Re Lee; Ex Parte Harper

[1986] HCA 30

HIGH COURT OF AUSTRALIA

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

Re LEE; Ex parte HARPER

(1986) 160 CLR 430

10 June 1986

Constitutional Law (Cth)—Industrial Law (Cth)

Constitutional Law (Cth)—Conciliation and arbitration—Registration of organizations—Association of teachers—Teachers employed in government schools—Whether eligible for registration—The Constitution (63 &64 Vict. c. 12), s. 51(xxxv)—Conciliation and Arbitration Act 1904 (Cth), ss. 4(1), "industry", 132. Industrial Law (Cth)—Conciliation and arbitration—Registered organizations—Eligibility for membership—Association of teachers—Whether teachers engaged in "industry"—Whether employers engaged in "industry"—Conciliation and Arbitration Act 1904 (Cth), ss. 4(1), "industry", 132.

Decisions

GIBBS C.J.: The first question for decision in each of the three matters now before the Court is whether an association of employees whose membership largely comprises school teachers is entitled to be registered as an organization under s.132 of the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"). The three associations concerned are the Teachers' Association of Australia ("TAA"), the Independent Teachers Federation ("ITF") and the Australian Teachers' Union ("ATU"), all of which applied to the Industrial Registrar for registration under s.132. It is unnecessary for present purposes to set out in full the provisions of the respective rules governing the eligibility for membership of each of the three associations. It is enough to state their effect broadly as follows. Persons employed in or in connexion with school teaching, whether in governmental or independent schools, and including "school teachers in administrative, inspectorial, advisory and research positions", are eligible to join the TAA. In the case of the ITF, membership is open to teachers, and others filling related positions, in non-governmental schools only. For completeness, it should be added that there is an apparent exception in par.(c) of the ITF's eligibility rule, which is not expressly limited to non-governmental institutions, but we were told that it is proposed to delete that paragraph from the rules. Further, teachers employed in grammar schools constituted under the Grammar Schools Act 1975 (Q.), as amended, are eligible for membership of the ITF; the Government of Queensland plays some part in appointing trustees and controlling the finances of such schools, but, for reasons which will appear, it is unnecessary finally to decide whether grammar schools are instrumentalities of the Government, although as at present advised I have no doubt that they are not. Subject to some exceptions, membership of the ATU (apart from office bearers) is confined to persons usually employed as teachers, or in similar positions, in governmental schools and other governmental educational institutions, and to teachers seconded to other governmental positions. The Industrial Registrar held that the eligibility rule of the TAA specified an industry in or in connexion with which that association could obtain registration under s.132 of the Act. Appeals from that decision were brought to a Full Bench of the Commission under s.88F of the Act by the Minister for Justice and Attorney-General for the State of Queensland, and by other persons who objected to the application. The Industrial Registrar gave no decision on the applications made by the ITF and the ATU, but in each matter referred to the Commission under s.88E of the Act the question whether the applicant for registration is an association of employees in or in connexion with any industry or is an association of employees engaged in an industrial pursuit or pursuits within the meaning of the Act. The three matters were heard together by a Full Bench of the Commission which dismissed the appeals against the decision of the Industrial Registrar in relation to the application by the TAA and answered in the affirmative the questions referred to the Commission in relation to the applications by the ITF and the ATU. The Minister for Justice and Attorney-General for the State of Queensland as prosecutor now seeks a writ of prohibition or a writ of certiorari, the effect of which would be to prohibit further proceedings on the applications to the Industrial Registrar and to quash the decision of the Full Bench.

2. Section 132(1) of the Act provides (inter alia) as follows:

"Any of the following associations or persons

may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization:

...

(b) Any association the members of which include not less than one hundred employees in or in connexion with any industry ...;

(c) Any association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits ..."

"Industrial pursuit" is not defined in the Act but s.4(1) provides that, "except where otherwise clearly intended" -

"'Employee' means any employee in any industry and includes any person whose usual occupation is that of an employee in any industry;

'Employer' means any employer in any industry and includes any person who is usually an employer in an industry and also includes a Club;

...

'Industry' includes -

(a) any business, trade, manufacture,

undertaking, or calling of employers;

(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries".

3. Until the decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297, it might have been thought that an association of persons employed as school teachers would not be entitled to be registered as an organization under s.132 of the Act, unless perhaps the teachers were employed by an employer who was conducting a school for profit. The reasons for this view, put shortly, were as follows. The provisions of s.132 of the Act could not validly extend to an association which consisted of employees who were not capable of being involved in an industrial dispute within the meaning of s.51(xxxv) of the Constitution, and the meaning of "industry" and "industrial pursuit or pursuits" in s.132 must therefore depend on the nature and scope of the concept of "industry" to which par.(xxxv) refers: Reg. v. McMahon; Ex parte Darvall (1982) 151 CLR 57, at p 60. Although the expression "industrial dispute" in par.(xxxv) had not been fully defined, it was held that a dispute might be industrial either because the work of the employee was industrial in character or because of the industrial nature of the activity carried on by the employer: Pitfield v. Franki (1970) 123 CLR 448, at p 456. Manual labour was regarded as a typical example of employment which is industrial in itself: Ex parte Professional Engineers' Association (1959) 107 CLR 208, at p 236. Looked at from the point of view of the employer's activity, it was said that an industrial dispute might arise in an undertaking engaged in for the purpose of the organized production, transportation or distribution of commodities or other forms of material wealth or for purposes ancillary or incidental thereto: Ex parte Professional Engineers' Association, at p 236; Pitfield v. Franki, at pp 456-457; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at pp 76-77. On this view of the meaning of "industrial disputes", which involved fine and unreal distinctions, teaching was not in its nature an industrial activity, but might become so if the teacher was employed by a school conducted for profit: Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 569; Ex parte Professional Engineers' Association, at p 237; Pitfield v. Franki, at p 456; Reg. v. McMahon; Ex parte Darvall. This restricted view of par.(xxxv) was abandoned in Reg. v. Coldham; Ex parte Australian Social Welfare Union. It was there held that, subject to a possible qualification that will later be discussed, the expression "industrial disputes" at least includes disputes between employees (of any kind) and their employers about the terms and conditions of their employment. The reasons which formerly existed for placing a narrow construction on the terms of s.132 no longer obtain.

4. Of course it does not necessarily follow that the provisions of s.132(1) were intended to extend to the outer limits of the power given by s.51(xxxv). The expression "industrial disputes" does not occur in s.132(1) or in the definitions of "employer", "employee" and "industry" which may be applied in interpreting that sub-section. The word "industrial" itself appears in s.132(1)(c) in the phrase "industrial pursuit or pursuits". However, the same adjective may often be used with a different shade of meaning when applied to a different noun, as may be seen from a comparison of the expressions "industrial accident", "industrial action", "industrial property" and "industrial school". Neither "industrial pursuits" nor "industry" itself necessarily have the same width of meaning as "industrial disputes". Indeed in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508, at p 573, Higgins J. distinguished between the phrases "industrial disputes" and "disputes in an industry" and in Reg. v. Coldham; Ex parte Australian Social Welfare Union, at p 312, this Court said that the emphasis given in later cases to limits on the power conferred by s.51(xxxv), which derived from the meaning of the word "industry", was quite inexplicable.

5. It then becomes necessary to turn to the provisions of the Act itself, and to consider, free from the misconceptions as to the scope of s.51(xxxv) which were dispelled in Reg. v. Coldham; Ex parte Australian Social Welfare Union, whether on their proper construction those provisions allow an association of school teachers to be registered as an organization under s.132. The legislative history of s.4 and what is now s.132 has been traced in Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628, at pp 634-635 and 638-639. Starke J. said, at p 639:

"In my opinion, therefore, an association of

not less than one hundred employees in or in connection with any industry or constituted with regard only to the nature of the work its members personally do (vocational or craft unions), and entirely disregarding the class of industrial operations in which they and their employers are mutually engaged, may now be registered as an organization, and there is no provision in the Act which precludes the association or organization from combining both characteristics."

The construction of the provisions nevertheless presents certain logical difficulties. The references to "industry" in the definitions of "employee" and "employer", and to "employee" and "employer" in the definition of "industry", give the definitions an appearance of circularity: see R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488, at pp 499-500. However, in Reg. v. Coldham; Ex parte Australian Social Welfare Union, at p 315, this Court accepted the correctness of the statement of Dixon C.J. in Ex parte Professional Engineers' Association, at p 243, that the circular method of definition does not operate "to narrow or exclude the application of the definition of "industry" contained in the three pars.(a), (b) and (c) of the definition in s.4(1)". Any different view would appear to make pars.(a) and (b) of that definition, at least, quite ineffective. A further difficulty is caused by the fact that since the definition of "industry" refers to the calling of both employers and employees, the provisions of par.(c) of s.132(1) appear to add little or nothing to par.(b) of that sub-section when the latter paragraph is construed in the light of the definition of "industry". The expression "industrial pursuit" in s.132(1)(c) may very well have a narrower connotation than "industry" as defined in s.4(1), and since "industry" in s.132(1)(b) is applied by the definition to any calling etc. of employees the provisions of s.132(1)(b) would appear to cover all the employees embraced by s.132(1)(c), if not more. In spite of this difficulty, it seems to me that full effect should be given to the words of s.132(1)(b) read in the light of the definition of "industry". It is true that some of the judgments in Pitfield v. Franki suggest a different view. McTiernan J., at p 463, appears to have thought that s.132(1)(b) and par.(b) of the definition together cannot be construed so as to leave out of account altogether any concept of industry in the employees' calling. Menzies J., at pp.464-465, expressed the opinion that s.132(1)(b) brings into consideration the undertaking of the employers and that the question whether employees are employed in an "industry" cannot be determined without reference to the undertakings of the employers. With all respect, these statements, which were no doubt influenced by the narrow view of s.51(xxxv) that then prevailed, fail to give due weight to par.(b) of the definition of "industry", and should not now be accepted. In my opinion, upon the proper construction of s.132(1)(b) and par.(b) of the definition of "industry" in s.4(1) of the Act, any association whose members include not less than one hundred employees in or in connexion with any calling, service, employment, handicraft, or industrial occupation or vocation of employees is eligible for regis- tration under s.132. Clearly enough, an association whose members include not less than one hundred persons employed as school teachers answers that description, for teaching by persons employed to teach is a calling of employees in the ordinary understanding of that expression. Subject to the question about to be discussed, that is enough to justify the Commission's decision in the present case.

6. The second question that falls for decision is whether the fact that in the case of the TAA the membership includes, and in the case of the ATU largely comprises, persons employed, either as school teachers or in other related capacities, in governmental schools, conducted by the States, means that the associations are not eligible to be registered as organizations under s.132. In support of an affirmative answer to this question Mr Hampson for the prosecutor relied on the possible qualification to the judgment in Reg. v. Coldham; Ex parte Australian Social Welfare Union to which I have already referred, which is mentioned at p 313 of the report of that case. It was there said that it has been generally accepted, notwithstanding the Engineers' Case, (1920) 28 C.L.R. 129, that the power conferred by s.51(xxxv) is inapplicable to "the adminis- trative services of the States". The Court went on to say that "the implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa)" but it did not need to decide whether a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could be sustained as valid. The principles according to which limitations of that kind may be implied in the Constitution were discussed, but not fully developed, in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, Victoria v. The Commonwealth (1971) 122 CLR 353 and, more recently, in Queensland Electricity Commission v. The Commonwealth (1985) 59 ALJR 699; 61 ALR 1. Subject to such implied limitations, a legislative power of the Commonwealth extends to the operations of the States so far as they otherwise fall within the subject- matter of the power, and, in particular, s.51(xxxv) enables the Parliament to make laws which apply to the States and to agencies of the States with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State: Ex parte Professional Engineers' Association, at p.233. As Dixon C.J. said in that case, at p.234:

"That which is naturally within s.51(xxxv) cannot cease to be so because is is 'governmental'."

Now that the proposition for which Federated State School Teachers' Association of Australia v. State of Victoria was regarded as authority, that the occupation which State school teachers pursue is not by its nature industrial, can no longer be accepted, there is no reason why the power given by s.51(xxxv) should not extend to an interstate dispute to which an organization representative of State school teachers is a party. It is impossible correctly to describe State school teachers, employed as such, as part of "the administrative services of the States", within the meaning of the possible qualification stated in Reg. v. Coldham; Ex parte Australian Social Welfare Union. The expression "the administrative services of the State" in that context cannot have been intended to include all employees of the State who happen to do some administrative work, but its intended scope is rather obscure. If it was intended to refer to "Crown officials engaged in adminis- tering true, essential governmental authority", to use the words of Isaacs J. in his dissenting judgment in Federated State School Teachers' Association of Australia v. State of Victoria, at p 584 (see also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria, at p 502), the distinction which it suggests is an illusory one: Ex parte Professional Engineers' Association, at pp 235, 274-276 and Victoria v. The Commonwealth, at p 424. But if a description of that kind could sensibly be adopted, State school teachers would not fall within it, as Isaacs J. himself held in Federated State School Teachers' Association of Australia v. State of Victoria. A more appropriate approach is to consider whether the law whose validity is in question would impair the ability of the State to continue to exist and function as such, but clearly provisions fixing the wages and conditions of employment of school teachers would not have that effect. Moreover, there is no suggestion here of a law which is aimed at, or discriminates against, a State or States.

7. There are, it is true, some members of the TAA and the ATU who may be seconded to positions in which they may be engaged in ordinary administrative service. However, the fact that an association has amongst its members some persons in respect of whom the power conferred by s.51(xxxv) cannot be exercised does not mean that the association cannot be regarded as an organization under s.132. If the association has one hundred members of the kind described in par.(b) or par.(c) of s.132(1), it is eligible for registration, although it may have some other members who do not answer those descriptions: see Ex parte Professional Engineers' Association, at pp 242, 252, 265, 269-270. Therefore we are not now concerned to consider whether the wages and conditions of employment of teachers seconded to administrative positions could validly be determined by the Commission, and since we did not hear full argument on that question I think it better not to discuss it. From the earliest times this Court has experienced a difficulty in reconciling the effect which the exercise of the power given by s.51(xxxv), construed without limitation, might have on the States with the position intended to be secured to the States by the Constitution. There have been a number of shifts of opinion, and the matter has never been fully explored. In particular, the questions whether it is possible to have a genuine interstate dispute involving the officials of one State who are doing no more than carrying out the administrative services of that State, and whether the artificial doctrine concerning paper disputes needs modification in the light of the illumination thrown on s.51(xxxv) by Reg. v. Coldham; Ex parte Australian Social Welfare Union, remain open for definitive discussion.

8. For these reasons the Commission was right in holding that each of the three associations is eligible for registration as an organization under s.132 of the Act, provided of course that it complies with the prescribed conditions. The orders nisi should be discharged.

MASON, BRENNAN AND DEANE JJ.: These three matters raise the question whether each of three associations of teachers is eligible to be registered as an organization of employees pursuant to s.132 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). The associations are the Independent Teachers Federation ("the ITF"), the Australian Teachers' Union ("the ATU") and the Teachers' Association of Australia ("the TAA"). The membership of the TAA under its constitution consists of persons employed in or in connexion with school teaching, whether employed in government or non-government schools, and includes school teachers in administrative, inspectorial, advisory and research positions. The membership of the ATU under its constitution is similar to that of the TAA, except that the ATU membership is largely confined to those employed in government educational institutions. The membership of the ITF is also similar, except that it is confined to employees of non-government and independent schools, including grammar schools.

2. On an application by the TAA the Industrial Registrar decided that it was entitled to registration. The prosecutor appealed from that decision to the Australian Conciliation and Arbitration Commission, whereupon the Industrial Registrar referred the applications for registration by the ATU and the ITF to the Commission because of the common questions raised by all three proceedings. A Full Bench of the Commission (Coldham and Marks JJ. and Commissioner Turbet) held that the associations were registrable as organizations under the Act. The prosecutor then sought and obtained from this Court orders nisi for writs of prohibition, prohibiting the members of the Commission, the Industrial Registrar and named officers of each association from taking any further steps or making any further order in respect of the registrations, and also obtained orders nisi for writs of certiorari to quash the Commission's decision.

3. In the era that was brought to a close by the decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union (the "Social Welfare Union Case") (1983) 153 CLR 297, the decisions in Federated State School Teachers' Association of Australia v. Victoria ("the School Teachers' Case") (1929) 41 CLR 569 and Pitfield v. Franki (1970) 123 CLR 448 loomed as formidable obstacles to the registration of associations of teachers under s.132(1)(b) and (c) of the Act (see, for example, Reg. v. McMahon; Ex parte Darvall (1982) 151 CLR 57). The first step in the decision in the School Teachers' Case, confirmed by Pitfield, was that the words "industry", as defined by s.4(1) of the Act, and "industrial", where it appeared in the Act, had to be read in the light of the meaning of the expression "industrial disputes" in s.51(xxxv) of the Constitution. The second step was that that constitutional expression reflected the narrow concept of industry which had been favoured by Isaacs and Rich JJ. in Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation ("the Municipalities Case") (1919) 26 CLR 508, at pp 554-555, and in the Australian Insurance Staffs' Federation v. Accident Underwriters' Association ("the Insurance Staffs' Case") (1923) 33 CLR 517, at pp 524-525. That narrow concept of industry was restricted to activities which involved the co-operation of capital and labour in the production and distribution of goods and in the provision of services necessary or incidental to such activities. In the result the definition of "industry" in s.4 as it then stood, though it included "any calling, service, employment, handicraft, or industrial occupation or avocation of employees, on land or water", was confined by the constitutional concept of "industrial disputes" and was, accordingly, taken to refer to activities of an "industrial nature". The School Teachers' Case held that the system of public education provided by the States could not be characterized as "industrial" in this sense.

4. Subject to a qualification which is not presently relevant, s.132(1)(b) permits the registration of any association the members of which include not less than one hundred employees -

"... in or in connexion with any industry and the other members, if any, of which are-

(i) officers of the association; or

(ii) persons who are employees who are qualified to be employed in or in connexion with that industry ..."

Subject to a similar qualification which is not presently relevant, s.132(1)(c) permits the registration of any association the members of which include not less than one hundred employees-

"... engaged in an industrial pursuit or pursuits and the other members, if any, of which are-

(i) officers of the association; or

(ii) persons who are employees who are qualified to be engaged as employees in that industrial pursuit or in one of those industrial pursuits ..."

5. The subsection has to be read in association with the definition of "industry", which is in these terms:

"'Industry' includes-

(a) any business, trade, manufacture,

undertaking, or calling of employers;

(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries".

Each item in the three paragraphs is an industry, so that employers and employees will be in an industry if the employers' activities fall within par.(a) or the employees' activities fall within par.(b).

6. In Pitfield v. Franki the Court held that persons employed by statutory fire fighting authorities in the States were not employees "in or in connexion with any industry" within the meaning of s.132(1)(b) and were not "engaged in an industrial pursuit or pursuits" within the meaning of s.132(1)(c). In his discussion of the words "industry" and "industrial" as they appeared in s.132, Barwick C.J., with whom Owen J. expressly agreed, proceeded on the footing that the Act gave effect to the concept of an "industrial dispute" within the meaning of s.51(xxxv) of the Constitution. He regarded the expressions of judicial opinion in relation to that concept as having "significance" and as providing "assistance" in the interpretation of s.132, although he did not consider that the definition of Isaacs and Rich JJ. in the Municipalities Case, previously mentioned, had gained general acceptance as an exhaustive exposition of the meaning of "industry" in the Act (see pp.455-456). Nonetheless, it is clear that his Honour favoured a restrictive meaning of "industry" and "industrial" in the context of the Constitution and the Act. So much at least is apparent from his Honour's general comments and his discussion of the services provided by a State Department of Education and fire fighting authorities. By way of general comment his Honour observed (at p.456):

"Though the manufacture and distribution of goods is at the heart of industry, the provision of services essential to such industrial activity may constitute an industry for the purposes of the Constitution and of the Act ... But teaching in the employ of a State is not in itself an industrial activity, nor is the State engaged in industry in carrying on its Department of Education. On the other hand it would seem that those who conduct a school for profit may be engaged in industry so that their teacher employees, though school teaching may not be essentially industrial, may be engaged in industry because of the industrial nature of the employer's business."

7. His Honour's rejection of the argument that the fire fighting authorities were engaged in an industry was grounded on the broad proposition that they "are statutory bodies carrying out statutory duties in the interests of the public at large" (at pp.457-458). According to his Honour, it was not enough that industrial plants fell within the purview of those duties because the provision of fire fighting services was not indispensable to the industrial activity of the industrial section of the community. This process of reasoning led Barwick C.J. to the conclusion that the employees of the statutory fire fighting authorities were not employees "in or in connexion with any industry" within the meaning of s.132(1)(b), a conclusion also reached by McTiernan and Menzies JJ. for substantially similar reasons.

8. Barwick C.J. also concluded, in the light of the School Teachers' Case, that the work done by fire fighters was not an industrial pursuit or pursuits. McTiernan and Menzies JJ. were of the same opinion, although Walsh J. took the contrary view.

9. The account which we have given of the reasoning in the School Teachers' Case and Pitfield v. Franki refutes the submission made by the prosecutor that the decisions turned on matters of statutory, as distinct from constitutional, interpretation. The interpretation given to the definition of "industry" in s.4(1) in the first case and to s.132(1)(b) in the second case rested on constitutional considerations. The limits imposed on the statutory concept of industry were ascribed to s.51(xxxv) itself. There was no suggestion in the judgments that the limitations were to be found in the statute alone. The statute was seen as a reflection of the restricted constitutional concept of "industrial dispute" which then prevailed. It does not follow that the registration provisions necessarily stand outside the limits of the constitutional power if "industry" is defined in such a way that it fails to correspond precisely with the notion of "industry" which is embedded in the concept of "industrial disputes" in s.51(xxxv). It may be incidental to the subject matter of the power, or to its exercise, that provision should be made for the registration of associations whose membership includes persons engaged in activities which lie beyond the constitutional notion of "industry". It has sometimes been suggested that the statute is predicated upon a narrower concept of "industrial disputes" than that expressed by the head of legislative power (Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association ("Jumbunna") (1908) 6 CLR 309, at pp 369-370). However, the suggestion was rejected in Ex parte Professional Engineers' Association ("Professional Engineers'") (1959) 107 CLR 208.

10. Neither the School Teachers' Case nor Pitfield v. Franki should now be followed. The Social Welfare Union Case has undermined the very foundations on which the reasoning in the two decisions was based. There the Court rejected the notion that the meaning of the words "industrial disputes" in s.51(xxxv) of the Constitution should be ascertained by reference to the word "industry" viewed in isolation so as to confine the constitutional power to the settlement of a dispute in an industry. Instead the Court emphasized that the words were a composite expression and that as such it should be given its popular meaning so as to embrace a dispute between employer and employee about the terms of employment and the conditions of work, a view which had been enunciated previously by Higgins J. in the Municipalities Case, at pp.573-575, and the Insurance Staffs' Case, at pp.528-530, reiterating the view expressed by O'Connor J. in Jumbunna, at pp.365-367, shorn of its association with the doctrine of inter-governmental immunities. Accordingly, there is no reason why the Court should not now interpret s.132(1)(b) in the light of the scope of the constitutional power as established by the Social Welfare Union Case.

11. One question expressly left open by the Court's judgment in the Social Welfare Union Case (at p.313) was whether the limitations on the exercise of the legislative powers of the Commonwealth Parliament, which are to be derived from the federal nature of the Constitution, preclude the exercise of the arbitration power in relation to employees engaged in the administrative services of a State or State authority. The prosecutor seeks to take advantage of this reservation by submitting that the education services within a State form part of the administrative services of the State and therefore remain immune from any exercise of the arbitration power. It is not suggested that the relevant provisions of the Act discriminate against the State or single out the State so as to impose some special burden or disability upon it. The prosecutor's submission must therefore be understood as amounting to a contention that the relevant provisions operate to destroy or curtail the continued existence of the State or its capacity to function as a government.

12. As Dixon C.J. recognized in Professional Engineers' (at p.233), once there exists an industrial dispute extending beyond the limits of one State, it is no objection to the exercise of the Commission's authority that a party bears the character of a State or an agency of a State. His Honour pointed out that a finding that the Commission has no authority over officers in the administrative branches of the States, such as clerks in the Treasury, the Lands Department and the Law Department, must rest on the view that the administrative services of the State are not relevantly "industrial" in character and cannot generate an "industrial dispute" within s.51(xxxv), rather than on the view that a State or its agencies are immune from the exercise of the authority of the Commission (at pp.233-234). The absence of any reference to the implied limitations on Commonwealth power as discussed in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, especially at pp 79-84, indicates that his Honour did not discern any basis for holding that the exercise of the Commission's authority over employees engaged in providing the administrative services of a State brought the implied limitations into play.

13. The ground on which, according to Professional Engineers', State employees engaged in the provision of administrative services of the State would not be parties to an "industrial dispute" with their employer was explained by Dixon C.J. (at pp.234-235) as follows:

"It may be easy enough to say that a dispute between a State and the officers of the State employed in assessing State land tax is not an 'industrial dispute'. As a matter of the use of English terms most people would feel that this must be so and if they were called upon to give an analytic statement of the reasons why, they would say that it stood outside the whole world of productive industry and organized business. They might, by way of contrast with that, point to its governmental purpose. But if they were then faced with the question whether a dispute arising from the demands of lift attendants, office cleaners and the like upon their employers, industrial as otherwise it might be, ceased to be 'industrial' when it extended to or affected the land tax office because that was governmental, surely the answer would be that the character of the building could not make a dispute about the wages and conditions of employees doing such work any less industrial."

14. The first sentence of this passage is an illustration of the view which was so decisively rejected in the Social Welfare Union Case. Even if in 1959 a dispute between the State and its land tax assessors would not have been popularly regarded as an "industrial dispute" - a proposition to which we do not assent - there can be no doubt at all that today such a dispute would be regarded as an industrial dispute, as indeed would a dispute between a State and its school teachers. In short, disputes between employers and employees relating to the terms and conditions of employment, even if they stand "outside the whole world of productive industry and organized business", are popularly regarded nowadays as industrial disputes.

15. However, for present purposes the important point to be made is that the reason assigned in Professional Engineers' for denying to the Commission authority in respect of the administrative services of a State was not the implied limitations on the legislative powers of the Commonwealth, but the restricted concept of industrial disputes, now acknowledged to be incorrect. More recently, the decision in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, to the effect that the work performed by clerical and administrative employees of the Commissioner for Motor Transport was not of an industrial character, proceeded according to the same reasoning.

16. The questions then are whether, consistently with the reservation tentatively expressed in the Social Welfare Union Case, there is an acceptable basis for holding that the implied limitations preclude the exercise by the Commission of its authority over employees of a State engaged in the administrative services of the State or its agencies, and whether school teachers are engaged in such services. For the purpose of disposing of the prosecutor's submission, it is sufficient to answer the second of the two questions. Although the precise limitations of the administrative services of a State are not easily identified, it is manifestly clear that classroom teachers are not part of that service. It is equally clear that teachers in non-government schools form no part of that service. There can be no objection to the registration of the ITF on that score. The registration of the TAA and the ATU can be supported on the footing that they have the capacity to create an interstate industrial dispute between such of their members as are not part of the administrative services of a State and their employers. It is one thing to refuse registration of an association all of whose members are necessarily engaged in the administrative services of the State. It is another thing to refuse registration because only some members of an association are so engaged, when there are other members who are not and who by reason of their employment or occupation may become parties to an interstate industrial dispute. Professional Engineers' is an authority which sustains the grant of registration in the second case because it decided that a registered organization could create an interstate industrial dispute on behalf of such of its members as are engaged in industry, notwithstanding that some of its members are not so engaged.

17. As the Court indicated, after the close of the prosecutor's argument, that the case could be disposed of without the Court hearing full argument on the first of the two questions previously mentioned, there is no occasion for us to express a final opinion upon that question. However, we consider it appropriate that we indicate our preliminary view. There is no denying that the exercise by the Commission of its authority to settle the terms and conditions of employment of State employees effects a significant subtraction from the autonomy of the State, because the capacity of a government to set the terms and conditions of its relationship with its employees, which affects the services and benefits which it can provide, is an important aspect of its autonomy.

18. Traditionally, employers enjoyed the right to set the terms and conditions of employment of their employees, free from regulation by government or government agencies, subject, of course, to the freedom of the employee or potential employee to refuse to accept the terms and conditions offered or set by the employer. However, in the last century the adoption in Australia of a system of industrial conciliation and arbitration as a means of settling industrial disputes resulted in the regulation of the employer's traditional right by means of awards made by industrial tribunals. Ultimately this system extended to the regulation of the terms and conditions of employment of public servants in the employ of colonial governments, just as it now extends to public servants in the employ of federal and State governments. The extension of the system by Commonwealth and State legislation from private to public employment was an inevitable development, especially in a country in which public utilities were owned and operated by government or statutory authorities. When based upon State legislation the extension of the system to State employees involved no threat to the autonomy of the State or its capacity to govern. On the contrary, the extension was then an exercise by the State of its autonomy.

19. But the exercise by the Commission of its authority in respect of the terms and conditions under which employees are engaged in the administrative services of a State, if it be authorized by the Constitution, involves no such legislative act on the part of the State. In a different context, dissociated from the tradition of industrial arbitration in Australia (which includes its extension to public employment), the subjection by the Commonwealth Parliament of the relationship between a State and its employees to the authority of its agency, the Commission, might perhaps be thought to involve such a radical subtraction from State autonomy as to attract the implied limitations on Commonwealth power. The scope of the arbitration power, viewed in the light of the history of industrial arbitration in Australia, does not support this view.

20. According to the settled interpretation of the power, it sustains the exercise by the Commission of its authority in relation to State employees, at any rate apart from those engaged in the administrative services of a State. The factors which have induced the Court to so hold - the debilitating effects of interstate industrial disputes and the national importance of establishing machinery for their effective resolution, leading to the view that the object of the arbitration power is to enable the Commonwealth to establish a means of settling interstate industrial disputes which are incapable of settlement by a single State - apply with equal force to disputes involving employees engaged in the administrative services of a State. To draw a distinction between employees so engaged and those not so engaged for the purpose of denying the operation of the arbitration power in the first case, but not in the second, on the basis of the implied limitations would seem to resuscitate in a new form the discredited distinction between functions of government which are "essential" or "truly governmental" and those which are not. This distinction, initially disowned in The Federated Amalgamated Government Railway and Tramway Service Association v. The New South Wales Railway Traffic Employes Association ("the Railway Servants Case") (1906) 4 CLR 488, at pp 538-539, has been consistently rejected by the Court (see Professional Engineers', at pp 235, 274-276; Victoria v. The Commonwealth ("the Payroll Tax Case") (1971) 122 CLR 353, at pp 382-383, 398, 424; Queensland Electricity Commission v. The Commonwealth (1985) 59 ALJR 699, at p 708; 61 ALR 1, at p 17). It is to be noted that the Supreme Court of the United States, after embracing, for the purpose of the implied constitutional limitations, the distinction between functions that are traditionally governmental and those that are not (National League of Cities v. Usery (1976) 426 US 833; 49 L.Ed. 2d 245), has now rejected the distinction as unworkable (Garcia v. San Antonio Metropolitan Transit Authority (1985) 83 L.Ed. 2d 1016).

21. There is accordingly much to be said for the proposition that, assuming that there is no discrimination against a State or singling out, such as occurred in Queensland Electricity Commission v. The Commonwealth, the exercise of the arbitration power in the ordinary course of events will not transgress the implied limitations on Commonwealth legislative power. The exercise by the Commission of its authority with respect to the employment relationship between a State and its employees in the course of settling an interstate industrial dispute appears to fall within s.51(xxxv). Although the purpose of the implied limitations is to impose some limit on the exercise of Commonwealth power in the interest of preserving the existence of the States as constituent elements in the federation, the implied limitations must be read subject to the express provisions of the Constitution. Where a head of Commonwealth power, on its true construction, authorizes legislation the effect of which is to interfere with the exercise by the States of their powers to regulate a particular subject matter, there can be no room for the application of the implied limitations.

22. The same point may be expressed in another way by saying that in deciding whether Commonwealth legislation has the effect of impairing or inhibiting the continued existence of the States or their capacity to govern, we must look to the role which the States have to play under the Constitution. If the Constitution contemplates that the States will be subject to control or regulation by the Commonwealth or its agencies in particular respects, their subjection to that control or regulation cannot amount to a relevant impairment or inhibition of their capacity to govern. On the view which we are presently inclined to take of the implied limitations, they do not protect the States from the consequences of the exercise by the Commonwealth of the powers granted to it by the Constitution which contemplate their application to the States. Nor do they protect the States from an erosion in their status occasioned by the increasing regulation of community affairs by the Commonwealth in accordance with its powers.

23. Once s.132(1) is freed from the constitutional constraints imposed on it by the earlier decisions of this Court or suggested by the prosecutor's argument, the subsection applies fairly and squarely to the three associations. If we focus on the position of the employer for the purpose of applying par.(a) of the definition of "industry", it is appropriate to speak of the undertaking of the employer to conduct schools or provide educational services. If this is not enough, then the common calling of the employees is that of teaching, which satisfies par.(b) of the definition. Whether we look at the relevant activities as the undertaking of the employer or as the calling of the employees, there can be no doubt that a dispute about the terms and conditions of employment would constitute an industrial dispute as popularly understood. Consequently, the definition of "industry", read in the light of the now accepted understanding of "industrial disputes" in s.51(xxxv) of the Constitution, is satisfied in this case. Accordingly, the members of the associations who are classroom teachers are employees employed in or in connexion with an industry for the purpose of s.132(1)(b).

24. For the foregoing reasons we would discharge the orders nisi.

WILSON J.: These cases form a sequel to two recent decisions of this Court: Reg. v. McMahon; Ex parte Darvall (1982) 151 CLR 57 ("Darvall") and Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 ("CYSS").

2. In Darvall the Industrial Registrar had refused to register as an organization of employees pursuant to Part VIII of the Conciliation and Arbitration Act 1904 (Cth) as amended ("the Act") an association of academic staff employed in universities. The Registrar took the view that the members of the association were not employed "in or in connection with any industry", nor were they "engaged in an industrial pursuit or pursuits" within the meaning of those expressions in pars (b) and (c) respectively of s.132(1) of the Act. Consequently the association was not eligible to be registered. The association then applied to this Court for a writ of mandamus directed to the Registrar. The prosecutor relied on the doctrine that had become well established that if the activity of an employer is ancillary or incidental to the organized production, transportation or distribution of commodities or other forms of material wealth, that is if it is ancillary or incidental to what may be called 'industry' in the strict sense, it will in itself be industrial: Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517; Ex parte Professional Engineers' Association (1959) 107 CLR 208, ("the Professional Engineers' Case") at pp.236, 267; Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, at p 608; Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at pp 76-77; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at p 590. It was argued that the activities of universities are ancillary or incidental to industry. The argument accepted the restricted concept of industry as established in cases such as Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 ("the School Teachers' Case") and Pitfield v. Franki (1970) 123 CLR 448, notwithstanding the hints given by some members of the Court that a return to the broader concept of "industry" and "industrial" first enunciated by Griffith C.J. and O'Connor J. in Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 332-333, 365-368 was possible: see Marshall, at pp 608-609 and Holmes, at pp.74, 79 and 90. The Court unanimously rejected the prosecutor's argument that the work of universities bore the necessary relation to industry but each judgment pointedly observed that the Court was not asked to reconsider the decisions in which the views of Griffith C.J. and O'Connor J. in Jumbunna were rejected: Darvall, at pp.60, 65, 73, 74.

3. The invitation held out in Marshall and Holmes was accepted in CYSS. The Community Youth Support Scheme was a scheme sponsored by the Australian Government under which project workers were employed by community-based committees to assist unemployed young people to maintain their morale and orientation towards work. The workers were members of the Australian Social Welfare Union. A dispute developed between the Union and the committees about the terms and conditions of employment of the project officers. A majority of the Full Bench of the Conciliation and Arbitration Commission reversed an initial decision finding that a dispute existed, holding that the work of the project officer lacked the necessary connection with industry. The Union then obtained orders nisi for writs of prohibition, certiorari and mandamus and argued in this Court that the constitutional concept of 'industrial dispute' was sufficiently wide to embrace any dispute between employer and employees as to the terms and conditions of the employment. After tracing the history of the judicial interpretation of s.51(xxxv) so far as it relates to the industrial character of the disputes to which it refers, the Court expressed its conclusion, at p.312, in the following terms:

"The words (that is, 'industrial disputes')

are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact. That the expression is 'industrial disputes', not 'disputes in an industry', as Higgins J. noted, makes quite inexplicable the emphasis given in the later cases to limitations on the power derived from the meaning of the word 'industry' ...

It is, we think, beyond question that the

popular meaning of 'industrial disputes' includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective 'industrial' imports some restriction which confines the constitutional conception of 'industrial disputes' to disputes in productive industry and organized business carried on for the purpose of making profits".

4. The three matters which are now before the court for decision each have their genesis in an application by an association of teachers to be registered as an organization of employees in accordance with Part VIII of the Act. It will be sufficient to describe very briefly each of the three associations.

5. The Teachers' Association of Australia ("TAA") consists of persons employed in or in connection with school teaching and includes schoolteachers in administrative, inspectorial, advisory and research positions. Membership is open to teachers in both government and non-government schools.

6. The Australian Teachers' Union ("ATU") offers membership to teachers engaged in the same range of functions as those covered by the TAA except that in the case of the ATU membership is confined to teachers who are employed in educational institutions operated by government or governmental agencies. In New South Wales, membership may extend to teachers in universities and colleges of advanced education.

7. The Independent Teachers Federation ("ITF"), as its name implies, draws its membership substantially from teachers in non-government or independent schools. The only material qualification to that statement is that in Queensland membership in the ITF is open to teachers in grammar schools conducted in accordance with the Grammar Schools Act 1975 (Q.). As will appear, it is unnecessary to consider separately the character of any dispute that may be found to exist involving teachers employed in those grammar schools as compared with a dispute involving the remaining members of the ITF.

8. The Industrial Registrar entered upon a hearing of the application for registration by the TAA. After hearing evidence and submissions tendered on behalf of the TAA and the objectors, the Registrar concluded that its constitution made eligible for membership employees in or in connection with an industry within the meaning of s.132(1)(b) of the Act. A number of objectors, including independent schools and the present prosecutor, the Minister for Justice and Attorney-General for the State of Queensland, were granted leave to appeal to a Full Bench pursuant to s.88F of the Act. Following the Registrar's decision in the TAA matter, the ATU and the ITF each successfully applied to the Registrar pursuant to s.88E of the Act for the matter of its application to be referred to the Commission

"in so far as it raises a question of whether (the applicant) is an association of employees in or in connection with any industry or is an association of employees engaged in an industrial pursuit or pursuits within the meaning of the Conciliation and Arbitration Act 1904".

9. The Full Bench determined the appeals and the references by concluding that each of the three associations was registrable as an organization of employees in an industry. The Minister for Justice and Attorney-General for the State of Queensland now appears as prosecutor to seek the issue of writs of prohibition and certiorari in respect of each of these decisions.

10. Mr Hampson for the prosecutor advances two broad submissions. The first is that the wider conception of "industrial disputes" laid down in CYSS does not affect the established application of s.132 of the Act as reflected in the decision of this Court in Pitfield v. Franki. The consequence of this submission, so it is argued, is that the decision in the School Teachers' Case remains good authority for the proposition that education does not fall within the concept of "industry" as expressed in the Act. It then follows that none of the three associations are registrable as organizations under the Act because their members do not fall within either par.(b) or par.(c) of s.132(1). The second submission is advanced in the alternative. It is that teaching in government schools is part of the administrative services of the State and consequently, by reason of implications to be drawn from the federal nature of the Constitution, is beyond the reach of the legislative power conferred on the Commonwealth by s.51(xxxv) of the Constitution. As I understand it, this submission challenges the registration of the TAA and the ATU, but not the ITF save so far as teachers employed in the Queensland grammar schools are concerned.

11. The provisions of the Act which fall for consideration are s.132(1) and certain definitions in s.4(1). So far as material, those provisions are:

"132(1) Any of the following associations or persons may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization:

...

(b) Any association the members of which include not less than one hundred employees in or in connexion with any industry and the other members, if any, of which are -

(i) officers of the association; or

(ii) persons who are employees who are qualified to be employed in or in connexion with that industry,

but does not include an association that has members referred to in sub-paragraph (ii) unless the association is effectively representative of the members who are employees in or in connexion with that industry; and

(c) Any association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits and the other members, if any, of which are -

(i) officers of the association; or

(ii) persons who are employees who are qualified to be engaged as employees in that industrial pursuit or in one of those industrial pursuits,

but does not include an association which has members referred to in sub-paragraph (ii) unless the association is effectively representative of the members who are employees engaged in that industrial pursuit or those industrial pursuits".

"4(1) In this Act, except where otherwise clearly intended -

...

'Employee' means any employee in any industry and includes any person whose usual occupation is that of employee in any industry;

'Employer' means any employer in any industry and includes any person who is usually an employer in an industry and also includes a Club;

...

'Industry' includes -

(a) any business, trade, manufacture, undertaking, or calling of employers;

(b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries;

... ".

12. I turn now to consider the first submission advanced for the prosecutor. Mr Hampson accepts the decision of the Court in CYSS but argues that the broader scope accorded by that decision to the constitutional concept of "industrial dispute" does not affect the proper construction of s.132(1) of the Act as confirmed by Pitfield v. Franki. The sub- section plainly requires that for an association of employees to be eligible for registration as an organization the members of the association must be shown either to be employees in or in connection with "any industry" within the meaning of par.(b) or to be "engaged in an industrial pursuit or pursuits" within the meaning of par.(c). I shall consider Pitfield v. Franki later in these reasons but it suffices to say at this point that the uncertainty which surrounds the authority of that decision is associated with the meaning that is to be ascribed to the term "industry" in par.(b) and to the term "industrial pursuit" in par.(c).

13. I do not find it necessary either to agree or disagree with Menzies J. and with Walsh J. (Pitfield v. Franki, at pp 464 and 469 respectively) that the category described in par.(c) is already wholly covered by the reference to "industry" in par.(b). It may be possible to find employees within one description although outside the other. In many cases the categories will overlap. History shows that par. (c) was inserted in s.55 of the original Act (the precursor to s.132) in 1915 in response to the decision of Powers J., the Deputy President of the Commonwealth Court of Conciliation and Arbitration, in Australian Workers' Union; Ex parte William Wilson Killen (1915) 9 CAR 33 holding that the rules of the Union were bad in that they rendered eligible for membership persons whose employment was not confined to any industry or group of industries. The validity of the new paragraph was upheld in Federal Palace Hotel Limited and Others v. Federated Liquor and Allied Trades Employees' Union of Australasia (1918) 12 CAR 652 when the President of the Court, Higgins J., acknowledged that, notwithstanding the extraordinary diversity of occupations encompassed by the eligibility rule of the Union, par.(c) authorized its registration.

14. The first question then is whether schoolteachers, as the core membership of each of the three organizations may be shortly described, are employed in or in connection with any industry or group of industries, understanding the word "industry" to include "any business, trade, manufacture, undertaking, or calling of employers" or "any calling, service, employment, handicraft, or industrial occupation or vocation of employees". Putting aside the decisions of this Court, it may be wondered why schoolteachers cannot be said to be employed in or in connection with an "under- taking" of employers to provide educational services for children. Alternatively, the teachers would seem prima facie to have a calling of teaching in common. The relationship is one of employment, a relationship in which questions may arise concerning the terms and conditions of that employment. Should those questions fail to be resolved amicably, industrial action may follow. These considerations are sufficient, in my opinion, to bring the relationship between teachers and their employers within the sphere of industrialism under either heading of the definition of industry.

15. Nor do the decisions of this Court as they are now to be understood in the light of CYSS require a different conclusion. In Jumbunna at pp.332-333, Griffith C.J. answered the question of what is an "industrial dispute" within the meaning of the Constitution by saying:

"It must, of course, be a dispute relating to an 'industry', and, in my judgment, the term 'industry' should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life".

It will be remembered that in CYSS the Court discounted the reliance by the Chief Justice on a large number of employees being involved. While O'Connor J. in Jumbunna did not discuss the word "industry", his Honour rejected the contention that the word "industrial" is restricted to work connected directly or indirectly with production and manufacture (p.365). The word connotes the "control and regulation of employment and the relations of employers and employes" (p.367). Isaacs J. (at p.370) spoke of the constitutional power extending

"over the whole range of Australian industry in the largest sense without qualification, wherever ... it does or may give rise to a dispute extending beyond the limits of any one State, and thereby, in a manner beyond the control of any single State, disorganise the general operations of society or interfere with the satisfaction of public requirements in relation to the service interrupted".

From time to time there has been raised the possibility that the statutory definition of "industry" might not correspond precisely with the constitutional conception of "industrial": Jumbunna, per Isaacs J. at p.370; Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508 ("the Municipalities' Case"), per Higgins J. at p 572. In the Professional Engineers' Case a submission that the statutory definition of "industrial dispute" fell short of exhausting the constitutional power was emphatically rejected: pp.242-245, 250, 259-261, 270. The definition of "Industry" was, of course, broadened in 1911 beyond that which Isaacs J. had before him in Jumbunna, following the decision of this Court in Federated Engine-Drivers and Firemen's Associ- ation of Australasia v. Broken Hill Proprietary Co. Ltd. (1911) 12 CLR 398 which held the statutory definition as it then was to be confined to the undertaking of the employer. The amendment which followed allowed for the concept of "industry" in the Act to be satisfied by a common calling or vocation of employees distributed among a range of enterprises as an alternative to an exclusive regard to the undertaking of the employer. The legislative history is described by Latham C.J. in Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628, at pp 634-635.

16. Furthermore, it is clear that Higgins J. in the Municipalities' Case found support for his conclusion in favour of a broad view of the meaning of the term "industrial dispute" as including "at all events, a dispute between employer and employee as to their reciprocal rights and duties" (p.575) in the manner in which the Parliament defined the term "Industry" in the Act (see at p.572).

17. It is unnecessary to repeat the review of the subsequent cases that was undertaken by the Court in CYSS at pp.307 ff. in order to demonstrate how attention was diverted from an application of the popular understanding of industrialism to "a search for a dispute in an industry" (p.308) in accordance with the narrower conception enunciated in the joint judgment of Isaacs and Rich JJ. in the Municipalities' Case at pp.554-555. It is plain to my mind that the renovation carried out in this area of the law by the judgment in CYSS extends to and affects the proper construction of the word "industry" as it appears in s.132(1)(b) of the Act and of the definition of "Industry" in s.4(1) of the Act.

18. In Pitfield v. Franki the substantial question was whether the men and officers employed by fire fighting authorities were employees in or in connection with any industry or engaged in an industrial pursuit so as to render their associations eligible for registration as an organization. There is no suggestion in the report of the case that the Court was asked to reconsider the correctness of any of the earlier decisions. Barwick C.J. reviewed the case law as it then stood and found difficulty in extracting any definition of the word "industry" which had found general acceptance. His own conclusion is expressed as follows (at p.456):

"An employment may be relevantly industrial though it does not involve the performance of manual labour or the production, handling or transportation of any material thing. Though the manufacture and distribution of goods is at the heart of industry, the provision of services essential to such industrial activity may constitute an industry for the purposes of the Constitution and of the Act".

His Honour accepted the authority of the School Teachers' Case for the proposition that:

"teaching in the employ of a State is not in itself an industrial activity, nor is the State engaged in industry in carrying on its Department of Education" (p.456).

Applying the narrow definition of "industry" that he had enunciated, Barwick C.J. concluded that the fire fighting authorities were not engaged in any industry. The trading in fire fighting and prevention apparatus that was carried on was so peripheral to their operations as to be immaterial and their services were not incidental to the industrial activity of the industrial section of the community in the same way that banking and insurance had been said to be industrial. It is apparent, in the light of the decision in CYSS, that this reasoning is no longer adequate. To say, as his Honour rightly said, that the fire fighting authorities are "statutory bodies carrying out statutory duties in the interests of the public at large" (pp.457-458) does not mean that their employees cannot be engaged in an industry, given the understanding of "industrial" that now prevails. With respect to the issue of whether the employees were engaged in an industrial pursuit, his Honour felt bound by the earlier cases and particularly by the decision in the School Teachers' Case to hold that the work was not essentially or intrinsically industrial (p.459). Owen J. agreed with the reasons of the Chief Justice and McTiernan J. and Menzies J. in separate judgments came to the same conclusion after following broadly similar reasoning. Walsh J. dissented, holding that the employees should be regarded as being engaged in an industrial pursuit (p.471). In coming to that conclusion, his Honour found the decision in the Municipalities' Case to be persuasive and he was able to distinguish the decision in the School Teachers' Case.

19. It is true, as Mr Hampson urges, that in Pitfield v. Franki all the members of the Court appear to have allowed their consideration to be guided by the form of pars (b) and (c) of s.132(1), taking the word "industry" in par.(b) to refer to the industry of the employer leaving par.(c) to accommodate the calling or vocation of the employee. Hence Barwick C.J., at p.457, refers to the dichotomy effected by the two paragraphs, thereby overlooking for the purpose of construing par.(b) the full definition of "Industry" in s.4(1) which includes the calling of the employee. However, I do not think that the observation assists the argument for the prosecutor because their Honours certainly had in mind the first part of the statutory definition when construing the word "industry" in par.(b) (see at pp.462, 465, 469). In any event, it is not suggested that par.(b) could have any narrower meaning.

20. The case advanced for the prosecutor on this first submission is that the members of the respondent associ- ations, being employed as schoolteachers, are neither employed in or in connection with "any industry" nor engaged in "an industrial pursuit or pursuits" (s.132(1)(b) and (c)). In supporting that submission, it is argued that the statutory definition of "industry" in s.4(1) should not be imported into s.132(1)(b) because to do so would render par.(c) of that subsection otiose. By way of summary in addition to what I have already written, it seems to me that there are two answers to the last-mentioned proposition. The first answer is that even if the argument be accepted one is left with the question whether the employees are employed in or in connection with any "industry" as that word is ordinarily understood. As ordinarily understood, in the light of the way in which the man in the street would understand the concept of "industrial dispute" as determined in CYSS, I can see no reason why the allocation of resources, whether by government or by private bodies, in order to provide land, buildings, facilities and teachers for an education service otherwise than for profit to the undertakers does not result in the establishment of an industry, so as to attract to the persons so employed the eligibility referred to in s.132(1)(b). On the other hand, if the statutory definition of "industry" is imported the answer is a fortiori because the test of eligibility extends to the calling of the employees. The second answer is that even if, contrary to the view I have already expressed, the consequence of reading the statutory definition into par.(b) is to render par.(c) otiose, nevertheless the consequence is not so horrendous as to require an abandonment of the normal processes of statutory interpretation. It would mean merely that in inserting par.(c) the Parliament acted out of an abundance of caution in the light of the decision of Powers J. in 1915.

21. All that remains, then, to sustain the prosecutor's submission is the decision of this Court in the School Teachers' Case. In that case it was held that the educa- tional activities of the States did not constitute an "industry" within the meaning of s.4 of the Act and that the occupation of the teachers so employed was not an "industrial" occupation. As Mr Hampson says, the court in CYSS did not expressly overrule the decision. However, the reasoning in CYSS makes it quite plain that the School Teachers' Case can no longer be regarded as of any authority. It was recognized in CYSS, at p.309, that the decision in the School Teachers' Case involved a clear rejection of the wide views which had been expressed by members of the Court in Jumbunna, views which were restored by the decision in CYSS. The statement in the joint judgment of Knox C.J., Gavan Duffy and Starke JJ. (School Teachers' Case, at p.574) that

"the view that the sphere of industrialism is to be found in operations in which the relation of employer and employee subsists ... cannot ... be supported, for it ignores the use of the word 'industrial' in the composite expression 'industrial dispute' in the Constitution"

was said in CYSS, at p.310, to be "plainly per incuriam". While acknowledging that the decision had occupied "a central place" in the reasoning of a number of subsequent cases, the Court, at p.311, expressed the opinion that that fact was "not a sound reason for refusing to re-examine the basic interpretation of the constitutional power". There can be no doubt that the School Teachers' Case has been overruled by the decison in CYSS.

22. The prosecutor's first submission must be rejected.

23. The alternative submission for the prosecutor is that the federal implications to be drawn from the Constitution place the whole field of education as carried out by the States beyond the control of the Commonwealth. The argument is supported by the learned Solicitor-General for South Australia, who appeared as an intervener. Reliance was placed on a reservation contained in the reasons for judgment of the Court in CYSS at p.313, reading as follows:

"It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case, that the power conferred by s.51(xxxv) is inapplicable to the administrative services of the States (see the Professional Engineers' Case (1959) 107 C.L.R. (208), at p.233. If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s.51 where the power is made 'subject to this Constitution' (cf. Holmes (1977) 140 C.L.R. (63) at p.90). The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, esp. at pp 55-60, 66, 70-75, 82-83, Victoria v. The Commonwealth ('the Pay-roll Tax Case') (1971) 122 CLR 353, esp. at pp 386-393, 402-403, 406-411, 417-424, and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Commonwealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J. pointed out in the Pay-roll Tax Case (1977) 140 C.L.R., at p.410 (sic), the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined".

This aspect of constitutional law has received some further elucidation in the recent decision of this Court in Queensland Electricity Commission v. The Commonwealth (1985) 59 ALJR 699; 61 ALR 1. In that case the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth) was held to be invalid because it singled out the State of Queensland in a discriminatory manner, imposing burdens upon agencies of the State in the exercise of their statutory functions.

24. The doctrine of implied limitations is no more than a qualification, albeit an important qualification, to the general rule that a power to legislate with respect to a given subject enables the Parliament to make laws upon that subject which affect the operations of the States and their agencies: Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. (1920) 28 CLR 129 ("the Engineers' Case"); Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319; the Professional Engineers' Case; Victoria v. The Commonwealth (1971) 122 CLR 353. We are not concerned here with an attack on the validity of a Commonwealth Act. The attack is upon the authority of the Registrar derived from s.132(1) of the Act to register three associations of teachers, two of which enrol as members teachers in government schools and the third of which enrols, in addition to teachers employed in independent schools, teachers employed in grammar schools in Queensland. With respect to the grammar schools, notwithstanding that some degree of government control may be exercised over such schools in accordance with the provisions of the Grammar Schools Act, such schools fall far short of an identification with the government school system. The second submission of the prosecutor therefore cannot touch the ITA.

25. Nor in my opinion can the submission be upheld with respect to the other two associations. It is common ground that the bulk of the membership of both those associations are teachers who are employed in the classroom on ordinary teaching duties. An interstate industrial dispute affecting such teachers is within the jurisdiction of the Conciliation and Arbitration Commission, on the authority of the Engineers' Case and the Professional Engineers' Case, and the existence of that jurisdiction in no way threatens the existence of the State or its capacity to function in a constitutional sense. Classroom teaching is not an administrative service of the State in the sense in which that term is used in the passage I have cited from CYSS.

26. It is likely that there are some members of the TAA and the ATU who are not employed in classroom teaching but occupy senior positions in government departments of education with responsibility either for the formulation of policy proposals to be considered by government or for the implementation of approved policies or perhaps for general supervisory or inspectorial functions. Such members, by reason of their connection with the administrative services of a State, may fall outside the constitutional power of the Parliament to invest the Commission or the Registrar with any authority with respect to them. But whether or not that be so, it cannot mean that the interstate industrial dispute involving classroom teachers is also outside the power (cf. Professional Engineers' Case, per Dixon C.J. at p.240). Eligibility to be registered as an organization cannot be denied merely because the Commission may have no juris- diction to make an award respecting certain of its members. The Court was confronted with an analogous situation in relation to professional engineers in the Professional Engineers' Case. It was there acknowledged that the Commission by exercising the authority conferred upon it by the Act to make an award binding on a State or an agency of the State might have to distinguish between those members of the disputant employee organization to whom the constitu- tional power extended and those to whom it did not (see at pp.240, 242, 252, 265, 269-270). It is not to the point that the discrimen present to the minds of their Honours in that case was whether or not the work upon which the employee was engaged was "industrial". In the light of CYSS, the appropriate criterion limiting the reach of constitutional power may now be expressed in terms of whether the employee is engaged in the administrative services of a State. The critical consideration in applying that criterion is whether the exercise by the Commission of the authority conferred on it by the Act would impair the constitutional integrity of a State or agency of a State. It will be for the Commission to undertake that consideration in the light of the evidence if and when the resolution of an industrial dispute involving the ATU or the TAA requires such an issue to be determined. The necessary conclusion on this aspect of the case so far as the present proceedings are concerned is that whether or not the objection taken by the prosecutor has any validity it cannot reach the position of classroom teachers and does not affect the eligibility of each of the three associations to be registered as an organization under Part VIII of the Act.

27. It was for this reason that the Court found it unneces- sary to hear full argument on the question of implied limitations on the legislative power of the Commonwealth and declined to do so. In the absence of that argument and having regard to the constitutional importance of the issue, I do not think it is appropriate for the Court to engage in a discussion of it.

28. In all three cases I would discharge the order nisi.

DAWSON J.: These matters raise the question whether three teachers' associations are entitled to be registered as organizations of employees under s.132 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). They raise for consideration the effect of the decision in Reg. v. Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 ("the CYSS Case") in which this Court held that the phrase "industrial disputes" in s.51(xxxv) of the Constitution embraces all disputes between employers and employees about terms of employment and conditions of work and is not confined to disputes in productive industry and organized business carried on for the purpose of profit, as had been thought to be the case in previous decisions, particularly Federated State School Teachers' Association of Australia v. State of Victoria (1929) 41 CLR 569 ("the School Teachers' Case"). In discarding previously accepted notions, the CYSS Case reinstated the popular conception of industrial disputes "expressed by Higgins J. in the Municipalities' Case and the Insurance Staffs' Case, reflecting the view earlier expressed by O'Connor J. in Jumbunna shorn of its association with the doctrine of intergovernmental immunities": see p.312.

2. It might be thought that the CYSS Case is decisive in these matters, overruling, as it did, the School Teachers' Case. It is argued, however, upon the wording of s.132 (which was not in question in the CYSS Case), that the three associations are not capable of enrolling persons employed in or in connexion with an "industry" or engaged in an "industrial pursuit", those being prerequisites for the registration of associations as organizations. It is also argued that the associations are not capable of being registered because they seek to enrol persons involved in the administrative services of the State or in an activity which is inherently a State activity and thus to travel beyond the implied limits of federal power which were referred to in the CYSS Case itself at p.313.

3. It is possible, I think, to dispose of the first of these arguments quite shortly. Stripped to its relevant requirements, s.132 in sub-s.(1)(b) gives the right to registration to an association the members of which include not less than one hundred employees in or in connexion with any industry and in sub-s.(1)(c) gives the right to registration to an association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits. The submission is that it is not appropriate to apply the definition of "industry" in s.4(1) of the Act to the relevant paragraphs of s.132 and that, independently of s.4(1), it is necessary to identify the industry with which an association has a connexion or which forms the subject of its members' industrial disputes.

4. Section 4(1) defines "industry" as including -

"(a) any business, trade, manufacture, undertaking, or calling of employers;

(b) any calling, service, employment, handicraft or industrial occupation or vocation of employees; and

(c) a branch of an industry and a group of industries."

It is true that in Pitfield v. Franki (1970) 123 CLR 448, which is the only case in this Court to have dealt comprehensively with the requirements of s.132, no emphasis was placed upon the definition of "industry" in s.4(1). It was rather by reference to those cases dealing with the question whether an industrial dispute existed and applying the constitutional conception of "industrial dispute" - and hence of industry - that it was determined that the work of fire fighting carried on by the various authorities in the States lacked an industrial character. But, of course, since the decision in the CYSS Case the term "industrial dispute" in s.51(xxxv) of the Constitution must be taken to have a broader meaning and the notion of industry which may now be drawn from it no longer provides the limitation which dictated the decision of the majority in Pitfield v. Franki. In that case it was unnecessary to go to s.4(1) in order to reach a decision because the reasoning proceeded upon the basis that s.132 in speaking of "industry" or "industrial pursuits" could not and did not go beyond the meaning of industry to be derived from s.51(xxxv) according to the then current interpretation. That interpretation was widened in the CYSS Case and the approach adopted in Pitfield v. Franki is no longer available in a case such as the present. If, as the CYSS Case decided, the term "industrial disputes" includes all disputes between employers and employees about terms of employment and conditions of work, it is obvious that the Constitution does not require a narrow construction to be given to the term "industry" or "industrial pursuit" and, that being so, it is now appropriate to go to the definition of "industry" in s.4(1) in order to construe s.132 consistently with it.

5. The difficulties to which that definition gives rise were referred to by Dixon C.J. in Ex parte Professional Engineers' Association (1959) 107 CLR 208, at p 243, where he pointed out that in s.4(1) "employer" is also defined to mean any employer in any industry and to include any person who is usually an employer in an industry, and "employee" is defined to mean any employee in any industry and to include any person whose usual occupation is that of employee in any industry. He continued:

"It will be seen that the definition of 'industry' depends upon the two words employers and employees, while the definition of those words depends upon the persons to whom they apply being employers or employees in an industry. This circular method of definition is of course logically indefensible but, notwithstanding what was said by Latham C.J. in the State Public Service Case, I do not think that it operates to narrow or exclude the application of the definition of "industry" contained in the three pars.(a), (b) and (c) of the definition in s.4(1)."

This observation by Dixon C.J. was adopted, and the distributive application of the definition which it requires was examined, by this Court in the CYSS Case at pp.315-316.

6. The intention which lies behind the definition of "industry" can be seen from its historical context. It was introduced in 1911 to overcome the decision in the Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. (1911) 12 CLR 398 which held that the previous definition of "industry" meant, not the vocation or calling of the employee, but the industry of the employer in which the employee was engaged. Clearly the present definition, whatever its defects, was intended to extend the meaning of industry by reference to the calling etc. of employees as well as the business etc. of employers. It was to extend recognition to what have come to be known as craft unions. It should be observed that the new definition of "industry" also included a "group of industries".

7. Whilst speaking of the history of the legislation, it is convenient to refer also to the circumstances in which the provision which is now s.132(1)(c) was enacted. In Australian Workers' Union; Ex parte William Wilson Killen (1915) 9 CAR 33, Powers J., sitting in the Conciliation and Arbitration Court, held that the rules of the Australian Workers' Union were bad in that the eligibility rule afforded membership to employees by reference to the pursuits in which they were engaged rather than by reference to the pastoral industry in connexion with which the organization was registered, notwithstanding that those pursuits, or at least some of them, may themselves have been carried on in connexion with the pastoral industry. It was to overcome this restrictive view that the precursor of s.132 was amended to include organizations consisting of employees in any industrial pursuit or pursuits whatever. In Federal Palace Hotel Limited and Others v. Federated Liquor and Allied Trades Employees' Union of Australia (1918) 12 CAR 652, at pp 654-655, Higgins J. upheld the validity of the new provision but before doing so observed:

"It is urged that under section 55 (now s.132) the association, in order to be registered, must be an association of employees 'in or in connexion with any industry' - that is to say, some distinctive industry. But, under the definition of 'industry' as amended in 1911, the word includes a 'group of industries', and it includes any calling or occupation of employees. Moreover, if this is not a conclusive answer to the objection, there is the amendment to section 55 made by the Act No.35 of 1915 (section 2), which adds to the associations that may be registered -

'(c) Any association of not less than one hundred employees engaged in any industrial pursuit or pursuits whatever.'

This section 55(c) seems to me to be conclusive, if it is valid. Mr Starke saw the force of it; for he raised a new point, not suggested in the objections put before the Registrar, that if section 55(c) means that an association of unconnected employees can be registered, the section is not authorized by the Australian Constitution (section 51, (xxxv), (xxxix))."

The history may be completed by reference to the decision in Dunlop Rubber Australia Ltd.; Ex parte Federated Miscel- laneous Workers' Union of Australia (1957) 97 CLR 71 which extended primacy to the industry or industries specified in the conditions of eligibility over the industry in connexion with which an organization is registered.

8. There is nothing in this history which would render the definition of industry in s.4(1) inapplicable in the construction of s.132, although because it imports both the business etc. of employers as well as the calling etc. of employees into both s.132(1)(b) and s.132(1)(c) it is not correct to say that "industry" in s.132(1)(b) concentrates attention upon the undertakings of employers, as was apparently thought to be the case by Menzies J., at p.465 and Walsh J., at p 470, in Pitfield v. Franki. It is true, as was observed by Menzies J., at p 464, that s.132(1)(b) and s.132(1)(c) are not identical although they may overlap. It may be said that this is the more so when regard is had to the definition of industry in construing s.132(1)(b) because it brings in the calling etc. of employees as well as the business etc. of employers.

9. I do not think that there can be any doubt that school teaching may constitute an undertaking of employers and a calling or vocation of employees within the definition of "industry" in s.4(1). Nor does the application of that definition produce the result that s.132 exceeds the constitutional power of the Parliament. True it is that the CYSS Case dealt with the meaning of an "industrial dispute" in the constitutional sense but the case must also be seen as throwing light upon what, under s.51(xxxv) of the Constitution, is an industry by reference to which a dispute may be described as industrial: what is the content of the noun from which the adjective is derived. If, as Higgins J. thought in the Federated Municipal and Shire Council Employees' Union of Australia v. Melbourne Corporation (1919) 26 CLR 508, at p 575, and as was accepted in the CYSS Case, an "industrial dispute" includes "at all events, a dispute between employer and employee as to their reciprocal rights and duties", then it may not in my view be said that s.132 exceeds constitutional limits by reason of the definition of "industry" in s.4(1). An industry which may form the basis of "an industrial dispute" must now be identified by reference to the relationship of employer and employee rather than by reference to the nature of the work performed or its product.

10. The second argument advanced by the prosecutor is based upon the following passage in the CYSS Case, at p.313, where it is said:

"It is also unnecessary to consider whether or

not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers' Case, that the power conferred by s.51(xxxv) is inapplicable to the administrative services of the States (see the Professional Engineers' Case), at p.233. If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s.51 where the power is made 'subject to this Constitution' (cf. Holmes (1977) 140 C.L.R., at p.90). The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa). The nature of those limitations was discussed in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, esp. at pp 55-60, 66, 70-75, 82-83, Victoria v. The Commonwealth ('the Pay-roll Tax Case' (1971) 122 CLR 353, esp. at pp 386-393, 402-403, 406-411, 417-424), and the other cases there cited. If at least some of the views expressed in those cases are accepted, a Common- wealth law which permitted an instrumentality of the Commonwealth to control the pay, hours of work and conditions of employment of all State public servants could not be sustained as valid, but as Walsh J. pointed out in the Pay-roll Tax Case (at p.410), the limitations have not been completely and precisely formulated and for present purposes the question need not be further examined."

11. In my view, no question arises in this case which calls for consideration of the matters adverted to in the passage which I have set out. Those matters are concerned with the restrictions which arise by implication upon the power which the Commonwealth Parliament would otherwise have to affect the State and its agencies. They were recently re-examined and re-affirmed in Queensland Electricity Commission v. The Commonwealth (1985) 59 ALJR 699; 61 ALR 1. However, in this case the membership of each of the three associ- ations is largely comprised of persons engaged in ordinary teaching duties. In the case of two of the associations, some or all of the members are employed by the State, but the power to make laws with respect to conciliation and arbitration extends to the States and their instrumental- ities short of interference with the administrative services of the States: Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319; Ex parte Professional Engineers' Association. The activities of teachers in the classroom do not constitute the adminis- trative services of the State and the exercise of the conciliation and arbitration power in relation to teachers in the employ of the State will not impair the State's capacity to perform its constitutional functions. Even if there are some members who are engaged in work outside the classroom which might be described as the provision of administrative services in the relevant sense, that does not mean that there can be no power to register an organization the bulk of whose membership is otherwise engaged and susceptible to an award: Ex parte Professional Engineers' Association, at pp 240, 252, 265, 269-270.

12. Any question which might arise at a later stage whether those members can be covered by an award does not arise now. That question may raise the matters which are referred to in the passage which I have cited from the CYSS Case, but they are not raised by this case. When this became apparent during argument, counsel were heard no further upon the extent of any implied limitations upon the conciliation and arbitration power, either in relation to the teaching services of the State or otherwise. In these circumstances it is inappropriate to express in this case any view upon the existence or extent of those limitations which, as was recognized in the CYSS Case, have not been completely and precisely formulated. In offering abstract observations upon matters of high constitutional importance without the focus provided by a factual setting and without full argument, there is at the very least a danger of prejudging issues which have yet to arise. At worst, to do so may be to substitute doctrine for decision. In my view it is something to be avoided.

13. I would discharge the orders nisi.

Orders

Orders nisi for writs of prohibition and certiorari discharged.