Re State Public Services Federation; Ex parte The Attorney-General for the State of Western Australia; Re The State Public Services Federation; Ex parte The Attorney-General for the State of Queensland

[1991] HCATrans 351

~

~ --~·~

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

JOHN 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 Respondent

Ex parte -

SPSF 1 11/12/91

THE ATTORNEY-GENERAL FOR THE

STATE OF WESTERN AUSTRALIA

Prosecutor

Office of the Registry

Brisbane	No B42 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

DEPUTY PRESIDENT JOHN

WILLIAM MACBEAN of~the

Australian Industrial

Relations Commission and

COMMISSIONER BEVAN ROSS

JOHNSON of the Industrial

Relations Commission and THE

AUSTRALIAN INDUSTRIAL

RELATIONS COMMISSION

First Respondents

STATE PUBLIC SERVICES

FEDERATION

Second Respondent

Ex parte -

HER MAJESTY'S ATTORNEY-
GENERAL FOR THE STATE OF

QUEENSLAND

Prosecutor/Applicant

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 DECEMBER 1991, AT 9.18 AM

Copyright in the High Court of Australia

SPSF 2 11/12/91

MR K.H. PARKER, QC, Solicitor-General for Western Australia:

If it please the Court, with my learned friend,

MR K.M. PETTIT, I appear for the prosecutor in the

first matter. (instructed by the Crown Solicitor

for Western Australia).

MR J.S. DOUGLAS, QC: If the Court please, I appear on

behalf of the Attorney-General for the State of

Queensland with MR G.C. MARTIN. (instructed by

the Crown Solicitor for Queensland)

MR PARKER: If it please you, Your Honour, I will, in view

of the time constraints, try and move quickly

through the matters. The dispute was found by the

Commission on 28 August, this appears from para 12

of the affidavit of Mr Overman that you have.	The
decision and finding of dispute is exhibit C to
that affidavit. The Commission now proposes to
hear and determine the dispute as found which
appears from paragraph 13.	The sole parties to the

dispute are the State Public Services Federation,

on the one hand, and employers in the public sector

in Western Australia, Queensland and Tasmania on

the other.

In Western Australia the employers are the

Crown, all its Ministers, the Public Service

Commissioner and, virtually, all public authorities

and instrumentalities of the State.

HIS HONOUR:  Has anyone been left out other than by

accident?

MR PARKER: There seems to have been a few accidental

omissions and in the finding of dispute there were

omitted half a dozen or so where there were simply

no employees. So, for effective purposes, it
really is a whole of government bloc and it is only

government in Western Australia and only government

in Queensland and Tasmania.	The log itself is
exhibit B to the affidavit of Mr Overman.

HIS HONOUR:  You can take it, Mr Solicitor, I have read all

the papers.

MR PARKER:  Thank you, Your Honour. You will have noticed

that the letter of demand simply requires the

granting of the claims, and if they were not

granted within seven days a refusal would be

assumed. The log of claims itself seeks only two

matters, a minimum wage of $5000 and a minimum

allowance of $2500 per employee per week; so that

in respect of every type and grade of employment in
the State of Western Australia, from the most

senior of public servants to the most junior of

SPSF

11/12/91 unskilled workers, the log seeks the equivalent of

$390,000 a year.

HIS HONOUR: 

What is the signific2~ce of that in relation to

the granting of an order isi? Does it go to the
non-existence of any dispute?

MR PARKER: 

We say, if it please Your Honour, that it is

very material to the question of genuineness and to
the question of interstateness of the dispute here

in question. Perhaps I could move fairly quickly

to the grounds. Your Honour will notice from the

draft order that is before you that the first

ground identifies what we submit are errors of law

and are directed primarily to the relief in the way

of certiorari which is sought. Each of those

matters, in our submission, also goes to

jurisdiction, hence ground 2, and prohibition.

Of the grounds, the first three focus in

various ways on the one issue whether there is a
dispute ultimately within the meaning of
section Sl(xxxv) of the Constitution, that is a
dispute extending beyond the limits of any one

State. The second three go to the question of what

immunities are to be implied in section Sl(xxxv) in

respect of State Governments because of the role of State Governments under the Constitution. For that

reason, as Your Honour will see, each of them

ultimately, in our submission, goes to

jurisdiction.

Attempting briefly to develop those, it has been long recognized in the decisions of this Court

that section Sl(xxxv) was to enable the resolution

of an industrial dispute which had a real and

genuine interstateness, such that the industrial

tribunals of any one State are unable to deal with

the dispute in its entirety; in the Federation, a

sensible goal but a limited goal.	In the simplest
of language, in our submission, the decision in	this case of the Commission goes far beyond the
achievement of any such goal.

There are, we would submit, three distinct but

closely interrelated issues for a dispute to be

within the constitutional head of power. There

must be firstly a real and genuine industrial

dispute; it must extend beyond one State; and it

must be a single dispute. The paper dispute

doctrine as it has been developed and considered

from time to time, perhaps in any depth most

recently in Reg v Ludeke, ex parte Queensland

Electricity Commission, 159 CLR 178 at 182 to 183,

depended on a recognition of the reality that

generally lies behind paper disputes. I am here

SPSF 4 11/12/91

virtually paraphrasing the reasoning of the Full

Bench of this Court in that case.

That reality was seen to be the desire to

create a dispute to attract jurisdiction of the

Commission to make a general industrial award

regulating the term and conditions of employment of

a particular industry. This must reflect the

union's genuine desire to obtain the conditions

sought in the log.

Now, with respect to genuineness, the present

log, in our submission, is so embracing of an

enormously divergent range of employees that it

fails entirely to discriminate between any rank of

employee or type of employment, to an extent that

the underlying reality on which the doctrine of paper dispute is based is simply not present or

evidenced by this log and its rejection. It is

not, in our submission, possible to say of this log

that any union could genuinely expect to obtain the

conditions here claimed, and the distinction is

that marked by Sir Harry Gibbs in The Crown v
Cohen; ex parte Queensland, the SGIO case,

157 CLR 331, at 337:

If the log is not sincerely propounded as a

demand on which the union is resolved to

insist, and is nothing more than a step

towards enabling the Commission to exercise

jurisdiction, it will not create a real

dispute.

In our submission, what we have here is because of

its incredible generality and the enormity of its

claim there is lacking that underlying reality of a

claim that really could be honestly and sincerely

pursued. What one has is nothing more than a

technical exercise designed to attract the

jurisdiction of the Commission, and that, as

Sir Harry Gibbs put it, was not sufficient to

create a real dispute.

HIS HONOUR:  Mr Solicitor, I think I have heard enough on

that aspect of the matter. The other, what I would

like to describe as the ground of appeal in one
sense, but what also lies behind the application

for an order nisi is the notion of the singling out

of a particular State or States as against other

States. Would you just make submissions on that

aspect of the matter?

MR PARKER:  If it please Your Honour. The grounds 1 and

2(d) rely on the major proposition of Queensland

Electricity Commission v the Commonwealth,

(1985) 159 CLR 192. If I can simply take the

liberty, in view of time of citing from the

SPSF 11/12/91

headnote. The proposition there attributed to five

of the Justices is:

Unless it is otherwise apparent from the nature of a Commonwealth legislative power or the language in which it is conferred, a

Commonwealth law will be invalid if it

discriminates against the States or their
agencies (whether or not they represent the

Crown or the State) in the sense that it

imposes some special burden or disability on

them which is not imposed on persons

generally.

The essence of the prohibited ~~scrimination, as

that case develops it, is that 1~ singles out

States differently from persons generally in the

community; that is, as the reasoning reveals,

States must exist within the general body of law

applicable to all the community and, to this

extent, the Commonwealth may regulate them by law.

But if, in terms or substance, a State or States

are singled out for some burden or disability, the

Commonwealth law is invalid.

Now here, the finding of dispute and a

consequent award directed solely to three State governments appears clearly to single out those

three States for special burden or disability.

The Commission considered that the

Industrial Relations Act did not burden or discriminate against States, as it treated all

employers involved in genuine interstate disputes

on a similar basis. In part, in our submission,
that simply begs the question and further, we would
submit, it failed to appreciate the constitutional

principle. What the Parliament cannot do itself,

it cannot validly authorize the Commission nor any

other of its agencies to do.

Now, of course, Your Honour will appreciate there is a serious argument whether the nature of

section Sl(xxxv) should bring it within the

exception with which the principle that I cited

from the headnote commences. Some dicta from some

of Your Honour's brothers seem to support that.

There is there a real and serious issue as to

whether section Sl(xxxv) was intended to carry with

it a deliberate conferment of power to discriminate

or single out States for special treatment, but

that is an issue which involves some extremely
fundamental concerns and which, as Your Honour will

appreciate, has not been the subject of any

extensive consideration or any binding decision by

this Court.

SPSF 6 11/12/91

So there is a very live issue whether the

terms of the Industrial Relations Act offend

against section Sl(xxxv), properly understood

within its constitutional limits in this respect.

The grounds that are (e), Your Honour will

appreciate that we are well aware that the old

principle that excluded the administrative services

of a State from section Sl(xxxv) have been

questioned. The decisions have not yet been

overruled, the finding in this case embraces the

whole of the administrative services of the State

on any view of that concept. It cannot, in our

submission, be correct as the Commissioner said,

"Well, we will make the finding, hear the dispute

and decide later what we will do about the

administrative services of the State". By the very

finding the administrative services have been
subjected to the jurisdiction of the Commission.

The State is significantly disadvantaged by having to contest the merits of the log as to merit, in respect of those employees.

In our submission, if the principle concerning administrative services is to prevail the finding

must be bad. Until that is overruled we would

rely, simply, on the cases that support that

principle.

Now, the grounds (e)(ii) draw particularly on

the words of Mr Justice Dawson in the Queensland

Electricity case. He there dealt with them at

pages 83 and 84 in particular, but I will again

just rely on the headnote for brevity:

Unless it is otherwise apparent from the

nature of the Commonwealth legislative power

or the language in which it is conferred, a

Commonwealth law may not unduly interfere with

the exercise by a State of its constitutional

or governmental functions.

And he drew particularly on the Melbourne

Corporation case for that view and some cases that followed, in particular the Payroll case.

Now, on analysis this may prove to be

similarly grounded to the non-discrimination

principle which we have previously submitted. In

our submission, if the dispute found here is
properly found, then it carries with it the
necessary implication that any paper claim

canvassing any or all aspects of industrial

regulation and covering all employees of a State,

served only on two or more State governments, may

found the jurisdiction of the Commission to deal

SPSF 7 11/12/91

with every aspect of the industrial regulation of

the whole of the employees of the State.

If that be open, as a matter of law, under

section Sl(xxxv), in our respectful submission it

would necessarily directly interfere with the

exercise by a State of its constitutional and

governmental functions. The management of its

employees, the way in which they are to be

structured, the hours they are to work, how their

services may be terminated, where they are to be

located, and on what terms they can be moved,

et cetera, are matters that go to the capacity of a

State to exercise its functions.

Mr Justice Dawson understood that principle

even more extensively than that, as is revealed at

page 262 of the Queensland Commission report:

the State's capacity to function is affected,

not by reason of its place in the general

legal system or as a necessary result of the

exercise of a particular legislative power,

but because it is singled out as a State, then

its constitutional integrity is impaired in a

manner which the federal structure does not

permit, regardless of the extent of the

impairment and however much the law may

otherwise fall within a head of power.

So that, we would respectfully submit that (e)(ii)

of the grounds raises an issue which goes fairly

significantly to the place of States in the

Federation and, of course, in the CYSS decision,

which is Reg v Coldham Ex parte Australian Social Welfare Union, 153 CLR 297 at 313, the Full Court

said this, at page 313, referring back to Melbourne

Corporation and some other cases:

If at least some of the views expressed in

those cases are accepted, a Commonwealth law

which permitted an instrumentality of the

Commonwealth to control the pay, hours of work

and conditions of employment of all State

public servants could not be sustained as

valid.

It is that issue which has lain unresolved and not

fully explored, which ground (e)(ii) would seek to

do. The grounds that are (f) point particularly to

section 121 of the Act, but also to other sections
such as 44, which complement section 121 in various

ways. The effect is that the Commonwealth may, by

executive action, exclude any of its legislation

from an order or award of the Commission. It is

only Commonwealth legislation which is amenable to

that power, so that in the matter of legislation

SPSF 11/12/91

governing industrial matters, only the Commonwealth

can be shielded, and not State legislation.

HIS HONOUR:  Does that ground involve any attack upon the

constitutionality of any part of the Act, or is

it - - -

MR PARKER:	No.
HIS HONOUR:	- - - an argument that stems from accepting the existence and constitutionality of that provision?

MR PARKER: It is the latter, I think, Your Honour, and it

has at its heart discrimination. Whether in this

way there is a discrimination against the States
within the ambit of the immunity which I have

briefly mentioned so far, the discussion by

Mr Justice Deane in The Queensland Electricity

Commission case at page 249 is relevant to that:

On the other hand, if the legislation had been confined to the imposition upon all employers

other than the Crown in right of the

Commonwealth of liability to pay-roll tax upon

wages paid to "public servants", it might

still properly have been seen, as a matter of

form, as a law of general application. Such

confined legislation would, nonetheless, have

discriminated against the States in the

relevant sense for the reason that, as a

matter of substance, its operation would have

been, in circumstances where the States and

State instrumentalities were the only

non-Commonwealth employers of "public

servants, to single out the States for the

imposition of a special burden.

Now, there is a lot of uncovered territory in

exploring the full limit of this immunity and in

discerning how it might apply to a statutory scheme

such as that revealed in section 121; but there

is, we would submit, a very real area requiring

exploration and determination raised by this point.

In view of Your Honour's indication that you

did not want to hear us more on interstateness and

so forth, if that is the position, I have sought there very brief to outline the basis upon which the grounds are put to the Court.

HIS HONOUR:  Is ground 2 simply to be taken as a - I suppose

it is a reflection, really, of what has gone

before, is it? It contains both an argument as to the scope of the Industrial Relations Act and also

a potential attack upon the Act.

SPSF 9 11/12/91

MR PARKER: Yes. It is perceived, Your Honour, to raise

with the same particulars, (a) to (f), as one. The

question of the constitutional limits to the
jurisdiction of the Commission and, if they differ,

the statutory limits of that jurisdiction, and it

would be submitted that, for the reasons (a) to

(f), in this case, there has been an excess of that
jurisdiction in the finding and in any attempt to

further hear the matter.

HIS HONOUR:  Mr Solicitor, I do not need to hear any further

from you except perhaps to ask you:  the order nisi

contemplated by Western Australia includes a stay;

that is not the case, as I read the order nisi

proposed by Mr Douglas, and nothing, necessarily,

turns on that but it is simply to ask you whether a

stay is to be sought.

MR PARKER:  We do seek a stay, Your Honour, at least one

confined to the Western Australian respondents to

the dispute. I understand my learned friend may

have some understanding with the union, we are not

in that position and it is the prospect of the

continued exercise of the jurisdiction involving
the State which concerns us, and for that reason as

these matters go fundamentally to jurisdiction, we

would have, respectfully, thought that a stay was

appropriate.

HIS HONOUR:  As the stay is framed, would it not go beyond

the decision of the Commission so far as it affects

Western Australia?

MR PARKER: It would, I see that.

HIS HONOUR:  That may need some reformulation if there is

the grant of an order nisi. But perhaps you could

think about that while I hear from Mr Douglas?

MR PARKER:  Thank you, Your Honour. May it please the

Court.

HIS HONOUR:  Mr Douglas?

MR DOUGLAS: If I could just address that point first,

Your Honour. We do not seek a stay and we do so

advisedly because we have reached an accommodation

with the respondents, we have informed them of

these proceedings and we have reached an

arrangement with them should an order nisi go which

would not require us to seek a stay.

We adopt the submissions of the learned

Solicitor-General for Western Australia on the

points he has raised. If I could address the

points that arise on our application for order

nisi, they fall into two separate categories.

SPSF 10 11/12/91

HIS HONOUR:  Are you speaking now of matters that arise

independently of those addressed by the

Solicitor-General?	I have not, as it were, tried
to measure one - - -

MR DOUGLAS:	They are very similar.
HIS HONOUR:	- - - set of grounds against the other except

there is an obvious similarity between them - - -

MR DOUGLAS: There is an obvious similarity.

HIS HONOUR:  - - - and difference in expression that one would expect anyhow.

MR DOUGLAS: There is perhaps one point I should make, I am

not sure whether my learned friend made it or not,
but we say - I think he probably did - in respect
of the fact that the dispute, we say, does not

extend beyond the limits of one State, it also

arises because when the log of claims was served on

Queensland the Union was the Professional Officers

Association, it only had the ability to cover

employers in Queensland and employees in

Queensland.

HIS HONOUR:  On one view that has been overtaken by events,

I gather, namely the amalgamation of the two bodies.

MR DOUGLAS:  Yes, and we would seek to argue that. So we

say that was not a dispute extending beyond one

State because the respondents were all within

Queensland.

HIS HONOUR: Although the Commission appeared to have taken

the view that the resolution of that question does
not necessarily turn exclusively upon the facts

situation when the log is served.

MR DOUGLAS:  Yes, that is right. That is something we -

HIS HONOUR:	The Commission can look at events subsequently.
MR DOUGLAS:	Yes, but that is something we would wish to

argue about, and we say is a substantial ground by

itself for the grant of an order nisi. We adopt

dispute in circumstances such as these.

the learned solicitor's submissions concerning the
genuineness of the dispute and concerning the
discrimination or imposition of a burden upon the

Can we simply say also that the passage

referred to in Coldham's case on page 313 has since

been referred to inconclusively in this context in

Re Lee; ex parte Harper, (1986) 160 CLR 430, where

SPSF 11 11/12/91

the Court considered whether the doctrine applied
to school teachers and said the administrative
services of the State did not embrace school

teachers, but really particularly reserved the

situation which might apply if it was said that

there was some discriminatory imposition of a

burden upon the States. You will see that from the

judgment of the Chief Justice Sir Harry Gibbs at

pages 442 to 444, and in the judgment of

Justices Mason, Brennan and Deane at pages 448

to 449, where they particularly say:

One question expressly left open by the Court's judgment in the Social Welfare Union case was whether the limitations on the

exercise of the legislative powers of the
Commonwealth Parliament, which are to be
derived from the federal nature of the

Constitution, preclude the exercise of the

arbitration power in relation to employees

engaged in the administrative services of a

State or State authority. The prosecutor

seeks to take advantage of this reservation by

submitting that the education services within

a State form part of the administrative

services of the State and therefore remain

immune from any exercise of the arbitration

power.

And this is perhaps the relevant part:

It is not suggested that the relevant
provisions of the Act discriminate against the

State or single out the State so as to impose some special burden or disability upon it.

It is our submission that in this case this

attempt to create a dispute would have that effect

and it really enlivens an issue which is not

resolved by the existing state of the authorities

in this Court and certainly needs to be resolved. I do not think I can add anything useful to

the submissions of Mr Parker other than that.

HIS HONOUR:  Thank you, Mr Douglas. Could I just take you

perhaps to the mechanics of your order. You

provide for service of the order nisi on the first

respondents, leave for the second respondent to

file and serve affidavits in reply. The question

of section 78B notices has already been taken up,

as is apparent from the file.

MR DOUGLAS:  Yes, we have sent them out already.

SPSF 12 11/12/91

HIS HONOUR:  Is it appropriate that there be any order for

service upon the attorneys, or is that something

that I need not concern myself with?

MR DOUGLAS:  They have received the section 78B notices

already before these proceedings took place.

Perhaps we could undertake to notify them if an

order nisi is given, if Your Honour was disposed to

do that.

HIS HONOUR:  Yes. It does not seem necessary to include it

as a term of the order, but it can be noted that if

an order nisi is granted your client will effect

service of the order nisi upon the attorneys of the

States and Territories.

MR DOUGLAS:	And the Commonwealth.
HIS HONOUR:	And the Commonwealth, yes, thank you.
MR DOUGLAS:	Thank you, Your Honour.
HIS HONOUR:	In respect of both matters I am satisfied that

there is a proper case for the grant of an order

nisi. It is enough for present purposes to say

that the matters raised by the grounds in each case

are sufficiently arguable and of sufficient

importance to justify a grant, and there will be an

order nisi in each case. So far as the form of the
order nisi is concerned, I suppose, looking forward

to the time of hearing, there might be some

advantage if they were worded in the same way.	But
I do not think that is something that I should

impose upon the parties; there may be good reason

for the way in which the grounds are formulated and

they seem to raise substantially the same

questions.

So far as the Queensland application is

concerned, there will be an order nisi in terms of

the draft as initialled by me now.	Mr Solicitor,
so far as the West Australian application is

concerned, there will be an order in terms of the

order nisi, that is the draft order nisi, but

perhaps I could discuss with you the question of

the operation of the stay and whether there is

anything that you wish to direct my attention to in

respect of the mechanics of service.

MR PARKER:	If it please Your Honour, with respect to the stay, could we propose that there be added to the
paragraph that is in the draft, after "1989", the words "so far as they extend to the State of Western Australia and the Western Australian
parties to the dispute".

SPSF 13 11/12/91

HIS HONOUR:  I will just see how that reads. Yes, that

seems to be satisfactory.

MR PARKER:	Thank you, Your Honour.	As for service - - -
HIS HONOUR:	Could I just ask you:	was the section 78

notice there given in respect of this application?

MR PARKER: It was, Your Honour.

HIS HONOUR:  As well as the Queensland application?

MR PARKER:  Yes. The last paragraph of the affidavit of

Mr Overman refers to it. Each of the Attorneys

have the papers that are before Your Honour.	I can
certainly undertake that they will be fully
informed of the proceedings.	I am already aware of

impending interventions by three.

HIS HONOUR: That is enough for my purposes. Very well. In

the case of the West Australian application, there

will be an order nisi in terms of the draft order

as amended and initialled by me.

MR PARKER:  May it please the Court.

HIS HONOUR:  Thank you, gentlemen. The Court will adjourn.

AT 9.57 AM THE MATTER WAS ADJOURNED SINE DIE

SPSF 14 11/12/91