127C(1)(B) A LAW WITH RESPECT TO TRADING CORPORATIONS SUPPORTED BY S.51(XX)?
2. The corporations power "is not expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified": New South Wales v. The Commonwealth (The Incorporation Case) (8). A law supported by s.51(xx) will therefore be characterized by its effect on corporations of a kind mentioned in that paragraph, that is, trading or financial corporations formed within the limits of the Commonwealth. In the Act, those corporations are called "constitutional corporations" (9). To attract the support of s.51(xx), it is not enough that the law applies to constitutional corporations and to other persons indifferently (10). To attract that support, the law must discriminate between constitutional corporations and other persons, either by reference to the persons on whom it confers rights or privileges or imposes duties or liabilities or by reference to the persons whom it affects by its operation (11). A validating connection between a law and s.51(xx) may consist in the differential operation which the law has on constitutional corporations (12) albeit the law imposes duties or prescribes conduct to be performed or observed by others (13). Thus, s.45D of the Trade Practices Act 1974 (Cth) which prohibited secondary boycotts was held to be supported by s.51(xx) in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (14) by reason of the protection it afforded against conduct calculated to cause damage to the business of a trading corporation (15). It was the effect of s.45D which gave that law the character of a law with respect to constitutional corporations. As Stephen J said (16):

"The connexion with corporations forms a crucial component of the law, making wholly inappropriate any description of that connexion as being merely 'so incidental as not in truth to affect its character' - per Kitto J in Fairfax v. Federal Commissioner of Taxation (17)".

3. In that case, Gibbs CJ postulated as a test of validity that the constitutional character of a corporation "should be significant in the way in which the law relates to it". That test was accepted by Dawson J in The Tasmanian Dam Case (18). Though I see no error in this approach, it leaves much to judicial impression from case to case. If the constitutional character be "significant" to the relationship with the law, it must be because the character of the corporation is the factor which attracts the operation of the law. If that be so, I perceive no distinction between that test and a test of discriminatory operation. I prefer to state the test as one of discrimination, for that test admits of an objective ascertainment of the rights, duties, powers or privileges which the law creates or affects.

4. The law in the present case is not expressed to impose any duty or liability or to confer any right or privilege on a constitutional corporation: s.127B(1) confers on the Australian Industrial Relations Commission a power to affect the rights and obligations of parties to a contract, whether or not those parties are or any of them is a constitutional corporation. Therefore, if the law is a law with respect to constitutional corporations, it must have that character by reason of the differential effect on constitutional corporations which it produces. We must therefore turn to an examination of the operation of the law.

5. Section 127B(1) confers on the Commission a power, qualified by ss.127A and 127B, to order the setting aside of the whole or part of, or the varying of, a contract for services binding on an independent contractor and relating to the performance of work by the independent contractor other than work for the private and domestic purposes of the other party to the contract. Conditions or collateral arrangements relating to such a contract are similarly liable to be set aside or varied. The independent contractor must be, by definition (19), a natural person. The power arises where the Commission forms and records an opinion that the contract is, in whole or in part, unfair, harsh or against the public interest. Sections 127A and 127B apply only in relation to contracts of a kind prescribed by s.127C(1). Paragraph (b) of s.127C(1), the only paragraph relevant to the present case, prescribes contracts "relating to the business of a constitutional corporation". Unlike pars (a) and (c), par.(b) does not require that the corporation be a party to the contract.

6. The relationship on which par.(b) fastens does not have to be beneficial or prejudicial to a constitutional corporation or its business. It is sufficient that there be a relationship between the contract and the business of the corporation, whether the relationship be direct or indirect and whether or not the relationship affects the carrying on of its business by the corporation. An exercise of the power to set aside or vary a particular contract will affect the parties to the contract but it may not affect the business of the relevant corporation at all. Take, for example, a contract between A and B, both being natural persons, for the delivery by B as an independent contractor of goods to A's customers, some of whom are constitutional corporations others of whom are not. If the contract were varied as to the place for picking up the goods, the loading machinery to be provided, the make or specifications of the delivery vehicle, the number or proportion of deliveries to be made by B or the period for which the contract is to subsist, the variation might not affect the businesses of A's customers (whether corporate or not). They might well be unconcerned by the variation. Moreover, the corporate nature of the owner of a particular business has no rational connection with the power which ss.127A and 127B purport to confer. The power is conferred to eliminate unfairness or harshness as between the parties to the contract or to prevent their being bound by terms contrary to the public interest. The circumstances which produce unfairness, harshness or damage to the public interest may well be unrelated to the corporate personality of the owner of the business or of one of the businesses to which the contract relates. Sections 127A and 127B would have an adventitious operation if the power they confer were enlivened or extinguished according to the corporate or non-corporate personality of the owner of the relevant business or businesses. To take the delivery contract as an example: the power would be enlivened if one of A's customers were a constitutional corporation but would be extinguished if the corporate customer transferred the business to a natural person. In my opinion, the connection between ss.127A and 127B as applied by s.127C(1)(b) on the one hand and s.51(xx) of the Constitution on the other is so tenuous and fortuitous that it is wholly insufficient to impart to the former provisions the character of a law with respect to trading or financial corporations.

7. It is possible, of course, to postulate cases falling within s.127C(1)(b) that would be an appropriate subject of a law supported by s.51(xx). A law conferring power to vary or set aside a contract between a constitutional corporation and an independent contractor for work to be done for the purposes of the corporation's business where the contract is unfair or harsh or contrary to the public interest would be a law supported by s.51(xx). A contract of that kind would fall within s.127C(1)(b) and it would be of a kind amenable to control by a law enacted under s.51(xx) because such a law would limit the corporation's freedom to contract and qualify its contractual rights to have the work done for the purposes of its business. But s.127C(1)(b), as we have seen, applies ss.127A and 127B to contracts that may have no effect on constitutional corporations or on their businesses. It is too wide and therefore invalid. The legislative power conferred by s.51(xx) is not a power to make laws with respect to things relating to corporations or things relating to the businesses of corporations. A law of that kind bears the character of a law with respect to constitutional corporations only if the relationship governed by the law affects constitutional corporations in a discriminatory manner. If this be the test by which the character of a law is determined, constitutional corporations must be affected in some respect sufficiently material to give significance to their discriminatory treatment.

8. Can and should par.(b) be construed so that it applies ss.127A and 127B only to cases which are a proper subject of the legislative power provided by s.51(xx) of the Constitution? Section 15A of the Acts Interpretation Act 1901 (Cth) requires that an enactment be "read and construed subject to the Constitution, and so as not to exceed the legislative power of the Commonwealth" to the intent that the enactment should be valid "to the extent to which it is not in excess of that power". But s.15A can save a provision that is literally in excess of legislative power only if two conditions are satisfied (20): first, that "the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law" (21) and, second, that the operation of the law upon the subjects within power is not changed by placing a limited construction upon the law (22). Neither s.127C(1)(b) nor the Act as a whole satisfies the first of these conditions.

9. Clearly s.127C(1)(b) cannot be read down so as to limit its operation to contracts to which a constitutional corporation is a party: the omission of that element in par.(b), in contrast with its insertion in pars (a) and (c) of s.127C(1), manifests the legislature's intention in that respect. Nor is there anything in the Act to indicate a test which would limit the relationships between a contract and the business of a constitutional corporation to relationships that would attract the support of s.51(xx). Although a relationship between a contract and the business of a constitutional corporation is the criterion of the applicability of ss.127A and 127B prescribed by s.127C(1)(b), there is no test, express or implied, in the Act which might be invoked to ensure that the existence or exercise of the s.127B(1) power would affect constitutional corporations in some material way, much less to ensure that any effect produced by the existence or exercise of the power would discriminate between constitutional corporations and other persons. It is impossible so to construe s.127C(1)(b) in its context as to limit the application of ss.127A and 127B to cases where the support of s.51(xx) is available. Paragraph (b) fails to attract the support of s.51(xx) not only because the words "relating to the business" do not import a requirement that the business be materially affected but also because the relationship of the contract with the business of a constitutional corporation has no necessary connection with the power conferred on the Commission and with the purposes for which that power was conferred.

10. Section 127C(1)(b) can be contrasted with the laws which were considered in Huddart Parker Ltd. v. The Commonwealth (23) and Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia (24). In those cases the regulatory powers conferred by the relevant enactment were, or arguably were, too wide to be supported by s.51(i) but, by reference to provisions of the enactment which clearly indicated that the regulatory powers were to govern at least matters relating to trade or commerce among the States or countries overseas, the Court upheld the validity of the particular enactment conferring the regulatory powers to the extent that it authorized regulation of those matters. As there is no provision of the Act which affords any test for reading down s.127C(1)(b) to bring it within power, I would hold the law invalid. It is unnecessary to consider the second condition of the application of s.15A of the Acts Interpretation Act.

11. However, reference should be made to s.7A of the Act which was introduced by amendment (25) after the Australian Industrial Relations Commission made the orders which are the subject of the order nisi for prohibition and certiorari that is now before the Court. Although s.7A is expressed to apply to any provision of the Act, "whether enacted before, at or after the commencement of this section" (26), it is not expressed to have a retrospective operation upon the provisions to which it purportedly applies. Consequently, it has no application to the jurisdiction which the Commission purported to exercise in this case. The validity of s.7A, which was argued before us, must therefore await determination on another day.

12. Strictly speaking, it is also unnecessary to consider the remaining questions but, as those questions were fully argued, I shall briefly state my conclusions.

IS THE POWER CONFERRED ON THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION JUDICIAL POWER?
13. Being in general agreement with the reasons given by Gaudron J on this point, I would hold that ss.127A and 127B do not purport to confer judicial power on the Commission.

CAN THE POWER TO SET ASIDE OR VARY THE TERMS OF A CONTRACT CONFERRED BY S.127B(1) BE EXERCISED IN RELATION TO A CONTRACT THAT HAS BEEN DISCHARGED?
14. In my opinion the answer to this question turns not on the tense of any verb in s.127A or s.127B but on the existence of a contract amenable to being set aside or varied by an exercise of the power conferred by s.127B(1). With great respect to the opposite view, I am unable to see how it is possible to set aside or vary a contract that is sterile of any enforceable right or obligation. A contract, created by the mutual agreement of the parties to be bound by its terms, is a source of mutual rights and obligations. By definition in the Act (27), a contract must be "binding" on the independent contractor, that is, enforceable against that party. However, when a contract is terminated, one or more of the parties may have a cause of action against the other party or parties (28) but, generally speaking (29), no contractual right or obligation survives termination so as to be enforceable as such (30). It is true to say that the contract, viewed as a source of enforceable rights and obligations, has ceased to exist (31). The terms of a terminated contract will govern the measure of damages for its breach, if there has been a breach, but the very hypothesis on which damages are awarded is that the innocent party has not had, and is no longer entitled to, performance of the executory terms of the contract (32).

15. It may be that it would be beneficial to one of the parties to a discharged contract if s.127B(1) were construed to authorize the subsequent setting aside or variation of the contract but the language of s.127B does not permit such a construction. By sub-s.(4) an order under sub-s.(1) takes effect "from the date of the order or a later date". The order which takes effect is made so as to place the parties as nearly as practicable "on such a footing that the ground (of unfairness, harshness or contrary to the public interest) on which the opinion is based no longer applies": sub-s.(2). Sub-section (4) precludes the backdating of that alteration in the position of the parties to a time when the condition of unfairness, harshness or contrariety to public policy was being produced by the contract then subsisting. Ex hypothesi, once the contract is terminated, it no longer produces such a condition. I would mention a further point - though not to base my decision upon it, for the point was not raised by the parties and was not fully argued. The point would require consideration if a retrospective operation were attributed to s.127B(1). Once a contract is discharged and the rights of the parties inter se depend not on contract but on property (33), would a power to alter retrospectively the rights of the parties under the contract amount to an acquisition of property within s.51(xxxi) of the Constitution and be subject to the requirement of just terms? On the view I take of ss.127A and 127B, this question does not need to be answered. I would hold that those sections have no application to a contract that has been terminated.

16. As s.127C(1)(b) fails to attract the support of s.51(xx) of the Constitution, I would make absolute the order nisi for writs of prohibition and certiorari made by Dawson J

DEANE J I agree with the judgment of Gaudron J

DAWSON J This is the return of orders nisi for writs of prohibition and certiorari. The prosecutors, D.R. and V.M. Wagner, seek prerogative relief in relation to a decision of the first respondent, the Australian Industrial Relations Commission ("the Commission"). That decision, which was made under s.127B of the Industrial Relations Act 1988 (Cth) ("the Act"), had the effect of reinstating and varying two contracts, one of which was made between the prosecutors and the second and third respondents, A.J. and S.L. Dingjan, and the other of which was made between the prosecutors and the fourth and fifth respondents, M.K. and M.U. Ryan.

2. The circumstances in which the two contracts were made and came to an end are set out in the judgment of Gaudron J and it is unnecessary to repeat them. It is sufficient to note that the prosecutors, a husband and wife partnership, supplied wood for pulping to a woodchip mill operated by Tasmanian Pulp and Forest Holdings Ltd. ("TPFH") at Triabunna on the east coast of Tasmania. The wood was supplied pursuant to a contract between the prosecutors and TPFH. It is common ground that TPFH is a trading corporation within the meaning of s.51(xx) of the Constitution. The prosecutors engaged A.J. and S.L. Dingjan on the one hand and M.K. and M.U. Ryan on the other, each a husband and wife partnership, to log and cart wood for the purpose, amongst others, of satisfying in part the prosecutors' obligations to TPFH. After disputes arose between the prosecutors and the other two partnerships, the sixth respondent, the Transport Workers Union of Australia, applied to the Commission under ss.127A and 127B of the Act for review and variation of the contracts between the prosecutors and the other two partnerships. A.J. Dingjan and M.K. Ryan were members of the respondent union and gave their written consent to the application. Some days later the prosecutors terminated both of the contracts with the other partnerships, but the Commission went on to make orders reinstating the contracts, varying their terms and, in the case of the contract with A.J. and S.L. Dingjan, adding a provision requiring that, in addition to any other sums payable under the contract, the prosecutors pay to those respondents the sum of $25,000.

3. Section 127A(1) of the Act, which appears under the heading "Unfair contracts with independent contractors", provides for application to the Commission to review a contract on the grounds that it is unfair, harsh or against the public interest. (The jurisdiction conferred on the Commission has now been taken away from it and conferred upon the newly created Industrial Relations Court of Australia (34), but it is convenient to refer to the application of the legislation to the Commission in the present tense.) "Contract" is defined in s.127A(1) to mean a contract for services that is binding on an independent contractor and relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract. An application under s.127A(2) may be made, with the written consent of the independent contractor (35), by an organization of employees of which the independent contractor is a member. Under s.127B(1), if the Commission forms an opinion that a ground under s.127A(2) is established, it may make an order setting aside the whole or part of the contract or varying the contract.

4. Section 127C provides as follows:

"(1) Sections 127A and 127B apply only as follows, namely: (a) in relation to a contract to which a constitutional corporation is a party; (b) in relation to a contract relating to the business of a constitutional corporation; (c) in relation to a contract entered into by a constitutional corporation for the purposes of the business of the corporation; (d) in relation to a contract relating to work in trade or commerce to which paragraph 51(i) of the Constitution applies; (e) in relation to a contract so far as it affects matters that take place in or are otherwise connected with a Territory; (f) in relation to a contract to which the Commonwealth or a Commonwealth authority is a party. (2) In this section: 'constitutional corporation' means a corporation to which paragraph 51(xx) of the Constitution applies; 'contract' has the same meaning as in section 127A."

5. The prosecutors contended that ss.127A and 127B, even when read within the limits imposed by s.127C(1)(b), are beyond the legislative power of the Commonwealth and invalid. It was not contended by the respondents that any paragraph of s.127C(1) other than par.(b) is applicable in the circumstances of this case, but they argued that s.127C(1)(b) when read with ss.127A and 127B is sufficient to confine the latter two sections within constitutional limits. And, it was said, the contracts between the prosecutors and the other two partnerships fell within s.127C(1)(b) because they related to the business of a constitutional corporation - it is convenient to use the language of the Act - namely, TPFH.

6. However, I think it is necessary to consider first whether s.127C(1)(b), when read with ss.127A and 127B, suffices to bring those sections within power without reference to the facts of the particular case; for it is here, in my view, that the respondents' contention fails. It is quite apparent that ss.127A and 127B, when read alone, are beyond power. The subject-matter of those sections is that of contracts which are unfair, harsh or against the public interest. Even restricting the application of ss.127A and 127B to contracts as defined in s.127A(1), it is plain that they travel beyond the limits of the legislative power of the Commonwealth.

7. But whilst s.127C(1)(b) narrows the availability of the remedies provided by s.127B, it does not alter the character of s.127A or s.127B. Even when read with s.127C(1)(b) so as to confine the circumstances in which they apply, those sections remain provisions with respect to contracts which are unfair, harsh or against the public interest. The confined circumstances of their operation do not make them a law with respect to constitutional corporations.

8. It has long been recognized that a law is not a law with respect to foreign corporations or trading or financial corporations within the meaning of s.51(xx) of the Constitution merely because its provisions are addressed to constitutional corporations. Even if the law applies only to a particular kind of constitutional corporation, that does not necessarily mean that it is a law with respect to that kind of corporation. A law is not to be described as with respect to the various persons or classes of persons bound by it (36). As Barwick CJ observed in Strickland v. Rocla Concrete Pipes Ltd. (37):

"it does not follow either as a logical proposition, or, if in this instance there be a difference, as a legal proposition, ... that any law which in the range of its command or prohibition includes foreign corporations or trading or financial corporations formed within the limits of the Commonwealth is necessarily a law with respect to the subject matter of s.51(xx). Nor does it follow that any law which is addressed specifically to such corporations or some of them is such a law."

9. A similar approach must be adopted to other powers conferred by reference to persons, such as the power to make laws with respect to aliens (s.51(xix)) (38).

10. Because s.51(xx), unlike most other paragraphs of that section, describes the subject-matter of the legislative power which it confers by reference to categories of persons, albeit artificial persons, a different approach is required in determining whether a law falls within its terms. For example, a law directed at interstate trade and commerce will be a law upon that subject and so fall within s.51(i). But a law directed at trading or financial corporations or foreign corporations either exclusively or along with others is not necessarily a law upon the subject-matter of those bodies. It may be a law upon some area of activity which is engaged in by persons generally and the mere fact that the law is made to apply to trading or financial corporations or to foreign corporations does not mean that the law draws its character from them rather than the activity which it seeks to regulate. Menzies J made the point strikingly in Strickland v. Rocla Concrete Pipes Ltd. when he said (39):

"A criminal law of general application is neither a law with respect to all persons to whom its command goes, nor to such of those persons as happen to be criminals."

11. And as Brennan J said in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (40): "It is of the nature of the power (s.51(xx)) that it is a power to make law with respect to corporate persons, not with respect to functions, activities or relationships." Thus, before a law may be said to be with respect to trading or financial corporations or foreign corporations, the way in which the law operates upon them must be such that they impart their character to the law.

12. In Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. Gibbs CJ described the exercise to be undertaken in the following terms (41):

"The words of par.(xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid ... In other words, in the case of trading and financial corporations, laws which relate to their trading and financial activities will be within the power. This does not mean that a law under s.51(xx) may apply only to the foreign activities of a foreign corporation, for ex hypothesi the law will be one for the peace, order and good government of the Commonwealth. It means that the fact that the corporation is a foreign corporation should be significant in the way in which the law relates to it."

13. In the Tasmanian Dam Case (42) I expressed the view, to which I adhere, that the last line of that paragraph can be applied in the case of a trading or financial corporation as well as a foreign corporation. For a law to be a valid law with respect to a trading or financial corporation, the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it. The phrase "trading or financial corporation" is, of course, a composite expression embracing both the corporate nature of the entity as well as its trading or financial character.

14. The intention which lies behind s.127C(1) of the Act is evident. It is to restrict the operation of ss.127A and 127B by reference to matters thought to fall within one or other of the sources of Commonwealth legislative power and so bring those sections within constitutional limits. Clearly the head of power which the draftsman had in mind in relation to par.(b) (as well as pars (a) and (c)) was the power under s.51(xx) to make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth.

15. The opening words "in relation" in par.(b) do not appear to add anything, so the paragraph may be read as restricting the operation of ss.127A and 127B "to a contract relating to the business of a constitutional corporation". Paragraph (b) is not directed to contracts to which constitutional corporations are parties - both pars (a) and (c) are directed to contracts of that kind. When read with ss.127A and 127B, par.(b) becomes part of a law with respect to contracts which are unfair, harsh or against the public interest, being contracts to which a constitutional corporation is not a party. The only connection which the paragraph requires between such a contract and a constitutional corporation is that the contract should relate in some way to the business of a constitutional corporation. The paragraph does not require that the contract should by reason of its being unfair, harsh or contrary to the public interest affect the business - let alone the trading or financial activities - of the corporation. The power to make laws with respect to trading or financial corporations is considerably more confined than a power to make laws with respect to matters related to the business of trading or financial corporations. And a contract which merely relates to the business of a constitutional corporation may be a contract which deals with matters far removed from the subject-matter of constitutional corporations - for example, a contract between a contractor and a subcontractor to provide services for a constitutional corporation in the form of landscaping, interior design or catering for the annual general meeting. The examples are limitless.

16. It is not possible to say, as the respondents contended, that a law with respect to a contract which merely relates to the business of a constitutional corporation amounts to a law with respect to constitutional corporations. The nature, indeed the existence, of a corporation is not in these circumstances significant as an element in the conduct which the law is attempting to regulate. The required relationship is adopted merely as a means of introducing constitutional corporations as a peg upon which to hang legislation, not upon the subject of constitutional corporations, but upon an entirely different subject.

17. Nor, in my view, does s.15A of the Acts Interpretation Act 1901 (Cth) apply to give s.127C(1)(b) a valid operation. The effect of s.15A is to reverse the presumption that an enactment is intended to operate as a whole (43). Under s.15A each provision is to be read upon the basis that it was the intention of the legislature that it should be given effect to the extent that it is not in excess of legislative power (44). That process is, of course, most conveniently carried out where the statute is organized so that its various applications are separately expressed, thus enabling the valid portions to be simply severed from the invalid. Even then, s.15A will not operate to save the remaining provisions if, after severance, they have a different operation or effect from that which they had before severance, for the intention of Parliament is to be discerned by reading the statute as a whole and that intention is not to be displaced as a result of a reading down process under s.15A. It is one thing to give that which remains the operation which it was always intended to have. It is another thing to give it a different operation as a result of severing the invalid from the valid.

18. Section 7A was added to the Act after the commencement of these proceedings and came into force on 30 March 1994. That section declares with certain qualifications that, unless the contrary intention appears, if a provision of the Act would, apart from the section, have an invalid application but also has at least one valid application, it is the Parliament's intention that the provision is not to have the invalid application but is to have every valid application (45). Section 7A applies to a provision of the Act, whether inserted before, at or after the commencement of the section (46). It is, however, unnecessary to consider the valid operation, if any, of s.7A, because it can have no application in these proceedings. As was submitted by the Commonwealth, intervening, the question before the Court is whether the Commission had jurisdiction at the time it made its orders. Upon that basis, and applying the ordinary presumption against retrospectivity (47), s.7A cannot affect the outcome of these proceedings and its valid operation, if any, may be left for consideration upon a future occasion.

19. An example of an attempt by the legislature to make the reading down process easier is s.127C(1) itself which specifies in separate paragraphs the various possible applications of the legislation envisaged by the legislature. This enables a blue pencil to be run through those which are invalid. But in this case, we are concerned with only one of the paragraphs of s.127C(1), namely, par.(b), and it is in general form which does not allow the application of a blue pencil.

20. Nevertheless it would be possible to read par.(b) distributively if that provision itself suggested some standard, criterion or test which would separate those parts which are beyond power from those which are not (48). But the purpose of par.(b) is to confine ss.127A and 127B within constitutional power and it fails wholly in that purpose. It is therefore not a question of separating the valid from the invalid aspects of par.(b). No doubt it may be possible to fashion a substitute for par.(b) which would confine ss.127A and 127B in such a way that they become a law upon the subject of constitutional corporations rather than, or as well as, a law upon the subject of unfair or unjust contracts or contracts contrary to the public interest. The facts of the present case may or may not provide a guide for that purpose. But to do so would be to fashion a provision entirely different from par.(b) without reference to any standard, criterion or guide suggested by the paragraph itself. That would be to perform a legislative function which s.15A does not, and could not, delegate to the Court (49).

21. It would seem that par.(b) constitutes legislative recognition of the fact that it is not possible with a power defined in terms of persons, as it is with other powers, to confine legislation within constitutional limits simply by reference to the subject of the power. To say that legislation applies, for example, only to interstate trade and commerce is a very different thing from saying that it applies only to constitutional corporations. That is because the fact that a law binds constitutional corporations does not make it law upon the subject of constitutional corporations unless the personality of the persons bound is a significant element of the law itself. Paragraph (b) attempts to overcome the problem by requiring a relationship between the relevant contract and the business of a constitutional corporation, but that does not supply a sufficient connection with the subject- matter of constitutional corporations for it to be said that the resulting law is a law with respect to foreign corporations or trading or financial corporations within the meaning of s.51(xx). For these reasons, s.127C(1)(b) is invalid, as are ss.127A and 127B to the extent that they need to be read with s.127C(1)(b).

22. I would make the orders nisi absolute.

TOOHEY J The principal question raised by this application is whether ss.127A and 127B, as qualified by s.127C(1)(b), of the Industrial Relations Act 1988 (Cth) ("the Act") are a law with respect to trading corporations within s.51(xx) of the Constitution.

2. The circumstances giving rise to the application and the terms of the statutory provisions appear in other judgments. Although I shall try to avoid repetition, some reference to the circumstances and to the statutory provisions is required. And because, in previous relevant decisions of the Court concerning the scope of the corporations power, differing views have been expressed, it is necessary to identify the decisions in which those views have been expressed.

EARLIER DECISIONS
3. In Strickland v. Rocla Concrete Pipes Ltd. (50) Barwick CJ expressed his unwillingness "to set as it were the outer limits of the reach of the power under this paragraph of s.51", preferring the method of constitutional interpretation of "deciding so much as is necessary to dispose of the case". The Chief Justice went on to say (51):

"Indeed, to my mind one of the fundamental errors into which

the Court was led by the reserved powers doctrine when deciding

Huddart, Parker and Co. Pty. Ltd. v. Moorehead (52) was the endeavour to do that very thing rather than merely to decide whether the law which it had before it was a law with respect to the topic of granted power."

4. While there was general agreement in Strickland v. Rocla Concrete Pipes Ltd. that the power conferred by s.51(xx) extended to the regulation of the trading activities of the corporations to which it refers, Barwick CJ cautioned against a conclusion that any law which is addressed specifically to such corporations is therefore a law with respect to the subject matter of s.51(xx). In holding that certain provisions of the Trade Practices Act 1965 (Cth) could not be supported by reference to s.51(xx), Walsh J said (53):

"They are laws in which the personality of those whom they bind is not significant as an element in the nature or character of the laws."

5. Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (54) concerned the validity of the secondary boycott provisions of the Trade Practices Act 1974 (Cth). Gibbs CJ (with whom Wilson J relevantly agreed) emphasised that the power is conferred by reference to persons and echoed the theme of Walsh J in the passage just quoted when he said (55):

"The words of par.(xx) suggest that the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws, if they are to be valid."

6. Stephen J (56) considered that the connection of the law in question with corporations "forms a crucial component of the law". Mason J (with whom Aickin J agreed) said that to describe the relevant statutory provision as a law about secondary boycotts was to describe it inadequately, adding (57): "It is a law about secondary boycotts which have an effect, to use a neutral term, on corporations as defined". Murphy J was alone in not confining the power to laws dealing with the trading or financial operations of such corporations (58). Brennan J (59) saw the nexus between the law in question and par.(xx) as its "discriminating between one or more of the corporations mentioned in par.(xx) and the public at large".

7. These differing approaches appear in The Commonwealth v. Tasmania (The Tasmanian Dam Case) (60). Gibbs CJ considered that the relevant legislation could apply to the Hydro-Electric Commission of Tasmania only in relation to such activities as were properly regarded as trading activities. The Chief Justice adhered to his earlier view that the words of par.(xx) suggest that, for the law to be valid, the nature of the corporation must be significant as an element in the nature or character of the law. Mason J affirmed what he had said in Fontana Films, emphasising that the constitutional power was plenary and identifying (61) the requirement as one that "there should be a substantial connection between the exercise of the power and its subject matter". Murphy J reiterated the broad approach he had taken in Fontana Films. Wilson J asked (62) whether the law "is 'in its real substance' a law with respect to the specified corporations". Brennan J affirmed his "discrimination" test (63). Deane J said that the law operated on the trading activities of a trading corporation and was therefore within power. Dawson J in effect adopted the approach of Gibbs CJ when he said (64):

"For a law to be a valid law with respect to a trading or financial corporation the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it."

THE APPROACH TO BE TAKEN
8. In the present case the Court is engaged in characterising a law, the validity of which is under attack. It is not in dispute that the law is to be assessed in accordance with its actual operation "in creating, changing, regulating or abolishing rights, duties, powers or privileges" (65).

9. The power which s.51 of the Constitution confers on the Parliament is a power to legislate with respect to the matters enumerated in the paragraphs of that section. The words "with respect to" require "a relevance to or connection with the subject assigned to the Commonwealth Parliament" (66). The cases make clear that each paragraph of s.51 can support not only laws which operate directly on the subject matter of the paragraph in question but also laws which do not operate directly but which can be seen as incidental to the power (67). Every legislative power "carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter" (68). Matters of incidental powers, Dixon CJ acknowledged in Burton v. Honan (69), "are largely questions of degree". In this regard the Chief Justice thought that "arguments in relation to justice, fairness, morality and propriety" were not matters for the decision of the judiciary. The reason identified by Dixon CJ is as follows (70):

"The reason why this appears to be so is simply because a reasonable connection between the law which is challenged and the subject of the power under which the legislature purported to enact it must be shown before the law can be sustained under the incidental power."

10. However, within the grant of legislative power itself there is but a single grant, the principal power including within it all that is incidental to the subject matter (71).

11. To say that a law cannot be a law with respect to trading or financial corporations unless the fact that the corporation is a trading or financial corporation is significant in the way in which the law relates to it may be to focus too narrowly on the process of characterisation. The power conferred by par.(xx) is a plenary power, to be "construed with all the generality which the words used admit" (72). It is true that corporations are identified as the subject matter of the power. But in the end the question is whether there is a sufficient connection between the law and the subject matter to be able to say that the law is one with respect to that subject matter.

12. It may be said that some circularity is involved in a proposition expressed in these terms. But there is a qualitative assessment to be made and sufficiency of connection draws attention to the need for such an assessment. It emphasises that the connection must be substantial, not merely tenuous. The law must be one which "in reality and substance" is a law upon the subject matter (73). And that is so whether the subject matter is identified by reference to persons or otherwise. In each case: "It is not enough that a law should refer to the subject matter or apply to the subject matter" (74). In the case of s.51(xx) the law must operate on the rights, duties, powers or privileges of corporations in such a way as to evidence a sufficient connection between the law and the corporations. It is not enough to identify corporations as a reference point so as to affect the activities of others.

THE CONTRACTS IN QUESTION
13. In the present application Tasmanian Pulp and Forest Holdings Ltd. ("the Company") had a contract with the Wagners ("the prosecutors") for the haulage of logs from the Company's coupes to its mills. The prosecutors, who were a timber harvesting partnership, subcontracted part of their obligations for the transport of timber to a number of independent owner-drivers. Mr and Mrs Dingjan and Mr and Mrs Ryan ("the respondents") were two such independent subcontractors. The respondents were members of the Transport Workers Union which made an application on their behalf to the Australian Industrial Relations Commission ("the Commission") under ss.127A and 127B of the Act for review and variation of the contracts between the respondents and the prosecutors. The Company was not a party to those contracts. The sections of the Act in question empower the Commission to review a contract on the ground that it is unfair, harsh or against the public interest. "Contract" is defined to mean a contract for services that is binding on an independent contractor other than work for private and domestic purposes (75). The link with a constitutional corporation is provided by s.127C(1), the text of which appears in other judgments.

14. The prosecutors contended that the Commission had no jurisdiction to review and vary contracts to which they were party because ss.127A and 127B, in their application pursuant to s.127C(1)(b), are invalid. They said that the sections are not laws with respect to corporations within s.51(xx).

15. While ss.127A and 127B are couched in broad terms, their scope is limited by s.127C(1) whereby they apply only as specified in the paragraphs of that sub-section. It is common ground that there is only one paragraph applicable in the present case, namely, par.(b) which reads:

"in relation to a contract relating to the business of a constitutional corporation".

16. It is clear of course that the corporation need not be a party to the contract. Indeed, having regard to other paragraphs of s.127(1), in particular (a) and (c), it is apparent that (b) envisages a contract to which the constitutional corporation whose business is referred to is not a party.

THE RESOLUTION
17. The question for the Court to determine is whether there is a sufficient connection between the provisions of ss.127A and 127B as applied by par.(b) on the one hand and a constitutional corporation on the other. Is the connection substantial or merely tenuous? Or, to put it in another way, do the sections sufficiently affect a constitutional corporation's rights, duties, powers or privileges in such circumstances? The answer is that there may be no connection other than that the contract sought to be reviewed relates in some unidentified way to the business of such a corporation. Clearly such a connection may be no more than remote and tenuous. And the contract may have only the most indirect effect on the corporation or none at all.

18. Relevantly, the only characteristic a contract which the Commission is called upon to review need possess is that it is a contract "relating to the business of a constitutional corporation". The words "relating to" are very wide though they may gain precision from the context in which they are used (76). A contract to which a corporation is not a party may conceivably relate to the business of that corporation. But to do so it need not affect the business of the corporation or affect the corporation in any of its activities (77). Moreover, it need not involve the corporation in doing something or in abstaining from doing something. Indeed, having regard to the place of par.(b) in the sub- section, no obligation on the corporation is envisaged by that paragraph. The relevant provisions are too wide to be characterised as a law with respect to constitutional corporations. Neither do they operate directly on the subject matter of s.51(xx) nor can they be seen as incidental to the subject matter of that paragraph.

19. It is not possible to construe par.(b) in such a way that it applies ss.127A and 127B only to cases to which s.51(xx) may properly apply. As Brennan J and I pointed out in Re Nolan; Ex parte Young (78), for s.15A of the Acts Interpretation Act 1901 (Cth) to operate it is first necessary that "the law itself indicate a standard or test which may be applied for the purpose of limiting, and therefore preserving the validity of, the law". This was the language of Latham CJ in Pidoto v. Victoria (79). Section 127C(1)(b) does not satisfy this requirement nor relevantly does the Act as a whole.

20. It follows that s.127C(1)(b) is invalid.

21. After the Court reserved its decision it was asked to consider the effect on the proceedings of s.7A of the Act which commenced on 30 March 1994. The section provides that, unless the contrary intention appears, if a provision of the Act would, apart from the section, have an invalid application but it also has at least one valid application, it is the Parliament's intention that the provision is not to have the invalid application but to have every valid application.

22. At a resumed hearing, the Court heard argument as to the operation and the validity of s.7A. By sub-s.(4) the section is expressed to apply "to a provision of this Act, whether enacted before, at or after the commencement of this section". Thus the section is expressed to apply to the provisions with which this application is concerned. But s.7A is not couched in terms that give it a retrospective operation, that is, an operation in regard to events which occurred before the section commenced (80). The issue before the Court is whether the Commission had jurisdiction to review and vary the contracts to which the prosecutors were party. Section 7A was not in force at the time the Commission made its decision, hence the section has no bearing on the purported exercise of jurisdiction. It is therefore inappropriate to consider the validity of s.7A.

23. The Commonwealth did submit that s.7A would apply to any reconsideration by the Commission and is therefore "relevant to the Court's discretion whether to grant relief". But the issue is one of jurisdiction, not of discretionary relief. Since jurisdiction was lacking, the orders nisi must be made absolute.

JUDICIAL POWER
24. The second question raised by the application is whether the power conferred on the Commission is judicial power.

25. For the reasons given by Gaudron J, with which I am in general agreement, ss.127A and 127B do not purport to confer judicial power on the Commission.

DISCHARGED CONTRACTS
26. The third and last question raised by the application is whether the power to set aside or vary the terms of a contract conferred by s.127B(1) may be exercised in relation to a contract that has been discharged.

27. While I have reached a different conclusion from Gaudron J as to the fate of this application, I agree with her Honour's construction of the relevant provisions where a discharged contract is involved and with her conclusion that ss.127A and 127B are not confined to contracts which are current when the particular power of review or variation comes to be exercised.

CONCLUSION
28. For the reasons which appear in my answer to the principal question, I would make absolute the orders nisi.

GAUDRON J This case arises out of timber getting arrangements involving Tasmanian Pulp and Forest Holdings Ltd. ("the Company"), its contractors, Mr and Mrs Wagner ("the prosecutors"), and their subcontractors, Mr and Mrs Dingjan and Mr and Mrs Ryan. The Company has a woodchip mill at Triabunna on the east coast of Tasmania and has rights over and access to various places in that State for timber getting. These places are known as "coupes". Timber which is suitable for woodchipping is processed at the Company's Triabunna mill; other timber is directed to various sawmills for milling as timber and timber veneer.

THE FACTS AND THE PROCEEDINGS
2. For many years, the Company has contracted for the harvesting and transport of timber from its coupes, allocating coupes and quotas to individual harvest contractors. It entered into a harvest contract with the prosecutors who, like others with similar contracts with the Company, performed their obligations partly by their own efforts and partly by subcontracting to owner-drivers. As a general rule, owner- drivers purchased the right to perform the work involved, provided their own machinery and equipment and were licensed by the appropriate State authority to transport the Company's timber.

3. The prosecutors entered into separate subcontracts with Mr and Mrs Dingjan, who carried on business in partnership as owner-drivers, and with Mr and Mrs Ryan, who were in a similar partnership. Like other owner-drivers in the industry, they carted timber from the Company's coupes and delivered it to the Company's Triabunna mill or other mills as directed by harvest contractors (in their case, the prosecutors) for the Company, using their own prime movers and timber jinkers.

4. The timber getting arrangements apparently operated satisfactorily until 1992. During that year, the Company altered its practices and requirements and the prosecutors, in turn, altered their arrangements with the subcontractors. Some little time later, the union to which Mr Dingjan and Mr Ryan belong, the Transport Workers' Union of Australia, and the subcontractors applied under ss.127A and 127B of the Industrial Relations Act 1988 (Cth) ("the Act") for review and variation of the contracts they, the subcontractors, had with the prosecutors.

5. It will later be necessary to refer to ss.127A, 127B and 127C of the Act in some detail. For the moment, it is sufficient to note that, subject to s.127C, ss.127A and 127B authorize the Australian Industrial Relations Commission ("the Commission") to review and vary contracts for services which bind an independent contractor and which relate to "the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract" (81). The prosecutors gave notices terminating their separate contracts with the subcontractors shortly after the applications for review were filed in the Commission. The applications proceeded thereafter on the basis that each contract had come to an end, at least in the sense that neither party was any longer under any obligation to perform the promises which constituted the contract.

6. The Commission rejected various arguments to the effect that it had no jurisdiction, including an argument that it had no jurisdiction with respect to contracts that had come to an end. Instead, it proceeded to make orders varying the contracts by inserting terms which have the effect of reinstating the contracts and preventing their termination other than in accordance with the terms inserted. The prosecutors obtained an order nisi for prohibition and certiorari from Dawson J They now seek to have that order made absolute.

THE LEGISLATIVE PROVISIONS
7. While the jurisdiction formerly conferred on the Commission has now been conferred, with some modification, on the new Industrial Relations Court of Australia (82), it is convenient for present purposes to refer to the Commission's jurisdiction in the present tense. The Act, in s.127A(2), confers power on the Commission to review contracts in these terms:

"Application may be made to the Commission (constituted by a Presidential Member or a Full Bench) to review a contract on any or all of the following grounds: (a) the contract is unfair; (b) the contract is harsh; (c) the contract is against the public interest."

8. Section 127A(1) defines the word "contract" within the section to mean:

"(a) a contract for services that: (i) is binding on an independent contractor; and (ii) relates to the performance of work by the independent contractor, other than work for the private and domestic purposes of the other party to the contract; and (b) any condition or collateral arrangement relating to such a contract".

9. The various matters to which the Commission may have regard when reviewing a contract are set out in s.127A(4) as follows:

"(a) the relative strength of the bargaining positions of the parties to the contract and, if applicable, any persons acting on behalf of the parties; and (b) whether any undue influence or pressure was exerted on, or any unfair tactics were used against, a party to the contract; and (c) whether the contract may have an adverse effect on the development of the skills of employees performing work of the relevant kind in the industry, including any system designed to provide a trained labour force (for example, apprenticeship or any arrangement for improving the skills of employees); and (d) whether the contract provides total remuneration that is, or is likely to be, less than that of an employee

performing similar work; and (e) any other matter that the Commission thinks relevant".

10. By s.127A(5), the Commission is required, if it forms the opinion that a contract is unfair, harsh or against the public interest in whole or in part, to record its opinion "stating whether the opinion relates to the whole or a specified part of the contract". And by s.127A(7), the Commission is required to exercise its powers of review "in a way that furthers the objects of (the) Act as far as practicable".

11. Section 127B provides, in ss.(1), (2), (3) and (4), as follows:

"(1) If the Commission records an opinion under section 127A in relation to a contract, it may make one or more of the following orders in relation to the opinion: (a) an order setting aside the whole or part of the contract, as the case may be; (b) an order varying the contract.

(2) An order may only be made for the purpose of placing the parties to the contract as nearly as practicable on such a footing that the ground on which the opinion is based no longer applies.

(3) While the application is pending, the Commission may make an interim order if it thinks it is desirable to do so to preserve the position of a party to the contract.

(4) An order takes effect from the date of the order or a later date specified in the order."

12. The power of the Commission to review and vary contracts under ss.127A and 127B is confined by s.127C(1) in these terms:

"Sections 127A and 127B apply only as follows, namely: (a) in relation to a contract to which a constitutional corporation is a party; (b) in relation to a contract relating to the business of a constitutional corporation; (c) in relation to a contract entered into by a constitutional corporation for the purposes of the business of the corporation; (d) in relation to a contract relating to work in trade or commerce to which paragraph 51(i) of the Constitution applies; (e) in relation to a contract so far as it affects matters that take place in or are otherwise connected with a Territory; (f) in relation to a contract to which the Commonwealth or a Commonwealth authority is a party."

13. "Constitutional corporation" is defined in s.127C(2) to mean "a corporation to which paragraph 51(xx) of the Constitution applies". The Commonwealth has power, under s.51(xx), to make laws with respect to "(f)oreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". It is convenient to use the expression "constitutional corporation" in the same way as it is used in the Act.

THE ISSUES
14. The case has been conducted at all stages on the basis that, if the Commission has jurisdiction with respect to the contracts involved in this case, that jurisdiction derives solely from s.127C(1)(b) of the Act. In this regard, it is accepted that the Company is a trading corporation formed within the limits of the Commonwealth and that the work performed or to be performed by the prosecutors and the subcontractors constituted and constitutes an integral part of the Company's business activities. However, the prosecutors contend that the Commission has no jurisdiction to review and vary the contracts because ss.127A and 127B, in their application pursuant to s.127C(1)(b), are invalid. In particular, they argue that they are not laws with respect to corporations of the kind specified in s.51(xx) of the Constitution, that being the legislative power on which s.127C(1)(b) plainly relies. Additionally, they argue that ss.127A and 127B are invalid as involving the purported conferral on the Commission of the judicial power of the Commonwealth, contrary to the requirement in Ch.III of the Constitution that that power be vested only in the courts therein named or designated. Finally, they claim that ss.127A and 127B, properly construed, do not confer power on the Commission to vary contracts that have come to an end.

JUDICIAL POWER
15. It is convenient to deal first with the argument that ss.127A and 127B purport to confer judicial power on the Commission. It is well settled that some powers are essentially judicial so that they can be conferred by the Commonwealth only on courts named or designated in Ch.III of the Constitution (83), while others take their character from the tribunal in which they are reposed and the way in which they are to be exercised and, thus, may be conferred on courts or other tribunals as the Parliament chooses (84).

16. A power to adjudicate "a dispute about rights and obligations arising solely from the operation of the law on past events or conduct" (85) is one that is essentially and exclusively judicial. On the other hand, a power to bring a new set of rights and obligations into existence is generally non-judicial, although it may take its character from the tribunal involved (86). Thus, a power to create new rights and obligations, if it is conferred on a court and "is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to (unspecified) policy considerations" (87), will be characterized as judicial power involving the determination of rights and obligations for which the law provides. At least that is so if the subject matter and prescribed procedures are consistent with the nature and functions of a court (88).

17. However, if power to bring a new set of rights and obligations into existence is vested in a tribunal which is not a court and policy considerations have a part to play in the tribunal's determination, the power is not judicial (89). And that is so even if it is necessary for the tribunal to decide disputed facts or to form an opinion as to existing rights and obligations as a step in arriving at its ultimate determination (90).

18. The power of variation which ss.127A and 127B contemplate is, in essence, a power to create new rights and obligations, even though they are attached to a pre-existing contract for services. In that respect, the power is precisely analogous with the Commission's power to make industrial awards, at least when the award-making power is exercised, as is generally the case, to create new rights and obligations attaching to pre-existing employment relationships.

19. Quite apart from the fact that the power to form an opinion as to what is unfair, harsh or against the public interest is to be exercised to promote the objects of the Act and, thus, will often involve policy considerations, the nature of the power of variation with which ss.127A and 127B are, in essence, concerned and the character of the Commission as an arbitral tribunal suffice to indicate that that power is not judicial power.

THE OPERATION OF SS.127A AND 127B
20. Before turning to the argument that ss.127A and 127B, in their application pursuant to s.127C(1)(b), are not authorized by s.51(xx) of the Constitution, it is necessary to say something of the operation of ss.127A and 127B generally and as applied by s.127C(1)(b). In particular, it is necessary to consider whether ss.127A and 127B apply to contracts that have come to an end and to determine what is meant by the expression "relating to the business of a constitutional corporation" as used in s.127C(1)(b).

CONTRACTS THAT HAVE COME TO AN END
21. The Commission rejected an argument advanced on behalf of the prosecutors that it has no power with respect to contracts that have come to an end, ruling that the powers of review and variation conferred by ss.127A and 127B apply to contracts that are in existence when an application is made. The prosecutors challenge that ruling, arguing that, as a matter of construction, ss.127A and 127B are confined to current contracts.

22. The argument that the Commission's powers are confined to current contracts was based on the use of the present tense in ss.127A and 127B. In this regard, attention was directed to the definition of "contract" in s.127A(1), particularly the reference to a contract that "is binding on an independent contractor", and to the grounds of review set forth in s.127A(2), namely that a contract "is unfair" or "IS harsh" or "IS against the public interest" (91). The argument also relied on s.127B(3) and (4) which, respectively, authorize the Commission to make an interim order "to preserve the position of a party to the contract" and provide that "(a)n order takes effect from the date of the order or a later date specified in the order". It was argued, in the context of these specific provisions, that the use of the present tense requires ss.127A and 127B to be construed so that the Commission's powers to review and vary a contract extend only to contracts that are current when it exercises the particular power in question.

23. The present tense may be used descriptively or it may be used to signify contemporaneity. Although there is no fixed rule, the use in a statute of the present tense, simpliciter, generally indicates that it is being used descriptively (the "simple present"), whereas "is" followed by a present participle (the "continuous" or "progressive" present) usually indicates contemporaneity (92). The descriptive use of the present tense can be seen in s.127B(4) where the words "takes effect" do not indicate that an order then takes effect but, rather, describe and, thus, prescribe the way in which an order must take effect.

24. The power of the Commission under s.127B(3) to make interim orders "to preserve the position of a party to the contract" does not, in my view, provide any reliable guide to the construction of ss.127A and 127B. The power to make interim orders is not confined to orders which operate to keep a contract on foot. Moreover, it is power that might usefully be invoked even if the Commission has power to vary contracts that have come to an end.

25. The most persuasive of the matters relied on for the argument that the Commission has no power to vary contracts that have come to an end is the definition of "contract" in terms of a contract that "is binding on an independent contractor (93)". As earlier indicated and although there is no fixed rule in that regard, the present participle often imports contemporaneity. However, the use of "binding" as a participial adjective meaning "enforceable" is also well recognized (94) and, when so used, "is binding" is a descriptive use of the simple present, rather than a use of the continuous or progressive present.

26. No question arises in this case as to whether the Commission's jurisdiction is confined to contracts that are current when application is made to it under ss.127A and 127B. That question may raise a different issue from that involved in this case. In particular, it may raise the issue whether ss.127A and 127B were intended to have retroactive operation. Whatever the position in that regard, ss.127A and 127B are not, in my view, confined to contracts which are current when the particular power of review or variation comes to be exercised. That construction would allow the Commission to review a contract that is current when the review takes place, but not to vary the contract if it comes to an end or, as is more likely, if it is brought to an end before an order is made under s.127B. It cannot be supposed that Parliament intended that consequence, particularly in the context of contracts relating to the performance of work by an independent contractor where, in the nature of things, the power to terminate without notice or on short notice may well be the very matter which makes the contract unfair, harsh or against the public interest (95). That being so and given that "binding" is often used to mean "enforceable", the use of the present tense in ss.127A and 127B is merely descriptive of the nature of the contracts which may be the subject of the Commission's powers, namely, contracts enforceable against an independent contractor and whose terms or operation may be described as unfair, harsh or against the public interest. Contrary to the argument advanced on behalf of the prosecutors, its use does not signify that the Commission's powers under ss.127A and 127B are confined to contracts that are current when it comes to exercise those powers.

THE MEANING OF "RELATING TO THE BUSINESS OF A CONSTITUTIONAL CORPORATION"
27. The Commission proceeded to determine the applications for variation on the basis that the words "relating to" in s.127C(1)(b) require a direct relationship with the business of a constitutional corporation, "in the sense of having a basic or relevant connection with it". That connection, in the view of the Commission, was likely to be satisfied by "a contract for the performance of work for the purposes of the trading activities of (a) corporation, including probably the related business activities".

28. The words "relating to" do not ordinarily require a direct or immediate connection (96), although they will do so if that is indicated by their context (97). The relevant context in this case is that of a contract for the performance of work by an independent contractor. Subject to one qualification and leaving aside any reading down that might be required to bring s.127C(1)(b) within constitutional limits, the words "relating to the business of a constitutional corporation" are apt, in the context of a contract for the performance of work by an independent contractor, to extend to a contract for the performance of work by or in consequence of which a constitutional corporation conducts some or all of its business activities.

29. The qualification referred to in the last paragraph is that there may be questions of fact and degree involved in determining whether a contract which is only partly concerned with work by or in consequence of which a constitutional corporation conducts its business activities is "a contract relating to the business of a constitutional corporation". Questions of that kind would arise, for example, with a contract for the delivery of goods, some to be delivered to constitutional corporations and some not. And there may be a question whether s.51(xx) of the Constitution extends to authorize the review and variation of a contract in respect of some obligation or some aspect of it that has no connection with a constitutional corporation.

THE CORPORATIONS POWER
30. The argument that ss.127A and 127B, in their operation pursuant to s.127C(1)(b), are not authorized by s.51(xx) was largely made by reference to the nature of the power conferred by that paragraph. In particular, it was emphasised that it is not "expressed as a power with respect to a function of government, a field of activity or a class of relationships but as a power with respect to persons, namely, corporations of the classes therein specified" (98). Even so, the power is a plenary power and is to be construed according to its terms and not by reference to implications or limitations which those terms do not require (99).

31. When s.51(xx) is approached on the basis that it is to be construed according to its terms and not by reference to unnecessary implications and limitations, it is clear that, at the very least, a law which is expressed to operate on or by reference to the business functions, activities or relationships of constitutional corporations is a law with respect to those corporations. In this regard, it is sufficient to note that, although the business activities of trading and financial corporations may be more extensive than their trading or financial activities, those corporations, nonetheless, take their character from their business activities(100). As was pointed out by Gibbs CJ in Actors and Announcers Equity Association v. Fontana Films Pty. Ltd.(101), "(i)t is the business of a trading corporation to trade, and its business is its trading." So too, it is the business of a financial corporation to engage in financial transactions and its business consists of the transactions in which it engages(102). And a foreign corporation is simply a corporation formed outside Australia that carries on business in Australia(103).

32. As their business activities signify whether or not corporations are trading or financial corporations and the main purpose of the power to legislate with respect to foreign corporations must be directed to their business activities in Australia, it follows that the power conferred by s.51(xx) extends, at the very least, to the business functions and activities of constitutional corporations and to their business relationships. And those functions, activities and relationships will, in the ordinary course, involve individuals, and not merely individuals through whom the corporation acts, as in Fencott v. Muller(104), or the control of whose conduct is directly connected with the regulation or protection of the corporation, as in Actors and Announcers Equity Association(105).

33. Once it is accepted that s.51(xx) extends to the business functions, activities and relationships of constitutional corporations, it follows that it also extends to the persons by and through whom they carry out those functions and activities and with whom they enter into those relationships. And when regard is had to the type of contract with which ss.127A and 127B are concerned, namely, a contract for the performance of work by an independent contractor, it is clear that "a contract relating to the business of a constitutional corporation", as those words are used in s.127C(1)(b) of the Act, and which does not fall within s.127C(1)(a)(106) or s.127C(1)(c)(107), will inevitably have as its other party a person who performs the business functions or carries out the business activities of a constitutional corporation or a person who is in a business relationship with that corporation. That other party is within the reach of the legislative power conferred by s.51(xx) of the Constitution, at least to the extent of those functions and activities or that business relationship.

34. It is possible that, as a matter of construction, ss.127A and 127B extend to the review and variation of some aspect of a contract that has no connection with the business activities of a constitutional corporation and which, thus, is separate and distinct from the business functions and activities which an individual performs for the corporation or the business relationship which he or she has with it. If they do, a question arises whether s.51(xx) extends to authorize laws binding on individuals with respect to matters which travel beyond the corporate functions and activities in which they participate or the relationships which they have with a constitutional corporation. The same question arises if ss.127A and 127B allow a contract to be varied so that it has an operation unrelated to the business of a constitutional corporation.

35. The question whether ss.127A and 127B operate pursuant to s.127C(1)(b) in some respect that is unrelated to the business activities of a constitutional corporation can be put to one side. It does not arise on the facts of this case. So too, the question whether s.51(xx) authorizes that operation need not be pursued. Clearly, s.127C(1)(b) can be read down pursuant to s.15A of the Acts Interpretation Act 1901 (Cth), if necessary, to apply to contracts only to the extent that they relate to the business of a constitutional corporation(108). That being so, there is no need to consider s.7A of the Act(109). As the Commission's powers of variation are confined by s.127B(2) to putting the parties "as nearly as practicable on such a footing" that the ground for the opinion that their contract is unfair, harsh or against the public interest no longer applies, that reading down would preclude the variation of a contract in any way that would give it an operation unrelated to the business activities of a constitutional corporation.

36. As already indicated, even if ss.127A and 127B are construed to operate with respect to matters which travel beyond the business functions and activities which an individual performs for a constitutional corporation or the business relationship he or she has with it, no question of constitutional validity arises in this case. This case is concerned solely with the rights and obligations of persons, namely, the prosecutors, who entered into a contractual relationship with a trading corporation, the Company, for the performance of work by or in consequence of which it, the Company, carries out its business activities. And it is concerned only with that work and the rights and obligations arising out of or in connection with that work. When applied to the facts and circumstances with which this case is concerned, ss.127A and 127B operate no differently from a law providing that a person who contracts with a constitutional corporation to procure the performance of work by or in consequence of which it, the corporation, carries out its business activities shall not procure that work on terms that are unfair, harsh or against the public interest. As already explained, that operation, being an operation on persons who are in a business relationship with a constitutional corporation in respect of matters the subject of their particular relationship, is within the power conferred by s.51(xx).

37. For the sake of completeness, it should be noted that nothing that the Commission did in this case, including the reinstatement of the contracts between the prosecutors and the subcontractors and the extension of those contracts on newly inserted terms which prevent termination other than as provided by those terms, gives those contracts an operation which travels beyond the work performed or to be performed in satisfaction of the prosecutors' contractual obligations to the Company.

CONCLUSION
38. The order nisi should be discharged.

McHUGH J The question in this case is whether s.51(xx) of the Constitution authorises a law that confers jurisdiction on a tribunal to set aside or vary contracts "relating to the business of a constitutional corporation". Section 51(xx) provides that the Parliament of the Commonwealth may make laws with respect to "Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth". Purporting to act under that power, the Parliament enacted ss.127A, 127B and 127C(1)(b) of the Industrial Relations Act 1988 (Cth) which conferred jurisdiction on the Industrial Relations Commission(110) to set aside or vary a contract "relating to the business of a constitutional corporation" if the contract was unfair, harsh or against the public interest. Constitutional corporation was defined to mean "a corporation to which paragraph 51(xx) of the Constitution applies". In my opinion, s.51(xx) did not authorise this conferral of jurisdiction. Nor do the provisions of s.15A of the Acts Interpretation Act 1901 (Cth) save any part of the jurisdiction purporting to be conferred by s.127C(1)(b).

2. The corporations power, like all s.51 powers, is a plenary grant of power. It is to be construed with all the generality that its words will admit(111). Unlike most of the powers conferred by s.51, however, the corporations power is directed to persons and not subject matters such as trade, commerce, taxation or quarantine(112). Although laws that regulate the activities, functions, relationships or business of corporations are clearly laws with respect to corporations, the power conferred by s.51(xx) also extends to any subject that affects the corporation. As long as the law in question can be characterised as a law with respect to trading, financial or foreign corporations, the Parliament of the Commonwealth may regulate many subject matters that are otherwise outside the scope of Commonwealth legislative power. Laws that protect s.51(xx) corporations from the conduct of non- corporations, for example, are laws with respect to s.51(xx) corporations. Thus a law that penalises persons who impose secondary boycotts that are designed to and likely to cause substantial damage to the business of corporations is a law with respect to those corporations, notwithstanding that its principal purpose is to outlaw secondary boycotts(113).

3. It does not follow, however, that s.51(xx) authorises any law that operates on conduct that relates to the activities, functions, relationships or business of trading, financial or foreign corporations. The law must be a law "with respect to" a corporation of the kind described by s.51(xx). That means that the law must have "a relevance to or connection with"(114) a s.51(xx) corporation. It is not enough, however, that the law "should refer to the subject matter or apply to the subject matter"(115).

4. In determining whether a law is "with respect to" a head of power in s.51 of the Constitution, two steps must be taken. First, the character of the law must be determined. That is done by reference to the rights, powers, liabilities, duties and privileges which it creates(116). Secondly, a judgment must be made as to whether the law as so characterised so operates that it can be said to be connected to a head of power conferred by s.51. In determining whether the connection exists, the practical, as well as the legal, operation of the law must be examined(117). If a connection exists between the law and a s.51 head of power, the law will be "with respect to" that head of power unless the connection is, in the words of Dixon J(118), "so insubstantial, tenuous or distant" that it cannot sensibly be described as a law "with respect to" the head of power.

5. Where a law purports to be "with respect to" a s.51(xx) corporation, it is difficult to see how it can have any connection with such a corporation unless, in its legal or practical operation, it has significance for the corporation. That means that it must have some significance for the activities, functions, relationships or business of the corporation. If a law regulates the activities, functions, relationships or business of a s.51(xx) corporation, no more is needed to bring the law within s.51(xx)(119). That is because the law, by regulating the activities, etc., is regulating the conduct of the corporation or those who deal with it. Further, if, by reference to the activities or functions of s.51(xx) corporations, a law regulates the conduct of those who control, work for, or hold shares or office in those corporations, it is unlikely that any further fact will be needed to bring the law within the reach of s.51(xx).

6. It is not enough, however, to attract the operation of s.51(xx) that the law merely refers to or operates upon the existence of a corporate function or relationship or a category of corporate behaviour. The activities, functions, relationships and business of s.51(xx) corporations are not the constitutional switches that throw open the stream of power conferred by s.51(xx). In Actors and Announcers Equity Association v. Fontana Films Pty. Ltd.(120), Brennan J said:

"It is of the nature of the power that it is a power to make laws with respect to corporate persons, not with respect to functions, activities or relationships."

7. So, where a law seeks to regulate the conduct of persons other than s.51(xx) corporations or the employees, officers or shareholders of those corporations, the law will generally not be authorised by s.51(xx) unless it does more than operate by reference to the activities, functions, relationships or business of such corporations. A law operating on the conduct of outsiders will not be within the power conferred by s.51(xx) unless that conduct has significance for trading, financial or foreign corporations. In most cases, that will mean that the conduct must have some beneficial or detrimental effect on trading, financial or foreign corporations or their officers, employees or shareholders. Thus, laws that regulate conduct that promotes or protects the functions, activities, relationships or business of such corporations or laws that regulate conduct conferring benefits on those corporations are laws with respect to s.51(xx) corporations even though they are also laws with respect to that conduct.

8. But a law that does no more than make some activity of a s.51(xx) corporation the condition for regulating the conduct of an outsider will ordinarily not be a law with respect to those corporations. If a law regulates conduct that has no significance for s.51(xx) corporations, it is not a law with respect to those corporations even if that conduct is connected to or even based on what a corporation does. Thus, a law that sought to regulate the remuneration of employment contracts made by financial analysts would not be a law with respect to s.51(xx) corporations even if the work of the analysts was entirely based upon the business activities of corporations. Laws that seek to regulate such contracts are laws with respect to employment contracts, but they are not laws with respect to corporations.

9. Sections 127A, 127B, 127C(1)(b) combined to give the Industrial Relations Commission jurisdiction to set aside or vary a contract that was unfair, harsh or against the public interest if the contract was one "relating to the business of" a s.51(xx) corporation. The term "relating to" is extremely wide. But it predicates the existence of a relationship between a contract and the business of a s.51(xx) corporation(121). In some statutes, the context of the term "relating to" requires that the relationship be substantial or direct. Nothing in s.127C or in the rest of the Act, however, requires that the relationship required by s.127C(1)(b) should be narrowly construed. In its natural and ordinary meaning, the provision requires no more than a relationship, whether direct or indirect, between a contract and the business of a s.51(xx) corporation.

10. Mr North, Q.C., counsel for the second to sixth respondents, submitted that the term "relating to" required a direct effect on the business of the corporation. He relied upon Redfern v. Dunlop Rubber Australia Ltd.(122) to support that submission. But that case decided no more than that, upon their proper construction, s.4 and s.11 of the Australian Industries Preservation Act 1906-1950 (Cth) were a valid exercise of the power to make laws with respect to trade and commerce with other countries and among the States. It is of no assistance in construing s.127C(1)(b). Mr Rose, Q.C., intervening on behalf of the Attorney-General of the Commonwealth, submitted that the contract must have a "direct and immediate relationship" or be "directly concerned" with the business of a s.51(xx) corporation. But I can see nothing in the Act that requires such a restricted meaning to be given to s.127C(1)(b). In any event, in my opinion, the paragraph would not validly confer jurisdiction on the Commission even if the words of s.127C(1)(b) were construed as narrowly as Mr North and Mr Rose contended that they should be construed.

11. The validity of s.127C(1)(b) does not depend upon the directness or indirectness of the relationship between the contract and the business of a s.51(xx) corporation. The validity of the paragraph depends upon whether a contract referred to in s.127A has significance for such a corporation. A contract would have significance if it conferred some benefit or imposed some detriment on a s.51(xx) corporation or if it affected the activities, functions, relationships or business of such a corporation. But the jurisdiction conferred by s.127C(1)(b) is not dependent upon the contract having any effect on, or any other significance for, the corporation. The Commission is given jurisdiction to intervene and set aside a contract on the bare condition that the contract relates to the business of a s.51(xx) corporation. Whether the unfairness, harshness or contrariety to the public interest of the contract has any consequences or significance for the corporation is of no relevance whatever. Jurisdiction to make orders arises once a relationship between the contract and the business of a s.51(xx) corporation exists. That is not enough in my opinion to make ss.127A, 127B and 127C(1)(b) a law with respect to a s.51(xx) corporation. It follows that s.127C(1)(b), as enacted, was not authorised by s.51(xx) of the Constitution.

12. The next question is whether, by reason of the operation of s.15A of the Acts Interpretation Act 1901 (Cth), the invalid part can be severed from the valid part (if any) of s.127C(1)(b). To that question, I now turn.

13. I have no doubt that in some circumstances contracts that are unfair, harsh or against the public interest and that relate to the business of a constitutional corporation can be brought within the scope of the power conferred by s.51(xx) even if the corporation is not a party to the contract. To take a clear example: such a contract would be within s.51(xx) if its execution was dependent upon the approval of a constitutional corporation. But to recognise that some contracts that relate to the business of a constitutional corporation are within the scope of s.51(xx) does not itself assist a court to apply the terms of s.15A of the Acts Interpretation Act. Section 15A will not save an enactment that is beyond the power of the Commonwealth unless the enactment contains, expressly or by inference, a standard or test that can be applied so as to confine the enactment within constitutional power(123). Neither s.127C nor the Act gives any clue as to what standard or test is to be applied in reading down a provision of s.127C that is beyond the power of the Commonwealth to enact. Paragraphs (a) and (c) of s.127B show that s.127C(1)(b) was not intended to be confined to contracts to which a constitutional corporation is a party. On the contrary, the context created by these two paragraphs shows that s.127C(1)(b) was intended to operate on contracts to which constitutional corporations were not parties. Furthermore, nothing in s.127C or the rest of the Act indicates a standard or test that would confine s.127C(1)(b) in a way that would make it operate so as to have significance for constitutional corporations. It follows that s.127C(1)(b) is wholly invalid and inoperative.

14. After the decision in this case was reserved for judgment, the Court invited argument as to the effect and validity of s.7A of the Act which contains a severance clause that appears to go further in its operation than s.15A. Section 7A came into force after these proceedings were heard in the Commission. Sub-section (4) of s.7A states, however, that the section is to apply "to a provision of this Act, whether enacted before, at or after the commencement of this section". Nevertheless, the section is not expressed to apply retrospectively to events that occurred before s.7A was enacted. It therefore has no application to the question whether the Commission had jurisdiction to make the orders that it did.

15. The orders nisi made by Dawson J must be made absolute.

FOOTNOTES

(1) Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 207 (Aickin J concurring at 215); The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 148-150; see also at 179 per Murphy J, 270 -271 per Deane J

(2) The Tasmanian Dam Case (1983) 158 CLR at 157 per Mason J

(3) (1982) 150 CLR at 205-206.

(4) Bank of New South Wales v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 187 per Latham CJ; Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 6-7 per Kitto J, 16 per Taylor J, 17-18 per Menzies J; Actors and Announcers Equity Association (1982) 150 CLR at 184 per Gibbs CJ, 201-202 per Mason J

(5) The Tasmanian Dam Case (1983) 158 CLR at 152 per Mason J; see also Herald and Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418 at 436 per Kitto J, 440 per Menzies J

(6) Huddart Parker Ltd v The Commonwealth (1931) 44 CLR 492 at 500 per Rich J, 514 per Dixon J, 529 per Evatt J; Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 at 544; Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 at 516-520 per Walsh J, 526-527 per Gibbs J

(7) See Huddart Parker (1931) 44 CLR at 500 per Rich J, 515-516 per Dixon J, 529 per Evatt J

(8) (1990) 169 CLR 482 at 497.

(9) s.127C(2).

(10) Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 at 489-490, 512, 516.

(11) Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 218, 220, 222.

(12) The Commonwealth v. Tasmania. The Tasmanian Dam Case. (1983) 158 CLR 1 at 240.

(13) Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR at 216.

(14) (1982) 150 CLR 169.

(15) ibid. at 183, 194, 200, 206, 218, 222.

(16) ibid. at 194-195.

(17) (1965) 114 CLR 1 at 7.

(18) (1983) 158 CLR at 316.

(19) s.4(1A).

(20) Re Nolan; Ex parte Young (1991) 172 CLR 460 at 485-486 per Brennan and Toohey JJ

(21) Pidoto v. Victoria (1943) 68 CLR 87 at 109 per Latham CJ; see also Nationwide News Pty. Ltd. v. Wills (1992) 177 CLR 1 at 61, 80.

(22) Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR at 493 per Barwick CJ

(23) (1931) 44 CLR 492.

(24) (1955) 93 CLR 528.

(25) Coming into force on 30 March 1994.

(26) s.7A(4).

(27) s.127A(1).

(28) What Lord Diplock in Lep Air Services v. Rolloswin Ltd. (1973) AC 331 at 350 calls "a secondary obligation".

(29) That is, leaving aside contracts which contain clauses intended to survive termination of the substantive provisions of a contract - for example, clauses relating to arbitration (Lep Air Services v. Rolloswin Ltd. (1973) AC at 350), confidential information (Thomas Marshall Ltd. v. Guinle (1979) Ch 227) and restraint of trade (Home Counties Dairies Ltd. v. Skilton (1970) 1 All ER 1227).

(30) McDonald v. Dennys Lascelles Ltd. (1933) 48 CLR 457 at 469-470 476-477; Lep Air Services v. Rolloswin Ltd. (1973) AC at 345, 350.

(31) McDonald v. Dennys Lascelles Ltd. (1933) 48 CLR at 469-470, 476-477; cf. Lord Porter in Heyman v. Darwins Ld. (1942) AC 356 at 399.

(32) Lep Air Services v. Rolloswin Ltd. (1973) AC at 345-346, 350-351; Progressive Mailing House Pty. Ltd. v. Tabali Pty. Ltd. (1985) 157 CLR 17 at 31, 48.

(33) Georgiadis v. Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.

(34) See s.361 of the Act and s.71 of the Industrial Relations Reform Act 1993 (Cth).

(35) s.127A(3) of the Act.

(36) See Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 at 502-503 per Menzies J

(37) ibid. at 489-490. See also to the same effect at 499 per McTiernan J, 502-503 per Menzies J, 519 per Walsh J; cf. at 507-508 where Menzies J appears to be dealing not with the ambit of the aliens power but with the question of whether it is subject to restrictions contained in other heads of power; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 117-118 per Gibbs CJ, 201-202 per Wilson J, 240-241 per Brennan J, 314-315 per Dawson J

(38) See Cunliffe v. The Commonwealth (1994) 68 ALJR 791 at 808 per Brennan J, 831-832 per Dawson J; 124 ALR 120 at 145-146 per Brennan J, 178-179 per Dawson J

(39) (1971) 124 CLR at 502-503.

(40) (1982) 150 CLR 169 at 222. See also New South Wales v. The Commonwealth (The Incorporation Case) (1990) 169 CLR 482 at 497.

(41) (1982) 150 CLR at 182-183.

(42) (1983) 158 CLR at 316.

(43) Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1 at 371.

(44) See Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR at 527.

(45) See sub-s.(1).

(46) See sub-s.(4).

(47) See Fisher v. Hebburn Ltd. (1960) 105 CLR 188 at 194; Maxwell v. Murphy (1957) 96 CLR 261 at 267; Rodway v. The Queen (1990) 169 CLR 515 at 518; Polyukhovich v. The Commonwealth (1991) 172 CLR 501 at 642.

(48) See Pidoto v. Victoria (1943) 68 CLR 87 at 111.

(49) ibid. at 109.

(50) (1971) 124 CLR 468 at 490.

(51) ibid.

(52) (1909) 8 CLR 330.

(53) (1971) 124 CLR at 519.

(54) (1982) 150 CLR 169.

(55) ibid. at 182.

(56) ibid. at 194.

(57) ibid. at 200.

(58) ibid. at 212.

(59) ibid. at 222.

(60) (1983) 158 CLR 1.

(61) ibid. at 152.

(62) ibid. at 200.

(63) ibid. at 240.

(64) ibid. at 316.

(65) Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1 at 187 per Latham CJ, adopted in Fairfax v. Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J See also The Tasmanian Dam Case (1983) 158 CLR at 152 per Mason J

(66) Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 at 77 per Dixon CJ, McTiernan, Webb and Kitto JJ

(67) For instance, Herald and Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418 at 433-434 per Kitto J; Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1 at 22-23 per Mason J

(68) Grannall (1955) 93 CLR at 77.

(69) (1952) 86 CLR 169 at 179.

(70) ibid.

(71) British Medical Association v. The Commonwealth (1949) 79 CLR 201 at 274 per Dixon J; Burton v. Honan (1952) 86 CLR at 177 per Dixon CJ

(72) The Queen v. Public Vehicles Licensing Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. (1964) 113 CLR 207 at 225.

(73) Bank of New South Wales v. The Commonwealth (1948) 76 CLR at 186 per Latham CJ

(74) ibid.

(75) s.127A(1).

(76) Tooheys Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620 per Taylor J

(77) cf. Fontana Films (1982) 150 CLR 169.

(78) (1991) 172 CLR 460 at 485.

(79) (1943) 68 CLR 87 at 109.

(80) Palmer and Sampford, "Retrospective Legislation in Australia: Looking Back at the 1980s", (1994) 22 Federal Law Review 217 at 220.

(81) S.127A(1) of the Act.

(82) See ss.71 and 72 of the Industrial Relations Reform Act 1993 (Cth). As to the new Court, see s.361 of the Act.

(83) Waterside Workers' Federation of Australia v. JW. Alexander Ltd. (1918) 25 CLR 434 at 467; Reg. v. Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") (1956) 94 CLR 254 at 270, 296, 314, 338.

(84) Precision Data Holdings Ltd. v. Wills (1991) 173 CLR 167 at 189. See also Reg. v. Davison (1954) 90 CLR 353 at 370; Reg. v. Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 628; Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656 at 665-666; Harris v. Caladine (1991) 172 CLR 84 at 93, 147-148.

(85) Precision Data (1991) 173 CLR at 188. See also Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (1987) 163 CLR 140 at 148-149.

(86) Precision Data (1991) 173 CLR at 189. And see, as to the conferral of such powers on a court, Peacock v. Newtown Marrickville and General Co-operative Building Society No.4 Ltd. (1943) 67 CLR 25 at 35.

(87) Precision Data (1991) 173 CLR at 191, referring to the discussion by Dixon J in R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 165 et seq.

(88) See Precision Data (1991) 173 CLR at 191. See also Reg v. Davison (1954) 90 CLR at 369-370; Harris v. Caladine (1991) 172 CLR at 150 and the cases there discussed.

(89) Precision Data (1991) 173 CLR at 191.

(90) Re Cram; Ex parte Newcastle Wallsend Coal Co. Pty. Ltd. (1987) 163 CLR at 149; Re Ranger Uranium Mines Pty. Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR at 666; Precision Data (1991) 173 CLR at 189.

(91) My emphasis in each case.

(92) See Quirk et al., A Comprehensive Grammar of the English Language, (1985), at 179-180, 197-198.

(93) s.127A(1)(a)(i).

(94) See, for example, Peter Long and Partners v. Burns (1956) 2 All ER 25 at 26; and generally Rola Co. (Australia) Pty. Ltd. v. The Commonwealth (1944) 69 CLR 185 at 190. See also the New Shorter Oxford English Dictionary (1993) at 229.

(95) For a discussion of the illusory nature of certain contractual rights involved in agreements for the performance of work falling within s.88F(1) of the Industrial Arbitration Act 1940 (N.S.W.) (which is largely reproduced in s.275 of the Industrial Relations Act 1991 (N.S.W.)), see In re Becker and Harry M. Miller (No.2) (1972) 72 AR (NSW) 298 at 310.

(96) But cf. Redfern v. Dunlop Rubber Australia Ltd. (1964) 110 CLR 194 at 213, 219; Seamen's Union of Australia v. Utah Development Co. (1978) 144 CLR 120 at 138-139.

(97) As to the context in which the words "relating to" appear, see, for example, Tooheys Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 618, 620.

(98) New South Wales v. The Commonwealth (The Incorporation
Case) (1990) 169 CLR 482 at 497. See also Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 181, 216; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 157, 202, 240-241, 269, 314-315.

(99) See with respect to s.51(xx) Actors and Announcers Equity Association (1982) 150 CLR at 207-208. See with respect to constitutional powers generally, Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. (1964) 113 CLR 207 at 225 (s.51(xxxvii)); Russell v. Russell (1976) 134 CLR 495 at 539 and Re F; Ex parte F (1986) 161 CLR 376 at 387 (s.51(xxi)).

(100) See generally State Superannuation Board v. Trade Practices Commission (1982) 150 CLR 282 at 303-306; Fencott v. Muller (1983) 152 CLR 570 at 601-602.

(101) (1982) 150 CLR 169 at 185; see also at 184-185, 195, 203 -204, 215, 221-222.

(102) See State Superannuation Board v. Trade Practices Commission (1982) 150 CLR at 305-306.

(103) See The Incorporation Case (1990) 169 CLR at 497-498.

(104) (1983) 152 CLR 570. See also Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235.

(105) (1982) 150 CLR 169.

(106) Section 127C(1)(a) brings contracts "to which a constitutional corporation is a party" within the application of ss.127A and 127B.

(107) Section 127C(1)(c) brings contracts "entered into by a constitutional corporation for the purposes of the business of the corporation" within the application of ss.127A and 127B.

(108) See, as to reading down "general" words, Pidoto v. Victoria (1943) 68 CLR 87 at 109-111; Bank of N.S.W. v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 252, 369-372; Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 CLR 468 at 516-520, 526-527.

(109) Section 7A, which came into operation on 31 March 1994 relevantly provides: "(1) Unless the contrary intention appears, if a provision of this Act: (a) would, apart from this section, have an invalid application; but (b) also has at least one valid application; it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.

(2) Despite subsection (1), the provision is not to have a particular valid application if: (a) apart from this section, it is clear, taking into account the provision's context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth's legislative power; or (b) the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth's legislative power.

(3) Subsection (2) does not limit the cases where a contrary intention may be taken to appear for the purposes of subsection (1).

(4) This section applies to a provision of this Act, whether enacted before, at or after the commencement of this section."

(110) The jurisdiction with some amendments is now conferred on the Industrial Relations Court of Australia; Industrial Relations Reform Act 1993 (Cth), ss.71 and 72; Industrial Relations Act (1988) (Cth), s.361.

(111) Reg. v. Public Vehicles Licensing Appeal Tribunal (Tas.); Ex parte Australian National Airways Pty. Ltd. (1964) 113 CLR 207 at 225; Actors and Announcers Equity Association v. Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 208.

(112) The aliens power (s.51(xix)) and the race power (s.51(xxvi)) are the exceptions.

(113) Actors and Announcers Equity Association (1982) 150 CLR 169.

(114) Grannall v. Marrickville Margarine Pty. Ltd. (1955) 93 CLR 55 at 77.

(115) Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1 at 186.

(116) The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 152.

(117) Herald and Weekly Times Ltd. v. The Commonwealth (1966) 115 CLR 418 at 440; The Tasmanian Dam Case (1983) 158 CLR at 152.

(118) Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 at 79.

(119) See Huddart Parker and Co. Pty. Ltd. v. Moorehead (1909) 8 CLR 330 at 348 where Griffith CJ said that any law in the form "No trading or financial corporation formed within the Commonwealth shall" or "Every trading or financial corporation formed, etc., shall" was a law validly made under s.51(xx) unless forbidden by some other provision of the Constitution.

(120) (1982) 150 CLR at 222.

(121) Tooheys Ltd. v. Commissioner of Stamp Duties (N.S.W.) (1961) 105 CLR 602 at 620 per Taylor J

(122) (1964) 110 CLR 194.

(123) Pidoto v. Victoria (1943) 68 CLR 87 at 109.