The Federated Amalgamated Government Railway and Tramway Service Association v The New South Wales Railway Traffic Employés Association

488 HIGH COURT

[1906.

H.C. OF A. That being so, it is impossible for tliis Court to interfere witli

1906. those findings. As the findings stand, there was every justitica-

Stockwfi.l tion for tlie action wliich was taken by tlie Government. 1

therefore ao-ree that the appeal must be dismissed.

Rydek.

O’CoTinor J.

Appeal dismissed %viih costs.

Solicitors, for the appellant, Fuxton (t Hobbs.

Solicitor, for tlie respondent, Hellicar {Cro^vn Solicitor).

yStaUfn a ^ d Society OvrrAmalffi-

DiscCons

Australian

Pe ̂ jarson. Re

B ank Nrw êamshipsApplication o f

N. G. P.

South W aia

Fleming A

(1999)162

Steamship CoC o m p a m s

Malcolm

ALR 248

2500914119

CLR^

lY#

[HIGH COURT o r AUSTRALIA.)

THE FEDERATED

AMALGAMATED

GOVERNMENT RAILWAY AND.

A p p e l l a n t s ;

TRAMWAY SERVICE ASSOCIATIOn J

AND

THE NEW SOUTH WALES RAILWAY [

R e s p o n d e n t .s .

TRAFFIC EMPLOYES

ASSOCIATION)

H. C. OF A. The Constitution (63 & 64 Viet., c. 12), ,sec.s. 51, 98, 101, 102, 104— Validity o f Com

1906. monwealth leyislation — Interference with State itistrnmentality — Limited power— ■ ulidity of Act yoiny heymid power—Slate railways — Reyulation of

S y d n e y , wayts and conditions o f employment—Jurisdiction o f President o f Common Avrj. 1.3, 20,

wealth Court o f Conciliation and Arbitration—Appeal from registrar—

Staling case—Commonwealth Conciliation amt Arbitration Act 1904 (Ho. 13

29, 30, 31.

of 1904), secs. 2, 4, 6, 17, 18, 19, 23, 24, 28-31, 40, 48.

Melbofbnk,

The rule, laid down in D'Emden x. Pedder, 1 C.L.R., 91, at p. I l l , viz.,

Sept. 4,

10, 11 , 12 ,that when a State attempts to give to its legLslative or executive authority an

13, 14.operation, which, if valid, would fetter, control, or interfere with the free

Sydney, exercise of the legislative or executive power of the Commonwealth, the

Dec. 17.attempt, unless expressly authorized by the Constitution, is to that extent

Griffith C.J., invalid and inoperative, is reciprocal. I t is equally true of attempted inter

Barton and ference by the Commonwealth with State instrumentalities. The application

O'Connor JJ-

of the rule is not limited to taxation.

See. 51 (xxxv.) of the Constitution does not either expressly or by necessary implication authorize such an attempt.

4 C.L.R.] OF AUSTRALIA.

489

A State railway is a State instrumentality within that rule.

H. C. OF A.

1906.

The legislative authority of tlie Commonwealth Parliament under the power.s contained in secs. 51 (i.) and 98 of the Constitution, so far as regards

T he

F ederated A malgam

wages and terms of engagement, does not extend further than to prohibit, for

causes affecting interstate traffic, specific persons from being emploj'ed in such

ated

traffic.

Government

R ailway

Qufgre, whether that authority extends so far.AND Tram

way Service

When in the attempted exercise of a power of limited extent an Act is passed which in its terms extends beyond the prescribed limits, the whole Act

A.ssociation

T h e

N ew

is invalid, unless the invalid part is plainly severable from the valid.

SociH

W ales R ail-

He.ld, therefore, that the Commonwealth Conciliation and Arbitration Act 1904, so far as it purports to affect State railways, is ultrA vires and void,

w'AY

T raffic

E mployes

and, consequently, that an organization consisting solely of employes on State As.sociation .

railways was not entitled to be registered under that Act.

The President of the Commonwealth Court of Conciliation and Arbitration, in hearing an appeal under sec. 17 of the above Act from the decision of the registrar granting an application to register an organization, is acting as the Court.

Tlie term “ proceeding before the C ourt” in sec. ,S1 C2) of the above Act includes every matter brought before the President in the exercise of the judicial functions conferred upon him by that Act.

Held, therefore, that, on the hearing of an appeal from the decision of the registrar granting an application to register an organization, the President may state a case for the opinion of the High Court.

Case stated by tlie President of the Coiniiionwealth Court of Conciliation and Arbitration under sec. 31 (2) of the Commov- tvealth Conciliation and Arbitration Act 1904.

The New South Wales Railway Traffic Employes Association, an a.ssociation of employes on the State railways of New South Wales, applied to the registrar of the Commonwealth Court of Conciliation and Arbitration to be registered as an organization under the Commonuraltli Conciliation and Arbitra tion Act 1904. The application was opposed by the Federated Amalgamated Covernment Railway and Tramway Service Asso ciation, but was granted by the registrar. From his decision the Federated Amalgamated Government Railway and Tramway' Service A.ssociation appealed to the President of the Common wealth Court of Conciliation and Arbitration. One of the grounds of appeal was that the applicant association, being an

490 HIGH COURT.

[1906.

C. OF A.association of State railway servants, could not be registered

1906.

under the Act, and that the Act, in so far as it purported to

T heinclude State railway servants within its provisions, was ultra

F ederated

vires and void. The President, treating tliis objection as a ques

Amaegam-

ATED

tion of law, pursuant to sec. 31 (2) of the Act stated a case for

Government

R ailway

the opinion of the High Court setting out these facts.

AND

T ram

way Service

Association

Rolin moved for leave to intervene on belialf of the Govern

V.ment of New South Wales.

T h e

N ew

Sooth

Shand K.C. (with him, Ferguson and Holman), for the re spondents.

W ales

R a il

way T’raffic

The State of New South Wales is not interested in

E.m pi .oyes

A ssociation.

this application. The question of constitutionality is not properly before the Court, and the State cannot be affected by the regis tration of the respondent association.

The Court intimated that they acceded to tlie motion and allowed the Government of New South Wales to intervene.

Shand K.C. This is not a matter which the President has power to refer to the High Court. A case was stated by him under sec. 31, sub-sec. (2), of the Commonwealth Conciliation and Arbitration Act 1904. But that can only be done “ in any pro ceeding before the Court.” The power of the President to review a decision of the registrar under sec. 17 is a power which he exercises as the President not as the Court. There was therefore no proceeding before the Court, but an appeal from the registrar to the President. The Court as such has no jurisdiction over matters until there is an industrial dispute referred to it in ac cordance with the Act. The Act clearly distinguishes between the President and the Court: see secs. 16, 17, 18, 20, 22, 23 and 24; in some cases the President has a jurisdiction apart alto gether from that of the Court, e.g., that of mediation and concilia tion, and the power to review the registrar’s decision. The dis tinction between the Pre.sident acting as President and the Court of which the President is a member is similar to the distinction between the two functions of a Di.strict Judge, who is in one aspect a Judge and in another Chairman of Quarter Se.ssions.

Assuming that the matter was one which the President had power to refer to this Court, it is not a proceeding in which

i C.L.R.] OF AUSTRALIA.

491

tliiw Court will decide the important question of the constitution

H. C. OF A.

1906.

ality of the Cunciliatiun and Arhitratton Act. The State of

New South Wales has no interest in having the question decided

T he

F ederated

now, because the application was merely for registration, and that,

A malgam

if granted, could not affect the rights of the State in any way.

ated

( i o V E K N M E N T

'riie application foi- i-egisti-ation is merely preliminary.Until

R ailway

there is a dispute and some order is asked for affecting the service State, the State has no interest and is not entitled to have the A s.sociation irreater question decided. It is not neces.sary to decide that T he N ew

® ̂ .

ft ■ ■ 1

'Sou'iii

question at this stage.

[He referred to Cooley on Con.^titutiomd W ales R ail-

Limitations, 6th ed., p. 196; Black on ConHtitattonal Law I rafficICmfloyf-s

United States, 2nd ed., p. 58 (sec. 34); Hinyham and Quincy

A ssociation.

Bridge and Tarninke Corpo'cation v. County of Norfolk (1); Encyclopa'dia of EnglisJt and American Law, 1084 ; Wellington and other Petitioners tfcc. (2); Palgarno v. Hannalt (S).]

Tlie President is as distinct from the Court as a Judge sitting in Chambers is from tlie Supreme Court. [He referred to Lush’s Practice, 3rd ed., 968 ; Smith, v. Bird (4).]

On the other point, the Court will not decide the constitutional ([uestioii until the State’s rights are invaded. [He referred to Forster v. Forster Jj Berridge (5); Chicago and Grand Trun\\ Mail'way Co. v. Wellman (6); Clark v. Kansas City (7).]

Bolin, for the State of New South Wales. The constitutional question does arise for the determination of this Court. It is necessary to decide it for the purpose of the question that was before the President, and it has been raised by a party to that matter. The State has an immediate interest, because the appli cant for registration is seeking to accjuire a certain status which will give it power to take proceedings in the Arbitration Court against the State, and to interfere with its agencies. There is no necessity for the State to wait until an award has been made, any more than there is for a person likel} ̂ to be affected by an excess of jurisdiction in an inferior Court to wait until the order is made against him. Having intervened, the State is a party

(1 ) 6 Allen (Mass.), 353, at p. 357. (4) 3 Dowl. P.R., 641.

(2) 16 Pickering (Mass.), S7, at p.

(5) 4 B. & S., 187.

05, p(r Shaw C..J.

(6) 143 U.S., 339.

. (3) 1 C.L.R., 1.

(7) 176 U.S., 114.

492 HIGH COURT

[1906.

H. C. OF A. and entitled to object to the exercise of the Arbitration Court’s

jurisdiction on any grounds.

As to the otlier objection, the President must be acting as the Court, or as a part of the Court, wlietlier he sits witli the other

T he A malgam

F ederated

G overnment atedmembers or not, and maj’ refer anj' matter before liim to tliis

R ailway

Court.

AND

'I'ra m -

Ciiv. adr. viUf.

WAY

S ervice

A ssociation

T he S outhN ew The following judgments on the preliminary question were W ales R a il- read, and the argument on the main point was allowed to stand

WAY E mployes

T raffic

A ssociation.

August 20. G r if f it h C.J. This matter came before the Court as a case stated by the President of the Commonwealth Court of Concilia tion and Arbitration under sec. 31 of tlie Comvionw('ulth. Conciliation and Arbitration Act 1904. The New South Wales Railway dVaffic Employes Association are an association within the literal meaning of that term as defined in sec. 4 of the Act, which defines “Association” as meaning “any trade or other union, or branch of any union, or any association or body composed of or fl.’epresentative of employers or employiis, or for furthei'ing or pro tecting the interests of employers or employes.” The}'’ made appli cation in due course to the registrar of the Arbitration Court for registration, and their application was opposed by the Federated Amalgamated Government Railway and Tramway Service Associ ation on various grounds, but the registrar intimated that he would grant the application. The opponents then apjiealed to the President against his decision. Upon the hearing of the appeal it was objected, amongst other objections, that the appli cants, being an association of State railway servants, could not be registered under the Act, and that the Act, in so far as it purported to include State railway servants within its provisions, was vdtra vires and void. The President, treating the objection as a question of law arising in a proceeding in the Arbitration Court, stated a case for the opinion of this Court. The point .so stated arises under paragraph xxxv. of sec. 51 of the Constitution under which tlie Commonwealth Parliament has powers to make laws with respect to “ Conciliation and arbitration for the pre-

4 C.L.R.] OF AUSTRALIA.

493

vention and .settlement of indu.strial di.sputes extending beyond R- C. of A.

tlie limits of any one State,” and sec. 4 of the Cvrnnivnwealth

Conciliation and Arbitration Act 1904, which defines an indus-

xh e

trial dispute for the purposes of that Act as “ including disputes

in relation to employment upon State railways.” ̂

•'ted

̂ _

Government

There can be no doubt that this is a question of law, nor that it

R ailway

is a que.stion of great importance. But it is objected that it is Service not a (|uestion arising in a proceeding before the Court, and that -Association the President has therefore no power to state a case with respect The N ew

. . ̂ . . . . ,

South

to it, and that this Court has no juri.sdiction to hear such a case. W ales R ail- shall be a Commonwealth Court of Conciliation and Arbitration which shall be a Court of record and shall “ consist of a President.” Divi.sion II. of Part III. of the Act, headed “ The Jurisdiction of the President and of the Court,” compri.ses three sections, the first of which (sec. 16) charges the President with certain extra-judicial duties liy way of mediation, to which it is not nece.s.sary to refer. Sec. 17 provides th a t:—“ The President may review airnul rescind or vary any act or decision of the registrar in any manner which he thinks fit; ” and sec. 1(S provides tha t:—“ The Court shall have juri.sdiction to prevent and settle, pursuant to this Act, all indus trial disputes.” In my opinion, notwithstanding the difierence in language between secs. 17 and 18, the duty of the President under sec. 17 is judicial and not ministerial. It is a duty cast upon him as the President and sole member of the Court constituted by the Act. I cannot accept the suggestion that in the discharge of this duty he is exercising a jurisdiction conferred upon him personally as distinguished from the Court.

It is contended that the President, in hearing an appeal from the

regi.strar, is not acting as the Court, but in the exercise of a per- -Association.

.sonal authority conferred on him as President of the Court, and Griffith c.j.

that, so acting, he constitutes a difierent and separate tribunal, to

which the power to .state a case for the opinion of the High

The only ijuestion that remains is whether an appeal from a decision of the registrar is a “ proceeding before the Court ” within the meaning of -sec. 31, sub-sec. (2). Sec. 54 provides that the registrar shall keep a register of all organizations registered under the Act. Sec. 55 provides that certain specified associations

494 HIGH COURT

[1906.

H. C. OF A.

may, on compliance witli the pre.scribed conditions, be registered

1906.as organizations. Sec. 60 reijnires the registrar, if it appears to

T he

him that certain conditions exist in the case of any registered

F ederated

organization, to make application to the Court for the cancellation

A malgam atedof the registration. One of them is that tlie organization has

G overnment

R ailway

been registered erroneously or bĵ mistake. If the registrar on

AND

T ram

way Service application to him refuses to apply to the Court for the cancella

A ssociation

V.tion of the registration of an organization, the Court ma}'’, on the

T he N ew application of any person interested, order the registration to be

South W ale.s R ail

cancelled. There can be no doubt that an application to the Court

way' T raffic

R mploye.s

under this section is a “ proceeding before the Court ” within the

A s.sociation.meaning of sec. 31, sub-sec. (2). If the objection now under con

Griffith C.J.sideration is a good one, the only result would be that the

President, if he desired to obtain the opinion of the High Court, would formally affirm the decision of the registrar granting registration, whereupon the objector or appellant (whom I assume to be a person interested) would apply to the registrar to make application for cancellation of the registration, and then, whether the registrar made that application or not, the Court Yvould deal Yvith the matter, and obtain the opinion of the High Court on a case stated. The point raised, therefore, is purely one of form, and involves no question of substance. If neces,sary I think that the present case should be regarded as an appeal from a refusal of the registrar to apply for cancellation of the regi.stration of the applicant association. But I do not think it nece.s.sary to

have recourse to this fiction.

The term “ proceeding ” is a term

of Ŷ ery wide application. In my opinion the term “ proceeding before the Court ’’ includes every matter brought before the President in the exercise of the judicial functions conferred upon him by the Act.

I think also that the objectors, who were an association of persons in the railway service of New South Wales, were persons interested, since the registration of the applicants might under sec. 59 have deprived them of a right of regi.stration, which po.ssibly they might have had. I think, further, that the objec tion, being one to the .status of the applicants, was, in effect, one to the juri.sdiction of the Court itself, and that such an objection

4 C.L.H.] OF AUSTRALIA.

495

may with tlie sanction of the Court be made by any person, if H. C. of A

only as amicus curiae.

(See Coiyoration of London v. Cox (1).

It was further objected by the applicants that the question sought to be raised is as to the validity of an Act passed by the

xhe

Commonwealth Parliament, and that the Court will not in its

ateo

. . .

G overnment

discretion decide .such a question, or even allow it to be raised,

R ailway

except in a litigation between parties in which the point is

^ rvTce

necessarily and distinctly raised.

Without disputing the general A ssoctation

proposition, I do not think that it applies to a case in which the

Tim N ew

Court is asked to exercise a jurisdiction the existence of which W ales R a il- depends upon the constitutional validity of the Statute in ques- ' 'rmployê ^ tion. A point of jurisdiction, when it is seriously raised, or if it Association.

HUgge.sts itself to the Court without being taken by a party, can-

Griffith c .j .

not properly be di.sregarded. Nor is a Court justified in making an order which it has no jiuTsdiction to make by the mere fact that no objection is oftered.

For these reasons I am of opinion that the objection.s taken by Mr. Shand to the hearing of the case were untenable.

Rarton J. I concur.

O ’C o n n o r J. There is nothing in the preliminary objection. The Act no doubt distinguishes between the cases in which the President acts ministerially, as in mediating between industrial disputants not judicially before him under sec. 16, or in annulling some act of the registrar under sec. 17, and the cases in which he acts judicially. But Mr. Shand’s objection is founded on the view that the President has two separate judicial capacities, one as President constituting “ The Court ” as described in the Act, the other as President acting judicially in those matters which the Act expressl}' empowers the President to deal with. It must be admitted that in the latter case equally as in the former the Pre.sident constitutes a judicial tribunal—but it is contended that in the former case that tribunal is “ The Court ” and in the latter it is not “ The Court ” but another tribunal which is described as “ The President.” There is only one judicial tribunal constituted

b}̂ the Act.

Sec. 4 defines “ The Court ” as “ The Commonwealth

(1) I..R. 2 H.L., 239.

496 HIGH COURT

[1906.

H. C. OF A.

Court of Conciliation and Arbitration constituted pursuant to

1906.thi.s Act.” The Court is constituted by sec. 11 in the following

T he

words :—“ There shall be a Counnonwealth Court of Conciliation

Federated

A mai.gam-

and Arbitration, which shall be a Court of Record, and shall con

ATEDsist of a President.” Whenever the President sits judicially he

(loV E K N .M E N T

R ailway

constitutes “ The Court,” and he cannot sit judicially without

and

T ram

constituting “ The Court.”

There is no warrant in the Act for

way Service

Association

V.the contention that the President sitting as a tribunal hearing

'I'liE N ew one class of judicial proceedings is “ The Court,” but when sitting

South

W ales R a il

as a tribunal hearing another class of judicial proceedings he is

way E mployes

T raffic not “ The Court.”

Reference was made to sec. 32 which enables

Association.certain matters to be decided by the “ President sitting in Cham O’Connor J.bers.” A Court ordinarily speaking conducts its business in

public—but it has always been the jjractice in the several juris dictions of the Supreme Court for Judges, -when they so deem it advisable, to deal with the class of proceedings mentioned in sec; 32 in Chambers either in public or in private. It is to* make it quite clear that this method can be followed in the Federal Arbi tration Court that similar power has been expressly conferred on the President by that section. But whether the President sits in Court in the ordinary sense of the word or in his own Chambers under that section, he constitutes the Court under the Act. In other words, whenever the Pre,sident sits judicially he constitutes the Court, and as he sits judicially in reviewing under sec. 17 a decision of the registrar, the proceeding on that review is a “ pro ceeding before the Court ” within the meaning of sec. 31, and he may state a case for the opinion of the High Court on any ques tion of law arising in that proceeding. As to the other matters mentioned by my learned brother the Chief Justice, I entirely agree with his observations.

Leave to intervene was subsequently granted to the Common wealth and to the State of Victoria.

Aug. 29. Rolin, for the State of New South Wales. The question raised by the case stated is whether the Commomvealth Conciliation and Arbitration Act 1904, so far as it purports to include State railway servants, in its purview, is invalid and void. Regi.stra-

4 C.L.R.] OF AUSTRALIA.

497

tion is the tirst step towards enabling an organisation to institute

H. C. OF A.

1906.

an industrial dispute and bring it before the Court.

When the

matter is brought before the Court, the Court will have power to

T he

F ederated

deal with the dispute and make an order or award and impose

A malgam

ated

penalties for a breach.

(lOVERSMENT

[G r if f it h C.J.—It looks at hrst sight as if the definition of an R ail WAV

AND T ram

“ industrial dispute ” in sec. 4 were a contradiction in terms.]way Service

Association

Yes, it is difficult to see how a dispute between a State as an employer and its employes coiild extend beyond that State.

T he

N ew

South

It can hardly be contended that to empower the Arbitration Court to intervene in such matters as the relation between a

W ales R ail

way T raffic

E mployes

State and its railway employes in the way contemplated by the

Association.

Act is not empowering it to interfere with the in.strumentalities of the State. As to tiie relation between the State of New South Wales as employer and its railway servants: see The Government Raihvuys Act (N.S.W.) (No. (j of 1901), secs. 4, 14, 10, 17, 43, 44, 45, 71, 72, 104. Sec. 72 provides that the amount to be paid as wages, &c., is to be such sum as Parliament appro priates for that purpose. [He then referred to the definition of “ Government ” and “ Minister ” in sec. 15, sub-secs. 2 and 3, of the Interpretation Act (N.S.W.) (No. 4 of 1897.)] There is no power under the Commonwealth of Australia Constitution Act to interfere between the State and its servants. Assuming that the Commonwealth claims to be acting under the powers con ferred by sec. 51, sub-sec. (xxxv.) of the Constitution, the terms of that section seem to }iiake it inapplicable to matters ari.sing between the State and its servants. No dispute in connection with such matters could extend beyond the State, because the State doe.s not carry 021 bu.siness outside its teiritorial limit.s.

Apart from that, assuming that the section gives a general power to legislate on this poii2t in regard to State businesses, it ought not to be construed as extending to businesses which are instrumentalities of the State. Such a power is not given by express terms, and it should not be deemed to be given by implication. It is an interference with State sovereignty. The State equally with the Commonwealth is left supreine in its own ambit, and the same principle which should be applied in con sidering questions of impairing Commonwealth sovereignty by

498 HIGH COUUT

[1906.

C. ov A.State Acts should also be applied in considering attempts by the

1906.

Commonwealth to interfere with the sovereignt}' of the States.

T heThe American Courts have followed that principle, and it should

J’kDERATEI)be followed here where analogous (juestions arise.

If that is so,

A malgam G overnment atedany limit imposed upon the States’ sovereign rights is an inter

R ailv ay

ference. The Conciliation and Arbitration Act 1904 purports

AND

T ram

way Service to give the Court such a power of interference, and so far as it

Association

does it is idtra vires.

The Commonwealth cannot do indirectly

T h e N ew what it cannot do directly.

In Collector v. Day (1) it was held

Sodth W ales R ail

that it was not competent for Congress to impose a tax upon a

way E mployes

T raffic judicial officer of a State.

The principle applied there was

A ssociation.deduced from

M’Culloch v. Maryland (2).

[G r if f it h C.J.—You may take it that we are familiar with the jirinciple of those cases. You may start froin this, that the Commonwealth cannot interfere with the conduct and manage ment of State business.]

Althouoh in the United States Constitution there was full power to tax, it was restricted by the Courts by implication. So it must be limited here. Though priind facie, there is power under sec. 51, sub-sec. (xxxv.) of the Constitution to legislate in all directions and to any extent on that particular matter, it must be limited in the same way as the power to tax has been limited. It is admitted that the limitation would not apjJy to the States carrying on ordinary private business in competition with private persons, as was held in South Carolina v. United States (3); but the management of the national railways by the Government can not be treated as an ordinary private business under the conditions of the Australian States. Here it is a recognized function of the Government. [He referred to Miller x. McKeon (4).] But it is not contended that the Government can of its own motion create •some new department, not an ordinary function of Government, and so render it exempt from Commonwealth taxation. Railways are recognized by the Constitution as undertakings ordinarily carried out by State Governments, and in America it has been held that a State cannot tax a Commonwealth franchise to make railways through the State. [He referred to secs. 98, 99, 100 of the Constitution.]

(1) 11 Wall., 11.4.(.3) 199 U.S., 4.37.

(2) 4 Wheat., .316.

(4) .3 C.L.R., 50.

4 C.L.K.J OF AUSTRALIA.

499

H. C. OF A.

[Higgins K.C.—We ju.stify tlie Act under the trade and com merce powers.]

1906.

Sec. 101 of the Con.stitution by prov id ino- foi- an Inter-State Commis.sion to administer tlie trade and commerce laws of the

T he

F ederated

A malgam

a t e d

Commonwealth suggests that the legislature did not intend that G overn .ME.NT

AND TramR ailway

that there should be a power in the Commonwealtli to intei’fere in

any other way. There is nothing in the Constitution to warrant way

S ervice

A.ssociation

interference by an Arbitration Act. [He referred to the

United

T he

N ew

States V. Railroad Co. (1), and Georgia v. Atkins (2).] Secs. 102

Sodth

and 104 also recognize railways as a State function.W ales R ail

way 'J’raffic

Association.E.mployes

[R akton j .—-May it not be taken that the pro^■isions to which

you have last been referring were passed in view of what was

said in Farnell v. Bounnan ? (8).

G r if f it h C.J.—The Constitution distinctly recognizes State railways, and, if it did not, we could take cognizance of hi.storical facts. Sec. 102 expressly recognizes the re.sponsibilities of State Governments.]

Tiiat section also, by pointing out expressly how far State railways may be interfered with bj’ the Commonwealth Parlia ment, sugge.sts that there is not to be any implied power of interference.

[G r if f it h C.J.—You say that this is a State function, with

which there is jn'inid facie no power to interfere, and therefore

there are no power.s of interference unless expres.sly given.]

It was held in Kentucky v. Dennison. (4) that as there was no express provision in the Constitution requiring States to hand over criminals to other States or to the federal authority, there was nothing more than a moral obligation to do so.

Looking at sub-sec. (xxxv.) of sec. 51, a di.spute between the employes of a State and the State could not in the nature of things extend beyond the State. It might remotely touch inter state commerce, but in another State it would be another dispute, not an extension of the same dispute. The employes of two or more States might belong to one organization, but the States must always remain independent entities.

(1) 17 Wall., .S-22.(3) 12 App. Gas., 643, at p. 649.

(2) 1 Abbott, 32.

(4) 24 How., 66.

500 HIGH COURT

[1906.

H. C. OF A.

[G r if f it h C.J.—A State lias a detinite localization, though a

1906.private employer has none.]

T he

There are many industries extending be^mnd the bounds of a

F ederated

A malga.m-

single State, and organizations of employers and employes might

ATEDexist in those industries. They are the cases to which the legis

G overnment

R ailway

lature was directing its attention in the Constitution.

AND

T ram

way Service

Association

V. Hujgins K.C.and Holman{'w\i]\ them Shand K.C.and Fergiixon)

T he

N ew

for the respondents.

South

The only question here is whether a particular union was entitled to registration.

W ales R ail

way T raffic

It may be that the Act is valid so far as

E mfloye.s

A ssociation.regards registration, but invalid with regard to compelling parties

to go to the Arbitration Court. The Act does not only deal with arbitration and conciliation. Sec. lb for instance provides

for mediation by the President.

A registered organization has the

benefit of that section. Why should a State be exempted from its operation ? There is no instance of an exemption of State instrumentalities except in respect of burdens. The argument for the State of New South Wales is based on the assumption that the Imperial Parliament, in giving the Commonwealth Par liament power to make laws for conciliation and arbitration, was nece.ssarily giving powers to impose burdens. The doctrine ap plied in America relates solely to cases of impeding the e.xercise of sovereign functions. It cannot be said that the State of New South Wales is affected prejudicially or by way of burden by the President’s mediation. The power given to the President is a gift or benefit to the party in respect of whom it is to be exer cised. The States .should therefore come under the Act, and, as it is only registration that is now in <|uestion, registration will give the registered body the rights conferred by the Act so far as they are beneficial or not burdensome to the States. There is nothing in the Con.stitution which would prevent Parliament from allowing its President to mediate. It cannot be assumed that an attempt will be made to go further; at any rate the (|ue.stion whether the State, is wholly within the Act does not arise until some such attempt is made. The validity of the law is a (juestion which is not dealt with unless the Court is driven

4 C.L.K.J OF AU8TKALTA.

501

to it, wlien the riglits of parties neces.sarily turn upon the ques- H. C. of A.

tion : McClain’̂ Constitutional Law Cases, p. 21.

[(jKIKFIth C.j .—Wlien you ask the Court to exercise its juris diction you inu.st sliow that it has jurisdiction.

T he

F ederated

A malgam-

(I’CoNNOR J.—The States have

prima, facie the right to manage

ated

1 1 1

KliXMENT

their own bu.siness in tlieir own way. It you seek to show that

R ailway

tliat is not so in a particular case you must di.scharge the onus. service It is a ([uestion of the riglit of the Court to adjudicate upon A s.=ociatiok

re^i strati on.]

T n r N ew

k̂OUXH

The Act may be valid to a certain extent, that is, so far as it W ales K ail- deals with conciliation. The State may take advantage of the " kmeloyes'*̂̂

benefits conferred by the Act.

It could claim a bounty under A ssoitatiox.

sec. .51 (iii.) of tlie Con.stitution.

Why should it not get the

benefit of legislation under sec. 51 (xxxv.) ? There is no

implied prohibition in tliat sub-.section.

[C k if k it h C.j .—The cpiestion is whether there is an implied

exception, not an express prohibition. Everything not included

is prohibited.]

vSec. 51 (xxxv.) merely gives power to legislate, it does not purport to bind anybody. The authoritj’ which gave that power has it in its power to approve or disapprove of the way in which it is exercised by the power of veto. There is no necessity to adopt the narrow construction of powers adopted in America, because tliere there was no protection bj’ a central power like the Crown.

[CiUFFiTH C.J.—That argument was overruled in Deakin v.

Webb (1).]

It cannot be contended that it was the intention of the Imperial Parliament not to give the Commonwealth Parliament power to intervene in order to prevent so great an evil as a strike by

state employes.

[He referred to In re Debs (2).]

[B.vkton j .—There it was held that the Federal Government was entitled to interfere to preserve in the face of force the Fxecutive power to maintain the postal services of the Union, ddiat is a wliolly different matter.]

G r if f it h C.J.—They interfered because their own sphere of action was being invaded.]

(I) IC .L.R ., 585.

(2) ir>8 U.S., 564.

502 HIGH COURT

[1906.

H. C. OK A.

The Coninioii weal til has taken over certain departments and

1906.regulated the largest: The Constitution, sec.s. (19, 51 (v.), 52

T he

(ii.). There is nothing so vital to interstate trade as railways.

F ederated

A malgam

It must he presumed that the Imperial legislation meant to

ated

G overnment

include railways in the power to regulate interstate trade and

R ailway commerce. The Interstate Commission is a subsidiary authority,

AND

T ram

way Service not incon.sistent with the Arbitration Court, and was not intended

A ssociation

V.to be the exclusive authority on trade and commerce between

'J’he N ew the States. In the opening words of the New Soutli Wales

Sodth

W.ALKS R ail

Constitution there are almo.st tlie same words as tliose in tlie

way FImployes Commonwealth Constitution giving the power to legislate, and it

T raffic

Association.

has never been (juestioned that they gave power to legislate so as

to bind the Crown.

[O ’C o n n o r J.—Yes. But the New South Wales Government only binds itself, not the Crown apart from New South Wale.s.] Sec. 51 gives power without any express limitation, and the Crown is bound by legi.slation under the power, if it consents to the legislation.

The Constitution should be construed in such a way as to be effective for its purposes, the securing of peace, order, and good government. Legislation under this power cannot be made effective unless it applies to State servants. A dispute might be taken up with a common object in different States, and the State laws might be powerless to settle it. It will not be a.ssumed that the Arbitration Court will do what is injurious to the States, and it is only by giving it this power that the mischief aimed at can be prevented. [He referred to Gibbons v. Ogden (1); Cooley’s Constitutional Limitations], The presumption is that a remedial Act extends to the Crown. [He referred to Ex 'parte The Postmaster Genend (2).]

[O ’C o n n o r J.—That is only as to the question whether a State is bound by Acts passed within that State. The question here is whether the Crown is bound by the Acts of another Parliament.]

The main object of the Commonwealth Conciliation and Arbitration Act 190-1 is shown in sec. 6 to prevent strikes. The

(1) 9 Wheat., 1, at p. 187.

(2) 10 Ch. O., 59.), at p. 601.

4 C.L.R.] OF AUSTKALIA.

503

order of the Arbitration Court is merely a certificate that a

H. C. OF A.

certain person slioiild do something.

1906.

[G r if f it h C.J.—It is more than that. The Judge could order

The

F ederated

]>roperty to be .seized.]

A malgam

(iOVERN.MENT ated

The State need not appropriate money for the purpose ordered, and could not be compelled to do so.

The same position would R aii .way

AND T ram

arise as in every case in which a judgment is obtained again.st a way .Service

Assoct.ation

State. In such a case the Commonwealth would be content with an order which did not amount to more than a direction to the

T he

N ew

.South

State.W ales R ail

way T raffic

[G r if f it h C.J.—But in New South Wales that is not the efiect of a judgment against the Crown. The rolling stock can be

K.mployes

Association.

seized in execution.

O ’C o n n o r J.—Tlie Commi.ssioners are a legal

entity and the

railways are vested in them.

G r if f it h C.J.—Surely when a power is given to the Court to

make an award it is intended that the ordinary consei|uences of

an award should follow.]

The Court should be trusted not to make an order with such serious consequences to the States. Even if the Act is invalid in .so far as it purports to give power to do such things in the case of a State Government, it does not follow that the provisions as to registration are invalid. The State ma\" take advantage of the benefits conferred while remaining free from the burdens. Black’s Interpretation of Laws, pp. 119, 122; (Jommomuealth v. Boston and Maine Railway Go. (1); Prentice and Egan oa Commerce Clauses of the Constitution, p. 181 ; Western Union Telegraph, Co. v. James (2). Aiding the State is not an objectionable interference: D'Emden v. Pedder (3); Deakin v. Webb (4); The Comma >iwealth v. The State of Eeiu South ICrtZcs (5); Municipal Council of Sydney v. The Common wealth (()); Roberts \. Ahern (7); The Commonwealtli \. Baume (8); National Bank \. Gommomcealth {9); Chitty’s Prerogatives of the Croivn, p. 382.

(1 ) 3 Cushing, 25, at p. 45.(6) 1 C.L.R., 208.

(2) 162U.S., 6.50.(7) 1 C.L.R., 406.

(3) 1 C.LR., 91, at p. 111.(8) 2 C.L.R., 405.

(4) 1 C.1..R., .585, at p. 61.3.(9) 9 Wall., 353.

(5) 3 C.L.R., 807.

504 HIGH COURT

[190G.

H.C. OK A. Looking at the context in sec. 51, it appears that all through

190̂	the intention was that State Governments were to be bound
T h e	unless expressly excepted, e.g., sub-secs, (xiii.), (xiv.)

A malgam- Government iii^st be imjjlied, because they are not expressly exempted.]

[O C o x x o r J.—On that argument the power to

tax States

and̂ Tram- taxation must be a burden, whereas other legislation may

WAY S ervice Whenever exceptions are intended they are made.A ssociatjon

I f

the State is not to be affected by sub-sec. xxxv. it is not

T he

N ew South affected by sub-sec. xvii., and the consecjuences would be that a

w.ÂŶrK̂FFw State would not get the benefit of the bankruiFtcy laws against a Kmfloyes debtor. [He referred also to sub-sec. (vi.), under which the ----- Defence Act is passed interfering with the State railways.] It is a mere matter of construction, because the Imperial Parliament could have given the Commonwealth any power to interfere that the}" chose to give. In America, under the general power to make laws as to bankruptcy, without express mention of the States, laws have been passed without ipiestion binding the States in certain wa}"S : United Stated Stat'ide.s at Large, vol. 80, cap. 54.1.

[O’CoxxoR J.—Would not your argument ajiply to all depart ments of State ?]

United State.s Statutes at Large, vol. 25, cap. 1063, (Act of 1888) and vol. 27, cap. 196 of 1893; and Prentice and Egan's Commerce Clauses of the Constitution,

No; only to those employes who were industrial. ment under that has all the powers of Congress as to trade and commerce, and one of those is to provide for arbitration in railway employ^ disputes, and therefore Parliament has un doubtedly power to provide for arbitration in such disputes so far as regards private railways, and by sec. 98 the power is extended “ to railways the property of any State.” That is, of cour.se, subject to the limitation that it must refer to interstate traffic only. [He referred to

Next, the sub-section giving Parliament power to make laws

in respect to trade and commerce between the States, taken in

conjunction with sec. 98, is sufficient to give power to create a

4 C.L.K.J OF AUSTRALIA.

505

H. (J. OF A.

pp. 90, 91; The Daniel Ball

re Debs (2); Nashville,

1906.

Chattanooga and St. Louis Railway v. Alabama^ (3j.J

It is not to be assumed tliat because the Arbitration Act may aft'ect the discretion of the Railway Commissioners or swell the

T he

F ederated

A malgam

G overnment ated

Appropriation Act of a State, the Federal Arbitration Court is

R ailway

not to have power to deal with such matters.

Under the

AND T ra .m-

American Constitution, from which our own is largely derived,

WAY Service A.ssociation

the interferences by the Federal Government with State officials

are numerous. For an example, see Ex parte Sicbold (4); Boyd’s

T he

N ew

South

Gases on American Constitutional Law, pp. 577, 659.W ales R ail

way T raffic

A dispute which extends beyond one State might and probably would apply to interstate traffic, and an organization would have

E.mployes

A s.sociation.

to show, not only that the dispute did extend beyond one State, but also that it affected interstate traffic : See Tiedeman s State and Fedend Control of I^ersonal Property, vol. i., p. 597. There is nothing primd facie absurd in the idea of a strike extending beyond one State. Where the men engaged in an industry in different States make common cause the dispute extends beyond one State. Just as in In re Debs (5), it was held that the United States Government could interfere to keep the mails going, so here the Commonwealth may legislate as to conciliation with regard to interstate railway traffic. There is no doubt that a federal law as to bankruptcy could operate so as to discharge a bankrupt from debts owing by him to the State. That at any rate is an interference with the State.

America were exempt from federal legislation as to bankruptcy, and there is now positive legislation as to bankruptcy as affecting the States. See Prentice and Egan on the Commerce Clauses of the United States Constitution, pp. 27, 142. In America it has been held that Congress may by means of its regulations of inter state trade vary the rights of a State to its bridges if they inter fere with interstate commerce : Pennsylvania v. Wheeling and Belmont Bridge Co. (6). In Attomiey-General for Ontario v.

[G k if f it h C.j .—That is an interference ex necessitate.]

(1) 10 Willi., .5.57, at p. .559. (4) 100 U.S., .371, at p. 379.

(■->) 158 U.S., 564, at p. 580. (5) 1.58 U.S., 564.

(.8) 128 U.S., 96.

(6) 13 How., 518 ; 18 How., 421.

VOL. IV.

506 HIGH COURT

[1906.

C. OF A.Attorney-General for the Dominion (1), it was lield that dominion

1906.

enactments, when competent, supersede, although they cannot

T hedirectly repeal, provincial enactments. See also D’Emden v.

F ederated

Pedder (2). There is a distinction between that which directly,

A malgam

ated

(lO V E K N M B N T

and that which indirectly, aftects a State instrumentality :

R ailway McClain’s Constitutional Law, p. 153. The mere fact that a

AND

T ram

federal Act has the result of causing increased expenditure on the

way

S ervice

Associationpart of a State does not constitute an interference.

There is also

T he N ew

a distinction between the immunities which belong to a sovereign

South

W ales R a il

State by virtue of its sovereignty, and those immunities which

way T raffic

belong to it in respect of its commercial undertakings.

15.AIPLOYES

A ssociation.sovereign power entering into a contract is liable to the incidents

of contracts.' Moodalay v. Morton (3); Bank of Kentucky v. Wister (4); Bank of United States v. Planters' Bank of Georgia (5); Briscoe v. Bank of the Commonwealtli of Kentucky (6); United States v. Bank of the Metropolis (7); Louisville, Cincin nati and Charleston Railroad Co. v. Letson (8); Curran v. Arkansas (9); United States v. State Bank (10). In all the American cases it is recognized that the doctrine of the non interference with State instrumentalities does not extend to instrumentalities which are used for the purpose of commerce. “ The exemption of State agencies and instrumentalities from National taxation is limited to those which are of a strictly governmental character, and does not extend to those which are used by the State in the carrying on of an ordinary private business:” South Carolina v. United States (11)-

[G r if f it h C.J.—It would follow from that that the actual functions of government can now be enlarged.

O’Connor J.—And it involves the question what are the attri butes of sovereignty ?]

The main attributes of sovereignty are three, viz., legislative, executive, and judicial functions. With regard to the business of railways, one can conceive of them being given up by the States. If there is a function which is essential to government that is an

(1) (1896) A.C., :I48.(7) 15 Peters, 377, at p. 392.

(2) 1 C.L.R., 91, at p. 111.(8) 2 How., 497, a t p. 551.

(3) 1 Bio. C.C., 469.(9) 15 How., 304.

(4) 2 Peters, 318.(10) 96 U.S., .30, a t p. 36.

(5) 9 Wheat., 904, at p. 907.(11) 199 U.18., 437, at p. 461.

(6) 11 Peters, 2.57, at p. 323.

4 C.L.K.] OF AUSTRALIA.

.'507

attribute of sovereignty. Tlie whole tendency of recent decisions

H. C. OF A.

in the United States has been to limit the doctrine of the im1906.

munity of State instrumentalities. See Western Saving Fund

T he

F ederated

Society v. Philadelphia (1); Bailey Mayor of New York {2).

A mai.oam-

(lOVERSMENTATED

The argument on the other side would have the result of putting

a premium on all State enterprises.R ailway

AND T ram

[G r if f it h C.J.—It is important to remember that State rail ways were recognized funcRons of government at the time of the

way Service

A ssociation*

inauguration of the Commonwealth, and that they are recognized

T he

N ew

South

as such by the Constitution.]W ales R ail

way T raffic

At that time there were State industries in all the States and the tendency was for them to increase in number.

K mfloyes

Can it reason

A s.sociation.

ably be supposed that, when the Commonwealth was given power to legislate as to conciliation and arbiti'ation. State enterprl.ses were to be excluded ? Although the Constitution recognizes railways as being carried on by the States, there is nothing in the Constitution which lifts railways out of the ordinary category of busine.ss undertakings up into the domain of strictly govern mental functions. See the Constitution, secs. 51,98. The distinc tion between the governmental functions and the business enter prises carried on by a State is a reasonable one. The governmental functions are those functions which cannot be contemplated as being intended to be delegated to private persons. Even assuming the doctrine of the immunity of State instrumentalities extended to State bu.siness concerns, it is by no means clear that the Railways Commissioners could claim the benefit of that immunity, for they have a discretion which they can exercise apart from and independently of the Crown. See Gilbert v. Corporation of Trinity House (3); In re Woods’ Estate] Ex parte Commissioners of Works and Buildings (4). Although an Arbitration Court could not be created by the Commonwealth which should have power to compel a State or the Railways Commissioners of a State to paj- any money, yet an Arbitration Court might be created which should have power to say that a State or the Railways Commissioners of a State ought to pay money. Appropriation by Parliament is not a condition pre-

(1) :il Pen. St. R., 175. (3) 17 Q.B.D., 795, at pp. 797801-2.

(•2) 3 Hill, 531, at p. 585.(4) 31 Ch. D., 607, a t p. 621.

508 HIGH COURT

[1906.

H.C. OF A. cedent to tlie I'ight to recover judgment. Bond v. Common

1906.	wealth of Australia (1); The King v. Fisher (2); Bremner v.
T he	Victorian Railways Commissioner (3).

F edekated

AMALGASt-

[G r if f it h C.J., referred to Shire of Arapiles v. Board of Land

ATED

and JCoi'/l

’s (4).]

Govehnment

K ailway

There is no more obligation upon the Commissioners of Raihva3 s

AND

T ram

way Service to under an award than there is»under a judgment. Just as

AssociATrox

in an action for negligence, so under an award, the Commissioner.s

T he

N ew

SoriHare to be supplied with funds by Parliament.

Even if it could

W ale.s

R a il

way Traffic

be said that there could be no railway dispute extending bejmnd

E mploye.s

one State, that would not affect the validity either of registration under the Commonwealth Conciliation and Arbitration Act 1904,

A ssociation.

or of that Act itself. It would merelj' mean that the Act is inap

plicable to railway disputes. The question is not whether the Act i.s nugator}' and inapplicable, but whether it is void because it is bej’ond the powers of Parliament. A dispute “ extending bej^ond the limits of any one State ” involves a common dispute. There must be united action on one side or both .sides to the dispute. It means generally, in relation to railways,that the railway servants of two or more States must be making common cause or have a common ground of complaint. For example, suppo.se there were a shearing dispute in Victoria and New South Wales, and the railwaj' servants in those two States were to refuse to carry wool not shorn by a union. That would be a dispute extending beyond one State.

[G r if f it h C.J.—Would that be an indu.strial dispute ?]

It would be a di.spute as to the industry of working the rail-

waj'.s.

[G r if f it h C.J.—Would a refusal b}̂ the railway servants in two adjoining States to cany Chinese be an indastrial dispute ? ] Yes, if the railwaj^ servants in the two States acted together. An industrial dispute is a di.spute in an industry as to the mode of canying on that indu.strjq and in re.spect of it there mu.st be unity of action between the employes of more than one State.

(1) I C.L.R., 13, at p. 24.

A.L.T., 210.

(2) (1903) A.C., ir.8, at p. 167.(4) 1 C.L.R., 679.

(3) 27 V.L.R., 728, at p. 7.36;

4 C.L.K.] OF AUSTRAL [A,

509

Although an award by a Commonwealth Court of Arbitration

H. C. or A.

might have the incidental effect of rendering increased taxation 1906.

necessary in a State, it cannot be said that the Commomvealth

Tue

F ederated

Conciliation and Arbitration Act imposes that taxation, and

A maloam-

thereby infringes the rights of the States. It must be proved

ATED

. . . , , „

(Government

conclusively that a Commonwealth Act is unconstitutional before

R ailway

this Court will declare that it is : Tucker’s Gonstitation, vol.

Service

p. 380; Fletcher v. Peck (1); Ogden v. Saunders (2).

A ssociation

[G r if f it h C.J.—I do not agree with the principle as stated in the latter case.

T he N ew

South

According to it, if a law is capable of two con- Wales Rail-

structions, the Court must decide in favour of its validity.] " exiployf” *̂ The Court need not deal with the grave (|uestion of tlie con- A s.so cutio n .

stitiitionality of the Commonwealth Concilia.tio'n (nul Arbitra tion Act, but may deal only with the question of registration under i t ; Weinier v. Bunbury (3). Looking at the words of sec. 51 (xxxv.) of the Constitution the power given is unlimited as to its objects within the bounds of the actual words, and the extension of that power to State agencies is a matter for tlie King and the Parliament, and the same may be said of all the powers given by sec. 51 except those the exercise of which would impose burdens. The Gommomvcaltk Conciliation and Arbitration Act may be an aid and need not impose a burden. The Court need not say that it is an aid, but it was intended to help the Commonwealth. The tendency of the power con ferred by sec. 51 (xxxv.) is in accordance with the tendency to bring more and more matters within the domain of law and out of the domain of force. There is no doubt that the inter- .state commerce powers may be exerci.sed as to State railways. Sec. 51 (xxxv.) was meant to apply to all railways and to all industries as no industry is expressly excluded. Wherever it was meant to include State and private railways the Constitu- '

tion uses the word “ railways,” but wherever a law is meant to apply to State railways only the words “ State railways ” are used.

If some of the provisions of the Commomvealth Conciliation and Arbitration Act are beyond the powers of the Parliament,

(1)6 Crauch, 87, at p. 1‘28.

(2) 12 Wheat., 213, at p, 270.

(3) Thayre’s Cases, vol. n ., p. 1208.

[1906.

510 HIGH COURT

H. C. OF A.

tlie Court need not declare the whole Act invalid: Field v.

1906.

Clark (1).

The test as to whether the whole Act falls is whether

T he

the Act has one object or more. See also Coolei/’K Const it nfiotud

F ederated

A maeoam-

Limitations, 7th ed., p. 247.

ATEDThis Act has more than one object.

One of them is imjuiiy

Government R ailway

into industrial disputes. So far as that is concerned the Act

waT S ervice stand. As to the rigdit to make impiiries see Clough v. A ssociation Xcu/ti/ the Act dealing with arbitration may be

T he N ew W ales™ a il- under the Act. The utility of what is left is a matter for

invalid, but that need not aflect an application to be registered

WAY T raffic Parliament and not for this Court to consider.

It doe.s not

JliMPLOYES

A ssociation, matter to the present applicants whether they can be engaged in

a dispute extending bej’ond one State. At any rate, it is for the other side to satisfy the Court that they cannot be engaged in such a dispute. A dispute may be said to extend bej^ond one State either where a dispute has begun between an employer and his emplo3 ês in one State and a sympathetic di.spute there upon arises in another State, or where there is a di.spute between one emploj'er and his employes in more than one State. The location of the di.spute would be where the work i.s being done. The applicants are entitled to take the widest meaning of the words “ extending bej’’ond the limits of one State.” It would include a dispute, one party to which was an association of emploj’ers or employes in more than one State, as well as a dispute each part^" to which was .such an a.ssociation. So also if two unassociated bodies of emploj^es in different States had a collective dispute with their re.spective emploj^ers, that would be a dispute extending bej^ond the limits of one State.

[G r if f it h C.J.—If that is so a New South Wale.s union could summon a Victorian emploj^er to the Court.]

No emploj’er could be summoned to the Court except by his own emploj'es or an association representing his own employes. Where there is an ambiguity in a power conferred by the Con stitution and Parliament has taken one view, the Court will not be astute to take the other view.

[G r if f it h C.J.—One con.struction of the power conferred b}' sec. 51 (xxxv.) of the Constitution would be that, where a dis-

(1) 14.3 U.S., 649, at p. 695.

(2) 2 C.L.R., 1.39, at p. 156.

i C.L.H.] OF AUSTRALIA.

511

pute has begun in one State between an employer and hi.s H. C. of a .

emploj'es and that dispute lias extended beyond that State, then

the Arbitration Court has power to settle the original dispute.]

the

[Counsel also referred to Cooley v. Board of Wardsns of the

Vovt of PhiladelpJda (1); Oloucester Ferry Co. v. Pennsylvania

(2); United States v. Workingmens Amalgamated Council of

R ailway

New Orleans (3); Charge to Grand Jury of Illinois (4); Charge wa\° .Sekvke to Grand, Jury of California (5); United States v. Trans- A ssociatios

Missoicri Freight Association (6); Ex pa/rte McNeil i f )', Valin T he N ew

Sot'T 11

V. Lamglois (S); Holland’s Jurisprudence, 2nd ed., p. 288.] W ales R ail

way’ T raffic

E mployes

Mitchell K.C. and Irvine (with them Harrison Moore), for the Association. State of Victoria.

As to the meaning of sec. 51 (xxxv.) of the Constitution, the words “ extending beyond the limits of any one State,” are. words of limitation to preserve the powers of the States. The Court should not strive to give a wide meaning to those words so as to cut down the rights which it is intended to pre- ,serve. The words are to be taken in their ordinary meaning. Any leaning should be towards I’estriction and the preservation of the powers of the States. Two things are required to give Parliament power to legislate, there must be an industrial dispute, and that dispute must extend beyond the limits of one State. An indirstrial dispute means a dispute between employer and employd as to the terms and conditions of employment in a par ticular industry. See The Colliery Employes Federation of the Northern District, Neiv South Wales v. Brown (9). A dispute as to some other industry in which there was a dispute, for example, a sympathetic strike, would not be an industrial dispute Yvithin that definition. A strike is not necessarily an industrial dispute. Then tliere must be an extension of the dispute beyond one State, and it must so extend as to both parties to it. A dispute between a union of pastoralists of Victoria only and a union of shearers of several States as to the wages to be paid for shearing in Victoria

(1) 1‘2 H ow .,‘299.(6) 166 U.S., 290, at p. 343.

(2) 114 U.S., 196, at p. 215.(7) 13 Wall., 236.

(3) 54 Fed. Rep., 994, at p. 999.(8) 3 Can. S.C.R., 1.

(4) 62 Fed. Kep., 828, at p. 831.(9) 3 C.L.R., 255, at p. 267.

(5) 62 Fed. Rep., 835, at p. 838.

512 HIGH COURT

[1006.

H. C. OF A,

could not be said to extend beyond Victoria. Nor would a dis

1906.pute between one union of shearers of several States with distinct

T hebodies of employers in different States be a dispute extending

F ederatedbeyond one State. The subject matter of the dispute must extend

A malgam

atedbeyond one State.

The object is to make provision for cases with

G overnment

R ailway

which the Parliaments of the States could not deal effectively.

AND

T ram

If once the idea of a sympathetic strike is introduced into the

way

Service

A ssociation

V.definition of an industrial dispute e x t e n d i n g - beyond the limits of

T he SouthN ew one State, the power is given to an organization of employes at

W ales R ail

any time to bring any dispute within the jurisdiction of tlie

way E mployes

T raffic

Commonwealth Arbitration Court.

A ssociation.[O’Connor J.—There might then be a real dispute extending

beyond the limits of one State, but, because the employers in different States do not combine, this Court would not have cog nizance of the dispute.]

Tlie mere fact of combination would not make a dispute one extending beyond the limits of one State. If a di.spute is as to the rate of wages in Victoria it cannot be a dispute extending beyond the limits of Victoria. But if the employers in different States were under an agreement as to the rates of wages and the conditions of employment, then a dispute as to wages or con ditions of employment might extend beyond the limits of one State. The Parliament of the Commonwealth has no jurisdiction except in a dispute which actually extends beyond the limits of one State. The test is, are the respective parties to tlie dispute, who would be directly affected by the award of the Court, the same in the several States over which the dispute extends. The association seeking to be registered here could not possibly, having regard to the local conditions, be an organization which could be a party to a dispute extending beyond the limits of one State. This may be put on the provisions of the New South Wales Railway Act, and also on the fact that the association consists of servants of a Government department. The Railways Com missioners are trustees for the Government, and their power is limited to the territorial boundaries of New vSouth Wales. They could not arrange with the Victorian Commissioners for a com mon rate of wages in the two States. Railways, having been at the time when the Commonwealth was inaugurated and for a

4 C.L.R.] OF AUSTRALIA.

513

long time before, a recognized and ordinary function of Govern

H. C. OF A.

1906.

ment u.sed to enable the Governments to carry on their police and

postal functions, it is not neces.sary to show anything in the

The

F ederated

Constitution which lifts up railways into governmental functions.

A malgam

G oversment ated

On that ground South Carolina v. United States (1) may be

distinguished, for the judgment in that case was based on R ailway

AND T ram

this, that the sale of li(juor was not within the contemplation way Service

A ssociation

of the framers of the United States Con.stitution as a function of

V .

government. The point taken by 7/i(/^ms K.C. as to the limit T he

N ew

South

of the functions of government has never been recognized in EngW ales R ail

way T raffic

lish law : a . V. McCann (2); Nabob of Arcot v. East India Co.

E mployes

(3); Young v. SS. “Scotia” (4); Bainbridge v. 7Vte Fostmaster-

Association.

General (5). If the Commoniuealth Conciliation and A rbitration Act is within the competence of the Commonwealth Parliament, they might legislate so as to fix the rates of wages to be paid by the States, and to decide whom the States should employ. If once it is established that railways are a State in.strumentality, there could be no greater interference than the provisions of this Act. As to wliether this Act is within the trade and commerce clause —sec. 51 (1.) of the Constitution—there is no case in the United States in which it has been held that that clause authorizes such legislation, and, when in par. (xxxv.) of the same section express provision is made as to the extent to which the Common wealth Parliament is clothed with po^yer to legislate as to con ciliation and arbitration, on the principle of expressio unius exclusio the conclusion must be that that power was not intended to be conferred by the trade and commerce clause. If that power were included in the trade and commerce clause there would be no reason to limit it to disputes extending bej’ond the limits of one State, for a dispute within one State might very well interfere with trade and commerce. The fact that in sec. 98 of the Constitution the trade and commerce clause is extended to State railways is an additional reason for saying that the trade and commerce clause was not intended to cover power to legi.slate as to conciliation and arbitration in regard to State railway's. Even if the Conimomvealth Conciliation and Arbitration Act be

(1) 199 U.S., 437.(4) (1903) A.C., 501.

(2) LR . 3 Q.B., 677,(5) (1906) 1 K.B., 178.

(3) 3 Bro. C.C., 292.

514 HIGH COURT

[1906.

C. OF A.witliin the competence of the Commonwealth Parliament under

1906.

sec. 51 (i.) of the Constitution, this Association cannot be regis

T hetered, for by sec. 4 “ industrial dispute ” is limited in the same

F ederated

wa}' as in sec. 51 (xxxv.), viz., that the dispute must be one

A malgam G overnment

atedextending beyond the limits of any one State. The definition of

R ailway

industrial dispute in the Industrial Arbitration Act (N.S.W.)

AND

T ram

is practicall}’ the same as that in this Act, and therefore the

way

S ervice

A ssociation

V.decision of this Court in TJlc Colliery Emjyloyes Federation of the

The N ew Northern District, New South Wales, v. Brown (1), is directly

South W ales R a il

in point as to what is an industrial dispute.

way Traffic

E mployes Apart from the doctrine of expressio unius exclusio alterius

A ssociation.the trade and commerce clause does not authorize legislation of this kind. What is the character of this legislation? The objects are expresslj’ stated in sec. 2. Those objects may be shortly stated to be the prevention or settlement of industrial disputes bj’ compulsory determination of the conditions of employment. The whole essence of the legislation is compulsion. The re mainder, as to registration, &c., is machinery. The provisions as to conciliation are compulsory so far at any rate as bringing the parties together is concerned. There is a distinction between the Australian Constitution and that of the United States as to the mode in which the power in regard to trade and commerce is granted. In the former case Parliament has power “ to make laws for the peace, order, and good government of the Common wealth ” with respect to trade and commerce among the States

while in the latter case Congress has power “ to regulate com merce ” among the States (Art. I., sec. 8 of the United States Con.stitution). The power is very general in both cases and is onlj' limited by tlie meaning of “ trade and commerce ” in the one case and “ commerce ” in the other. Apart from that there is no greater power given here than in the United States. As to the meaning of “ trade and commerce ” : See Citizens In surance Co. of Canada v. Parsons (2). As to the meaning of “ commerce ” : See Gloucester Ferry Co. v. Pennsylvania (3). The Courts of the United States have always refused to give an exhau.stive definition of the power to regulate commerce. That power includes, according to American decisions, (1) power to

(1) 3 C.L.R., 255. (2) 7 App. Gas., 96.

(3) 114 U.S., 196.

4 C.L.K.] OF AUSTRALIA.

515

prevent obstruction.s to commerce, and (2) power to re.strict or pro

H. C. OF A.

hibit commerce of a kind which ifs liurtful to the public welfare ; 1906.

Lottenj Case (1). The power to prevent obstructions to com

T he

F kder.\ted

merce include.s, (a) power to prevent or remove all kinds of A malgam

OOVERS.M EXTated

physical interference with interstate commerce, (b) power to

prevent any action by the States the effect of which is to R ailway

AND T ram

impo.sc any tax or embargo on interstate commerce, and (c)

way S ervice

A ssoci.ation

power to prohibit agreements between individuals in re

straint of interstate commerce. There is a clear consensus T he

N ew

South way Traffic

of opinion that the power to regulate commerce does not

W ales R ail

include power to control the relations of employers and E mi’Loye.s

employes or of associations of employers and of employes in

Association.

respect of employment. In /w re JJehs (2) the power is clearly limited to the illegal results of agreement. The contract of employment must be a contract of interstate commerce. If tlie act done is illegal the combination to do it is illegal. Manj’ things winch clearly interfere with interstate commerce have been held not to be within the power. If all that can be proved is an agreement to endeavour by stopping work to obtain better terms of eni2:)loyment, that of itself is not sufficient to found jurisdiction in tlie federal Courts; see United States v. Workingmen’s Amal gamated Council of New Orleans (3); United States v. E. C. Knight Co. (4); United States v. Trans-Missouri FreigJd As.so- ciation (5); United States v. Joint Traffic Association (6); Ho'p- kins y. United States (1); Northern Securities v. United States (<S); Anderson v. United States {i)): Addyston Piiie and Steel Co V. United States (10). It may be jjossible for the Common wealth Parliament under the trade and commerce clause to enact that any combination to directly impede interstate trade is an offence, but it could not make it an offence for the workmen employed b}' carriers carrying on business be}’ond the limits of one State to agree to stop work. See Montague & Co. v. Lowry (11); Northern Securities Co. y. United States (12) ] Patterson v. Bark Eudora (13).

(1) 188 U.S., :T21, at p. .852.(8) 193 U.S., 197, at p. 397.

(2) 158 U.S., 564.(9) 171 U.S., 604. at p. 615.

(3) .54 Fed. Rep., 994, at p. 1,000.(10) 175 U.S., 211, at p. 228.

(4) 1.56 U.S., 1.(11) 193 U.S., .38.

(5) 166 U.S., 290, at p. 325.(12) 193 U.S., 197, at p. .342.

(6) 171 U.S., 505, at p. .565.(13) 190 U.S., 169.

(7) 171 U.S., 578, at p. 587.

516 HIGH COURT

[1906.

H. C. OF A.

If^aacs A.-G. (with liiin Bavin'), for the CoininonAvealth. Tlie

1906.

Commonwealth Conciliation and Arhitratioii Act 190-1 is witliin

T hethe powers conferred by sec. 51 (i.) of the Constitution. ]So dis

F ederated

A malgam

tinction need be drawn between trade and commerce in that sub

ated

G overnme .vtsection. Once a subject matter is within the power of the

R ailway

Commonwealth Parliament the power of Parliament as to that

WAY Service subject is plenary. In many cases in the United States it has been "̂ T̂ e'n̂eŵ such matters the States cannot interfere, in others

South

that the States can intex’fere until the Commonwealth Parliament

W ale.® R ail- . . . . ,

WAY T raffic passes a law dealing with the matter.

See Peik v. Chicago and

aSociat̂ oL dPortli-Western Pailway Co. (1). The Commonwealth has un limited power over inteiistate commerce, and that power is not limited to an unfair use of interstate commerce. The power is as large as that which the Parliament of Victoria has over its own commerce: Smith v. Alabama (2); Washville Chattanooga and St. Louis Pailway v. Alabama (3). The Supreme Court of the United States assumed in those ca.ses that Congress could legis late in some way that would prevent the States from legislating in the same way.

[B a r to n J.—Could the Commonwealth Parliament order a

vState to make a railway, on which was carried interstate trade,

of a certain gauge ?]

The Commonwealth Parliament could not order that thing to be done, but they could say that no interstate traffic should be carried on a railway of a certain gauge.

[G r if f it h C.J.—Suppose on one construction of the Constitu tion the result would be that, if a power said to be conferred by it were exercised, the whole federation would break up, should not this Court give a narrower construction to the Constitution ?] That argument has been used in the United States, but never theless it has been held that if a power is found in the Constitu tion, being given by the people, it may be used without fear. The ordinary meaning of words must be taken in construing the Constitution. A construction which may cripple the development of the Commonwealth should be rejected. In the United States it has been held that each of the grants of power is a separate

(1) 9-1 U.S., 16-1, a tp . 177. (2)

124 U.S., 465, at p. 480.

(.3) 128 U..S., 96.

4 C.L.R.J o r AUSTRALIA.

517

grant without limitations. In

H. C. OK A.

D’Emden v.Pedder (1) this Court

held that, as far as they were applicable, they would follow the 1906.

United States cases.

Thk

F ederated

[G r if f it h C.J.—That is as to the construction of identical words where their meaning is not altered by the context.]

A mai.gam-

(loV’EBSMENT ATED

Under the commerce clause of the United States Constitu tion it has been held that by reason of the Interstate Com

R aii.way

AND T ram

way Service

Association

merce Act 1887, which provided that it should be unlawful

for an interstate carrier to charge more or less than the rate

T he

N ew

SOPTH

fixed in the schedule of rates which was required to be printed W ai.es R a il

way- Traffic

and published, a State Act making it unlawful for a railE.yiployes

way company to charge a greater sum for freight than

A.ssoctation.

was specified in the bill of lading was rendered invalid; Gidf, Colorado and Santa Fe Railway Co. v. Hefiey (2). That case shows that a State Statute valid in itself is rendered invalid by reason of legislation of Congress, and that Cougre.ss has power to fix a maximum and minimum rate for the inter state carriage of good.s. See also Baird v. St. Louis (3); Cin cinnati, New Orleans and Texas Pacific Railway Co. v. Interstate Commerce Commissioners {A). In Interstate Commerce Commissioners v. Cincinnati, New Orleans and Texas Pacific Railway Company (5), it was said that Congress might itself jn-escribe rates for the interstate carriage of goods or might delegate the power to prescribe those rates to some subordinate tribunal. In Interstate Commerce Commissioners v. Detroit, Grand Haven and Milwaukee Railway Co. (6) in the opinion of the Court, occurs the following passage :—“ It must be conceded that a State railroad corporation, when it voluntarily engages as a common carrier in interstate commerce by making arrangements for a continuous carriage or shijnnent of goods and merchandise, is subjected, so far as such traffic is concerned, to the I’egulations and provisions of the Act of Congress ” {Interstate Commerce Act 1887). See also ira6((s/i, St. Louis and Pacific Railway Co.

V. Illinois (7).

Freedom of trade between States does not mean

freedom from regulation. It may mean freedom from taxation.

(1) 1 C.L.H., 91.(5) 167 U.S., 479, at pp. 494, 505.

(2) 15S U.S., 98.(6) 167 U.S., 633, a tp . 642.

(.‘I) 41 Fed. Rep., 592.(7) 118 U.S., 557.

(4) 162 U.S., 184.

518 HIGH COURT

[1906.

H. C. OF A.

As to implied power.s as a means for carrying out enumerated

1906.powers, see M’Culluch v. Maryland (1). As to the nature

T he

of the power to regulate interstate commerce, see the Lottery

F ederated

Case (2). In the following cases the exercise by Congress

A malgam G overnment of the power to regulate interstate commerce has been held

ated

Railway

to be valid: United States v. St. Lo'ais Railway Co. (8);

AND

T ram

way Service

Johnson v. Southern Pacific Co. (4); United States v. Southern

A ssociation

V. Raihvay Co. (5). See also Judson on Interstate Commerce,

T he N ew p. 382. In dealing with the powers of the Indian legis

South

W ales R ail

lature, Lord Selborne L.C., in The Queen v. Burah, said ((J):—

way

T raffic

E mployes “ The Indian legislature has powers expressly limited by the Act A ssociation.of the Imperial Parliament which created it, and it can, of course,

do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that ques tion ; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge con structively those conditions and restrictions.”

[G r if f it h C.J.—That statement is not exhaustive. You must look at the context and the surrounding circumstances in order to see what the meaning of the words is.]

At any rate, the meaning of the affirmative words arrived at in that way is to be cut down only by express restrictions, and the Court will not constructively enlarge those restrictions. Even if

(1) 4 Wheat., 316, atp. 421.(4) 196 U.S., I.

(2) 188U.S., 321, at p. 347.(5) 13.5 Fed.' Rep., 122.

(3) 107 Fed. Rep., 870.

(6) 3 App. Cas,, 889, at p. 904.

4 C.L.R.l OF AUSTRALIA.

519

the United State.s Supreme Court for a time took a somewhat

H. C. OF A.

narrow view of the power of Congress under tlie commerce 1906.

clause, it has since gone back to the larger view taken in

T h k

F ederated

M’CvIlock V. Maryland (1), and Gibbons v. Ogden (2). How

A malgam

OOVERNMESTated

large the view is is seen in Crandall v. State of Nevada (;i).

Tliere appears to be no case except United States v. Boilean (4), R ailway

A.ND T ram

in which legislation under the commerce clause has been upset. way .Service

A ssociation

As to what is interstate trade,'see Interstate Commerce Cum-

missioners v. Bdlaire Raihvay Co. (5); United States v. Chicago

T he

N ew

.Sodth

Railway Co. (6); Hanley v. Kansas City Southern Railway

W ales R ail-

may T raffic

Co. (7). As to the power of the States to interfere with inter

E mployes

state traffic, see Lo'uisville Railroad Co. v. Railroad Com

A s.sociation.

missioners (8). '

Sec. 51 (i.) of the Constitution being unlimited, .sec. 98 is inserted for greater caution to show that it was clearly intended tliat the power as to trade and commerce should extend to State railways. That is borne out by -the use of the word “ extends ” instead of “ .shall extend.” Apart from sec. 102 there would have been power to prohibit preference or discrimination by the States as to railways, and sec. 102 is a restriction on that power. [G r if f it h C.J.—As to sec. 102 being restrictive, Jessel JI.R., ill Kx parte Stephens (9), speaks of “ the well-known rule, that when tliere is a special affirmative power giv'en which would not be recjuired because there is a general power, it is always read to import the negative, and that nothing else can be done.”]

Sec. 104 is an admission that State railways engaged in interstate carriage of good.s are subject to the Commonwealth Parliament, and is a limitation on sec. 98. If sec. 104 con tains the only power the Commonwealth has to deal with State railways, then the last words of sec. 98 are nugatory.

In its original form in the draft bill sec. 102 contained the restrictive words only : See Quick and Garran’s Constitution of the Australian Commomvealth, p. 902. As to the powez’s of Congress under the commerce clause with regard to navigation

(1) 4 Wheat., 316.(6) SI Fed. Rep., 7S3.

(2) 9 Wheat., 1.(7) 187 Q.S.. 617.

(3) 6 Wall., 3,i.(8) 19 Fed. Rep., 679, at pp. 698-700.

(4) Si) Fed. Rep,, 4‘25, at p. 433.(9) 3 Ch. 11., 6o9, at p. 660.

(0) 77 Fed. Rep., 942.

520

[1906.

HIGH COURT

H.C. OF A.and shipping: See Fattersov y. Bark Eudora (1); Robcrti-ton v.

1906.	Biddu'in (2); Albjoyer v. Loxiimana (3); Lord v. Steamship
T he	Compa)>y (4). in the last mentioned case it was decided that a

F ederated

shiji on tlie liigh seas on a voyage between two States is subject

A malgam G overnment atedto the regulating power of Congress. Tlie navigation laws of

R ailway the United States alwaj’s have dealt with the wages of seamen ;

AND Tram

way Service See

Hartshorn s Railroad a'nd Commerce Clause, p. 23. In

A ssociation

V. United States v. E. C. Kniyht Company (5) it was held that the

T he N ew creation of a monopoly in a manufacture was not affected by the

South

Sherman Act (26 Stat., 209), which only prohibited the creation

W ales

Ra il

way

T raffic

E mployes of monopolies in interstate trade or commerce. It was there A ssociation.pointed out that a contract directly relating to manufacture,

although indirectly or incidentally affecting commerce between States, was not within that Act. The distinction between manu facture and commerce is further dealt with in Addyston Pipe and Steel Co. v. United St<des (Q): See also Munn v. Illinois Cl). A strike of coal miners would be in the same position as a monopoly of manufacture so far as the power of Congress to deal with it. As to strikes : See United States v. Workinyniens Amadyainated (hmncil (8); United States v. Elliott (9); Arthur V. Oakes (10). The Courts of the United States have been forced to the position that the reipiirements of a growing nation compel uniformity of action in connection with interstate commerce.

Sec. 51 (xxxv.) of the Constitution is one of the enumerated powers and is without any express qualification. The doctrine of e.rpvessio unius exclusio alterius does not apply to that section. The power granted is as to conciliation and arbitration, and that is what is expressed. It is not a power to make laws with regard to industrial dispute. ̂ extending beyond the limits of one State, but it is a power to make laws with respect to conciliation and arbitration. If the power were not there, the CommonM^ealth Parliament would have no power to deal with indu.strial disputes unle.ss they were connected with interstate commerce. This power

is wider than that in the trade and commerce clause.

If it is not

(1) 190 U.S., 169. (6) 175U.S.,211, a tp . 238.

(•2) 165 U.S., 27.5.(7) 94 U.S., 11.3.

(3) 165 U.S., .578.(8) 54 Fed. Rep., 994, at p. 1000.

(4) 190 U.S., 511.(9) 62 Fed. Rep., 801.

(5) 156 U.S., 1.

(10) 6.3 Fed. Rep., 310.

538 HIGH COURT

[1906.

H. C. OF A. the exemption rests upon necessary implication, and is upheld by

the great law of self-preservation; as any government, whose

'I'hemeans employed in conducting its operations, if subject to the

F ederated

A malgam

control of another and distinct government, can exist only at the

ated

G overnment

mercy of that government.”

R ailway

The argument is to our minds incontrovertible.

It was

AND

T ram

answered that the doctrine only applies to taxation.

But taxa-

way

S ervice

A.SSOCIATION

jg only an instance of interference and control. The founda-

T he N ew tion of the argument is the necessity for freedo

control,

you”in

W ales R a il- and taxation is only forbidden because it is an interference. In ""EMPLOYEr° opinion any authority which can lawfully say to another

Association. “ Thou shalt” Or “ Thou shaltnot” exercises control over that

other in the sense in which that term is used in this argument. It is nothing to the purpose to .say that the exercise of the power would be, or was intended to be, beneficial or remedial. Such an intention may, and perhaps ought to, be attributed to all legisla tive action.

Is it then an interference with the control of State railways to undertake to regulate the terms and conditions of the engage ment, employment and remuneration of the State railway

servants ?

Surely the question answers itself.

But it is said that a State railway is not a State instrumentality within the meaning of the rule, and the case of Scmtli Carolina V. United States (1) was referred to, in which the Supreme Court of the United States, by a majority of five to four (the minority consisting of most eminent lawyers) held that the State of South Carolina, which had made the liquor trade a State monopoly, could not invoke the doctrine so as to claim exemption from excise duty upon the li(j[uor of which it made use. Whether the majority judgment would or would not commend itself to this Court in a similar case, we are of opinion Uiat it has no applica tion to the present case. The argument as presented to us is that State instrumentalities for the purposes of the doctrine in question are limited to those which are, strictly speaking, of what was called in argument a “ governmental ” character, and that the bu.sines.s of common carriers is not a part of any of the recognized branches of government, legislative, judicial and executive. We appre-

(1) 199 U.S., 437.

4 C.L.R.] OF AUSTRALIA.

539

lieiid, however, that tlie execution or administration of the laws of

H. C. OF A.

1906.

the State is in tlie strictest sense a governmental function, and tlurt

no rule can be formulated, Vjecause there is no authority competent

T he

F ederated

to fornmlate it, which shall yjrescribe what functions the State

A maloam-

ATED

shall undertake in the supposed exercise of its duty to promote

G overn .ME.sT

the well being of its people. Tliere is high authority, both Kah .way

AND T ram

ancient and modern, for holding that the constiaiction and way Service

A ssociation

maintenance of roads and means of communication is one of the

most important, as it is necessarily one of the first, of the

T he N ew

South

functions of government. It cannot be denied in this twentieth tVALEs

R ail

way '1'raffic

century that railways are a most important means of communicaE.mployes

tion, or tliat tliey are in substance highways, however their use

A s.sociation.

may be l estricted or controlled by the conditions of the particular franchises granted in respect of them. Apart, however, from this general consideration, we are of opinion that in the year 1900, when the Constitution was adopted, the construction and main tenance of railways was in fact generally regarded as a govern mental function in all the Australian Colonies, and that they are expressly recognized as such in the sections of the Constitution above cpioted. We think, therefore, that the doctrine of mutual freedom from interference as between the Commonwealth and State Governments would be sufficient to exclude any implication that sec. 51 (xxxv.) was intended to extend to State railways. And, having regard to the careful enumeration of specific matters in respect of which express powers were conferred upon the Commonwealtli Parliament to interfere with or control the.se railways, we think that the notion of such an implied extension is absolutely negatived.

It is therefore unnecessary to express any opinion on the <|uostion whether a dispute between the applicants and the Railwaj’-s Commissioners could in point of law be held to extend beyond the limits of the State.

For tliese reasons we are of opinion that the provision now in (yuestion cannot be supported as a valid exercise of the powers conferred by sec. 51 (xxxv).

We pass to the contention that it is a valid exercise of the power, expressed in sec. 51 (i.), “ to make laws for the peace, order, and good government of the Commonwealth with respect to

540 HIGH COURT

[1906.

H.C. OF A.trade and commerce with otlier countries and among- the States,”

1906.	wliicli is declared by sec. 98 to extend to railways the property of
T he	any State. A great number of decisions of the Federal Courts of the

F ederated

United States were cited to us, in which the similar power con

A malgam G overnment atedferred by the American Constitution on Congress had been

R ailway interpreted and applied. Tliis Court is not, of course, bound by

AND Tram

way Service the Amei’ican decisions, although so far as they had gone before

A ssociation

the adoption of the Australian Constitution in 1900, the inter-

T he N ew jjretation put upon analogous provisions in the United States

South

W ales R a il Constitution is of veiy great weiglit.

In the view which we take

way

T raffic

E mployes of this part of the case, so far from expressing disagreement with A ssociation.any of tlie decisions cited, we should be content to accept them.

It was strongly urged that the power to regulate interstate trade and commerce, which is involved in the language of sec. 51 (i.) is plenary as to its objects, and includes a power to prescribe in eveiy re.spect the rules by which such commerce is to be governed. Subject to the question how far the general rules of sec. 51 (i.) and sec. 98 are qualified by the special provisions as to State railways to whicli reference has already been made, we assent to this proposition. There is no doubt that it extends to the making of laws for the prevention and punishment of all active obstructions to the freedom of interstate com merce: In re Dehn (\)] United Hides v. Workingmen’s Amal gamated Conned of New Orleans (2). There is no doubt, also, that commerce includes the tran.sportation of goods and persons on railroads used for inter-communication. It is never theless conceded that the general words must of nece.ssity be subject to some limitation, not as to tlie manner in whicli the power may be exercised, but as to the legitimate objects of the power. For instance, the source of a particular branch of inter state commerce might be dried up by the refusal of persons to subject matter for it. Or the effective carrying on of a branch of interstate commerce might be prevented or impedeil by the refusal of some person not directly concerned in it to afford facilities without which it could not be effecti\-ely carried on. It does not follow, however, that the power would extend

to such matters.

In our judgment the power is limited to trade

(1) 158 U.S., 564, at p. 580.

(2) 54 Fed. Ret)., 994.

4 C.L.K.] OF AUSTRALIA.

541

and commerce in being, and does not extend to matters which

H. C. OF A.

are matters precedent to its coming into being, whether necessary

1906.

conditions precedent or not. In the case of

Addynton Pipe and

T he

F ederated

Ateel Co. v. United Hiate-n (1), decided in 1889, P/̂ ckh.ara J.,

A mai.gam-

delivering the unanimous judgment of the Supreme Court of the

ATED

( tOVERXM EN'T

United States, said (2):— “ Under this grant of power to Con-

R ailway

gress, that body, in our judgment, may enact sucli legislation as wa\°Sek\-ice shall declare void and prohibit the performance of any contract -4ssocjatios between individuals or corporations, where the natural and T he N ew

South

direct etfect of such a contract will be, when carried out, to W ales R ail- directly, and not as a mere incident to other and innocent pur- " ej,^ oye” *̂ poses, regulate to any substantial extent interstate commerce -- '̂sociation. and again (3);—“ If the neces.sary, direct and immediate effect

of the contract be to violate an act of Congre.ss and also to restrain and regulate interstate commerce, it is manifestly immaterial whether the design to so regulate was or was not in existence when the contract was entered. into. In such case the design does not constitute the material thing. The fact of a direct and substantial regulation is the important part of the contract, and that regulation existing, it is unimportant that it was not designed.

“ Where the contract affects interstate commerce only incident ally and not directly, the fact that it was not designed or intended to affect such commerce is simply an additional rea.son for holding the contract valid and not touched by the act of Congress. Otherwise the design prompting the execution of a contract per taining to and directly affecting, and more or less regulating, interstate commerce is of no importance. We conclude that the plain language of the grant to Congress of power to regulate commerce among the several States includes power to legislate upon the subject of those contracts in respect to interstate or foreign commerce which directly affect and regulate that com merce, and we can find no reasonable ground for asserting that the constitutional provision as to the liberty of the individual limits the extent of that power as claimed by the appellants.”

In the earlier case of Hopkin.s v. United States (4), decided in

(1) 175 U.S., -ill.(3) 175 U.S., 211, at p. 234.

(2) 175 U.8., 211, at p. 228.

(4) 171 U.S., 578.

542 HJGH COURT

[1906.

H.C. OF A. October 1898, the same learned Judge delivering the judgment of

1906.	the Court (from wlncli Harlan J. dis.sented) said (1):—“ To treat
T he	as condemned by the Act (the Act) o-H agreements under

F ederated

AM ALCxAM-wliicli, as a result, the cost of conducting an interstate commercial

ATED

business may be increased would enlarge the application of the

G overnment

R ailway

Act far beyond the fair meaning of the language used. There

AND

T ram

WAY Service

must be some direct and immediate effect upon inter.state com

Associationmerce in order to come within tlie Act. The State may levj' a

N ew

tax upon the earnings of a commission mercliant wliich were

T he South

W ales R ail

realized out of tlie sales of property belonging to non-residents,

way E mployes and such a tax is not one upon interstate commerce because it

T raffic

As.sociation.

affects it only incidentally and remotely, although certainly: Ficklni V. Shelby County Taxiivj Districl (2). IMany agree ments suggest themselves which relate only to facilities furnished commerce, or else touch it only in an indirect way, while possibly enhancing the cost of transacting the business, and which at the same time we would not think of as agreements in restraint of interstate trade or commerce . . . To hold all such agree ments void would in our judgment improperly extend the Act to matters which are not of an inter.state commercial nature.

‘ It is not difficult to imagine agreements of the character above indicated. For example, cattle, when transported long distances by rail, require rest, food and water. To give them these accom modations it is necessary to take them from the car and put them in pens or other jffaces for their .safe reception. Would an agree ment among the landowners along the line not to lease their lands for less than a certain sum be a contract within the Statute as being in restraint of interstate trade or commerce ? Would it be such a contract even if the lands, or some of them, were neces sary for u.se in furnishing the cattle with suitable accommoda tions ? Would an agreement between the dealers in corn at some station along the line of the road not to sell it below a certain price be covered by the Act, because the cattle must have corn for food ? Or would an agi-eement among the men not to perform the service of watering the cattle for less than a certain compensation come within the restriction of the Statute ? Suppo.se the railroad company which transports the

(1) 171 U.S., 578, at p. 592.

(2) 145 U.S., 1.

4 O.L.U.] OF AUSTRALIA.

543

cattle itself furnishes the facilities, and that its charges for

H. C. OF A.

transportation are enhanced because of an agreement among the 1906.

landowners along the line not to lease their lands to the company

T he

F ederateo

for such purposes for less than a named sum, could it be suc

Amalgam

cessfully contended that tlie agreement of the landowners among

a t e d

Govern.M

ENT

themselves would be a violation of the Act as being in restraint R ailway

AND T ram

of interstate trade or commerce ? Would an agreement between way Service

A ssociation

builders of cattle cars not to build them under a certain price be

V .

void because the effect might be to increase the price of trans

T he

N ew

South

portation of cattle between the States ? Would an agreement W ales R ail

way T raffic

among dealers in horse blankets not to sell them for less than a E mployes

certain price be open to the charge of a violation of the Act

A ssociation.

because horse blankets are necessary to put on horses to be sent long journeys by rail, and by reason of the agreement the expense of sending the horses from one State to another for a market might be thereby enhanced ? Would an agreement among cattle drivers not to drive the cattle after their arrival at the railroad depot at their place of destination to the cattle yards where sold, for less than a minimum sum, come within the Statute ? Would an agreement among themselves by locomotive engineers, firemen, or trainmen engaged in the service of an interstate railroad not to work for less than a certain named compensation be illegal because the cost of transporting inter state freight would be thereby enhanced ? Agreements similar to these might be indefinitely suggested.

“ In our opinion all these queries should be answered in the negative. The indirect effect of these agreements mentioned might be to enhance the cost of marketing the cattle, but the agreements themselves would not necessarily for that reason be in restraint of interstate trade and commerce. As their effect is either indirect or else they relate to charges for the use of facilities* furnished, the agreements instanced would be valid provided the charges agreed upon w'ere reasonable. The etfect upon the commerce spoken of must be direct and proximate.”

We entirely concur in the views expressed in the passage just cited. It is true, as pointed out in the argument before us, that the immediate subject of consideration in that case was the construction of the Slternuiu Act, but we think that the obser-

HIGH COURT

[1906.

H. C. OF A. vations are equally relevant in construing tlie power itself.

There is no doubt that in all the instances enumerated it would

T he be within the competence of a State legislature, in the exercise

âmalgam̂ of its plenary power to deal with internal affairs, to make any

ated laws it mieht think tit to restrain or regulate such agreements.

G overnment ® ® i i i -i i

R ailway \\^AY°Service laws to regulate interstate trade and commerce. If they

but it does not follow that such laws could properly be de.scribed

Association could, the American State legislatures might be trespassing upon

T he N ew W alks R a il-

the domain of Congress.

In this connection the following passage from the judgment of

"̂ Em Jloyeŝ '̂ Supreme Court of the United States in the case of I{v}>hins v. Association. Shelby County Taxing District (1) is instructive, as showing the view accepted in the United States as to the powers of tlie State legislatures with regard to such matters:—“It is also an established principle, as already indicated, that the only way in which com merce between the States can be legitimately affected b}̂ State laws, is when, by virtue of its police power, and its jurisdiction over persons and property within its limits, a State provides for the security of the lives, limbs, health, and comfort of persons and the protection of property ; or when it does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities.”

In the execution of their power Congress has pa.ssed .several laws, some, but not all, of which have been the subject of judicial decision. Amongst others, laws have been passed for preventing and punisliing obstruction of interstate commerce, for securing the safety of men employed upon railways engaged in interstate traffic, for imposing tests of capacity upon engine drivers engaged in that traffic, and for the enforcement of awards as to terms of employment made upon voluntary submission to arbitration by the employers and the men. Congress has not, however, up to the present, undertaken to regulate by law the terms of engage ment or employment of men so engaged. There can be no doubt that if the plenary power of Congress or of the Commonwealth Parliament extends to such regulation they may exercise that power through tribunals or special authorities set up for the

(1) 120 U.S., 489, at p. 493.

4 C.L.K.] OF AFSTKALIA.

545

purpose, but the right to set up such tribunals or authorities does

H. C. OF A.

1906.

not extend beyond tlie power authorized to be delegated to them. As at present advised, we are of opinion that the legislative

FederatedT h k

authority of the Commonwealth Parliament under the power in

Amaloam-

ATED

question, so far as regards wages and terms of engagement, does

(Government

not extend further—if it extends so far, as to which we reserve R ailway

AND T ram

our opinion—than to prohibit for causes affecting interstate way Service

A ssociation

traffic specific persons from being employed in sucli traffic. It

T he

N ew

cannot, as already said, be disputed that the plenary powers of

South

W ales R ail

the State legislatures with respect to matters within their comway Traffic

petence extend to everything done within the State which may, E.mployes

A ssociation.

directly or indirectly, affect trade and commerce. But we think that the power of the Commonwealth Parliament to regulate interstate trade and commerce, although unlimited within its ambit, cannot as a mere matter of construction, be held to have so wide an ambit as to embrace matters the effect of which upon that commerce is not direct, substantial and proximate. And, in our opinion, the general conditions of employment are not of this character. We arrive at this conclusion upon the mere language of sec. 51 (I.). But it is much fortified by the language of

(XXXII.), which expressly empowers the Commonwealth Parlia

ment to make laws for the control of State railways with respect to transport for the naval and military purposes of the Common wealth. Having regard to the rules of construction adverted to mthe earlier part of this opinion, we think it is hard to reconcile the conferring of this express power with the implied existence under sec. 51 (I.) of a power whicli would undoubtedly, if the larger construction contended for is adopted, not only include that conferred by (i.), but go far beyond it. The word “control ” as used in (xxvii.) cannot, we think, be limited to manual or physical control. It is the widest pos.sible term, and is at least co-extensive with the a.sserted general power to “ regulate.”

Assuming, however, that the power in question does extend to the regulation by law of the terms of employment upon State railways, it is clear that it extends to them only so far as regards interstate traffic and only as far as regards men engaged in that traffic. And this consideration affords a fatal objection to the

546 HIGH COURT

[1906.

H. C. OF A,

validit}’ of the provi.sion now in question, so far as it depends for

1906.support on tlie trade and commerce power.

T he

It was laid down by the Supreme Court of the United States

F ederated

in the case of United States v. Reese (1), decided in 1875, and the

A malra.m- G overnment ATEDrule has ever since been followed, (see the Trade Mark Cases

R ailway (2);

United States v. Ju Toy (3)) that, when in the attempted

AND T ram

exercise of a power of limited extent an Act is passed which in

way

Service

Association

V.its terms extends beyond the prescribed limits, the whole Act is

T he N ew invalid unless the invalid part is plainly severable from the valid.

South W ales R ail

In the Trade Mark Cases, Miller J., delivering the unanimous

way

T raffic

E mployes judgment of the Court, said (4):—“ When, therefore, Congress Association.undertakes to enact a law, which can only be valid as a regula

tion of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several States, or with the Indian tribes. If not so limited,'it is in excess of the power of Congress. If its main purpose be to establish a regula tion applicable to all trade, to commerce at all points, especially if it be apparent that it is designed to govern the commerce wholly between citizens of the same State, it is obviously the exercise of a power not confided to Congress.” And again, I'eferring to United States V. Reese he said (5):—

“ It was urged, however, that the general description of the offence included the more limited one, and that the section was valid where .such was in fact the cause of denial. But the Court .said, through the Chief Ju.stice : ‘We are not able to reject a

2>art which is unconstitutional and retain the remainder, because

it is not }io.ssible to separate that which is constitutional, if there be any such, from that which i.s not. The proposed efiect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not there now. Each of the sections must stand as a whole, or fall altogether. The language is jfiain. There is no room for construction, unle.ss it be as to the effect of the Con.stitution. The que.stion, then, to be determined is, whether we can introduce words of limitation into a penal Statute so as to make it .specific, when, as expressed, it is

(1) 92 U.S., 2U. (4) 100 U.S., 82, at p. 96.

(2) 100 U.S., 82.

(5) 100 U.S.,82, at pp. 98, 99.

(.3) 198 U.S., 2.53.

* ‘

4 C.IxR.] o r AUSTRALIA.

547

general only. . . . To limit this Statute in the manner now

H. C. OF A.

1906.

asked for would be to make a new law, not to enforce an old one.

This is no part of our duty.’ If we should, in the case before us,

T hk

F ederated

undertake to make by judicial construction a law which Congress

A maegam-

ATED

did not make, it is (piite probable we should do what, if the

Government

matter were now before that body, it would be unwilling to do; R ailway

AND T ram

namely, make a trade-mark law which is only partial in its way Service

A ssociation

operation, and which would complicate the rights which parties

would hold, in some instances under the Act of Congre.ss, and in

T he N ew

.SOVTH

others under State law.”W ales R a il-

may T raffic

’Ihis reasoning appears to us conclusive. Now the

Gonciliafion

Kmployes

and Arhltration Act is not only not limited, so far as regards

Association.

its attempted application to State railways, to matters having a direct and proximate relation to interstate traffic, but is not limited at all to that traffic or to persons engaged in it. Even, therefore, if the Commonwealth Parliament has the implied powei’ contended for, this provision is not a valid exercise of the power.

It was suggested that the provisions of the Act as to conciliation were severable from the compulsory provisions as to arbitration. The objection which we have last considered is, however, a complete answer to this argument, so far as any coercive action could follow on the conciliation. Finally, it was suggested that the power conferred upon the President of the Court to endeavour to compose disputes was severable from the rest of the Act, and was not invalid. In the case, however, of a Federal Statute, it is not sufficient to say that it cannot do any harm. It is necessary to show affirmatively, if a Court is called upon to give effect to it, and if its validity is called in (question, that it is within some power conferred by the Constitution either ex2)ressly or by necessary implication.

For these reasons we are of opinion that the ĵ i’ovisions in (piestion are ^dtra vires of the Commonwealth Parliament, and that the applicant Association cannot be registered.

There will be no order as to co.sts.

Question answered accordingly.

548 HIGH COURT

[1906.

H. C. OK A.

Solicitors, for respondents, Brown tO BeeJ>y, Sydney.

1906.

T heSolicitors, for interveners, Croini Solicitor>t fur the Common-

F ederated

tceaWt, the State of Neu' South Wnlc}̂ , and the State of Victoria.

A malgam

ated

G overnment

B. L.

R ailway

AND

T ram

way Service

A.ssociation

T he

N ew

South W ales R ail

way E mployes

T raffic

[HIGH COURT OF AUSTRALIA.]

A ssociation.

MCLAUGHLIN ..

A p p e l l a n t ;

D e f e n d a n t ,

AND

DAILY TELEGRAPH NEWSPAPER COM- [

PANY L IM IT E D ..................................|

P l a in t if f s .

H. C. OF A. Compaiii/—Decree Jor rectification of share register of company—Interpretation—

1906. •Submission by plaintiff to indemnify company—Intention o f parties and Court when making decree—Principal and surely—Suit by company to enforce lien—

•Sydney,

( 'oniderclaim—Co.sts.

A"oi'. 29, 30.

Dec. 3, -1, 10In a suit for rectification of their share register the respondent company were

ordered to rectify by restoring the appellant’s name to the register as holder

Griffith C.J.,

Barton and of certain shares that had been transferred by the appellant’s wife, acting

Isaacs, .LJ,under an invalid power of attorney, the appellant, by his counsel, making an

undertaking or submission, which was embodied in the decree, to indemnify the respondents to the extent of all moneys received by his wife as the pro ceeds of the sales of the shares and against any loss that the respondents might sustain or liability they might incur to persons other than the appellant by reason of obedience to the decree.

The respondents, in execution of the decree, cancelled the registration in the names of the transferrees and restored the appellant’s name as holder of the shares in question. The result was that, in respect of the shares of one of the transferrees, the defendants in obeying the decree incurred a loss witliin the meaning of the submission of a sum exceeding the total amount received by the appellant’s wife for the sale of all the shares, and the wife was left liable to the other transferrees for the amount of the purchase money paid to her in respect of the shares transferred to them.

[1906] HCA 94

17 December 1906