Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union - [2000] HCA 34

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

RE PACIFIC COAL PTY LIMITED & ORS RESPONDENTS

EX PARTE: CONSTRUCTION, FORESTRY,
MINING AND ENERGY UNION & ANOR PROSECUTORS

Re Pacific Coal Pty Limited
Ex parte: Construction, Forestry, Mining and Energy Union
[2000] HCA 34
15 June 2000
S137/1998

ORDER

Order nisi granted 6 November 1998, as amended by orders made 19 May 1999 and 11 November 1999, discharged with costs.

Representation:

No appearance for the first respondent

C N Jessup QC with M P McDonald for the second respondent (instructed by Freehill Hollingdale & Page)

R J Buchanan QC with G C Martin SC for the third to thirty-eighth respondents (instructed by Freehill Hollingdale & Page)

R C Kenzie QC with I Taylor for the prosecutors (instructed by R L Whyburn & Associates)

Interveners:

D M J Bennett QC, Solicitor-General for the Commonwealth with I M Neil and L J Hardiman intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

P A Keane QC, Solicitor-General for the State of Queensland with S J Lee intervening on behalf of the Attorney-General for the State of Queensland (instructed by Crown Solicitor for the State of Queensland)

P A Keane QC, Solicitor-General for the State of Queensland with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

R J Meadows QC, Solicitor-General for the State of Western Australia with J C Pritchard intervening on behalf of the Attorney-General for the State of Western Australia (instructed by Crown Solicitor for the State of Western Australia)

N J Williams with P Ginters intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

HIGH COURT OF AUSTRALIA

GLEESON CJ,
GAUDRON, McHUGH, GUMMOW, KIRBY, HAYNE AND CALLINAN JJ

CONSTRUCTION, FORESTRY,
MINING AND ENERGY UNION & ANOR PLAINTIFFS

AND

THE COMMONWEALTH OF AUSTRALIA DEFENDANT

Construction, Forestry, Mining and Energy Union v The Commonwealth
15 June 2000
S138/1998

ORDER

Amended question reserved for consideration of the Full Court answered as follows:

Question:On the basis of the facts pleaded in the Plaintiffs' Statement of Claim, and admitted in the Defendant's Defence, are any of the following laws invalid:
(a)Section 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) to the extent that it purports to give effect to item 50 in Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth); or

(b)Section 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) to the extent that it purports to give effect to subitems 51(1), (2) and (3) in Part 2 of Schedule 5 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth)?

Answer:(a) No.
(b)No.

Plaintiffs to pay defendant's costs of the stated case.

Action adjourned to a single justice to give directions concerning the disposition of the matter.

Representation:

R C Kenzie QC with I Taylor for the plaintiffs (instructed by R L Whyburn & Associates)

D M J Bennett QC, Solicitor-General for the Commonwealth with I M Neil and L J Hardiman for the defendant (instructed by Australian Government Solicitor)

Interveners:

P A Keane QC, Solicitor-General for the State of Queensland with S G E McLeish intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

N J Williams with P Ginters intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor for the State of New South Wales)

Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Pacific Coal Pty Limited; Ex parte Construction, Forestry, Mining
and Energy Union

Construction, Forestry, Mining and Energy Union v The Commonwealth

Industrial Law – Whether s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) is invalid to the extent that it purports to give effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to that Act.

Constitutional Law (Cth) – Legislative power of the Commonwealth – Whether s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), to the extent that it gives effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to that Act, is a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state under s 51 (xxxv) of the Constitution.

Words and phrases – "conciliation and arbitration" – "industrial dispute" – "implied incidental power" – "award" – "settlement".

Constitution, s 51(xx), (xxxv), (xxxix).
Workplace Relations and Other Legislation Amendment Act 1996 (Cth), s 3.
Workplace Relations Act 1996 (Cth), ss 7A, 89A.

GLEESON CJ. In Federated Saw Mill &c Employés of Australasia v James Moore & Son Proprietary Ltd[1], O'Connor J traced the history of the growing acceptance, during the latter part of the nineteenth century, of the idea that governments should make provision for what would now be called dispute resolution in relation to industrial differences. Before Federation in Australia, legislation was enacted in England, New Zealand, and two of the Australian colonies, setting up public tribunals for the purpose of settling industrial disputes by conciliation and arbitration. O'Connor J described the power intended to be conferred by s 51(xxxv) of the Constitution as a "power to create tribunals invested with jurisdiction to prevent and settle by conciliation and arbitration industrial disputes" extending beyond the limits of any one State. Similarly, Taylor J, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia[2], described the power as one with respect to "the establishment and maintenance of a system, in some form or other, of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State".
[1](1909) 8 CLR 465 at 503-504.
[2](1956) 94 CLR 254 at 341-342.
It is for Parliament to determine the structure and incidents of the system of dispute resolution (using that expression to cover prevention as well as settlement) which is appropriate to current circumstances, subject to the limitations imposed by the terms of s 51(xxxv): the available methods of dispute resolution are conciliation and arbitration; and the disputes must be of a certain kind. The Constitution confers the power to establish and maintain, and, where it is considered appropriate, alter, the system. The Parliament, in the exercise of the power, legislates to institute, vary, modify, or abrogate, the system. The nature of a particular legislative scheme set up in the exercise of the power is not to be confused with the scope of the power itself.
These proceedings result from a decision by the Parliament to change a system of industrial dispute resolution which operated for many years. The arguments relate to some only of the changes; others are conceded to be legally effective.
The two proceedings before the Court challenge the validity of s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") in so far as it purports to give effect either to item 50 in Pt 2 of Sched 5 to that Act or to subitems 51(1), (2) and (3) in the same Part. The first proceeding is an application for writs of certiorari, mandamus and prohibition against the members of the Australian Industrial Relations Commission ("the Commission"); the second is a question reserved for the opinion of the Full Court in a suit commenced in the original jurisdiction.
The WROLA Act was intended to make substantial alterations to the system of industrial dispute resolution in force under the Industrial Relations Act 1988 (Cth), which became the Workplace Relations Act 1996 (Cth) ("the Act"). Schedules to the WROLA Act set out amendments to the legislation.
Before considering the alterations, it is convenient to refer to one feature of the Act which explains the form of some of the amendments. The outcome of a process of arbitration undertaken pursuant to the Act may be the making of an award. The arbitral authority, the Commission, expresses in its awards an opinion as to what the rights and obligations of parties, for the future, should be. What gives legal effect to the award is the statute. It is the Act itself "which gives to an award statutory operation as a prescription of industrial conduct within the area of the dispute which the award settles"[3]. By virtue of s 149 of the Act, awards are binding on parties to the industrial dispute or persons notified thereof, as well as all organisations and persons on whom the award is binding as a common rule and all members of organisations bound by the award. Part VIII of the Act deals with compliance with award provisions. Various provisions of the Act govern the effect of the award, including the period for which it has such effect. (The award the subject of the present case, when it was made, was stated to operate for only six months. It owes its continuing operation to s 148 of the Act.)
[3]Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 277 per Aickin J. See also Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ.
The main purpose of the alterations to the system of dispute resolution effected by the WROLA Act was to expand the role of conciliation, involving workplace agreements or enterprise bargaining, and to diminish the role of arbitration.
Item 11 in Pt 1 of Sched 5 to the WROLA Act inserted into the Act s 89A, which took effect from 1 January 1997. The effect of s 89A is to restrict the scope of industrial disputes and thereby to limit the range of "allowable award matters". Sub-section (1) provides:
"(1) For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):
(a)dealing with an industrial dispute by arbitration;
(b)preventing or settling an industrial dispute by making an award or order;
(c)maintaining the settlement of an industrial dispute by varying an award or order."
The matters covered by s 89A(2) include hours of work, rates of pay, annual leave, long service leave, penalty rates, redundancy pay and superannuation. They do not include a variety of matters which have, in the past, commonly been the subject of awards.
Section 89A(3) provides that the Commission's power to make an award dealing with matters covered by sub-s (2) is limited to making a minimum rates award.
Thus, as from 1 January 1997, the amending legislation restricted the award-making power of the Commission.
The validity of s 89A is conceded. It is the provisions dealing with matters that are now not allowable award matters, where such matters were already included in awards previously made by the Commission under the Act, which are challenged.
The proceedings were instituted by a union which is a registered organisation of employees, and one of its members, and arise out of proceedings in the Commission, pursuant to the amending legislation, directed (amongst other things) at removing matters which are not allowable award matters from an award concerning the coal mining industry.
The way in which the WROLA Act dealt with existing awards, made before 1 January 1997, containing matters that are not allowable award matters, may be summarised as follows. In brief, the object was to limit the effect given by the statute to such awards by confining that effect to allowable award matters.
Part 2 of Sched 5 of the WROLA Act established an interim period, ending on 30 June 1998. Item 49 of Pt 2 provided for variation of an award during the interim period. If a party to an award applied to the Commission for variation of an award, the Commission was empowered to vary the award so that it dealt only with allowable award matters. This has been referred to as a process of award simplification. It was possible for a new industrial dispute to arise during this interim period, resulting in a new award. Such a dispute might have been the consequence of the simplification process. The Commission was required, by item 49, to deal with an application for review by arbitration, if satisfied that those applying for variation had made reasonable attempts to reach agreement with the other parties to the award about how the award should be varied and the treatment of matters that are not allowable award matters. The review was to be conducted by reference to certain criteria.
The manner in which parties to awards would conduct themselves during the interim period would, no doubt, be influenced by what they knew was to occur at the end of the interim period.
Item 47 of Sched 5 stipulated that in exercising its powers under Pt 2, the Commission must have regard to the desirability of assisting parties to awards to agree on appropriate variations to their awards, rather than have parts of awards cease to have effect under item 50.
Subitem 50(1) of Pt 2 of Sched 5 provides:
"At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters".
It is accepted that, if item 50 had simply provided that, at the end of the interim period, each award ceased to have effect, no problem of legislative power would exist. The problem is said to result from the additional words.
Item 51, which appears to be consequential upon item 50, provides:
"(1)   As soon as practicable after the end of the interim period, the Commission must review each award:
(a)that is in force; and
(b)that the Commission is satisfied has been affected by item 50.
(2)    The Commission must vary the award to remove provisions that ceased to have effect under item 50.
(3)    When varying the award under subitem (2), the Commission may also vary the award so that, in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award as in force immediately before the end of the interim period.
…"
It is argued that s 3 of the WROLA Act, in so far as it purports to give effect to item 50 or subitems (1) (2) and (3) of item 51, is invalid, for the reason that it is not a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
It is not in dispute that, if such legislation applied only to future awards, it would be valid as a law within s 51(xxxv). It is also accepted that Parliament could, at the same time, legislate to deprive all existing awards of any effect. But, it is said, what Parliament cannot do in relation to past awards is leave them with effect in relation to some of their provisions, and at the same time, deprive other provisions of effect, and require that they be removed. The reason is said to be that legislation of that kind involves the direct legislative imposition of a new and different settlement of the dispute which led to the original award, and this is beyond the power conferred by s 51(xxxv). It amounts to an attempt to legislate directly as to wages or other terms or conditions of employment. In elaboration of the argument, it is contended that such legislation interferes with the settlement effected by the Commission and alters what might well have been a balance struck, involving an element of give and take in relation to various matters covered by the award. The outcome, it is argued, has been altered from one arbitrated by the Commission to one determined, or partly determined, by Parliament. Whilst it is within the power of Parliament to negate the whole settlement, by depriving it of any effect, it cannot alter the settlement by continuing to give effect to only part of it.
Such an argument does not do complete justice to the legislative context in which items 50 and 51 take their place. Those items came into effect (assuming the validity of s 3) only after an interim period of eighteen months. During that period, items 47 and 49 applied, and, in addition, the parties to an award were able to make their own assessments of the industrial consequences of the impending ineffectiveness of parts of the award, and to respond accordingly. Even so, the substance of the argument must be addressed. The issue is not about the merits of the legislation. It is about its character.
In certain respects, the submissions advanced against validity are similar to those which were unsuccessful in Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association[4]. They are forcefully expressed in the dissenting judgment of Isaacs and Rich JJ.
[4](1920) 28 CLR 209.
That case was about s 28(2) of the CommonwealthConciliation and Arbitration Act 1904 (Cth). That section had the effect that, when the period of operation of an award specified in the award expired, then, unless the Court of Conciliation and Arbitration otherwise ordered, the award would continue in force until a new award was made. It applied to existing awards. The dissentients, Isaacs and Rich JJ, made the point that the effect of the section was, by direct legislative provision, to impose on the parties an industrial regime which, in relation to the period of its operation, (a matter that, in a given case, could be important to the settlement effected by the award), was different from that formulated by the arbitral authority. The majority upheld the validity of the provision. Knox CJ[5] treated s 28(2) as a limitation imposed by the Parliament upon the power conferred on the Court of Conciliation and Arbitration to settle disputes. It imposed a condition (related to the time of operation of an award) subject to which the arbitral power was to be exercised. He saw in the legislation no attempt to prescribe conditions of employment by legislative enactment. Starke J said[6]:
"I quite agree that the term of the award is in many cases a most material factor in the dispute, and although the Parliament can, under its constitutional power, allow this phase of the dispute to be settled by the arbitral tribunal if it thinks fit, I cannot follow the reasoning which denies to the prescription by Parliament itself of the duration of an award the character of a law with respect to, or in relation to, or, if you will, upon the subject of arbitration. Provisions setting up the arbitral tribunal are laws with respect to arbitration, and so are provisions limiting the jurisdiction of the Court as to the duration of its awards or giving them force or compelling their performance."
[5](1920) 28 CLR 209 at 216, 218-219.
[6](1920) 28 CLR 209 at 252-253.
If a law giving force to an award, or depriving an award of force, or specifying the period during which an award shall have force, bears the character referred to by Starke J, it is difficult to see why a law depriving part of an award of force does not bear the same character.

It has been held that Parliament may widen the effect of the provisions of an award. Section 24 of the Commonwealth Conciliation and Arbitration Act 1904 (Cth) was amended by the Commonwealth Conciliation and Arbitration Act 1921 (Cth) to make agreements under that section binding on "any successor, or any assignee or transmittee of the business of a party bound by the agreement". The amendment was held to be valid in George Hudson Ltd v Australian Timber Workers' Union[7].
[7](1923) 32 CLR 413.
The practical result achieved by the legislation the subject of the two cases last mentioned turned upon the consideration that, under the legislative scheme by which Parliament had chosen to exercise the power given by s 51(xxxv), the legal effect of an award depended upon, and was governed by, the provisions of the statute. In each case, when awards were made by the arbitral authority in settlement of a dispute, their legal effect was extended by statute. Legislation extending the legal effect of an award made by an arbitrator in settlement of an industrial dispute is a law that bears the character of a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes. The same is true of legislation restricting the legal effect of such an award.
It has often been pointed out that s 51(xxxv) does not empower the Parliament to legislate directly to regulate conditions of employment[8]. An attempt was made in argument to develop that proposition by adding to it what was described as "[t]he principle that Parliament cannot do indirectly what it cannot do directly". Two points need to be made about that. First, it is one thing to say that the nature of the power is such that it deals with instituting and maintaining a system of conciliation and arbitration, and that it is only through such a system that conditions of employment may be regulated under s 51(xxxv); it is another thing to find some negative implication amounting to a prohibition against the Parliament enacting any law which has the effect of altering conditions of employment. That there is no such negative implication, and no such prohibition, must follow from the acceptance that, where Parliament can rely upon some other power conferred by s 51, it can legislate in relation to conditions of employment. Such an implication was rejected, for example, in Pidoto v Victoria[9]. In the present case, an attempt was made to rely, if necessary, upon the power conferred by s 51(xx). It is unnecessary to deal with that attempt but if, in a given case, legislation were validly enacted pursuant to that power, then it would not be affected by any negative implication or prohibition of the kind mentioned. Secondly, there is no principle that Parliament can never do indirectly what it cannot do directly. Whether or not Parliament can do something indirectly, which it cannot do directly, may depend upon why it cannot do it directly. In law, as in life, there are many examples of things that can be done indirectly, although not directly. The true principle is that "it is not permissible to do indirectly what is prohibited directly"[10]. If there were a constitutional prohibition of the kind earlier considered, then it could not be circumvented by an attempt to do indirectly that which is prohibited directly. There is, however, no such prohibition.
[8]eg Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association (1920) 28 CLR 209 at 218 per Knox CJ.
[9](1943) 68 CLR 87.
[10]Caltex Oil (Aust) Pty Ltd v Best (1990) 170 CLR 516 at 522 per Mason CJ, Gaudron and McHugh JJ.
Reference was made in argument to Kartinyeri v Commonwealth[11], and to the effect of item 50 as a partial repeal of s 149. It was argued that s 149, as affected by such partial repeal, would no longer bear the character of a law with respect to the subject matter described in s 51(xxxv). This contention rests upon an unacceptably narrow reading of the words "with respect to"[12]. It also appears to treat as the subject of s 51(xxxv) the settlement of a particular dispute resulting from an arbitration, rather than a system of dispute resolution. We are not here concerned with a question of the power of the Commission to vary an award[13]. We are concerned with the power of the Parliament to alter the legal effect given to awards.
[11](1998) 195 CLR 337.
[12]cf Bank of New South Wales v The Commonwealth (1948) 76 CLR 1 at 186 per Latham CJ.
[13]cf The King v Commonwealth Court of Conciliation and Arbitration and Australian Railways Union; Ex Parte Victorian Railways Commissioners (1935) 53 CLR 113.
The order nisi should be discharged with costs. The question which asks whether s 3 of the WROLA Act is invalid in so far as it purports to give effect to item 50 or subitems 51(1), (2) and (3) should be answered in the negative. The plaintiffs should pay the defendant's costs of the stated case.

GAUDRON J. These matters were heard together. In the first matter, the Construction, Forestry, Mining and Energy Union ("the Union") and one of its members, Garry William Barnes, seek to have made absolute an order nisi for certiorari, prohibition and mandamus. They seek an order absolute for prohibition to prevent members of the Australian Industrial Relations Commission ("the Commission"), Pacific Coal Pty Limited ("Pacific Coal") and other corporations from giving effect to or relying upon certain decisions and orders of the Commission; for certiorari to quash those decisions and orders; and for mandamus to compel the Commission to hear and determine according to law the applications in respect of which those decisions were given and orders made.
As a result of the decisions in question, the Commission ordered the deletion of various provisions from the Coal Mining Industry (Production and Engineering) Consolidated Award 1997 ("the Award"). As amended, the order nisi for prohibition asserts that the decisions and orders of the Commission were beyond jurisdiction by reason that, to the extent that s 3 of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the WROLA Act") purports to give effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to that Act, it is invalid.
In the second matter, the Union and Mr Barnes seek a declaration that the provisions in issue in the first matter are invalid. The second matter came before the Full Court by way of a question reserved pursuant to s 18 of the Judiciary Act 1903 (Cth)[14]. As amended, that question asks whether s 3 of the WROLA Act is invalid in so far as it purports to give effect either to item 50 in Pt 2 of Sched 5 to that Act or to subitems 51(1), (2) and (3) in the same Part.
[14]Section 18 provides:
" Any Justice of the High Court sitting alone, whether in Court or in Chambers, may state any case or reserve any question for the consideration of a Full Court, or may direct any case or question to be argued before a Full Court, and a Full Court shall thereupon have power to hear and determine the case or question."
The WROLA Act
In general terms, the WROLA Act was designed to substitute conciliation, resulting in either workplace agreements or enterprise bargaining, for compulsory arbitration as the primary means of resolving certain aspects of interstate industrial disputes. No issue arises in these matters as to the validity of the provisions of the WROLA Act as they apply to industrial disputes arising after those provisions came into force. Rather, both matters are concerned solely with the effect of certain transitional provisions as they relate to awards made by the Commission in settlement of disputes that arose before then.
Section 3 of the WROLA Act provides that, subject to s 2:
"[E]ach Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms."
Section 2 of the WROLA Act provides as to the commencement of that Act and its Schedules. By s 2(4), Sched 5 commenced on 1 January 1997.
Schedule 5 to the WROLA Act, which is headed "Awards", is in two Parts. Part 1 contains various items which amend or repeal provisions of the Workplace Relations Act 1996 (Cth) ("the principal Act"). Item 11 in Pt 1 inserted into the principal Act a new section, namely, s 89A. That section is headed "Scope of industrial disputes". Sub-section (1), which is headed "Industrial dispute normally limited to allowable award matters", provides:
"       For the following purposes, an industrial dispute is taken to include only matters covered by subsections (2) and (3):
(a)     dealing with an industrial dispute by arbitration;
(b)    preventing or settling an industrial dispute by making an award or order;
(c)    maintaining the settlement of an industrial dispute by varying an award or order."
Section 89A(2), which is headed "Allowable award matters", lists 20 matters which may be the subject of award. By s 89A(3), "[t]he Commission's power to make an award dealing with matters covered by subsection (2) is limited to making a minimum rates award."
It may be taken that s 89A(1) of the principal Act applies only to disputes arising on or after 1 January 1997. Certainly, that is the premise upon which both matters were argued in this Court. And that premise is borne out by Pt 2 of Sched 5 to the WROLA Act which is headed "Transitional provisions".
In general terms, the transitional provisions in issue in these proceedings were intended to effect a simplification of existing awards and to bring about a situation in which some matters would cease to be the subject of award coverage. The process by which that was intended to be effected has come to be known as "the award simplification process". That process is the subject of items 49, 50 and 51 in Pt 2.
Subitem 49(1) in Pt 2 of Sched 5 allows that, if a party to an award so applies, "the Commission may, during the interim period, vary the award so that it only deals with allowable award matters". "Interim period" is defined in item 46 as "the period of 18 months beginning on the day on which section 89A of the Principal Act commences". As already noted, Sched 5 commenced on 1 January 1997 and, thus, so, too, did s 89A.
Item 50 in Pt 2 provides, in subitem (1):
"       At the end of the interim period, each award ceases to have effect to the extent that it provides for matters other than allowable award matters."
Item 51 then provides, in subitems (1), (2) and (3):
"(1)   As soon as practicable after the end of the interim period, the Commission must review each award:
(a)that is in force; and
(b)that the Commission is satisfied has been affected by item 50.
(2)    The Commission must vary the award to remove provisions that ceased to have effect under item 50.
(3)    When varying the award under subitem (2), the Commission may also vary the award so that, in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award as in force immediately before the end of the interim period."
By item 1 in Pt 1 of Sched 5 to the WROLA Act, a definition of "allowable award matters" was inserted into s 4(1) of the principal Act as follows:
"allowable award matters means the matters covered by subsection 89A(2)."[15]
It may be taken that that definition applies to items 50 and 51 in Pt 2 notwithstanding that those provisions are not incorporated in the principal Act.
[15]For the purposes of items 49, 50 and 51 the subject of an "exceptional matters order" is also taken to be an allowable award matter. A definition of "exceptional matters order" was inserted into s 4(1) of the principal Act by item 2 in Pt 1 of Sched 5 but nothing presently turns on that definition.

The Award and facts relevant to the first matter

On 19 November 1997, Boulton J, a Presidential Member of the Commission, determined to make a new award applying to persons working in the coal mining industry in New South Wales, Queensland and Tasmania. As a result, the Award was made on 10 December 1997 and was expressed to remain in force for a period of six months from 4 December 1997[16]. Although it does not clearly emerge, the first matter was conducted on the basis that the Award was made in settlement or part settlement of a dispute that arose prior to 1 January 1997 when s 89A of the principal Act came into force.
[16]Clause 6 of the Award.
Two days before the Award was made, Boulton J, of his own motion, called on various matters, including the dispute in respect of which the Award was later made[17]. It was his Honour's intention to begin the award simplification process, which, in his view, was required by items 50 and 51 in Pt 2 of Sched 5 to the WROLA Act. There were subsequently other proceedings between the parties with the consequence that the process of simplifying the Award did not get underway until 12 March 1998.
[17]The matters were called on pursuant to s 33 of the principal Act.
There was argument before Boulton J as to what were and what were not allowable award matters for the purposes of item 50 in Pt 2 of Sched 5 to the WROLA Act and his decision in that regard was given on 26 May 1998. On 1 July, an order was made varying the Award by deleting those provisions identified as non-allowable award matters. An appeal to a Full Bench of the Commission was dismissed by order dated 22 October 1998. Prohibition and certiorari are sought with respect to the decision and order of Boulton J and, also, the decision and order of the Full Bench.
The Constitutional issues
It is not in issue that the provisions deleted from the Award are, in fact, nonallowable award matters. The order deleting those provisions is challenged on the basis that s 3 of the WROLA Act, in so far as it purports to give effect to item 50 and subitems 51(1), (2) and (3), is not a law under s 51(xxxv) of the Constitution[18]. The respondents in the first matter and the defendant in the second matter contend to the contrary. Alternatively, the respondents in the first matter (other than Pacific Coal) argue that, to the extent in issue, s 3, in its application to awards to which corporations are parties, is a valid law under s 51(xx) of the Constitution and so operates by reason of s 7A of the principal Act.
[18]An argument that s 3 of the WROLA Act is invalid, to the extent indicated, by reason that it infringes the guarantee of just terms in s 51(xxxi) of the Constitution was not pressed at the hearing.
Operation of the WROLA Act and the principal Act: the issues in their statutory context
It is important to note that item 51 in Pt 2 of Sched 5 to the WROLA Act is ancillary to or dependent upon item 50. The command in item 51 takes effect only if and when item 50 operates to deprive non-allowable award matters of effect. Thus, for present purposes, the question, so far as concerns s 51(xxxv) of the Constitution, is whether Parliament may legislate to deprive those provisions of effect, not whether Parliament may direct the Commission to delete ineffective provisions from an award.
The question whether Parliament may render award provisions ineffective arises in the context of provisions in the principal Act giving effect to an award. In particular, s 148(1) of the principal Act provides that, subject to s 113, which confers power on the Commission to set aside or vary an award and, subject to any order of the Commission:
"[A]n award dealing with particular matters continues in force until a new award is made dealing with the same matters."
And awards are given binding force by s 149(1) of the principal Act. Moreover, Div 1 of Pt VIII of that Act contains provisions for the imposition of penalties and the granting of other remedies for the contravention of awards[19].
[19]See ss 177A-180 inclusive. Section 178(1) relevantly provides that:
"[W]here an organisation or person bound by an award, [or] an order of the Commission ... breaches a term of the award, [or] order ... a penalty may be imposed by the Court or, except in the case of a breach of a bans clause, by a court of competent jurisdiction."
The effect of item 50 in Pt 2 of Sched 5 to the WROLA Act is to partially repeal ss 148(1) and 149(1) of the principal Act. Once that is appreciated, the question whether the Parliament may legislate to render certain provisions of an award ineffective takes on another aspect. The question asks whether Parliament may legislate so as to deprive some provisions of an award of effect while continuing the effect of and binding parties to other provisions of the same award.
The conciliation and arbitration power: Constitution s 51(xxxv) generally
There are three general matters that should be noted at the outset with respect to s 51(xxxv) of the Constitution. First, the power to make laws with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" clearly extends to laws dealing with the processes of conciliation and arbitration, including the authorisation of persons or bodies to perform those functions, and the specification of "the manner in which, and the conditions on which, [they are to] carry out [those] functions"[20]. In this regard, Parliament may make it a condition of the discharge of the functions of conciliation and arbitration that certain matters are or are not to be the subject of one or other or both of those processes. Thus, for example, it may legislate so as to limit the matters that may be the subject of arbitration, or of award provision, so long as the resulting law has the character of a law with respect to conciliation and arbitration for the prevention or settlement of interstate industrial disputes.
[20]Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association (1920) 28 CLR 209 at 218 per Knox CJ.
The second matter that should be noted is that s 51(xxxv) is not concerned exclusively with the processes of conciliation and arbitration. Those processes lie at the heart of the legislative power conferred by s 51(xxxv) of the Constitution. But as with every legislative power conferred by the Constitution, s 51(xxxv) carries with it the power to enact legislation which is "appropriate to effectuate the exercise of [that] power"[21] – the "implied incidental power", as it has come to be known[22].
[21]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ. See also Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 515 per Stephen J; Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) 162 CLR 271 at 281.
[22]See, for example, Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 508 per Stephen J; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 85 per Dawson J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 296 per Mason CJ.
The third matter that should be noted with respect to the legislative power conferred by s 51(xxxv) is that, as with other legislative powers, it is not only a power to legislate but, also, a power to repeal or partially repeal earlier laws passed pursuant to that power[23]. However, a question may arise, when an Act purports to partially repeal an earlier Act, whether, if amended, that earlier Act would retain the character which gave it its constitutional validity[24]. If it would not, other questions arise. Those questions will be considered later in these reasons.
[23]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 355-356 per Brennan CJ and McHugh J, 368-370 per Gaudron J, 376 per Gummow and Hayne JJ, cf 421422 per Kirby J. See also R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226.
[24]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 357 per Brennan CJ and McHugh J, 369 per Gaudron J; Air Caledonie International v The Commonwealth (1988) 165 CLR 462 at 472.

It was argued for the respondents in the first matter and the defendant in the second matter that s 3 of the WROLA Act, to the extent in issue in these proceedings, is valid by reason that it is incidental to the power conferred by s 51(xxxv) of the Constitution. Additionally, it was argued that it is valid because it is simply a law that amends or repeals a law validly enacted under s 51(xxxv).
Section 51(xxxv): incidental power
The respondents in the first matter and the defendant in the second matter put two arguments with respect to incidental power. In the first place, they contend that there "is a 'relevant connection' ... between the original settlement of the dispute by conciliation or arbitration and the resulting award as affected [by the deletion of provisions with respect to non-allowable award matters]". In the alternative, they argue that "[t]he award as affected is appropriate and adapted to the prevention of future disputes".
As I pointed out in Nationwide News Pty Ltd v Wills, "[t]he relationship that is involved when one matter is incidental to another is not one that is always susceptible of precise exposition."[25] In the Bank Nationalization Case, Dixon J expressed the view that the question whether a law is on a subject that is incidental to a head of legislative power will often be answered by looking at the purpose of that law[26]. His Honour said:
"[W]here it is sought to connect with a legislative power a measure which lies at the circumference of the subject or can at best be only incidental to it, the end or purpose of the provision, if discernable, will give the key."[27]
[25](1992) 177 CLR 1 at 93.
[26]Bank of NSW v The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 at 354. See also The State of Victoria v The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575 at 614 per Dixon CJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 93.
[27](1948) 76 CLR 1 at 354.
If the purpose of a legislative measure is to achieve an end within power, then, subject to a qualification shortly to be mentioned, it is within the implied incidental power or, more accurately, it is a law with respect to the subject-matter of the legislative power in question[28]. To ascertain whether a law is within power, it is often necessary to determine whether it has the purpose which is claimed for it. And to ascertain whether it has that purpose, it is sometimes convenient to ask whether it is appropriate and adapted[29] or reasonably capable of being viewed as appropriate and adapted[30] to that purpose. If it is not, it may be taken that it does not have that purpose but has some other and different purpose[31].
[28]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
[29]See, for example, Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 358 per O'Connor J; Airlines of NSW Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54 at 86 per Barwick CJ; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 138 per Mason J; Cunliffe v The Commonwealth (1994) 182 CLR 272 at 319 per Brennan J.
[30]See, for example, The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 259 per Deane J; Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312 per Deane J, 324 per Dawson J; Davis v The Commonwealth (1988) 166 CLR 79 at 100 per Mason CJ, Deane and Gaudron JJ; South Australia v Tanner (1989) 166 CLR 161 at 165 per Wilson, Dawson, Toohey and Gaudron JJ; Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 30 per Mason CJ.
[31]Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 93-94 per Gaudron J. See also Richardson v Forestry Commission (1988) 164 CLR 261 at 311 per Deane J; South Australia v Tanner (1989) 166 CLR 161 at 165 per Wilson, Dawson, Toohey and Gaudron JJ.
There are, however, occasions when the apparent purpose of a law can be ascertained from its terms or its operation. If its terms or its operation reveal a purpose within power, it may still be necessary to ask whether the law in question is appropriate and adapted or reasonably capable of being viewed as appropriate and adapted to that purpose. That is because of the qualification earlier referred to. The qualification is this: a law which has as its purpose some object that is within power will, nonetheless, not be a law with respect to the subject-matter of that power if it is not appropriate and adapted or reasonably capable of being viewed as appropriate and adapted to that purpose[32]. It may be that the better view is not that there is a qualification of the kind stated but that a law which is apparently directed to achieving an end within power will be shown, if it is not appropriate and adapted to that purpose, to have some other purpose which is beyond power.
[32]Davis v The Commonwealth (1988) 166 CLR 79. See also Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1.
It is convenient, in light of what has been written, to deal first with the argument that s 3 of the WROLA Act, so far as it purports to give legal effect to item 50 in Pt 2 of Sched 5, is within the implied incidental power because it is appropriate and adapted to the prevention of future disputes. To say that s 3 is, to the extent in issue, appropriate and adapted to the prevention of future disputes is simply to say that it is, to that extent, a law for the prevention of future disputes. But that is not sufficient to bring a law within s 51(xxxv) of the Constitution.
Section 51(xxxv) does not authorise laws for the prevention and settlement of interstate industrial disputes. It authorises laws with respect to the means to be employed for their prevention and settlement, namely, conciliation and arbitration[33]. Thus, even if it can be said that s 3, to the extent presently in issue, is a law for the purpose of preventing future industrial disputes extending beyond the limit of any one State, that does not give it the character of a law with respect to conciliation and arbitration. Accordingly, the argument that s 3 is valid to the extent in issue because it is appropriate and adapted to the prevention of future disputes must be rejected.
[33]See R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 401. See also Jumbunna Coal Mine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309 at 358 per O'Connor J.
The argument that, to the extent in issue, s 3 is within power because there is a relevant connection between the original settlement of the dispute and the award as varied by operation of item 50 in Pt 2 of Sched 5 to the WROLA Act invites some general, preliminary observations. The first is that Parliament does not have power to legislate with respect to settlements of disputes, as such. And that is so whether or not the settlement is embodied in an award. Parliament may validly legislate with respect to the settlement of disputes, including a settlement embodied in an award, only if the law is, relevantly, a law with respect to conciliation and arbitration.
In essence, the argument that there is a relevant connection between the original settlement of the dispute by the Award and the Award as varied by operation of item 50 in Pt 2 of Sched 5 to the WROLA Act is an argument that Parliament may legislate with respect to an award or with respect to the effect to be given to an award. And that proposition invites analysis of the constitutional underpinning of ss 148(1) and 149(1) of the principal Act which give continuing and binding effect to awards.
It is well settled that an industrial dispute is not a dispute as to existing rights and liabilities but a dispute as to what rights and liabilities should exist as between employers and employees[34]. Where the processes of conciliation and arbitration are brought to bear on an industrial dispute, they are brought to bear, in the case of conciliation, for the purpose of reaching agreement or, in the case of arbitration, for determining what those rights and liabilities should be. It may be that, in some cases, the law of contract operates to create binding rights and obligations in the event of a conciliated agreement. That aside, however, the outcome of conciliation and/or arbitration takes effect, not by its own force, but by force of those legislative provisions which give effect to it[35].
[34]See Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia (1987) 163 CLR 656. See also Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463 per Isaacs and Rich JJ.
[35]See Proprietors of the Daily News Ltd v Australian Journalists' Association (1920) 27 CLR 532 at 537 per Knox CJ, Gavan Duffy and Starke JJ; Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association (1920) 28 CLR 209 at 228-229 per Isaacs and Rich JJ; Monard v H M Leggo & Co Ltd (1923) 33 CLR 155 at 165 per Isaacs J; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 455 per McHugh and Gummow JJ.
Since legislation was first enacted pursuant to s 51(xxxv) of the Constitution, the outcome of the arbitral process has been known as "an award"[36]. And for very many years the outcome of the conciliation process has either been given effect as an award or has been incorporated in an award embodying the outcome of arbitration. That position may have changed somewhat since the enactment of s 143(1A) of the principal Act[37]. Whether or not that is so, a law giving binding effect to the outcome of conciliation and arbitration with respect to an interstate industrial dispute is, clearly, a law with respect to the processes the subject of s 51(xxxv), namely, conciliation and arbitration. A law of that kind is at the heart of the conciliation and arbitration power and raises no question as to the scope of the so-called "implied incidental power".
[36]Commonwealth Conciliation and Arbitration Act 1904 (Cth).
[37]Section 143(1A) provides that neither a decision to certify an agreement under Pt VIB (Certified Agreements) nor an award under s 170MX (after the Commission terminates a bargaining period) is to be "an award or an order affecting an award" for the purposes of s 143(1), which relates to the making and publication of awards by the Commission.
A law gives effect to the outcome of conciliation or arbitration if the agreement which embodies the outcome of conciliation or the award which embodies the outcome of arbitration "applies to the various parties and persons according to its terms and provisions"[38]. On one view, the question whether Parliament may legislate to give effect to an award (using that word to mean the outcome of the processes of conciliation and arbitration) other than in precise accordance with its terms, was considered in Waterside Workers' Federation of Australia v Commonwealth Steamship Owners' Association ("the Waterside Workers' Case")[39].
[38]Monard v H M Leggo & Co Ltd (1923) 33 CLR 155 at 166 per Isaacs J.
[39](1920) 28 CLR 209.
The Waterside Workers' Case concerned the validity of a legislative provision to the same effect as s 148(1) of the principal Act which, subject to any order of the Commission to the contrary, continues an award in effect beyond its term and until a new award is made. The provision in question in the Waterside Workers' Case was held valid in its application to an existing award which, in terms, provided for its earlier expiry.
In the Waterside Workers' Case, Isaacs and Rich JJ, in dissent, noted that the Parliament cannot, itself, legislate to "impose any obligations or alter rights by any provision which dispenses with arbitration" and continued:
"[I]t cannot go beyond the actual decision of the arbitrator, or alter his decision, or make any provision for settlement of the dispute binding that does not involve his own decision, or that extends beyond his own decision or adoption."[40]
Their Honours added:
"[I]f Parliament can, irrespective of the merits of the particular case, make a general enactment, operating mechanically and setting aside ordinary legal rights of employers and employees beyond anything awarded, the words and the spirit of the constitutional provision are alike broken. And, if Parliament can do it in this case, we can see no limit to its power."[41]
[40](1920) 28 CLR 209 at 229.
[41](1920) 28 CLR 209 at 229.
Later, Dixon J said of the provision considered in the Waterside Workers' Case that it:
"[W]as upheld as valid ... upon the ground substantially that for the Legislature to keep an industrial regulation, brought into existence by an award, alive until a new regulation was made was incidental to the power of arbitration, at any rate so long as [the arbitrator] was left at liberty to give any contrary direction it saw fit"[42].
Dixon J was speaking of the provision as it related to an existing award which was expressed to expire at an earlier time.
[42]R v Commonwealth Court of Conciliation and Arbitration and Australian Railways Union; Ex parte Victorian Railways Commissioners (1935) 53 CLR 113 at 140.
So far as concerns future awards and, also, awards which are not expressed to operate for a precise period, there is no difference between a law that makes the outcome of conciliation and/or arbitration binding on the parties and a law that makes that outcome binding for a specified period of time. A law that makes an award binding for a specified period is, simply, a law giving effect to and indicating the period for which effect is given to the outcome of conciliation or arbitration. Subject to a qualification shortly to be mentioned, a law making an award binding for a specified period is a law with respect to conciliation and arbitration and lies at the centre not the circumference of the power conferred by s 51(xxxv) of the Constitution.
The qualification to what has been written above is this: although a law providing that an award shall have effect for a specified time is a law with respect to conciliation and arbitration, it is not, in my view, a law with respect to conciliation and arbitration for the prevention and settlement of industrial disputes unless it allows that the processes of conciliation and arbitration may be brought to bear to set aside or to vary the award, including as to its period of operation, or to make a new award in settlement of a further dispute.
A law that continued an award in effect but did not permit of the courses outlined above would thwart the very purpose which, by s 51(xxxv), conciliation and arbitration is to serve, namely, the prevention and settlement of interstate industrial disputes. Thus, although a law which continued an award in effect but did not permit of the possibilities indicated would properly be characterised as a law with respect to conciliation and arbitration, it would not be a law with respect to conciliation and arbitration for the prevention or settlement of industrial disputes.
A somewhat different analysis is directed in the case of a law which extends the operation of an existing award beyond its expressed term, that being the situation considered in the Waterside Workers' Case[43]. A law that extends the duration of an existing award until set aside or varied, or until a new award is made in exercise of the powers of conciliation and/or arbitration, is, in my view, clearly a law that is appropriate and adapted to the main purpose of s 51(xxxv), namely conciliation and arbitration for the prevention and settlement of interstate industrial disputes. And that is so even if the award is expressed to operate for a precise period. That is because a law of that kind preserves the outcome of the processes of conciliation and arbitration until those processes can again be brought to bear for the purpose of preventing or settling interstate industrial disputes.
[43](1920) 28 CLR 209.
It follows that in their unmodified form, ss 148(1) and 149(1) of the principal Act which, respectively, give effect to awards and extend the operation of awards, are valid. They are valid because they give effect to or continue the effect of the outcome of conciliation and arbitration until set aside or a new award is made. However, if Parliament legislates to give effect to some only of the terms of an award, or, more precisely, to deny effect to some terms whilst continuing the effect of others, it is not legislating with respect to the outcome of the processes of conciliation and arbitration. It is creating a new outcome from the combined processes of legislation and arbitration or, perhaps, the combined processes of conciliation, arbitration and legislation. In substance, the position is the same as if Parliament were to legislate directly to supplement the terms of an award. It follows that s 3 of the WROLA Act, to the extent in issue in these proceedings, cannot be supported on the same constitutional basis as ss 148(1) and 149(1) of the principal Act.
As will later appear, Parliament could have amended s 148(1) of the principal Act to withdraw all legislative support from awards containing nonallowable award matters. And it could also have legislated to require the Commission to review awards containing non-allowable award matters to determine whether it was desirable that they should continue to make provision with respect to those matters and directing it, if it found their continued operation undesirable, to vary the awards by deleting those provisions[44]. Of course, the award as varied would be a valid exercise of the conciliation and arbitration power only if it retained a requisite connection with the dispute in respect of which it was made. But Parliament has taken neither course.
[44]See, in this regard, Victoria v The Commonwealth (IndustrialRelationsAct Case) (1996) 187 CLR 416.
In substance, Parliament has attempted, itself, to review the awards of the Commission and to vary them in the exercise of legislative power. It has substituted its decision for that of the arbitrator. A law which substitutes an outcome that is different from the outcome of the processes of conciliation and arbitration is not a law with respect to conciliation and arbitration. Accordingly, the argument that s 3 of the WROLA Act, to the extent in issue in these proceedings, is valid because there is a relevant connection between the original award and the award as varied by item 50 in Pt 2 of Sched 5 to that Act must also be rejected.
Partial repeal
It is not in doubt that a power to enact laws with respect to some specific subject-matter is, also, a power to repeal an earlier law on that subject. In Kartinyeri v The Commonwealth Brennan CJ and McHugh J observed that:
"[T]he power which supports a valid Act supports an Act repealing it. To the extent that a law repeals a valid law, the repealing law is supported by the head of power which supports the law repealed unless there be some constitutional limitation on the power to effect the repeal in question."[45]
[45](1998) 195 CLR 337 at 356. See also at 368-370 per Gaudron J, 376 per Gummow and Hayne JJ, cf 421-422 per Kirby J; R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207 at 226.
The present proceedings are concerned with a provision which, if valid, operates to effect a partial repeal of ss 148(1) and 149(1) of the principal Act and, thus, to give effect not to the outcome of conciliation and arbitration but to a different outcome which is the combined result of legislation, conciliation and arbitration. As is apparent from what has been written, s 3 of the WROLA Act, if valid, operates to "so [change] the character of [ss 148(1) and 149(1) of the principal Act] as to deprive [them] of [their] constitutional support"[46].
[46]Kartinyeri v The Commonwealth (1998) 195 CLR 337 at 357 per Brennan CJ and McHugh J.

For these reasons, none of the arguments to sustain the constitutional validity of s 3 of the WROLA Act to the extent that it purports to give effect to item 50 and subitems 51(1), 51(2) and 51(3) succeeds. The section and the items are unsupported either by s 51(xxxv) or s 51(xxxix) of the Constitution. Unless they can be supported in the manner suggested by the added respondents in the order nisi proceedings, it will be necessary to sever item 50 and subitems 51(1), 51(2) and 51(3) from the rest of the WROLA Act. In my view, that could be done without requiring any substantial rewriting of the WROLA Act. The items in question do not purport to have more than a limited and transitional operation. Other provisions of the Workplace Relations Act exist which would permit the Commission to repair the suggested defects in current awards in the exercise of its general power. When the offending items are excised, there is no invalidity in the operation of s 3 of the WROLA Act. At least there is none to which attention was drawn in these proceedings.
Suggested reliance on s 51(xx) of the Constitution
The added respondents, all of which are mining corporations who are bound by the subject awards, sought nonetheless to sustain the constitutional validity of item 50 and subitems 51(1), 51(2) and 51(3), as they are given effect by s 3 of the WROLA Act, by invoking s 7A of the Workplace Relations Act. That section appears under the heading "Act not to apply so as to exceed Commonwealth power" and provides:
"(1) Unless the contrary intention appears, if a provision of this Act:
(a)would, apart from this section, have an invalid application; but
(b)also has at least one valid application;
it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application.
(2) Despite subsection (1), the provision is not to have a particular valid application if:
(a)apart from this section, it is clear, taking into account the provision's context and the purpose or object underlying this Act, that the provision was intended to have that valid application only if every invalid application, or a particular invalid application, of the provision had also been within the Commonwealth's legislative power; or
(b)the provision's operation in relation to that valid application would be different in a substantial respect from what would have been its operation in relation to that valid application if every invalid application of the provision had been within the Commonwealth's legislative power."
Sub-section 5 defines an "invalid application" in relation to a provision as one which exceeds the Commonwealth's legislative power and a "valid application" in relation to a provision, if it is the only application, as one within the Commonwealth's legislative power. Pacific Coal did not rely upon s 7A. Nor did the Commonwealth or Western Australia support this argument.
The added respondents sought to invoke s 7A of the Workplace Relations Act so as to afford a constitutional foundation for so much of s 3 of the WROLA Act and item 50 and subitems 51(1), 51(2) and 51(3) as applied to awards binding upon constitutional corporations such as themselves. It was conceded that such awards, in their terms, made no differentiation between parties which were corporations and parties which were not. On the face of the items (and also the Workplace Relations Act, in so far as it deals with the variation, cancellation and enforcement of awards containing provisions dealing with matters other than "allowable award matters"), it is clear that no relevant differentiation is made by the Parliament between treatment of corporations and non-corporations. Yet it was said that s 7A of the Workplace Relations Act evinced the intention of the Parliament, in a case such as the present, to sustain the valid application of the impugned items in relation to award parties which were corporations and, by inference, to require severance of the award provisions so far as they would otherwise apply to respondents which were not corporations and for whom s 51(xxxv) afforded no basis for constitutional validity.
There are a number of insurmountable difficulties with this argument. In its terms, s 7A of the Workplace Relations Act is expressed to apply "unless the contrary intention appears". The principal objects of the Workplace Relations Act in s 3 do not suggest a purpose to institute, in effect, a completely different regime of industrial relations in respect of awards covering employees of constitutional corporations formed within the limits of the Commonwealth, on the one hand, and employees of everybody else affected, on the other. Nor is there anything in the terms of s 3 of the WROLA Act or item 50 or subitems 51(1), 51(2) or 51(3) which suggests a legislative purpose to confine the operation of those items to constitutional corporations. Those propounding this argument conceded that the contrary was the case. But they submitted that s 7A nonetheless obliged courts, faced with a challenge to constitutional validity, to perform the task of severance in order to rescue those parts of the Workplace Relations Act which might have a valid operation.
A more fundamental difficulty encountered in the invocation of s 7A is that, of itself, it has no operative force or effect. It does no more than to state the intention of the Parliament. Whilst that might, in a particular case, be of some relevance to the analysis by a court, it has no relevance to a case such as the present where the operative provisions of s 3 of the WROLA Act and of item 50 and subitems 51(1), 51(2) and 51(3) do not discriminate between corporations and other parties to awards and therefore afford no foothold for a court to give effect to a parliamentary intention, even assuming that it was relevant and appropriate for a court to do so. Having reached this conclusion, it is unnecessary to explore deeper questions such as the constitutional foundation, in the context of the Workplace Relations Act, for the enactment of a provision in the terms in which s 7A appears[268]. Or whether it is competent for the Parliament, when it does not itself identify its reliance on a particular constitutional head of power, to oblige a court such as this Court to search for a relevant head of power for a provision such as s 7A[269].
[268]Re Dingjan; Ex parte Wagner (1995) 183 CLR 323.
[269]cf The Queen v Hughes (2000) 171 ALR 155 at 188.
In the circumstances, I do not consider it necessary to explore this question further. The provisions of s 7A of the Workplace Relations Act afford no alternative foundation to permit this Court to redraw item 50 or subitems 51(1), 51(2) or 51(3) and s 3 of the WROLA Act so as to confine their operation to constitutional corporations. No other head of constitutional power being relied upon or appearing, those items, and s 3 of the WROLA Act to the extent that it purported to give effect to those items, are of no effect. The offending items should be, and can be, excised, leaving s 3 of the WROLA Act otherwise operative and valid.
Conclusion
The decision of this Court, in my opinion, breaks nearly a century of previously unbroken constitutional authority. It upholds, under the conciliation and arbitration power, direct alteration by the Parliament of an existing award made by the process of conciliation and arbitration in the settlement of an interstate industrial dispute. It allows the Parliament to change the internal balances and compromises within an award, which, in this instance, has the effect of benefiting one side in the industrial relationship. Were Parliament allowed to do so, such a change could as easily have the effect of benefiting the other side. The altered award is no longer the outcome of the constitutionally permissible process. It is now simply the product of federal legislation. The size or justice of the change is not the proper concern of this Court. But the novel enhancement of the legislative power of the Parliament is. This decision involves a radical enlargement of the federal legislative power under s 51(xxxv) of the Constitution. That enlargement will not go unnoticed. Respectfully, I dissent.
Orders
The following orders should therefore be made:
In matter number S137 of 1998
The order nisi, as amended, should be made absolute with costs in favour of the prosecutors against the second to the thirty-eighth respondents.
A writ of prohibition should issue directed to the respondents prohibiting them from giving effect to, or relying upon, the decisions of the Commission which are the subject of these proceedings. A writ of certiorari should issue to remove into this Court such decisions for the purpose of quashing them. And a writ of mandamus should issue to command the Commission to determine the applications before it in accordance with law.
In matter number S138 of 1998
Answer the question reserved, as amended, as follows:
(a)Yes.
(b)Unnecessary to answer.
The defendant should pay the plaintiffs' costs of the stated case.

CALLINAN J. Whilst it may, with respect, be accepted, as McHugh J says in his reasons for judgment in this case[270], that if the Commissioner's discretion is confined too narrowly it may reach a point where it is proper to say that it is the Parliament, and not the Commission, which is determining the issue which is the subject of the purported discretion, whether that was so in this case was not, so far as the operation of s 89A of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) ("the Act") is concerned, in contention. All parties argued the case upon the basis that the section was a valid enactment. The only challenge that was mounted by the prosecutors was to s 3 of the Act to the extent that it operated to give effect to item 50 and subitems 51(1), (2) and (3) in Pt 2 of Sched 5 to the Act. It is apparent that the scheme of the legislation is to confine the operation of awards to allowable award matters as defined by s 89A of the Act both past and prospective, by, in effect withdrawing legislative coercive power in respect of the former to the extent that such awards would otherwise extend beyond these matters. That this is the purpose, how it is to be achieved, and that its achievement is within constitutional power are explained in the reasons for judgment of Gummow and Hayne JJ.
[270][2000] HCA 34 at [179].
Against the background of the common assumption of the validity of s 89A of the Act, and having regard to the fact that s 51(xxxv) of the Constitution confers power with respect to the prevention as well as the settlement of industrial disputes, I would regard s 3 and the challenged items as a legitimate exercise of the power which s 51(xxxv) grants to the Commonwealth to do two things: first to withdraw legislative support for parts of awards previously binding the parties under the industrial legislation in force when they were made; and, to redefine the extent to which awards so made will enjoy the support of underpinning legislative effect.
There may very well be, as McHugh J points out, elements of compromise in the affected award some of which may not readily be able to be isolated. But it might equally be said that an award such as this one may contain elements repugnant to parties bound by it. It may even be anathematical in whole to some parties, but the industrial regime in this country has nonetheless for a very long time operated to impose awards upon such parties. It does not therefore seem to me to be anomalous that the challenged provisions might in some way affect the balance of compromises (if any) contained in it. However, in any event subitem 51(3) provides that the Commission when varying an award may also vary it, so that in relation to an allowable award matter, the award is expressed in a way that reasonably represents the entitlements of employees in respect of that matter as provided in the award in force immediately before the interim period. In short, it might confidently be expected that any concern about the prospective loss of a benefit achieved by a compromise would usually be the subject of debate and argument in the Commission. Furthermore, such a matter could also in all probability be the subject of a bona fide interstate industrial dispute.
Subject only to the matters which I have mentioned I agree with the reasons for judgment of Gummow and Hayne JJ and would join in the answers and orders their Honours propose.