Re State Public Services Federation; Ex parte Attorney General for WA, Qld; Re Electrical Trades Union of Australia & Ors; Ex parte State of NSW; Ex parte Sydney Electricity

[1992] HCATrans 165

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Perth	No P43 of 1991
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against the

Honourable JUSTICE PAUL MUNRO

and the Honourable .JQHH

WILLIAM MACBEAN, Deputy

Presidents of the Australian

Industrial Relations

Commission and COMMISSIONER

BEVAN ROSS JOHNSON, a

Commissioner of the

Australian Industrial

Relations Commission

First Respondents

STATE PUBLIC SERVICES

FEDERATION

Second Respondents

Ex parte -

THE ATTORNEY-GENERAL FOR THE

STATE OF WESTERN AUSTRALIA

Prosecutor/Applicant

Office of the Registry

Brisbane	No B42 of 1991
In the matter of -

Public 114 4/6/92

An application for a writ of prohibition and a writ of

certiorari against the

Honourable JUSTICE PAUL MUNRO

and the Honourable DEPUTY

PRESIDENT JOHN WILLIAM

MACBEAN, Deputy Presidents of

the Australian Industrial

Relations Commission and

COMMISSIONER BEVAN ROSS

JOHNSON of the Australian

Industrial Relations

Commission

First Respondents

".

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

Ex parte -

HER MAJESTY;· S ATTORNEY-
GENERAL FOR THE STATE OF

OUEENSLAND

Prosecutor/Applicant

Office of the Registry

Sydney	No Sl9 of 1992
In the matter of -

An application for a writ of prohibition and for a writ of

certiorari against

COMMISSIONER BEVAN ROSS

JOHNSON, a Commissioner of

the Australian Industrial

Relations Commission

First Respondent

THE ELECTRICAL TRADES UNION
OF AUSTRALIA, THE ASSOCIATION

OF PROFESSIONAL ENGINEERS AND

SCIENTISTS, AUSTRALIA, THE

FEDERATED MUNICIPAL AND SHIRE

COUNCIL EMPLOYEES UNION OF

AUSTRALIA, THE FEDERATION OF

INDUSTRIAL, MANUFACTURING AND

ENGINEERING EMPLOYEES, THE

METAL AND ENGINEERING WORKERS

UNION, THE FEDERATED ENGINE

DRIVERS, AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA,

THE BUILDING WORKERS

INDUSTRIAL UNION OF
AUSTRALIA, THE OPERATIVE
PAINTERS AND DECORATORS UNION

OF AUSTRALIA, and THE

AUSTRALIAN INSTITUTE OF

MARINE AND POWER ENGINEERS

Second Respondents

Ex parte -

THE STATE OF NEW SOUTH WALES,

and THE ELECTRICITY

COMMISSION OF NEW SOUTH WALES

Applicants/Prosecutors

Public 115 4/6/92

Office of the Registry

Sydney	No S20 of 1992
In the matter of -

An application for a writ of prohibition and a writ of

certiorari against

COMMISSIONER BEVAN ROSS

JOHNSON, a Commissioner of
the Australian Industrial

Relations Commission

First Respondent

THE ELECTRICAL TRADES UNION

OF AUSTRALIA, THE ASSOCIATION OF PROFESSIONAL ENGINEERS AND

SCIENTISTS, AUSTRALIA, THE

FEDERATED MUNICIPAL AND SHIRE

COUNCIL EMPLOYEES UNION OF

AUSTRALIA, THE FEDERATION OF
INDUSTRIAL, MANUFACTURING AND

ENGINEERING EMPLOYEES, THE

METAL AND ENGINEERING WORKERS

UNION, THE FEDERATED ENGINE
DRIVERS, AND FIREMEN'S

ASSOCIATION OF AUSTRALASIA,

THE BUILDING WORKERS

INDUSTRIAL UNION OF
AUSTRALIA, THE OPERATIVE

PAINTERS AND DECORATORS UNION

OF AUSTRALIA, and THE

AUSTRALIAN MUNICIPAL

TRANSPORT, ENERGY, WATER,

PORTS, COMMUNITY AND

INFORMATION SERVICES UNION

Second Respondents

Ex parte -

SYDNEY ELECTRICITY,

LOCAL GOVERNMENT

ELECTRICITY ASSOCIATION OF

NEW SOUTH WALES,

CENTRAL WEST COUNTY COUNCIL,
ILLAWARRA COUNTY COUNCIL,

MACQUARIE COUNTY COUNCIL,

MONARO COUNTY COUNCIL,
MURRAY RIVER COUNTY COUNCIL,
MURRUMBIDGEE COUNTY COUNCIL,

NAMOI VALLEY COUNTY COUNCIL,

Public 116 4/6/92

NEW ENGLAND COUNTY COUNCIL,

NORTHERN RIVERINA COUNTY

COUNCIL, NORTHERN RIVERS

COUNTY COUNCIL, NORTH WEST

COUNTY COUNCIL,

OPHIR COUNTY COUNCIL, OXLEY

COUNTY COUNCIL, PEEL

CUNNINGHAM COUNTY COUNCIL,

PROSPECT COUNTY COUNCI,

SHORTLAND COUNTY COUNCIL,

SOUTH WEST SLOPES COUNTY

COUNCIL, SOUTHERN MITCHELL

COUNTY COUNCIL, SOUTHERN

RIVERINA COUNTY COUNCIL,

SOUTHERN TABLELANDS COUNTY

COUNCIL. TUMUT COUNTY
COUNCIL, ULAN COUNTY COUNCIL,

TENTERFIELD SHIRE COUNCIL

Applicants/Prosecutors

MASON CJ

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY. 4 JUNE 1992, AT 9.49 AM

(Continued from 3/6/92)

Copyright in the High Court of Australia

Public 117 4/6/92

MASON CJ: Yes, Mr Solicitor?

MR MASON:  Your Honours, I have got three final matters,

mainly of a housekeeping nature. In the Electrical

Trades matter, there were written submissions

filed. The disputants identified in the finding

were all persons from the respondents' point of

view who were within the shield of the Crown. The

details of how that comes about are set out in the

written submissions. They consist of the producers

or distributors of electricity, each of whom are subject to ministerial direction with respect to those respective functions.

That has two consequences for the purpose of the argument. It attracts the benefit, if there is

any, of the argument based on sections 6 and 121 in

confined to respondents who are themselves within the shield of the Crown, we would adopt so much of

that they are for this purpose the Crown.

the Queensland argument that said that if an award

confines itself to Crown parties, then it has

discriminated.

Your Honours, in the written submission there

is reference made to a genuineness dispute,

genuineness submissions. Those are not pressed.

The reason for that is that had the claims been for

money alone, we would have pressed the arguments

that were advanced in the SPSF matter, but the logs

in each case here extended over a wide range of

matters, and we would not press the genuineness

argument to those logs.

Finally, returning to section 121, Your Honour

Justice Deane put one permutation to me yesterday

which involved the Commonwealth law being

prescribed after the making of the federal award

and whether, in that circumstance, it could be said

there was discrimination.	We would say, yes,
because the power to prescribe such a federal Act

would impede the capacity to vary the award from

time to time.

GAUDRON J:  Mr Solicitor, again, could I ask you a question,

I am sorry, but you said, if the award is made only against Crown parties?

MR MASON:	Yes.
GAUDRON J:	Do I take it that you do not dispute the existence of a dispute, only the capacity of the
Commission to make an award consistent with what you said yesterday?

MR MASON: In the ETU matter?

Public 118 4/6/92

GAUDRON J: In the ETU matter.

MR MASON:	Yes.
GAUDRON J:	So the only presently live issue which would go

to prohibition is the section 6/section 121

argument?

MR MASON:  And the Queensland argument that - - -

GAUDRON J: And the Queensland argument.

MR MASON: Yes, that if the award is - - -

GAUDRON J: But that is if the award is made.

MR MASON: Well, because the dispute as found is one which

is confined to the Crown - - -

GAUDRON J: Well then, you say it is because the dispute is

confined to the Crown, there is no dispute, do you, rather than, because the dispute is confined to the

Crown an award cannot be made?

MR MASON:  There is no dispute that can be validly found

within the Act, because to do so amounts to

discriminating against the State or an agency of
the State, and that flows from the facts that the

State has been singled out and whilst it might be all right to single out BHP, it is not all right to single out the State.

GAUDRON J:  But so far it has been singled out by the ETU,

not by any agency of the Commonwealth and there is nothing in the Constitution, is there, to say that the ETU cannot discriminate against the State of

New South Wales?

MR MASON:  But the ETU are relying upon a federal Act to do

so and the Commission has acted under - - -

GAUDRON J: But they can make a dispute quite independently

of the federal Act.

MR MASON: Well they may, but they cannot invoke a federal

Act and a statutory power under it to find the

dispute, if that federal Act is being used, in our

submission, in a way that singles out the State.

GAUDRON J: Well now you said - and I have not looked at the

respondents - all the New South Wales' respondents

have protection of the shield of the Crown.

MR MASON:	Yes.
GAUDRON J:	I take it there are other respondents; otherwise

it is not interstate?

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MR MASON:  Yes, they are similar organizations.

GAUDRON J: Yes, but do we - - -

MR MASON:  Do we know whether they have the shield of the

Crown? I believe the answer is yes, but I cannot

say that I have looked at the matter.

GAUDRON J:	We are reduced to going through the relevant statutes for ourselves in due course.
MR MASON:	I will endeavour to have a look at that in the course of the day and if there is any difficulty
about that I will tell Your Honour.

GAUDRON J: And on your argument then, I take it, if there

is any one outside New South Wales that does not

have the shield of the Crown, your argument, based

on the Queensland argument, collapses?

MR MASON:  I am not sure that I would agree with that. In

the Queensland Electricity case, the mere fact that

the Act may have embraced some parties other than a

single State would not have saved the legislation

from being discriminatory if, in substance, it

singled out a single State and, on the argument we

are putting, once a single State has been isolated,

and in New South Wales there is enough for that

purpose, from employers generally for the making of

an award that will bind it, the principle would be

good, but I will endeavour to see whether, in fact, there are any parties who are non State parties in

the other respondents.

GAUDRON J:	I am just thinking of St George County Council case which, of course - I imagine now St George
County Council no longer exists - but it was held,
was it not, not to be within the shield of the
Crown?
MR MASON:	But in relation to the electricity distribution

functions, the legislation referred to in our

outlines says that they are subject to ministerial
direction qua those functions, and we would

therefore submit that qua those functions they are

within the shield of the Crown.

GAUDRON J: Yes, but what I am saying is that does not

follow for any non-New South Wales bodies.

MR MASON:  It may not. The Queensland Electricity

Commission case, the discrimination principle

enured in favour of the State or any statutory

instrumentality of the State. Now, I do not

recollect there was an analysis as to whether the

QEC was itself within the shield of the Crown, but

it was sufficient that they carried out the

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function that they did. But certainly with respect

to all the New South Wales respondents, the
submission is that they are within the shield of

the Crown qua this activity for which the award is

sought to be made. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Solicitor for

Tasmania.

MR BALE:  May it please the Court, may I at the outset

correct two paragraphs in the outline of argument

which was delivered to Your Honours last week.

They are paragraphs 6 and 7. In both those

paragraphs reference is made to logs of clai~ in

the plural when, in fact, the reference clear·ly

should simply be to a single log. And in

paragraph 6 under the second dot point, it is said

that the several logs potentially cover "all"

employment by the State. It should be "most"

employment by the State.

Your Honours, much of what is said in the

outline which I handed up has already been covered

in the previous submissions which I generally

adopt, and I certainly do not intend to traverse

that ground again.

There are two points only which we would seek

to put in a different way to that which has already

been put, and both of those relate to the operation

of the implied constitutional prohibitions.

But before I address those points, perhaps I

should identify for Your Honours the coverage of

the log in so far as the State of Tasmania is

concerned.

Your Honours will have noted that in the log,

which is contained at page 175 of the application

book, it is expressed to be on behalf "of all

persons" who are or who are eligible to be members

of the SPSF. Now, if one then looks at membership eligibility for the State of Tasmania, and that is

to be found in the annexure to the submissions for

the State of Queensland. The pages in the copy I

have are unfortunately unnumbered but on ~he fourth

page of the rules of the SPSF, under paragraph (F),

you will see that it said:

In the State of Tasmania the Federation shall also consist of an unlimited number of persons

employed in a permanent or temporary capacity

by -

(a) the State; -

(b) a State Authority which -

Public 121 4/6/92

is very widely defined and -

(c) a State public hospital -

and then some eight pages further on there is a

list under subparagraph (xii) of the persons who

are not:

eligible for membership of the Federation in

the State of Tasmania -

it is in the right-hand column on the page to which

I refer, and it refers to -

(a) Persons who are members of the Police

Force .....

(b) Persons employed in or in connection with
theatrical and amusements of any kind -

and who are in (c)" employed as ..... teachers", and (d) also "employed in the Department of Education"

in various capacities plus "ferry workers" and

"traffic wardens". Outside those descriptions it

is fairly evident that the log is particularly all

embracing of State servants, and appears to be

intended to cover, and effectively does cover,

virtually all employees of the Crown save those

classes specifically excluded, and in those that it

does cover certainly all those persons whom we

would say might reasonably be regarded as being

involved in the functioning of the State as a

State.

Your Honours, that brings me to the two points

that I wish to make in relation to the issue of the

implied indemnities.

Putting the first point, could I say that the

Head of Department of Premier and Cabinet, the

Commissioner of Stamp Duties, the Registrar of a

State Supreme Court, and the Official Secretary to

His Excellency the Governor are perhaps an unlikely

quartet but, certainly in the case of the State of

Tasmania, they have at least four things in common

and those four things are that they are all

employed by the Crown, that they are all employed

in jobs which have no equivalent in the private
sector but they are all involved in activity which,
in our contention, is integral to the State

functioning as a State and all would be potentially

subject to the log of claims which is the subject

of this litigation.

The consequence of the Commission finding here

that a dispute existed is that the prosecuting

States, along with the State of Tasmania, and no

Public 122 4/6/92

one else are subjected as employers to the

possibility that the Commonwealth's Commission will

determine the fundamental terms - at least some of

them - upon which each of those persons and other

such employees are to be employed in discharging

their functions.

In the present circumstances, it is our

submission that that is discrimination in the

relevant sense against the affected States because

it imposes a discriminatory burden upon the States

by reference to their character as such, the

discriminatory operation of which is not authorized

by any specific constitutional power and, in that

respect, may I refer to a passage from the judgment

of Your Honour Justice Brennan in the Queensland

Electricity Commission case, 159 CLR 192, and the

passage to which I refer appears at page 234

point 2. It is brief so, perhaps, I might read it:

What is prohibited is an adverse

discriminatory operation of a law, not an

adverse operation of a general law. And it is

the discriminatory operation which needs to

find support in a head of power. It is

insufficient to show that a law imposing a

discriminatory burden or disability on the

States exhibits such a connexion with a

subject of legislative power as to give it the
character of a law with respect of that
subject if the power does not authorize the

particular discrimination which the law

effects.

I would submit that Your Honour Justice Deane made comments to similar effect at pages 249 to 250 of

that report. They have already been cited and,

~herefore, I do not pause to read them again. That

is the consequence, we say, of the Commission

finding that a dispute exists.

BRENNAN J:  Why do you say there is a discriminatory burden

placed on the State by reason of its character as

such?

MR BALE: Because, Your Honour, we would submit that it is

the State's character, as a State employer of

course, and only the State which is addressed. Had

the log been directed at employers generally, then

obviously in light of authority as it currently

exists, it would not have been possible to say that

there was discrimination. But it singles out the

States because they are States and because they are

State employers, and that, we say, is of itself a

discriminatory burden.

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BRENNAN J:  Does it single them out on any ground other than

that they are an employer of the employees whom the

Union covers?

MR BALE:  I think not, Your Honour.

BRENNAN J: Where is the character other than that of

employer by which the discrimination is said to
operate?

MR BALE:  We say the discrimination exists simply because

they are selected as States and no one else

employing similar labour is chosen.

BRENNAN J: But your hypothesis was that there was no

corresponding employees in the private sector.

MR BALE:  In relation to the four examples which I gave,

there is no corresponding employment in the private

sector. That is certainly true, Your Honour, but

obviously within the State service, there are

plainly employees who would be subject to this log

who do have counterparts in the private sector. Secretaries generally would be but one example:

clerks, engineers, architects, et cetera. There
are clearly many examples where there is employment

common both to the public sector and the private

sector which would be touched by this log.

BRENNAN J:  Is the immunity then said to extend to disputes

between the State on the one hand, and those who

exercise power on behalf of the State on the other,

as distinct from those who merely render service to

the State?

MR BALE:  Yes, Your Honour. We would contend that the

immunity only applies to those who are involved in

the exercise of an essential State function and, to

pick up Justice Deane's example yesterday, were

there to be a strike, for example, of all public

servants, can they be replaced from the private

sector?

If they cannot be replaced from the private sector, a secretary, for example, the typist, could

probably be quite readily be replaced from the
private sector: an assessor of stamp duties, we

would say, could not be replaced from the private

sector, because there is no equivalent. Our
contention would be that the immunity would be
attracted by the person who could not be replaced,

but it would not exist in relation to the person

who could be replaced, because the ready capacity

to replace could not be said to be involved, we

would contend, in the essential functioning of the

State as a State.

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In point 4, Your Honours, of the outline, we

suggest three classes of persons who, on our

contention, would fall within the immunity. I

would hope that what I say within the next two or

three minutes will sufficiently cover those three

classes.

The consequence of the Commission making an

award in this dispute, as distinct from finding

that a dispute exists, would in our contention be

that the three States parties to the award would,

as employers, be bound to engage their workforces

at whatever level and whatever their duties.	On
terms in relation to remuneration, which were

dictated by the Commission, and that even where

those duties involve activity which was integral to the functioning of the State as a State, and in our submission that fact would constitute undue
inhibition or impairment with the State's capacity

to function and in that respect I simply again

refer Your Honours to Coldham; I will not take you

to it, the passage has already been read, and it

appears at page 213 of that report.

It would be our submission that it is

unnecessary in the circumstances of· this case, and

because of the fluctuating perceptions of what
services are essential to the State's capacity to
function, it may never be appropriate to determine
with precision the limits of activity which might
properly be classified as enabling a State to

function as a State. But because the logs here, at

least in so far as Western Australia and Tasmania

are concerned, are directed at the activities of

virtually all State servants, they necessarily, in

our contention, embrace virtually all employees

involved in discharging functions which are

integral to the State's capacity to function. And,

certainly so far as Tasmania alone is concerned, we

would contend that the exclusions from the coverage

of the award, by reference to membership of the

SPSF, are of such a nature that no employees

engaged in the essential functioning of a State are

excluded, so far as Tasmania is concerned.

GAUDRON J:  I suppose it does not matter, but these are not

quite the submissions you put to the Commission,

are they?

MR BALE:  Your Honour, they are not. That was at a

different time with a different government in place

and, of course, our submissions to the Commission

only related to the existence of a dispute where we

put - - -

GAUDRON J: But your submissions here ultimately only go to

the finding of a dispute, do they not?

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MR BALE:	They do.	Well, they go, Your Honour, both to the

finding of	a dispute and the consequence of the
finding of	the dispute. In other words, if the
Commission

GAUDRON J:  Even though you are here as an intervenor, your

ultimate ambition is to have the finding set aside

as against Tasmania, even though you consented to

it in the first place.

MR BALE: That would be the consequence, Your Honour, yes.

As I say, a change of government and different

instructions at this level - - -

GAUDRON J: Yes. I ask this because it does put the unions

in a false position in relation to costs if that
sort of thing happens, does it not? Particularly

in the light of a statutory context which limits

the costs.

MR BALE:  Quite clearly, Your Honour, in view of the fact

that we did not oppose, before the Commission, the

making of a finding that a dispute existed and

that, of course, is as far as it went at that

stage.

GAUDRON J: But it is as far as it goes at this stage too,

really.

MR BALE: Well, we would, with respect, submit it that the

Commission, having clearly signalled that it intended to proceed on the basis that what we would

contend is an erroneous understanding of the joint

judgment in Lee, it would certainly be appropriate

at this stage to grant a prohibition to prevent

them from proceeding on that basis and I adopt what

my learned friend, the Solicitor-General from New

South Wales said in that regard.

It is our submission, Your Honours, that there

can be no real argument that to control the wages

or other conditions of employment of those involved

in the essential services of government is to

inhibit or impair its capacity to function. We

would contend that that is so self-evident that it

hardly needs argument, but if I can just take one

example of it. Looking at the highest level, State

heads of department are, for the most part, career

administrators with a high level of input into, and
a high level of influence upon, the political
process. Their advice covers even the most
political of policy decisions. Their knowledge of
the intricacies and process of government give all

but the obtuse of ministers a means to find their

way.

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Heads of department are chosen from a wide

range of backgrounds but for the special skills

which they possess and the offices which they hold

are quite unique to government. Like public

prosecutors they have no parallel in the private

sector and their functions mean that they are

effectively the nerve centre of government, and to

control the basis upon which they are to be

remunerated is to exert, in our submission, control

over the most central of all organs of government.

If that control was to pass to the Commonwealth or

its Commission then it is our submission that the ability of the States to appoint whom they wanted

and therefore their ability to function as such,

would be severely inhibited, and if, to control the

place at which the functions of government operate

is to potentially run foul of the implied

prohibitions, and for that I again draw attention

to the passage in the judgment of Your Honour

Justice Brennan in Tasmania Dam to which reference

has already been made, then a fortiori, in our

submission, to control the functionary is to

infringe those implied prohibitions.

Can I then turn to the second point that I

wish to make, and that relates to the joint

judgment in Lee. It is our contention that by

expressing the powers which it gives to the

Commonwealth to be subject to the Constitution,

section 51 must be taken as making those powers
subject to the limitations necessary to ensure the

continuing ability of the States to exist as

independent members of the Federation.

Section 51 has been interpreted in that way

since Melbourne Corporation, and the only

difficulty which courts appear to have encountered

has been with the precise definition of the
boundaries of the limitation. As I have submitted,
those boundaries should not concern us here because

of the breadth of the cover which this log has, but

if they do concern us, then regard might be had to

what is covered in point 4 of the outline.

But against that background, I turn to what Your Honours the Chief Justice and Justices Brennan

and Deane said at page 453 of Lee. I turn to the

sentence at point 6 on that page, which is about

half-way down the second-last paragraph:

On the view which we are presently inclined to

take of the implied limitations, they do not
protect the States from the consequences of
the exercise by the Commonwealth of the powers

granted to it by the Constitution which

contemplate their application to the States.

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As Your Honour the Chief Justice has already observed in the course of this hearing, all of what

appears on page 453 is in the context of the

consideration by Your Honours of the
appropriateness of using engagement in the
administrative services of the State as a criterion

for the operation of the implied immunities.

As we have indicated in our outline, we would

respectfully accept the argument that that is too

wide and therefore an inappropriate criterion to

use. But what we do submit is that there is a

significant difference between contemplation that a

power will operate in relation to a State and

contemplation that a power will so operate as to

impede the functioning of a State as a State.

Thus it is one thing to say that the exercise

by the Commission of authority with respect to the

employment relationship between a State and its

employees in the course of settling an interstate

dispute is, prima facie, contemplated by

section 5l(xxxv) - and that, of course, is what Lee

says at 453 point 2 - but it is quite another thing

to say that the Commission can exercise that

authority in such a way as to impede the

functioning of a State as a State.

For the Commission to do that would, in our

by the implied limitations on federal legislative power. In short therefore, to allow the Commission to exercise its power to impede the

contention, be to exercise its power otherwise than protected

in accordance with the federal scheme which the

States in this way would be to ignore the

introductory words of section 51. What is more, we

would respectfully submit that it is illogical.

DEANE J: But the point being made in that sentence, obscure

though it may be perhaps, is that when you are

dealing with implications of the Constitution, the

introductory words of section 51 have very little

relevance, because you can look to the contents of

section 51 to determine what are the implications

of the Constitution. It is not as if there is an

express provision in the Constitution which is

there and to which the powers given by section 51

are necessarily subjected.

MR BALE:  We would respectfully accept that, Your Honour,

if, as I understand, Your Honour is saying that the

introductory words really are self-evident.

DEANE J:  No, what I am suggesting is that when you are

dealing with implications of the Constitution, the

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introductory words to section 51 are really almost

irrelevant.

MR BALE:  Yes, we would accept that, Your Honour. I was

about to say, Your Honours, that it would, in our

respectful submission, be illogical that

discrimination or singling out would defeat a

purported exercise of power, and that seems to be

the assumption upon which the comments at page 453
of Lee are predicated, but that infringement of the
implied prohibition against interference with the
ability to function would not, because in our

contention the prohibitions against discrimination

and against interference with ability to function

have the same underlying rationale, that is, the

preservation of the place of the States as

constituent elements in the Federation.

Therefore, Your Honours, we submit finally

that the comments in Lee should be read essentially
as saying this: that whilst the Commonwealth may

not validly legislate either so as to discriminate

in the relevant sense against the States, or so as

to impair the continued existence of a State as a

State, in determining whether legislation has the

effect of interfering with a State's capacity to function or whether it is discriminatory, regard

must be had to the extent to which the Constitution

itself contemplates that controls may be imposed

consistently with the federal scheme. And we would

accept that the Constitution does not contemplate

that the administrative services of a State are,

per se, beyond the reach of federal legislation

because we would accept that quite clearly the

description of administrative services is in its

normal sense so wide as to incorporate much

activity which clearly is not necessary to the

functioning of a State as a State.	May it please
the Court.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Selway.

MR SELWAY:  Thank you, Your Honour. Does the Court have a

copy of the outline of submissions for the State of

South Australia?

MASON CJ: Yes.

MR SELWAY:  May it please the Court, we adopt the

submissions of the Solicitor-General for Western

Australia on the principles to be applied in

determining whether there is a genuine dispute.	We
wish to put submissions on the effect in its
application to the arbitration power of the
constitutional limitation that Commonwealth power

cannot be applied to inhibit or impair the capacity

of the States to govern.

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In answer to comments made by Your Honour

Justice Dawson yesterday, we submit that the

current interpretation of the arbitration power

contains no significant limitations on matters

which, as at least between employer and employee,

can be the subject of an industrial dispute.

In particular, we say that an industrial

dispute can include matters that were once

considered as management prerogatives. We would

refer the Court, without taking the Court to them,

to the cases listed in paragraph 2 of our outline

and draw the Court's particular attention to

page 136, point 7, of the decision in Cram, where

the entire Court rejected the suggestion that

management decisions stand outside the area of

industrial disputes.

If I might say, the effect of our submission

concentrates on what might be called management
disputes rather than what might have once been
thought more ordinary matters touching industrial

disputes such as wages and allowances.

In our submission, the full potential of the

arbitration power, if applied to the States, has the capacity to significantly alter or transform the relationship between the State and its

employees. Subject to the effect of the

constitutional limitation, the arbitration power

would authorize laws or awards made pursuant to

laws, dealing with appointment, criteria, tenure,

duties, management structures, classification

systems, discipline and so forth.

Examples of the potential application have

already been given by previous counsel and I do not

repeat them. Our submission will concentrate on

the executive power but we note that laws and

awards under the arbitration power can apply to and

touch the legislative and judicial powers of the

government as well.

In so far as the executive Crown is concerned,

it acts through its servants, agents and delegates.

Without taking the Court to them, we refer the

Court to the cases in paragraph 5 of our outline of

submissions. We adopt the comment of Your Honour

Justice Dawson yesterday that the act of the

servant can be considered as the act of the State,

at least for most purposes.

For practical purposes, we submit that the

executive Crown can be considered as a corporation
aggregate comprising the servants, agents and

delegates of the Crown. We would refer the Court,

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in particular, to Lord Simon in Town Investments v

Department of Environment, (1978) AC 359, at 400H.

In our submission, an interference in the

relationship between the State and its servants, if

it is sufficiently significant, can impair the

capacity of the State to function as a government.

In effect, such an interference could involve a

redefinition or reorganization of the corporation

aggregate; that is, the executive. As currently

interpreted and subject always to the

constitutional limitation, the arbitration power

does have the potential to authorize laws which

have such a significant interference in the

relationship between the State and its servants.

The question before the Court on this issue is

what interference with the relationship between the

State and its servants is sufficiently substantial to impair the capacity of the State to function and

what interference is not.

We put that there are two elements to be

considered in determining whether any interference

is substantial or undue. First, what aspect of the

relationship is interfered with and the importance

of that aspect to the function of government.

Second, the relative importance ascribed by the

State to the overrule relationship with that

employee or group of employees. The consideration

of these two elements will involve issues of fact

and degree. In determining them historical notions

of both the industrial system and the

constitutional and legal relationship between the State and its servants will be important. And we

would refer to the comments of Your Honour the

Chief Justice and Justices Brennan and Deane in

Re Lee at page 452, point 2, where Your Honours

refer to historical notions, at least of the

historical system, in determining the application

of the constitutional implication.

We do say, however, that this analysis cannot

depend entirely upon historical considerations.

The capacity to change in the future as a result of

its own initiative is, in our submission, an

essential attribute of government. Given the

potential effect of section 109 we say that there

must be sufficient liberality in the determination

of the two elements that we have referred to, so as

to permit the State to reorganize and vary its

priorities and arrangements in the future.

As to the first of the elements dealing with aspects of the relationship, we would refer the

Court, without taking the Court to it now, to an

article by Professor Mccarry, "An Uneven Playing

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Field: Executive Public Servants and the Public

Interest", 1991 Sydney Law Review page 499. We

refer the Court to that article because, in our

view, it provides a useful and succinct summary of the history of and recent changes to the structure

and management of the public service throughout

Australia.

We draw from the article matters which in fact

may be self-evident. First, that the organization

and structure of the public service is a matter of

constitutional significance; the present structure

developed to ensure that the public service was

professional and non-political and that

appointments were not made on the basis of

political patronage.

The second element we draw from it is that

certain elements of the structure are critical to

the overall structure. In particular, the manner

of appointment and the procedures for dismissal are

critical. Although that article deals with

appointment and dismissal we say that other issues of significance include the duties to be performed

by a particular servant; the relationship of that

servant to others; the position of the servant in
the bureaucratic hierarchy; the relationship to

ministers and so on. In our submission,

interference in these aspects of the relationship

between the State and its employees have the

capacity to change the nature of the executive and

consequently its capacity to function.

For the purpose of this argument, we concede

that setting minimum rates of pay for State

employees does not so interfere in the relationship

so as to inhibit the capacity of the State to

function, at least so long as the same principles

are applied as to other employers. In our

submission, the setting of minimum salaries only

has a budgetary effect, which does not of itself	involve any significant interference in the
relationship between the employee and the State.
We adopt in this regard paragraph 17 point 3 of the
written submissions of the second respondent, the
SPSF. We note that the budgetary effect of setting
minimum salaries for teachers or nurses is greater than setting minimum salaries for treasury
officers. There are more teachers or nurses than
there are treasury officers. We also ask the Court
to note that different considerations might apply
if maximum salaries were set; that may involve a
constraint on capacity of the State to employ a particular person because of a salary limit, but in
our submission a minimum salary merely has a budgetary effect.

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As to the second element of our proposed

tests, we say that it is not only the nature of the

interference, but also the relative importance of

the group of employees to which the interference

applies, that must be considered. This does not

involve a distinction, in our submission, between

administrative services, governing activities or

essential government functions. We are unable to

identify any clear meaning for any of these terms.

The Court has been given a number of references on

that issue; perhaps if I could add to them:

Bropho v Western Australia, (1990) 171 CLR 1 at
page 19 and Queensland Electricity Commission

v The Commonwealth, (1985) 159 CLR 192 at page 214.

We say that the distinction involves a

recognition that the public sector is itself
organized to reflect the relative differences in,
and the significance to, the State, of the role and
function of particular servants. It is one of the
functions of the State to organize its employees so

as to reflect the various differences in their roles, functions and their significance to the

State. To pick up the point made by Your Honour

Justice McHugh yesterday, the State can, if it

wishes, say that environment is a bigger priority

to it than collecting the revenue or than law and

order. There are no immutable classes of essential

government activity; it is for the government

itself to determine those classes and it is not,

with respect, for the Commonwealth to tell the

States what are its priorities.

In terms of the structure that already exists,

we would say that some servants are employed by

statutory authorities and that even if the relevant
statutory authority is subject to ministerial

direction, the fact that the employer is removed

from the central executive is a relevant matter in

determining the degree and extent of interference.

We say that some servants are employed in particular and separate employment categories which

recognize their separate status and role from

others. Teachers and daily paid employees would be

the largest groups. Although we would say it is a

question of fact in each case, we submit that the
separate employment category may involve a
recognition by the Parliament and the executive
that the role is not central to the role and

function of the State.

On the other hand, we would say that

employment in the core public service as officers

of the public service involves in itself an

acknowledgement by Parliament and the executive of

the importance of the employee to the role and

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function of the executive. We note that it is in the relevant Public Service Act or its equivalent

that the issues of appointment, duties,

relationships and tenure are detailed.

To summarize, it is our submission that in

considering whether the interference is sufficient

to inhibit or impair the capacity of the State to

function, the Court must weigh in the balance the

degree of interference. We say there are two

relevant factors: first, whether the interference goes to the nature of the relationship between the particular employee and the executive. In our

submission, the mere determination of minimum

salaries probably does not; other matters such as

appointment, duties and dismissal may do so.

The second factor is the relative importance

ascribed by the State to the relationship with the

employee. If the employee is employed by statutory

authority, it will be less likely that a

Commonwealth law will impair the capacity of the

State to function as a government. On the other

hand, if the employee is employed in the public

service, it will be more likely.

BRENNAN J:  You do not draw any distinction based upon the

duties of the employees?

MR SELWAY:  No, Your Honour. What we say is that that is a

matter for the State to determine.

BRENNAN J: But be it so, if the State does determine what

the duties are, you do not look to the nature of

the duties as any criterion for determining the

scope of the Commonwealth power to arbitrate as to

the terms and conditions of employment?

MR SELWAY:  Not as such, Your Honour. We would have to

accept that if the State determined tomorrow that

all of its employees were to be classed as public	servants and then within its public service created
divisions in employment nature so that some of them
were in, in effect, a different hierarchical structure in the public service as we know it, that
the Court may then say there must be some criteria for determining which of these are really in that
class that is important to the government.

BRENNAN J:  If it is the functioning of the State which

gives rise to the immunity, one would think that

one must be concerned with the exercise of State

power.

MR SELWAY:  Yes, Your Honour.

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BRENNAN J: Thus it may be relevant to consider whether the

nature of the duties of a particular employee are

related to the exercise of State power. That in
turn may give rise to a dichotomy between those

whose duties are chiefly related to the exercise of

State power on the one hand, and those whose duties

are related to the rendering of services on the

other, assuming that it is possible to reach such a

dichotomy.

MR SELWAY:  Our difficulty, Your Honours, we do not think it

is. The person rendering the service is exercising the State power.

BRENNAN J: Not necessarily. A man who repairs an electric

light wire does not necessarily exercise power.

MR SELWAY:	Perhaps we are having a debate about the nature of power, Your Honour, but - - -
BRENNAN J:	I was not speaking of electrical power.
MR SELWAY:	The submission we would put is that it is for the State itself to determine the priority of its
activities. There may well be circumstances where
activities which a day or so ago were considered mundane and menial and not of critical importance
to the operation of the State, may, by reason of
crisis, become very important activities for the
State.

One can imagine a circumstance, for example,

where the replacement of the electricity wire, late at night in Parliament House, where all the members are waiting to sit, is a matter of importance to

the State, and that State power is, to that extent,

subject to the exercise of what would otherwise be

a non-important activity. The difficulty we have

is of trying to draw some distinction that makes

sense between the nature of activities and the

nature of functions, given that they change and

given that circumstances arise which cause them to

change, and what we put is that essentially the

issue of what is important to a State and how it

matter in the Queensland Electricity case at 218, point 5, that:

organizes itself is an issue for the State itself.

governments, are free to choose whether a

function should be carried out by a department

of government or by -

a statutory authority, and we would say that

governments are free to choose whether a function

should be carried out by this employee or that

employee or this group of employees or that group

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of employees, or whether the function is important

or not, and the way - we say that, in effect, the

Court has to accept these decisions because that is

in the nature of what is protected by the limited

immunity and there are at the moment, we say,

classifications within public employment which can

be readily identified, which serve to show in a

broad sense how the State has divided up its view

of the importance of these functions. Core public

service is, as it were, the essential aspect of

what the government sees as its operations; what

the ministers take most responsibility for.

And then you have separate imployment

categories; you have the weekly paid, you have

teachers; you have statutory authorities, all of

them of greater or lesser importance to government

by reason of their employment category. We say

that is a system that is there that enables the

Court, in this broad sense that we are talking

about, to make some sort of judgment as to the

importance to the State.

DAWSON J:	Why does the fixing of employment conditions prevent the government from doing that?
MR SELWAY:	It depends what the employment conditions are,

with respect. If it is salaries and allowances, it

does not, and to that extent we say - - -

DAWSON J: Well, what are the employment conditions which

would affect the government's decision in that

respect?

MR SELWAY:  Employment conditions as to what duties are to

be performed; employment conditions as to tenure;

employment conditions as to discipline; employment

conditions - under the arbitration power, the

Commission could, if it wished, create a new

classification structure for the public service.

In this case itself, the Commissioner said

that what is being sought is a national award and

salary structure. Well, the only way that one can

have a national award and salary structure for all

State public services is to create a separate and

distinct classification structure from that which

separately exists in each State. So, for example,

an ASO2 employee in South Australia would be called

something else, a federal award class 1, which

would be an equivalent to a federal award class 1

in Western Australia. At the moment there is no

equivalence.

The Commission has the capacity to create

classification structures that are uniform right

through the public sectors of all States. Whether

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it would do so or not is another matter.	What we
put is that it cannot do so.	To do so would be an

interference, an impairment in the nature of

government. It may be a different thing for a

railway. Railways are further divorced from the

essential functions of government as we have

defined them in terms of looking at the structures.

DAWSON J:  You say essential functions, but really what you

are saying is that it is an essential function of

government to fix the terms and conditions of some

employees.

MR SELWAY:  Yes, Your Honour. If it does not have that

power, it cannot govern.

DAWSON J:	Why not?
MR SELWAY:	Because then it has no capacity to ensure that

its determinations are carried through - - -

DAWSON J: It can make decisions. It can employ the persons

who are on fixed terms and conditions to do the

things it wants to do.

MR SELWAY: With respect, Your Honour, that itself begs the

question.	Your Honour says they can employ the
people they want to employ.	The Commission can set
criteria for employment.

DAWSON J: All I am saying is what you are saying is that

one of the essential functions of government is to

fix the terms and conditions of employment as a

proposition.

MR SELWAY:  To fix some of them, Your Honour, yes.

DAWSON J: In relation to some category, yes. But you

really have to go on because if it were otherwise,

and you do go on, it would impair the functioning

of government. It is the last proposition I am

questioning. You stop short of, "What functions of

government does it impair?" Then you come back and

say, "It impairs the function of determining the

terms of conditions of employment."

MR SELWAY:  And not only that function. We say it would

impair all functions of government.

DAWSON J:	How?
MR SELWAY:	Because it will interfere with the way the

government carries out its activities.

DAWSON J: Well, give me an illustration.

Public	137	4/6/92
MR SELWAY:	We go back to it.	The Commission could make an

award providing, in effect, that person A that the

government wishes to carry out a function should

not do so; it should be done by person B.

DAWSON J: Then the government will have to select that

person or some other person who will carry out the

function.

MR SELWAY:  And all we say is if that is done enough, if it

is done across the public sector, then you have, in

effect, redefined the government.

DAWSON J: Well, you have redefined the terms and conditions

of the government's employees.

MR SELWAY: Well, that comes back to our initial point,

Your Honour, that the government itself is a

corporation ..... You cannot define the government
without defining it in terms of its employees.

Certainly, there are ministers and - - -

DAWSON J: Well then, why do you stop at a certain point? If

that is the argument, it carries right through the

whole of its employees.

MR SELWAY: With respect, we say that it is a question of

fact and degree. There comes a point at which the

interference is not so great as to inhibit the

capacity of the State to function.	We say there
are two elements of that test.	One of them is:

what you are interfering in, salaries, on the one

hand, it may be all right, the duties, the terms

and conditions, on the other, are not; on the one

hand, we say that there is also a difference

between the person working for the railways and the

person working within the public service. What we

do differ about is that we cannot see that there is

any way to draw that distinction apart from the

structures that the State itself puts in place to

define its employees.

DAWSON J: But if the inhibition of a governmental function

is an inhibition on deploying the workforce as it

sees fit, I do not see why you draw a line because

that equally applies to the lowliest employee as to

the highest. That seems to be what you are saying.

MR SELWAY: Yes, Your Honour. What I am saying is that

there are differences. As a matter of logic, one

can say that the interference with the

under-treasurer and his duties must be of more

significance to the operation of the State than the

interference with the position of a worker, a

shunter at the railway yards.

DAWSON J: It is only a matter of degree.

Public 138 4/6/92

MR SELWAY:  True. We put the test as one of fact and degree

but what we do say is that whilst it is a question

of fact and degree - - -

DAWSON J: But it is a question of just how the workforce is

organized. I mean, no one is saying the

Arbitration Commissioner can tell the under-

secretary to the treasury, whatever his terms and

conditions of employment, how to decide questions,

how to advise, how to carry out the functions of

government except when he does do that he has got

to be paid this and he has got to be given these

conditions.

MR SELWAY:  I am gratified, Your Honour, because that is

basically what our submission is directed to.	The
Commission, in our submission, does have the

capacity now to make determinations dealing with

issues like how the under-treasurer does his job.

The point of our submission is to say his minimum

pay is not a matter that interferes with the
capacity of the State to function but an
interference with how he does his job, what his job
is, how he deals with his subordinates, that sort
of matter is improper interference. If it please

Your Honours those are the submission for South

Australia.

MASON CJ: Thank you, Mr Selway. Mr Einfeld.

MR EINFELD:  May it please Your Honours, in our submissions,

for the prosecutors to succeed in these
proceedings, they must persuade the Court that it
is appropriate to put aside the effect not just of

the Engineers' case but of the four or five

significant decisions of the Court reached in this

area in the last decade or so.

In the Social Welfare case, we say the Court's

broad exposition of the Commonwealth power under

section Sl(xxxv) has resulted in a settled

interpretation of it. In Tasmanian Dam's and

consistently with the Social Welfare case the Court

rejected a restrictive interpretation of the heads

of power under section 51 and the Court refined the

approach which should be taken to the

constitutional conception of discrimination. In

the joint judgment of the Court in the QEC case, we
say one finds a contemporary restatement by the

Court of the law on discrimination.

In the decision of the Court in Ludeke;

Ex parte The Queensland Electricity Commission,

which followed next, chronologically, we say that
the Queensland electricity dispute provided the

occasion for a restatement of the appropriate

principles for determining what constitutes a

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genuine industrial dispute and that in a true

sense, the law on this question can now be taken as

settled, and we submit that the preliminary view

expressed in Re: Lee, represents a logical

conclusion to the development of the approaches

espoused in the earlier cases. And, in particular,

by removing what we described as outmoded and, we

would submit, unworkable administrative services

concepts, it correctly focuses upon discrimination

as the remaining possible basis of relevant

implication.

TOOHEY J:  Mr Einfeld, what does the law say as to the

genuineness of an industrial dispute?

MR EINFELD:	In our submission, the service of a log of claims, such as that in this case, adequate in
terms by virtue of the now accepted and practically
applied ambit doctrine and the non-acceding by the
recipient of the log to the log, provides prima facie evidence, if it does not itself constitute a
genuine industrial dispute.

DAWSON J: What is the dispute in this case?

MR EINFELD:  The demand for increased wages and allowances

and the refusal to pay them, Your Honour.

DAWSON J: Failure to pay $5000 - - -?

MR EINFELD:	No, Your Honour, because within the context of the development of history in the industrial
arbitration field - - -

DAWSON J:  I am just asking you what the dispute is. If it

is not that then, well, what is it?

MR EINFELD:  It is the refusal to meet the increased pay

demanded, within the context of an acceptance in

industrial terms - - -

DAWSON J:  I do not need the context, I want to know what

the dispute is? It is the failure then to pay

$5000 a week - - -

MR EINFELD: Yes, Your Honour, but -

DAWSON J:  - - - to every employee. Now really, there is no

such dispute, is there?

MR EINFELD:  Your Honour, in the context that it is accepted

that if there is to be an increase in pay to those
levels, it will happen, (a), over time, and, (b),

in -

McHUGH J: It will be a long time.

Public	140	4/6/92
MR EINFELD:	A long time, perhaps.	And, (b), in a piecemeal

fashion, in terms of either employer by employer or

stage by stage in terms of increment upon the

salary or in terms of categorization of employee,

the answer is yes.

TOOHEY J: 

The way you put it, Mr Einfeld, seems to rob the

notion of genuine industrial dispute of any
content.

MR EINFELD: 

No, Your Honour, because we say that this Court

in Ludeke accepted that the ambit doctrine

necessitates the making of what the Court there

described as inflated demands and we wish to take

Your Honour to the - - -

DAWSON J: But that, if I might use your words, is in the

context of the real demand for some increase. I mean, you could ask, when the matter came before the Commission, what are you really asking for, and

you get an answer; but you cannot do that in this

case.

MR EINFELD:  Yes you do, Your Honour. You get the

answer - - -

DAWSON J: Well, what are you really asking for?

MR EINFELD:  We are really asking for a minimum wage, over

time, that is, until the extent of the ambit is

In our submission, the attempt to have an award of

this nature does just that.	They are our
submissions.

MASON CJ: Yes, thank you, Mr Douglas. Mr Solicitor for New

South Wales.

MR MASON:  I have got five brief points, Your Honours. The

suggestion was that the discrimination principle

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does not apply to discrimination where it is the

Commonwealth versus the State. It applies to all

other forms of discrimination.

In our submission, in the Queensland case,

159 CLR at 249, Your Honour Justice Deane gave an
example of discrimination as between the

Commonwealth and the States. For another example

of the principle applying, although in a

characterization context the Second Uniform Tax

case, (1957) 99 CLR 575, at page 614, where the

majority of the Court held invalid legislation

which; as it were, put the States behind the

Commonwealth in the exercise of their essential constitutional power of getting money.

Ultimately we are dealing with the power of

the Commonwealth Parliament, and it is wrong to
equate the Commonwealth Parliament with the

Commonwealth. The limitations on the Commonwealth

Parliament are ones which prevent discriminating

against the States vis-a-vis, we submit, any other

subject of legislation.

Secondly, Your Honour Justice Gaudron asked

whether all of the respondents to the ETU claims

are within the shield of the Crown. Our first

response is that they do not have to be. It is

sufficient if they are created by the State for

public purposes - see QEC at 207, 218 and 219, 225,

237 and 238, 252 and 254 and 255. Secondly, one

does not have to have a situation where all of the

persons are States or their agencies to

nevertheless have offending discrimination - see

QEC at 207.

Thirdly, subject to just finishing the research, it would appear that all are. May we

have liberty to hand in a document which will,

after showing it to our friends, show as to each of

the respondents, including those in other States,

their position vis-a-vis the Crown.

Thirdly, starting with my learned friend,

Mr Selway, and then picked up by my friends

Messrs Einfeld and Rose, the suggestion was put

that maybe in setting minimum salaries and wages,

one is not concerned about this federal principle.

That is, in our submission, to take section 15A of

the Interpretation Act to section 5l(xxxv). It is

unrealistic, in our submission, to segregate some

factors capable of giving rise to industrial

disputes where the question is the power of the

Commonwealth Parliament under a single placitum.

If the ultimate issue is, "What would the man

in the street" - I am taking it from the CYSS case

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at 312 - "have thought", our submission is that

person would have said, "Well, as to certain

categories of State people, there is just no power

at all", rather than seeking to slice it any more

finely.

Fourthly, as to severability, the suggestion

from my learned friend, Mr Rose,was that ultimately
one applies severability to section 121 by just

saying the Commission cannot make an award on

matters which would override State laws of the same

kind as the federal laws that can be exempted out.

That will not help him very much in the

present case because, ultimately, there are State
laws, even if they are in the form of statutes,

which create the statutory corporations that employ

the people and, in effect, indirectly allow their

wages to be fixed. There is, ultimately, State

statute law which is of the same kind as the

federal law which can be exempted here.

Finally, my friend, Mr Rose, said that in

looking at what are likes, one asks whether there

is a Commonwealth counterpart of the particular

State employee and, if there is not, then

discrimination - I think he was talking in a

severability context - is okay because one is not

dealing with like and like.

In the Queensland Electricity case, by

contrast, it was the employer who was looked at.

One asked whether discrimination against the State and its agencies, as employers, vis-a-vis other

employers, was involved. In that case, no other

employers were involved in engaging people in the

electricity industry. But nevertheless that was

not enough to save the legislation there from being

struck down on the discrimination principle. If

the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. The Court will consider

its decision in these matters.

AT 4.01 PM THE MATTER WAS ADJOURNED SINE DIE

Public 217 4/6/92