Victoria v The Commonwealth

[1996] HCA 56

HIGH COURT OF AUSTRALIA

BRENNAN CJ, DAWSON, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ

Matter No M46 of 1994

(1996) 187 CLR 416

4 September 1996

Constitutional law—Legislative power of the Commonwealth Parliament with respect to external affairs—Executive power of the Commonwealth with respect to external affairs—International Labour Organisation Conventions—International Labour Organisation Recommendations—Implementation by statute—Industrial Relations Act 1988 (Cth)—Industrial Relations Reform Act 1993 (Cth)—Industrial Relations Amendment Act (No 2) 1994 (Cth)—Whether reasonably capable of being considered to be appropriate and adapted to achieving the purpose or object of the treaty—Partial implementation of treaty obligations. Constitutional law—Legislative power of the Commonwealth Parliament with respect to conciliation and arbitration—Power extends to situations likely to give rise to an industrial dispute—Terms of award and any variation thereof must have relevant connection to prevention or settlement of interstate industrial disputes—Ambit doctrine. Constitutional law—Legislative power of the Commonwealth Parliament with respect to conciliation and arbitration—Agreements reached in settlement or prevention of dispute—Whether third party involvement—Must have relevant connection with interstate industrial dispute—Incidental to settlement and prevention of industrial disputes. Constitutional law—Legislative power of the Commonwealth Parliament with respect to conciliation and arbitration—Includes provisions which are appropriate, but unnecessary, to effect purpose of power—Conferral of immunity in certain circumstances is appropriate especially when regulated by Commission. Constitutional law—Legislative power of the Commonwealth Parliament with respect to trading corporations—Power extends to laws specifying the rights and obligations of persons employed by constitutional corporations by reference to a particular event—Power extends to laws forbidding any or all conduct engaged in for the purpose of causing loss or damage to constitutional corporations and the consequences to attach to such conduct—Power extends to laws preventing third parties from interfering with trading activities of constitutional corporations—Provisions may be exclusive of those imposed by State laws. Constitutional law—Legislative power of the Commonwealth Parliament—Acquisition of property other than on just terms—Chose in action—Prohibition on extinguishment of vested causes of action—Prospective provisions—No acquisition where extinguishment or modification of a right or interest not yet accrued—No acquisition where provision to pay employee on strike does not require payment beyond that otherwise required by law. Constitutional law—Commonwealth power—Implied prohibitions—Prohibition against laws of general application which inhibit the continuing existence of the States or their capacity to function as governments—Precludes exercise of powers to "control" the States—Precludes laws which prevent States from determining the number and identity of persons whom it wishes to employ, term of appointment and the number and identity of those whom it wishes to dismiss on redundancy grounds—Precludes laws preventing States from determining terms and conditions on which those at higher levels of government will be engaged—Reading down of provision applying Act to the States, s 6. The Constitution, ss 51(xx), 51(xxix), 51(xxxi), 51(xxxv). Industrial Relations Act 1988 (Cth), ss 3(g), 6, 7A, 150A, 152, 164, 166, 166A, Pt VIA, Div 1; Pt VIA, Div 2; Pt VIA, Div 3; Pt VIA, Div 5; Pt VIB, Div 2; Pt VIB, Div 3; Pt VIB, Div 4; s 334A. Acts Interpretation Act 1901 (Cth), s 15A. The Freedom of Association and Protection of the Right to Organise Convention 1948, The Right to Organise and Collective Bargaining Convention 1949, Equal Remuneration Convention 1951, Equal Remuneration Recommendation 1951, Discrimination (Employment and Occupation) Convention 1958, Discrimination (Employment and Occupation) Recommendation 1958, Minimum Wage Fixing Convention 1970, Workers with Family Responsibilities Convention 1981, Workers with Family Responsibilities Recommendation 1981, Termination of Employment Convention 1982, Termination of Employment Recommendation 1982, International Covenant on Economic, Social and Cultural Rights, Convention on the Elimination of all Forms of Discrimination against Women, and The Constitution of the International Labour Organisation.

Headnote

Hearing

CANBERRA, 5 - 8 September 1995
#DATE 4:9:1996



Matter No M46 of 1994

D. Graham QC, Solicitor-General for the State of Victoria with N. J. Young QC and P. M. Tate for the plaintiff, instructed by R. C. Beazley, Victorian Government Solicitor


G. Griffith QC, Solicitor-General for the Commonwealth with H. C. Burmester and T. J. Ginnane for the defendant, instructed by the Australian Government Solicitor


Matter No. A18 of 1994

B. M. Selway QC, Solicitor-General for the State of South Australia with G. J. Parker and T. W. Cox for the plaintiff, instructed by M. D. Walter, Crown Solicitor for South Australia


G. Griffith QC, Solicitor-General for the Commonwealth with C. R. Staker for the defendant, instructed by the Australian Government Solicitor


Matter No P16 of 1994

R. E. Cock with J. H. Smith for the plaintiff, instructed by P. A. Panegyres, Crown Solicitor for Western Australia


G. Griffith QC, Solicitor-General for the Commonwealth with G. R. Kennett for the defendant, instructed by the Australian Government Solicitor


Intervening in each Matter:

S. J. Gageler with K. Mason QC, Solicitor-General for the State of New South Wales, for the Attorney-General for the State of New South Wales, instructed by I. V. Knight, Crown Solicitor for New South Wales

Orders

1. Answer the questions in the case stated as follows:
Matter No M46 of 1994
(1) Are any of the following provisions of the Industrial Relations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid -
(a) Division 1 of Part VIA;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 4 of Part VIB;
(g) section 334A;
(h) section 152 in its application to enterprise flexibility
agreements;
(i) section 164;
(j) section 166; and
(k) section 166A?
Answer: Yes. Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. See also the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170BC and 170BI, which are in Div 2 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; ss 170KA, 170KB and 170KC, which are in Div 5 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A. No answer is given with respect to the term "mental disability" in s 170DF(1)(f).
(2) Are any of the following provisions of the Act, or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States -

(a) Division 1 of Part VIA;
(b) Division 3 of Part VIA;
(c) Division 2 of Part VIB;
(d) Division 4 of Part VIB; and
(e) section 334A?
Answer: Sections 170DE(2) and 170EDA(1)(b), which are in Div 3 of Pt VIA, are invalid. The other provisions are valid. However, see the answer to Q 4 with respect to ss 170AE and 170AH, which are in Div 1 of Pt VIA; ss 170DB, 170DC, 170DE(1), 170DF and 170FA, which are in Div 3 of Pt VIA; s 170PM(3), which is in Div 4 of Pt VIB; and s 334A.


(3) Are the provisions of Division 1 of Part VIA of the Act, or any of them, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Victoria?
Answer: No. However, see the answer to Q 4 with respect to ss 170AE and 170AH which are in Div 1 of Pt VIA.
(4) If any such provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?
Answer: Sections 170DE(2) and 170EDA(1)(b) are severable. Section 6 of the Act is to be read down so as to bind the States only to the extent that the provisions of the Act do not prevent them from determining the number of persons they wish to employ, the term of their appointment, the number and identity of those they wish to dismiss on redundancy grounds and the terms and conditions of those employed at the higher levels of government. Consequently, ss 170AE, 170AH, 170BC, 170BI, 170DB, 170DC, 170DE(1), 170DF, 170KA, 170KB, 170KC and 334A do not bind the States with respect to persons employed at the higher levels of government and s 170PM(3) does not apply to action, which would otherwise be protected action for the purposes of s 170PG, by and against those employed at the higher levels of government. When s 6 is read down in the manner indicated, s 170FA does not apply to the States and s 170DE(1) does not operate to prevent the States from determining the number and identity of those they wish to dismiss on redundancy grounds.
Matter No A18 of 1994
(5) Are any of the following provisions of the Industrial Relations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid - (a) Division 1 of Part VIA;
(b) Division 3 of Part VIA;
(c) Division 5 of Part VIA;
(d) Division 2 of Part VIB;
(e) Division 4 of Part VIB;
(f) section 334A;
(g) section 152 in its application to enterprise flexibility
agreements;
(h) section 164;
(i) section 166; and
(j) section 166A?
Answer: See the answer to Q 1.


(6) Are the provisions of Division 2 of Part VIB of the Act, or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
Answer: No.
(7) Are any of the following provisions of the Act, or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of South Australia in relation to persons employed to enable the State to continue to exist and function as such -

(a) Division 1 of Part VIA;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA; and
(d) Division 5 of Part VIA?
Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid. The other provisions are valid, however see the answer to Q 4.
(8) If any such provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?
Answer: See the answer to Q 4.
Matter No P16 of 1994
(9) Are any of the following provisions of the Industrial Relations Act 1988 (Cth) ("the Act"), or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid -
(a) Division 1 of Part VIA;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB;
(h) section 3(g);
(i) section 150A;
(j) section 152 in its application to enterprise flexibility
agreements;
(k) section 164;
(l) section 166;
(m) section 166A; and
(n) section 334A?
Answer: Division 3 of Pt VIB is valid. Section 3(g) is valid in all its operations save that, with respect to its operation with s 170DF(1)(f), no answer is provided as to the phrase "mental disability". As to s 150A, see the answer to Q 13. Otherwise, see the answer to Q 1.


(10) Are the provisions of Division 1 of Part VIA of the Act, or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the State of Western Australia?
Answer: No. However, see the answer to Q 4 with respect to ss 170AE and 170AH which are in Div 1 of Pt VIA.
(11) Are the provisions of Division 2 of Part VIB of the Act, or any part of them, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
Answer: No.
(12) Are any of the following provisions of the Act, or any part of such provisions, beyond the legislative powers of the Commonwealth and invalid in their application to the State of Western Australia in relation to persons employed to enable the State to continue to exist and function as such -
(a) Division 1 of Part VIA;
(b) Division 2 of Part VIA;
(c) Division 3 of Part VIA;
(d) Division 5 of Part VIA;
(e) Division 2 of Part VIB;
(f) Division 3 of Part VIB;
(g) Division 4 of Part VIB; and
(h) section 334A?
Answer: Sections 170DE(2) and 170EDA(1)(b) in Div 3 of Pt VIA are invalid. All other provisions are valid. As to Qs 12(a), (b), (c), (d), (g) and (h), however, see the answer to Q 4.
(13) If any such provision or provisions of the Act is or are invalid, is it or are they severable and, if so, to what extent?
Answer: Section 150A(3) is to be read down so as to authorise the variation of awards only to the extent that the variation has a relevant connection with the dispute which attracted the Commission's award-making power. Otherwise, see the answer to Q 4.
2. Each plaintiff pay one third of the defendant's costs of the case stated.
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

Decisions

BRENNAN CJ, TOOHEY, GAUDRON, McHUGH AND GUMMOW JJ. The States of Victoria, South Australia and Western Australia have each brought proceedings against the Commonwealth seeking declarations that certain provisions of the Industrial Relations Act 1988 (Cth) ("the Act") are invalid. By consent, an order was made that the proceedings be heard together and a case was stated in respect of all three matters by Dawson J for the consideration of the Full Court. The questions in the case stated, together with the answers we propose, appear at the end of these reasons.


2. The Act is expressed to bind the States (1). It will later be necessary to refer in detail to the challenged provisions. For the moment, it is sufficient to note that they were inserted into the Act by the Industrial Relations Reform Act 1993 (Cth) ("the Amending Act") and the Industrial Relations Amendment Act (No 2) 1994 (Cth) ("the Second Amending Act"). The relevant provisions of the Amending Act commenced on 30 March 1994 and those of the Second Amending Act on 30 June 1994. Since these cases were argued, additional amendments have been made by the Industrial Relations and other Legislation Amendment Act 1995 (Cth) ("the 1995 Act"). These amendments commenced on 15 January 1996. There has been no application to re-open and to amend so as to challenge the validity of changes made by the 1995 Act. Accordingly, we will consider the submissions upon validity as directed to the Act as it stood before the commencement of the 1995 Act.


3. In general terms, the provisions of the Act which are challenged in these proceedings allow for the imposition of, or impose, obligations on employers with respect to minimum wages, equal pay, termination of employment, discrimination in employment and family leave, and provide as well for collective bargaining and the right to strike.


4. The Commonwealth claims that many of the provisions in question were enacted pursuant to its power with respect to external affairs (2). This is because a number of these matters are the subject of Conventions which have been adopted by the General Conference of the International Labour Organisation ("the ILO") and ratified by Australia (3). Some matters are the subject of Recommendations adopted by the General Conference of the ILO (4). Freedom of association and the right to strike are said to be the subject of customary international law. However, the plaintiff States argue that, contrary to what was said in the judgments of the majority in The Commonwealth v Tasmania (The Tasmanian Dam Case) (5), the power to legislate with respect to external affairs does not extend to the implementation of treaty obligations unless the subject-matter of the treaty is one of international concern. According to their argument, the ILO Conventions and Recommendations on which the provisions in question are based are not concerned with matters of that kind. As well, they argue that the ILO Conventions and Recommendations do not impose obligations or, if they do, the provisions in question are not capable of being viewed as appropriate or adapted to their implementation. In some instances, they say, the provisions are simply not directed to any relevant external affair.


5. The Commonwealth claims that some of the above provisions and other provisions of the legislation were enacted pursuant either to its power with respect to conciliation and arbitration (6) or its power with respect to corporations (7). The plaintiff States argue to the contrary. As well, they contend that some of the provisions effect an acquisition of property other than on just terms, in breach of that requirement in s 51(xxxi) of the Constitution. Finally, they contend that some provisions are invalid in their application to the States by reason that they infringe the implied constitutional prohibition against legislation which discriminates against the States or prevents them from functioning as such.


6. In their submissions the States placed much emphasis upon what were said to be the limits of the external affairs power and, in essence they sought to disturb what appear to be settled aspects of the scope of that power. As to the other grounds of challenge (save, perhaps, those denying the support of the certified agreement provisions by the conciliation and arbitration power), the parties were more in dispute as to the particular application of settled principle.


7. Accordingly, assessment of the specific submissions of the plaintiff States will be assisted by reference to some particular aspects of the executive and legislative power of the Commonwealth with respect to external affairs. Thereafter, it will be convenient to outline the framework of the legislation and, then, to turn to the particular provisions which are challenged in these proceedings.


The External Affairs Power
8. The powers of the Commonwealth in relation to external affairs are of two kinds: executive and legislative. The executive power conferred by s 61 of the Constitution is of the same character as, and is no narrower in scope than, the prerogative power of the Crown in relation to the same subject. The executive power extends to the signing and ratification of treaties. The legislative power conferred by s 51(xxix) on the Parliament is to be distinguished from the executive power. The former extends to the enactment of laws implementing the provisions of treaties entered into by the Executive so as to bind the Commonwealth (8).


(i) Executive power
9. In 1900, the self-governing colonies had no power to enter into treaties, declare war or peace, or send or receive ambassadors; it was no answer by Britain to a complaint to it by a foreign state that the conduct complained of had been committed by a self-governing colony (9).


10. In 1895, as a result of discussions the year before at a Colonial Conference at Ottawa, the Colonial Secretary and former Viceroy of India, Lord Ripon, reaffirmed as a fundamental principle that any agreement entered into with a foreign power, affecting any part of the dominions of the Crown, was an agreement between the Crown and a foreign state, and that the power to make treaties was vested solely in the Imperial Government (10). That power might be delegated, with legislative approval, to subsidiary authorities. This had been done in the previous century in the case of the East India Company (11). What the Colonial Secretary did in 1895 was to emphasise that there was no such general delegation in favour of the self-governing colonies.


11. However, from about 1880 the Imperial Government had instituted a practice of consultation with those colonies that had advanced towards constitutional independence before concluding commercial treaties which applied to them. There also developed a practice of including in such treaties a clause providing for voluntary adherence by those colonies who wished to do so. Before 1900, some 17 treaties had been adhered to or acceded to independently by one or more of the colonies in Australia pursuant to the procedure for separate adhesion or accession made in the treaties themselves (12). In addition, Todd, writing in 1894, stated that the legislature in any colony was free to determine whether or not the passing of a law was necessary to give effect to a treaty entered into between the Imperial Government and any foreign power in which such colony had a direct interest (13).

12. As the result of developments after federation, in which Deakin played a significant part, it was to the Commonwealth that the Imperial authorities turned for consultation with regard to proposed international agreements which might affect or concern Australia. On 3 January 1908, the Secretary of State for the Colonies wrote as follows to the Australian Governor-General (14):
"His Majesty's Government are pledged to the view that, so
far as the relations of Australia with foreign nations are concerned, the Government of the Commonwealth alone can speak, and that for everything affecting external communities the Government of the Commonwealth alone are responsible to the Crown. It follows from this that adherence to no treaty or convention with a foreign Power, whatever its subject matter, can be notified for which the Commonwealth has not made itself responsible; in other words, which is not made on behalf of the Commonwealth."
Australia became a signatory to the Treaty of Versailles (15). Along with the other self-governing Dominions, Australia became a member of the League of Nations and held mandated territory under the authority of the League (16). Whilst for some time practice may have lagged well behind theory, these steps have been taken as indicative that by 1919 the Commonwealth had assumed international personality (17). These developments have been of primary importance for the content of the executive power conferred by s 61 of the Constitution.


13. In a passage in R v Burgess; Ex parte Henry (18), which was repeated by Mason J in Barton v The Commonwealth (19), Latham CJ referred to the object "which must have been in contemplation when the Constitution was enacted", and continued:
"Australia was established as a new political entity and
Australia was to be given control of her own external affairs. Under s 61 of the Constitution the Executive Government of the Commonwealth can deal administratively with the external affairs of the Commonwealth ... The execution and maintenance of the Constitution, particularly when considered in relation to other countries, involves ... the establishment of relations at any time with other countries, including the acquisition of rights and obligations upon the international plane. The most obvious example of such action is to be found in the negotiation and making of treaties with foreign countries."


14. As things stood in 1900, the subjects of treaties were various. This is significant for the present case, because it indicates that the limited view of the scope of federal legislative power, urged by the plaintiff States, does not proceed from an accurate understanding of the range of subject-matter to which s 51(xxix) applied as it stood as long ago as federation.


15. It was recognised by 1900 that there was a continual expansion in the range of the subject-matter of treaties entered into between Great Britain and other states. This was acknowledged in the contemporary Australian writings of Professor Pitt Cobbett (20). And, Oppenheim, writing in the first edition of his work in 1905 (21), declared:
"(E)xperience has shown that the different States have also
many non-political interests in common which can better be satisfied and fostered by a general treaty between a great number of States than by special treaties singly concluded between the different parties. Such general treaties have, therefore, since the second half of the nineteenth century, more and more come into being, and it is certain that their number will in time increase."
The term "Convention" came to be used to identify a treaty by which several states arranged for the regulation of matters affecting all of them. Conventions have emerged from the deliberations of international organisations as well as from multilateral negotiations on a particular subject-matter.


16. The "oldest international organization in the world", the International Telecommunication Union, was established in 1865 as the International Telegraph Union (22). By the turn of the century about thirty states were members (23). The Universal Postal Union was inaugurated in 1874 (24). India and Canada obtained separate votes in the Universal Postal Union and, in 1885, the Australian colonies collectively obtained one vote (25). Berne was the seat of the administration of both the International Telegraph Union and the Universal Postal Union. The International Convention for the Protection of Industrial Property was signed at Paris in 1883 and it provided for the establishment at Berne of the office of the International Union for the Protection of Industrial Property. The result was to provide international recognition for the rights of inventors. The rights of authors of literary and artistic works were given similar recognition by the Berne Convention of 1886 (26).


17. Before 1900, modern international arbitration had developed, beginning with the Alabama Award of 1872; bilateral treaties greatly extended state submission of future disputes. This process was further advanced with the Hague Convention for the Pacific Settlement of International Disputes of 1899, which established the Permanent Court of International Arbitration (27).


18. There was activity also in the fields of what now would be called international human rights, world health and environmental protection. The Geneva Convention of 1864 laid the foundations of the International Red Cross (28). The General Act for dealing with the Suppression of Slavery in Africa, signed at Brussels in 1890, provided for the maintenance of a bureau to collect all information on measures connected with matters dealt with under the General Act (29). Abuses against inhabitants of the Pacific Islands were a major concern of the Imperial Government. This had been reflected in the Pacific Islanders Protection Acts of 1872 (30) and 1875 (31) (UK) and the establishment of the High Commissioner for the Pacific.


19. Conventions were negotiated affecting health and the environment. The Convention of London, signed by the African colonial powers in 1900, sought to preserve the native fauna of that continent (32); a convention signed at Berne in 1878 sought to prevent recurrence of the damage done to the wine industry by the phylloxera epidemics of the preceding decade (33); and several conventions dealt with the threat to public health by the spread of cholera and the plague (34).


20. These developments in the conclusion of general treaties between a great number of states, with provision for permanent secretariats, continued after World War I with the foundation of the ILO. By that time, the responsibility for treaty-making had been transferred, at least in substantial measure, to the Executive Government of the Commonwealth.


21. Thereafter, there was growth in the number of Australia's international engagements which, rather than being concluded in the name of the Sovereign as contracting party in respect of Australia and passed under the Sovereign's Sign Manual and the Great Seal of the Realm, were concluded in the name of the respective governments and the instrument of ratification passed under the Great Seal of the Commonwealth, signed by the Governor-General and countersigned by the Minister for External Affairs. In the six years after 1931, approximately two-thirds of Australia's international engagements were made in the form of agreements between governments (35).


(ii) Legislative power - s 51(xxix)
22. As a general proposition (36), under the common law, entry by the Executive into a treaty is insufficient, without legislation to implement it, to modify the domestic or municipal legal order by creating or changing public and private legal rights and obligations. In 1892, in argument before the Judicial Committee in Walker v Baird (37), the British Attorney-General had conceded that he could not maintain the proposition that the Crown could sanction an invasion by its officers of the rights of private individuals whenever it was necessary to compel obedience to the provisions of a treaty. In the first edition of Halsbury's Laws of England, which stated the law in 1909 (38), the prevailing view stated by contributors, who included the future Sir William Holdsworth, was:
"Treaties ... are in general binding upon the subject
without express parliamentary sanction; but the previous consent of, or subsequent ratification by, the legislature is legally necessary to their validity in certain cases.
Thus, though treaties relating to war and peace, the cession
of territory, or concluding alliances with foreign powers are generally conceded to be binding upon the nation without express parliamentary sanction, it is deemed safer to obtain such sanction in the case of an important cession of territory. And where taxation is imposed or a grant from the public funds rendered necessary, or where the existing laws of trade and navigation are affected, or where the private rights of the subject are interfered with by a treaty concluded in time of peace, it is apprehended that the previous or subsequent consent of Parliament is in all cases required to render the treaty binding upon the subject and enforceable by officers of the Crown."
Later, in Chow Hung Ching v The King (39), Dixon J said that a treaty, "at all events one which does not terminate a state of war", has no legal effect upon the rights and duties of citizens and, "speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty". His Honour cited Walker v Baird (40).


23. Thus, as matters stand in Australia, and as they stood in 1900, the conduct of external affairs by the Executive may produce agreements which the Executive wishes to translate into the domestic or municipal legal order. To do so, it must procure the passage of legislation implementing those agreements if it wishes to create individual rights and obligations or change existing rights and obligations under that legal order (41). Of course, the pursuit of some aspects of external affairs by the Executive Government does not require enabling legislation. In Barton, Mason J concluded (42) that the making of a request to a foreign state for the surrender of a fugitive offender alleged to have committed an offence against the laws of Australia falls within the executive power of the Commonwealth, unless the prerogative be displaced by legislation. Another example is the preservation of friendly relations with other countries, including the sending or receiving of diplomatic representatives. This is "an important part of the management of the external affairs of the Commonwealth" (43).


24. Where, as in the present case, the Executive ratifies a Convention which calls for action affecting powers and relationships governed by the domestic legal order, legislation is needed to implement the Convention. The question then arises whether the law is supported by the legislative power with respect to external affairs. The spare text of s 51(xxix) must be construed to ascertain its scope.


25. The phrase "External affairs" was adopted in s 51(xxix) of the Constitution in preference to "foreign affairs" so as to make it clear that the power comprehended both the relationship between the Commonwealth of Australia and other parts of the then British Empire and the relationship with foreign countries (44). As we have indicated earlier in these reasons, the Commonwealth of Australia was established at a time of evolving law and practice in the external relations between sovereign powers and between the self-governing units of the Empire. It would be a serious error to construe par (xxix) as though the subject-matter of those relations to which it applied in 1900 were not continually expanding. Rather, the external relations of the Australian colonies were in a condition of continuing evolution and, at that time, were regarded as such. Accordingly, it is difficult to see any justification for treating the content of the phrase "external affairs" as crystallised at the commencement of federation, or as denying it a particular application on the ground that the application was not foreseen or could not have been foreseen a century ago.


26. From the foundation of the Commonwealth, and consistently with the earlier writings of Todd and Dicey to which we have referred (45), informed observers took the view that the power to legislate with respect to external affairs included power to legislate with respect to treaties, in so far as they affected Australia, which had been concluded by the Imperial Government. Thus, in McKelvey v Meagher (46), Barton J said that it was probable that the external affairs power "includes power to legislate as to the observance of treaties between Great Britain and foreign nations". Writing as Attorney-General in 1902 (47), Deakin dealt as follows with the omission of the words "and treaties" from s 51(xxix):
"The omission, as appears from the debates, was solely to
prevent any assumption arising that the Commonwealth claimed an independent power of making treaties. Legislation with respect to the enforcement of treaty obligations is clearly within the scope of 'external affairs'."
The legislative power was designed to authorise the implementation of treaty obligations which bound Australia. At the time of federation the source of such obligations was action taken by the Imperial authorities. However, given the scope of the legislative power, it was at least implicit that it would authorise the implementation of treaty obligations accepted independently by the Commonwealth of Australia, if and when the Executive Branch of government attained the competence to do so.


27. There was some suggestion in the submissions of the plaintiff States in the present case that what has come to pass with the legislation they seek to impugn is something beyond contemplation at the time of the adoption of the Constitution. Any such proposition is, as we have endeavoured shortly to illustrate, too widely stated. The treaties which were part of the subject-matter of foreign relations in 1900, and the treaties that have since been made, embrace an ever-expanding range of topics.


28. The content of the relevant executive power of the Commonwealth under s 61, and the legislative power of the Parliament under s 51(xxix), are to be understood accordingly. Thus, as long ago as 1936, Evatt and McTiernan JJ said (48):
"But it is not to be assumed that the legislative power over
'external affairs' is limited to the execution of treaties or conventions; and ... the Parliament may well be deemed competent to legislate for the carrying out of 'recommendations' as well as the 'draft international conventions' resolved upon by the International Labour Organization or of other international recommendations or requests upon other subject matters of concern to Australia as a member of the family of nations."
Their Honours also said in that case (49):
"(A) consequence of the closer connection between the
nations of the world (which has been partly brought about by the modern revolutions in communication) and of the recognition by the nations of a common interest in many matters affecting the social welfare of their peoples and of the necessity of co-operation among them in dealing with such matters, that it is no longer possible to assert that there is any subject matter which must necessarily be excluded from the list of possible subjects of international negotiation, international dispute or international agreement."


29. The present case is said to be one in which the law of the Commonwealth enters upon a field which previously was the preserve of State legislative power. To preclude the supersession of State law by Commonwealth law, the States sought to confine the scope of Commonwealth power under s 51(xxix) by reference to what Stephen J said in Koowarta v Bjelke-Petersen (50). Stephen J joined with Mason, Murphy and Brennan JJ in reliance upon the external affairs power to support the validity of the impugned provisions of the Racial Discrimination Act 1975 (Cth). But his reasoning indicated a narrower view of federal legislative competence. In particular, Stephen J said (51) that a treaty with another country on a topic neither of special concern to the relationship between Australia and that other country nor of general international concern would be unlikely to attract the external affairs power. The plaintiff States rely upon that circumstance as a ground for narrowing the proposition for which Koowarta is authority. From that foundation the plaintiff States then seek to attack the validity of the legislation now in question. In particular, the Solicitor-General for Victoria contended for a criterion of validity which resembled that adopted by Stephen J or alternatively that of the minority judges in Koowarta. He submitted that, even upon this limited footing, the result in The Tasmanian Dam Case (52) would have been the same. Therefore, the submission proceeded, there was no occasion to seek leave to reopen the correctness of The Tasmanian Dam Case.


30. The difficulty in the path of these submissions is that subsequently the majority in The Tasmanian Dam Case adopted the broader view. It is not to the point that the same result might have been achieved by application of the view previously taken by Stephen J. It is to seek to distort the principles of stare decisis and of ratio decidendi (53) to contend that a decision lacks authority because it might have been reached upon a different path of legal reasoning to that which was actually followed. That would be to replace what was decided by that which might have been decided. According to basic constitutional principle, and with qualifications not presently relevant, the intrusion of Commonwealth law into a field that has hitherto been the preserve of State law is not a reason to deny validity to the Commonwealth law provided it is, in truth, a law with respect to external affairs.


31. Of course the scope of the legislative power is not confined to the implementation of treaties. The modern doctrine as to the scope of the power conferred by s 51(xxix) was adopted in Polyukhovich v The Commonwealth (54). Dawson J expressed the doctrine in these terms (55):
"(T)he power extends to places, persons, matters or things
physically external to Australia. The word 'affairs' is imprecise, but is wide enough to cover places, persons, matters or things. The word 'external' is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase 'external affairs'."
Similar statements of the doctrine are to be found in the reasons for judgment of other Justices: Mason CJ (56); Deane J (57); Gaudron J (58); and McHugh J (59). They must now be taken as representing the view of the Court.


32. In accordance with the principles of constitutional interpretation, the phrase "external affairs" is to be construed with all the generality which the words admit (60). And, as Brennan J pointed out in The Tasmanian Dam Case (61):
"The application of that canon of construction to the
affirmative grants of paramount legislative powers gives the Constitution a dynamic force which is incompatible with a static constitutional balance. The complexity of modern commercial, economic, social and political activities increases the connexions between particular aspects of those activities and the heads of Commonwealth power and carries an expanding range of those activities into the sphere of Commonwealth legislative competence. This phenomenon is nowhere more manifest than in the field of external affairs."


(iii) The legislative implementation of a treaty
33. There may be some treaties which do not enliven the legislative power conferred by s 51(xxix) even though their subject-matter is of international concern. For example, Professor Zines has suggested that a treaty expressed in terms of aspiration (for example "to promote full employment") cannot support a law which adopts one of a variety of possibly contradictory ways that might be selected to fulfil the aspiration. He writes (62):

"Accepting ... that the agreement by nations to take common
action in pursuit of a common objective amounts to a matter of external affairs, the objective must, nonetheless, be one in relation to which common action can be taken. Admittedly, this raises questions of degree; but a broad objective with little precise content and permitting widely divergent policies by parties does not meet the description."
When a treaty is relied on under s 51(xxix) to support a law, it is not sufficient that the law prescribes one of a variety of means that might be thought appropriate and adapted to the achievement of an ideal. The law must prescribe a regime that the treaty has itself defined with sufficient specificity to direct the general course to be taken by the signatory states. But, as Judge Dillard observed in his opinion in the Appeal Relating to the Jurisdiction of the ICAO Council (63), the point at which ideals merge into legal obligations "constitutes one of the most delicate and difficult problems of law and especially so in the international arena where generally accepted objective criteria for determining the meaning of language in light of aroused expectations are more difficult to ascertain and apply than in domestic jurisdictions". However, Deane J has pointed out in The Tasmanian Dam Case (64):
"(A)bsence of precision does not, however, mean any absence
of international obligation. In that regard, it would be contrary to both the theory and practice of international law to adopt the approach which was advocated by Tasmania and deny the existence of international obligations unless they be defined with the degree of precision necessary to establish a legally enforceable agreement under the common law."


34. Where the legislative power is said to be enlivened by a treaty binding on the Commonwealth of Australia, and the law prescribes a regime affecting a domestic subject-matter, a question arises as to the connection which must exist between the law and the treaty. To be a law with respect to "external affairs", the law must be reasonably capable of being considered appropriate and adapted to implementing the treaty. Thus, it is for the legislature to choose the means by which it carries into or gives effect to the treaty provided that the means chosen are reasonably capable of being considered appropriate and adapted to that end (65). But that is not to say that an obligation imposed by treaty provides the outer limits of a law enacted to implement it (66). The term "purpose" has been used to identify the object for the advancement or attainment of which a law was enacted. Hence, the statement by Brennan J in Cunliffe v The Commonwealth (67) that the external affairs power has "a purposive aspect". As this phrase indicates, care is required in relevant analysis. Where a treaty relating to a domestic subject-matter is relied on to enliven the legislative power conferred by s 51(xxix) the validity of the law depends on whether its purpose or object is to implement the treaty. This was explained, in a passage with which we respectfully agree, by Dawson J in Richardson v Forestry Commission (68):
"The power to make laws with respect to external affairs
contains no expression of purpose and in that respect it is like most of the other powers contained in s 51 of the Constitution. It is not a power to make laws for the purpose of cementing international relations or achieving international goodwill or even for implementing international treaties. The implementation of treaties falls within the power because it is a subject-matter covered by the expression 'external affairs'. And the purpose of legislation which purports to implement a treaty is considered not to see whether it answers a requirement of purpose to be found in the head of power itself, but to see whether the legislation operates in fulfilment of the treaty and thus upon a subject which is an aspect of external affairs."
In this context, purpose is not something found in the head of power. Rather, it is a test for determining whether the law in question is reasonably capable of being considered as giving effect to the treaty and therefore as being a law upon a subject which is an aspect of external affairs.


35. It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is "reasonable proportionality" between that purpose or object and the means adapted by the law to pursue it (69). The notion of "reasonable proportionality" will not always be particularly helpful. The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonable proportionality to the provisions of the treaty in question appears to restate the basic question. This is whether the law selects means which are reasonably capable of being considered appropriate and adapted to achieving the purpose or object of giving effect to the treaty, so that the law is one upon a subject which is an aspect of external affairs.


36. It would be a tenable proposition that legislation purporting to implement a treaty does not operate upon the subject which is an aspect of external affairs unless the legislation complies with all the obligations assumed under the treaty. That appears to have been the view taken by Evatt and McTiernan JJ in R v Burgess; Ex parte Henry (70). But The Tasmanian Dam Case and later authorities confirm that this is not an essential requirement of validity (71).


37. In The Tasmanian Dam Case, the Wilderness Regulations that were under attack implemented only in part the supporting Convention. They were nevertheless upheld. A criterion of validity expressed in R v Burgess; Ex parte Henry namely, whether the Regulations could fairly be regarded as "sufficiently stamped with the purpose of carrying out the terms of the convention" (72), was applied by Brennan J (73). Deane J dealt as follows with "partial" legislative implementation (74):
"It is competent for the Parliament, in a law under s
51(xxix), partly to carry a treaty into effect or partly to discharge treaty obligations leaving it to the States or to other Commonwealth legislative or executive action to carry into effect or discharge the outstanding provisions or obligations or leaving the outstanding provisions or obligations unimplemented or unperformed. On the other hand, if the relevant law 'partially' implements the treaty in the sense that it contains provisions which are consistent with the terms of the treaty and also contains significant provisions which are inconsistent with those terms, it would be extremely unlikely that the law could properly be characterized as a law with respect to external affairs on the basis that it was capable of being reasonably considered to be appropriate and adapted to giving effect to the treaty."


38. Deficiency in implementation of a supporting Convention is not necessarily fatal to the validity of a law; but a law will be held invalid if the deficiency is so substantial as to deny the law the character of a measure implementing the Convention or it is a deficiency which, when coupled with other provisions of the law, make it substantially inconsistent with the Convention. The Conventions with which we are concerned in this case are mostly Conventions of the General Conference of the ILO.


(iv) The International Labour Organisation
39. Article 387 in Pt XIII of the Treaty of Versailles established a "permanent organisation", now the ILO, to promote objects which were stated as including the following (75):
"And whereas conditions of labour exist involving such
injustice, hardship and privation to large numbers of people as to produce unrest so great that the peace and harmony of the world are imperilled; and an improvement of those conditions is urgently required: as, for example, by the regulation of the hours of work, including the establishment of a maximum working day and week, the regulation of the labour supply, the prevention of unemployment, the provision of an adequate living wage, the protection of the worker against sickness, disease and injury arising out of his employment, the protection of children, young persons and women, provision for old age and injury, protection of the interests of workers when employed in countries other than their own, recognition of the principle of freedom of association, the organisation of vocational and technical education and other measures".


40. Australia was a foundation member. The Constitution of the ILO was amended by the General Conference of the ILO in 1922, 1945 and 1946. As so amended, the Constitution was approved for Australia by statute in 1947 (76). Further amendments made to the Constitution of the ILO pursuant to Art 36 thereof were approved by the International Labour Organisation Act 1973 (Cth). The Constitution of the ILO is reproduced as a schedule to that Act and to the Act of 1947.


41. The organs of the ILO are the General Conference, the Governing Body and the International Labour Office (Art 2). The General Conference comprises four delegates from each of the members of the ILO, two representing the government and two representing respectively employers and "workpeople" (Art 3(1)). The General Conference acts by voting on the adoption of International Conventions or Recommendations. A majority of two-thirds of the votes cast by the delegates present must be in favour of the Convention or Recommendation for it to be adopted (Art 19(2)). Neither Conventions nor Recommendations are binding merely as a result of their being adopted by the General Conference. Both Conventions and Recommendations are communicated to members; in the case of Conventions for ratification, in the case of Recommendations for "consideration with a view to effect being given to (them) by national legislation or otherwise" (Art 19(5)(a), 19(6)(a)). Once a member communicates its ratification of a Convention to the Director-General, it must then "take such action as may be necessary to make effective the provisions" of that Convention (Art 19(5)(d)). In contrast, in the case of Recommendations, the only obligation upon members is to bring Recommendations before the authorities which are competent to legislate or take other action to implement them (Art 19(6)(b), 19(6)(d)).


42. Any member of the ILO has the right to file a complaint with the International Labour Office if "it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified" (Art 26(1)). These complaints are investigated by a Commission of Inquiry established by the Governing Body which prepares a report containing findings of fact and recommendations as to the steps to be taken to meet the complaint (Art 28). A party which does not accept the recommendations of the Commission of Inquiry may refer the matter to the International Court of Justice for a final decision (Arts 29, 31). The Court may affirm, vary or reverse a finding of fact or recommendation of a Commission of Inquiry (Art 32). If a member fails to implement a recommendation of a Commission of Inquiry or the International Court of Justice, the Governing Body may recommend to the General Conference "such action as it may deem wise and expedient to secure compliance" with the recommendation (Art 33).


43. The establishment of the ILO continued a development, well in hand at the time of the establishment of the Commonwealth of Australia, whereby contracting parties established specific international legal institutions to deal with matters affecting economic and commercial rights and obligations, including human rights, and agreed upon the taking of steps which would necessitate change to the domestic or municipal legal orders operating in their territories. The changes agreed upon called for the creation of new public and private rights and obligations and the modification of existing public and private rights and obligations.


The Framework of the Legislation
44. Part 2 of the Amending Act comprises ss 3 and 4 and is headed "OBJECTS". Section 4 thereof repeals s 3 of the Act and substitutes a new s 3. This states as the principal object of the legislation the provision of a framework for the prevention and settlement of industrial disputes which promotes the economic prosperity and welfare of the people of Australia. The new s 3 goes on in pars (a)-(g) to identify the means by which the framework is provided. Of particular importance for immediate purposes is par (b)(ii) which identifies the provision of the means for "ensuring that labour standards meet Australia's international obligations" and par (g) which states, as one of the Act's objects, the aim of:
"helping to prevent and eliminate discrimination on the
basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin".


45. Part 4 of the Amending Act comprises ss 18-24 and is headed "MINIMUM ENTITLEMENTS OF EMPLOYEES". The Commonwealth contends that these provisions meet or implement Australia's international obligations in such a manner as to obtain legislative support in the external affairs power. Section 19 of the Amending Act inserts in s 4(1) of the Act definitions of, respectively, the "Anti-Discrimination Conventions", the "Equal Remuneration Convention", the "Family Responsibilities Convention", the "Minimum Wages Convention", and the "Termination of Employment Convention". Section 24 of the Amending Act amends the Act by adding to the four Schedules already found therein, Scheds 5-16. These new Schedules are vital for the operation of s 21 which inserts in the Act a new Pt VIA, headed "MINIMUM ENTITLEMENTS OF EMPLOYEES" and comprising, in the Act, ss 170AA-170KAA. Certain provisions of the new Pt VIA themselves were amended by the Second Amending Act. Reference will be made to these further amendments as appropriate.


46. The new Pt VIA is divided into Divs 1-6. Division 1 (ss 170AA-170AH) is headed "Minimum wages", Div 2 (ss 170BA-170BI), "Equal remuneration for work of equal value", Div 3 (ss 170CA-170HB), "Termination of employment", Div 4 (ss 170JA-170JH), "Orders and proceedings", Div 5 (ss 170KA-170KC), "Parental leave", and Div 6 (s 170KAA), "Leave to care for immediate family". Division 3 is further divided into Subdivs A-F to which further reference will be made. No specific challenge is directed to the validity of Divs 4 and 6.


47. Part 5 of the Amending Act comprises ss 25-35 and is headed "PROMOTING BARGAINING AND FACILITATING AGREEMENTS". Section 31 inserted into the Act a new Pt VIB, comprising six Divisions. Division 4 thereof (ss 170PA-170PP) is headed "Immunity from civil liability" and its validity is challenged.


48. Section 80 of the Amending Act inserted into the Act a new section, s 334A, dealing with dismissal of employees for engaging in industrial action. This is said to be beyond power.


49. Finally, specific challenge is made to particular provisions introduced by the Amending Act in apparent implementation of the object specified in the new s 3(g). We have set out the text of par (g). The plaintiff States challenge the validity of s 150A(2)(b) of the Act, inserted by s 17 of the Amending Act and dealing with review of awards by the Australian Industrial Relations Commission ("the Commission"), together with provisions in the new Pts VIA and VIB, being respectively s 170DF(1)(f), and ss 170MD(5) and 170ND(10). Section 170MD is in Div 2 of Pt VIB, headed "Certified agreements" and s 170ND is in Div 3 thereof, headed "Enterprise flexibility agreements".


Minimum Wages - Pt VIA, Div 1, ss 170AA-170AH
(i) The operation of Div 1 of Pt VIA
50. The object of Div 1 of Pt VIA, as set out in s 170AA, is to give effect, or further effect, to the ILO Minimum Wage Fixing Convention 1970 ("the Minimum Wages Convention"), a copy of the English text of which is set out in Sched 5 to the Act. Expressions used in Div 1 which are also used in the Minimum Wages Convention have the same meanings as they do in that Convention (s 170AB).


51. The primary operation of Div 1 is as set out in s 170AC. That section confers power on the Commission to make orders setting:
"(a) the same minimum wage for all employees in a group
specified in the order; or
(b) different minimum wages for different categories of
employees in a group specified in the order".
Various other provisions regulate the exercise of the power conferred by s 170AC. They will be referred to in the context of the argument that that power cannot validly be conferred on the Commission in exercise of the power of the Parliament to legislate with respect to external affairs.


52. Secondary or additional operation is given to Div 1 by s 170AH of the Act, in the sense that the Division is also to operate "(as) if section 170AA were repealed" (77). It will later be necessary to refer to the provisions of Div 1 defining the scope of that operation.


(ii) Questions in the case stated
53. The questions in the case stated which directly relate to Div 1 of Pt VIA may be paraphrased as follows:
. Are the provisions of Div 1 of Pt VIA of the Act, or any
part of such provisions, beyond the legislative powers of the Commonwealth and invalid? In this regard the plaintiff States challenge the primary operation of the provisions on the basis that they are not laws with respect to external affairs. There is a further question whether, in their secondary operation, they are laws for the conciliation and arbitration of industrial disputes.
(Qs 1(a), 5(a) and 9(a))
. Are the provisions of Div 1 of Pt VIA of the Act, or any
part of such provisions, beyond the legislative powers of the Commonwealth and invalid in so far as they purport to apply to the States?
(Q 2(a))
. Are the provisions of Div 1 of Pt VIA of the Act, or any
of them, beyond the legislative powers of the Commonwealth and invalid in their application to the States of Victoria and Western Australia; and to the States of South Australia and Western Australia in relation to persons employed to enable them to continue to exist and function as such?
(Qs 3, 7(a), 10 and 12(a))


(iii) The primary operation of the minimum wage provisions and the external affairs power
54. In its primary operation, Div 1 empowers the Commission to make orders setting minimum wages upon receipt of an application in that behalf either from an employee included in the group to be covered by the order, or from a trade union whose rules entitle it to represent the industrial interests of such employees (s 170AD). Section 170AC empowers the Commission to make an order, in respect of a group of employees specified in the order, setting the same minimum wage for all those employees or different minimum wages for different categories of such employees. This power is conditioned by s 170AE. The Commission must make an order if, and must not make an order unless, it is satisfied that the terms of employment of the group of employees to be covered by the order are such that coverage by a system of minimum wages is appropriate (s 170AE(1)(a)). Before deciding what group an order should cover, and whether the Commission is satisfied as to the conditions provided in s 170AE(1)(a) being met, the Commission must give to each trade union whose rules entitle it to represent the industrial interests of any of the employees concerned, and to each organisation or association representing employers of any of those employees, an opportunity to express their respective views and must take into account the views expressed (s 170AE(4)).


55. Further, before making an order, the Commission must give an opportunity to be heard to the person who applied for it and each employer of employees to be covered by it (s 170AE(5)).

56. Section 170AE(2) requires an order to specify, and exclude from its operation, such of the employees in the group covered by the order as are "ineligible", a term expounded in sub-s (3). This specifies that an employee is ineligible if, and only if, any one of four circumstances applies. One is that minimum wages for the relevant employee are set by an award within the meaning of the Act, and another is that there are proceedings under Pt VI of the Act that relate to the setting, or adjusting from time to time, of minimum wages for that employee (sub-s (3)(b), (c)). An employee is also ineligible if minimum wages can be set and adjusted from time to time by a State industrial authority which has the power to set minimum wages by compulsory arbitration (par (a)). Finally, an employee is ineligible if minimum wages are set by an agreement entered into under a State law (i) which sets minimum wages that, if the agreement had not been entered into, could have been set by a State arbitrator by compulsory arbitration, (ii) which prevails over any inconsistent order, award, decision or determination of a State industrial authority, and (iii) which, during a particular period, but only during that period, prevents those minimum wages from being set or adjusted by a State arbitrator by compulsory arbitration (sub-ss (3)(d) and (6)).


57. The Division is not intended to limit any right that a person or trade union otherwise may have to establish minimum wages (s 170AG).


58. Section 170AF specifies matters to which the Commission must have regard in setting the level of minimum wages under Div 1. The section states:
"In setting the level of minimum wages under this Division,
the Commission must have regard to the principles it would apply in setting the level of those minimum wages in performing its functions under Part VI, but must also have regard, so far as possible and appropriate in relation to Australian practice and conditions, to:
(a) the needs of workers and their families, taking into
account the general level of wages in Australia, the cost of living, social security benefits and the relative living standards of other social groups; and
(b) economic factors, including the requirements of economic
development, levels of productivity and the desirability of attaining and maintaining a high level of employment."


59. It is appropriate now to turn to the relevant provisions of the Minimum Wages Convention. The purpose of the Convention is indicated in the recitals to the Convention, two of which provide:
"Considering that these (previous) Convention(s) have played
a valuable part in protecting disadvantaged groups of wage earners, and
Considering that the time has come to adopt a further instrument complementing these Conventions and providing protection for wage earners against unduly low wages, which, while of general application, pays special regard to the needs of developing countries".
Paragraphs 1 and 2 of Art 1 state:

"1. Each member of the (ILO) which ratifies this Convention
undertakes to establish a system of minimum wages which covers all groups of wage earners whose terms of employment are such that coverage would be appropriate.
2. The competent authority in each country shall, in
agreement or after full consultation with the representative organisations of employers and workers concerned, where such exist, determine the groups of wage earners to be covered."


60. Article 3 is reflected in the terms of s 170AF. The Article states that the elements to be taken into consideration in determining the level of minimum wages shall, as far as possible and appropriate in relation to national practice and conditions, include the matters set out in pars (a) and (b) thereof, the terms of which are adopted in pars (a) and (b) of s 170AF.


61. Article 2 specifies that the minimum wages shall have the force of law and shall not be subject to abatement. Paragraph 1 of Art 4 obliges members of the ILO which ratify the Convention to create or maintain machinery adapted to national conditions and requirements whereby minimum wages for groups of wage earners can be fixed and adjusted from time to time. Paragraph 2 requires in connection with the establishment, operation and modification of such machinery provision for full consultation with representative organisations of employers and workers concerned or, where no such organisations exist, representatives of employers and workers concerned. Finally, par 3 of Art 4 states:
"Wherever it is appropriate to the nature of the minimum
wage fixing machinery, provision shall also be made for the direct participation in its operation of-
(a) representatives of organisations of employers and
workers concerned or, where no such organisations exist, representatives of employers and workers concerned, on a basis of equality;
(b) persons having recognised competence for representing
the general interests of the country and appointed after full consultation with representative organisations of employers and workers concerned, where such organisations exist and such consultation is in accordance with national law or practice."


62. Both the terms of the Convention and the terms of the legislation are general. However, as has been indicated, and as the plaintiff States conceded, the terms of the legislation closely follow the requirements of the Convention. For example, the Convention requires consultation with worker and employer groups concerning the scope of the group of workers that the minimum wages should cover, and the direct participation of those groups in the wage fixing process where "it is appropriate to the nature of the minimum wage fixing machinery". These requirements are mirrored in provisions of the Act which require the Commission to give trade unions and employer organisations an opportunity to "express their respective views to the Commission" on the group to be covered (s 170AE(4)) and an opportunity for the applicant and employers of employees to be covered to be heard in determining the wages to be fixed (s 170AE(5)).


63. Excluded from the jurisdiction of the Commission are groups for whom the Commission is not satisfied that the terms of employment of employees make the coverage by a system of minimum wages appropriate, or groups where all of the employees are covered by other means for setting minimum wages such as State arbitrators, or an employment agreement setting minimum wages under State law, or a federal award (s 170AE(3) and (6)). These provisions can reasonably be considered as appropriate and adapted to the implementation of obligations under the Convention. The exclusions from the jurisdiction of the Commission mean that, where other satisfactory provisions for the setting of minimum wages exist, those provisions will not be displaced by the scheme implementing the Convention. That is consistent with the Convention. It removes the potential for an argument that the legislation is not reasonably capable of being considered appropriate and adapted to fulfilling Australia's obligation under the Convention to provide a system of minimum wage fixing because it displaces satisfactory schemes for minimum wage fixing already in existence under State law. That the obligations of the Convention are expressed in broad general terms does not deny them the character of obligations, enforceable by way of complaint pursuant to Art 26 of the Constitution of the ILO and susceptible to implementation by a law of the Commonwealth. The validity of such a law falls for determination not by the ILO but by this Court, the criterion being whether the law can reasonably be considered to be appropriate and adapted to the implementation of the Convention. Subject to consideration of the question whether it discriminates against the States, Div 1 of Pt VIA is valid in its primary operation.


(iv) The secondary operation of the minimum wage provisions and the conciliation and arbitration power
64. In its secondary operation, Div 1 of Pt VIA authorises the Commission to determine applications for the setting of minimum wages by arbitration if, but only if:
"(a) it considers that the order is necessary to prevent an
industrial dispute about minimum wages for employees; and
(b) it has given to each organisation or other person who,
in its opinion, would be likely to be a party to the dispute an opportunity to be heard in relation to the making of the order" (s 170AH(3)).
The Commission's order under s 170AH is binding only on such organisations as have been given an opportunity to be heard and such persons who are members of those organisations as the Commission specifies (s 170AH(4)).


65. In their Statements of Claim, the plaintiff States challenge the secondary or additional operation given to Div 1, Pt VIA of the Act and this is reflected in the questions asked in the case stated. However, it was not argued that the provisions which give secondary or additional operation to Div 1 are invalid on any basis other than that they discriminate against the States. Rather, it was conceded in the written submissions for South Australia, which were expressly adopted in the written submissions for Victoria and for Western Australia, that, subject only to the question of discrimination, the provisions are not beyond legislative power. That concession was correct. We shall indicate briefly why that is so.


66. The secondary or additional effect given to Div 1 by s 170AH is clearly intended to be an exercise of the power conferred on the Parliament by s 51(xxxv) of the Constitution to legislate with respect to conciliation and arbitration for the prevention and settlement of interstate industrial disputes. So much emerges from the fact that it is a power to be exercised by arbitration to prevent an "industrial dispute" which is defined in s 4 of the Act in terms which echo the constitutional grant of power (78).


67. The power conferred by s 51(xxxv) of the Constitution is a power to legislate with respect to conciliation and arbitration for the prevention, as well as for the settlement of interstate industrial disputes. Thus, as is well settled, it extends to a situation that is likely to give rise to an interstate industrial dispute (79).


68. The question whether a situation is likely to give rise to an interstate industrial dispute is one that can be answered only by making a judgment or forming an opinion in that regard. Once it is accepted, as it must be, that the power conferred by s 51(xxxv) of the Constitution extends to a situation likely to give rise to an interstate industrial dispute, it follows that it extends to a situation in which a body entrusted with the power of conciliation and arbitration, as the Commission is, forms the opinion that there is a situation of that kind. Certainly, it extends to a law authorising the Commission to arbitrate claims for minimum wages if it considers that that is necessary to prevent an industrial dispute, which is the effect of s 170AH of the Act.


(v) Minimum wage provisions and discrimination against the States
69. The plaintiff States submit that the provisions of Div 1 of Pt VIA of the Act offend against the implied constitutional prohibition first identified in Melbourne Corporation v The Commonwealth (80) and since expounded in a number of cases (81). The prohibition was most recently considered in Re Australian Education Union; Ex parte Victoria (82). The majority in that case identified the scope and content of the prohibition as follows (83):
"The limitation consists of two elements: (1) the
prohibition against discrimination which involves the placing on the States of special burdens or disabilities ('the limitation against discrimination') and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments."
There are three matters to be noted with respect to the second element of the prohibition identified in Re Australian Education Union. First, it precludes the "exercise of Commonwealth legislative or executive powers 'to control the States'" (84) for that would constitute "an exercise of power inconsistent with the continued existence of the States as independent entities and their capacity to function as such" (85). The second matter is that, as was held in that case, it precludes laws which prevent a State from exercising its "right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss ... on redundancy grounds" (86). Finally, in the case of those employed at the higher levels of government, it precludes laws which prevent the State from determining "the terms and conditions on which those persons shall be engaged" (87).


70. The arguments for the plaintiff States with respect to the minimum wage provisions in Div 1 of Pt VIA were put in two different ways, reflecting the two elements of the prohibition as stated in Re Australian Education Union. First, they argued that, in their primary operation, the provisions discriminate against those States which do not have or, perhaps, elect not to maintain a system of compulsory arbitration for the resolution of industrial disputes. Second, they contended that the provisions of Div 1 of Pt VIA infringe the second element of the prohibition in that they purport to apply to persons employed by the States at the higher levels of government. In this last regard, the argument was made by reference to the primary operation of Div 1, but applies mutatis mutandis to its secondary operation.


71. As already indicated, the first argument was made by reference to s 170AE, which sets out the limits of the primary operation of the Division. As previously described, by s 170AE(1), the Commission is required to make an order setting minimum wages if, and is required not to make an order unless, satisfied:
"(a) that the terms of employment of the group of employees
to be covered by the order are such that coverage by a system of minimum wages is appropriate; and
(b) at least some of the employees in the group are not
ineligible under subsection (3)".
By sub-s (2) the order must specify and exclude ineligible employees. Sub-section (3) identifies ineligible employees as those for whom minimum wages are set "by an award within the meaning of (the) Act" (88), or in respect of whom minimum wage proceedings are pending under Pt VI of the Act, and by pars (a) and (d) respectively, those for whom "minimum wages ... can be set and adjusted from time to time by a State arbitrator" and those for whom "a State employment agreement sets minimum wages".


72. In general terms, the effect of the definitions of "State arbitrator" (89) and "State employment agreement" (90) in s 170AE(6) is that a minimum wages order cannot be made for employees for whom a minimum wage can be set by compulsory arbitration by a State industrial tribunal or in respect of whom minimum wages which could have been arbitrated but have, instead, been agreed under a State law which allows that agreement to prevail over awards. It is common ground that, when Div 1 of Pt VIA came into operation, some States had legislated for a system of compulsory arbitration and some had not. Western Australia still has not. It is put that the provisions of Div 1 single out and, thus, discriminate against Western Australia and any other State which elects not to maintain a system of compulsory arbitration.


73. The provisions of Div 1 of Pt VIA are of general application and do not distinguish between employees of a State and other employees. And there is no suggestion that, in their practical operation, they operate upon States and their employees differently from other employers and employees. Rather, the argument that the provisions are discriminatory was put on the basis that "if a particular State does not maintain a compulsory arbitration system for its employees, the State and its employees are subjected to the power of the Commission to impose a common rule which fixes minimum wages for those employees" while other States are not. That argument mistakes the nature and effect of the provisions in question.


74. The provisions of Div 1 of Pt VIA are directed to ensuring that persons whose wages are not protected by an award (whether State or Federal) or by an agreement which prevails over awards may obtain the benefit of a minimum wages order under s 170AE. The class of persons in respect of whom an order may be made is selected, not by reference to employment by or in a State, but by reference to practical criteria which take account of the general pattern of industrial regulation and of the way in which the rights of wage earners are generally protected in Australia.


75. Moreover, the criteria which determine those for whom an order may be made under Div 1 of Pt VIA do not necessarily entail the consequence that proportionately more employees who work in Western Australia will be covered by orders under Div 1 of Pt VIA than those who work in other States. Nor do they necessarily entail the consequence that proportionately more employees of the State of Western Australia will be covered than employees of other States. Coverage will depend on a range of factors, including, significantly, the pattern of federal award coverage.


76. The question whether a provision is discriminatory is to be determined from the purpose of the enactment ascertained "by reference to the substance and actual operation of the law in the circumstances to which it applies" (91). Given that, first, the criteria selected to determine those for whom an order may be made under s 170AE bear a real and rational relationship with the general system of wage fixation as it has developed in this country and, second, that it cannot be said that the provisions of Div 1 of Pt VIA necessarily operate with different impact on or in Western Australia, there is no basis for holding that the provisions in question discriminate against that State or, indeed, any other State which elects not to maintain an industrial system involving compulsory arbitration (92).


77. The second argument with respect to the provisions of Div 1 of Pt VIA of the Act is based on the holding in Re Australian Education Union that the Commonwealth may not legislate to prevent a State from determining the rights and conditions of those employed at the higher levels of government. According to the argument, the power conferred on the Commission by ss 170AE and 170AH is conferred in terms wide enough to include such employees and, thus, the provisions of Div 1 of Pt VIA are, to that extent, invalid.


78. As already indicated, s 6 specifies that the Act binds the Crown in various capacities, including "in right of ... each of the States" (93). That provision governs the application of the substantive provisions of the Act. In so far as the substantive provisions are expressed in general terms or in terms wide enough to apply to or permit of orders regulating the terms and conditions of those employed at the higher levels of government, the question is not whether, on that account, those provisions are invalid in their application to the States, but whether s 6 is invalid in its specification that the Act and, thus, those provisions bind the States.


79. Section 6 of the Act is not, in terms, subject to any limitation or prohibition. More particularly, it is not, in terms, made subject to those matters pertaining to State employees which were identified in Re Australian Education Union (94) as falling within the scope and content of the implied limitation recognised in the Melbourne Corporation Case (95). The question thus arises whether, pursuant to s 7A(1) (96) of the Act or s 15A of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"), s 6 can be read as not binding the States with respect to those matters, particularly as not binding them with respect to the terms and conditions of those employed at the higher levels of government.

3 The Minimum Wage Fixing Convention 1970; the Equal Remuneration Convention 1951; the Discrimination (Employment and Occupation) Convention 1958; the Termination of Employment Convention 1982; the Workers with Family Responsibilities Convention 1981; the Freedom of Association and Protection of the Right to Organise Convention 1948; the Right to Organise and Collective Bargaining Convention 1949. See also the Convention on the Elimination of all Forms of Discrimination against Women (subject to Australia's reservations in relation to maternity leave); the International Covenant on Economic, Social and Cultural Rights; and the Constitution of the ILO.
4 The Equal Remuneration Recommendation 1951; the Discrimination (Employment and Occupation) Recommendation 1958; the Termination of Employment Recommendation 1982; the Workers with Family Responsibilities Recommendation 1981.
5 (1983) 158 CLR 1.
6 Section 51(xxxv) of the Constitution.
7 Section 51(xx) of the Constitution.
8 Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 253.
9 Final Report of the Constitutional Commission, (1988), vol 1, par 2.114.
10 Zines, "The Growth of Australian Nationhood and Its Effect on the Powers of the Commonwealth", in Zines (ed), Commentaries on the Australian Constitution, (1977) 1 at 8-9.
11 See Nabob of the Carnatic v East India Company (1791) 1 Ves Jun 371 at 376-379 (30 ER 391 at 394-395).
12 O'Connell, "The Evolution of Australia's International Personality", in O'Connell (ed), International Law in Australia, (1965) 1 at 12.
13 Todd, Parliamentary Government in the British Colonies, 2nd ed (1894) at 275. Dicey wrote to the same effect: Introduction to the Study of the Law of the Constitution, 3rd ed (1889) at 112.


14 See Jolley v Mainka (1933) 49 CLR 242 at 287-288.
15 See the Preamble to the Treaty of Peace Act 1919 (Cth).
16 See as to the Mandate system, Ffrost v Stevenson (1937) 58 CLR 528 at 549-553, 578-586.
17 Starke, "The Commonwealth in International Affairs", in Else-Mitchell (ed), Essays on the Australian Constitution, 2nd ed (1961) 343 at 349. See also New South Wales v The Commonwealth (1975) 135 CLR 337 at 373. A more cautious view is that "at some time" between the Balfour Declaration in 1926 and 1945, Australia achieved full independence as a sovereign state: Final Report of the Constitutional Commission, (1988), vol 1, par 2.128.
18 (1936) 55 CLR 608 at 643-644.
19 (1974) 131 CLR 477 at 498.
20 Pitt Cobbett, "The International Organization of Society", (1909) 6 The Commonwealth Law Review 193 (Pt 1), 243 (Pt 2).
21 International Law, (1905), vol 1, para 578.
22 See Codding, "The International Telecommunications Union: 130 Years of Telecommunications Regulation", (1995) 23 Denver Journal of International Law and Policy 501.
23 Oppenheim, International Law, (1905), vol 1, para 580.
24 The Treaty is reproduced in The Consolidated Treaty Series, vol 147 at 136 (French text). From 1874 to 1878 it was known as the "Union Generale des Postes".
25 Zines, "The Growth of Australian Nationhood and Its Effect on the Powers of the Commonwealth", in Zines (ed), Commentaries on the Australian Constitution, (1977) 1 at 7.
26 Oppenheim, International Law, (1905), vol 1, para para 583, 584.
27 Stone, Legal Controls of International Conflict, (1954) at 77-81.
28 The title of the Convention was "The Convention for the Amelioration of the Condition of the Wounded in Armies in the Field". It is reproduced in The Consolidated Treaty Series, vol 129 at 361 (French text).
29 The Consolidated Treaty Series, vol 173 at 293 (French text).
30 35 and 36 Vict c 19.
31 38 and 39 Vict c 51.
32 The Consolidated Treaty Series, vol 188 at 418 (French text).
33 The Consolidated Treaty Series, vol 153 at 247 (French text).
34 Oppenheim, International Law, (1905), vol 1, para 588.
35 Stewart, "Treaty-Making in the British Dominions", (1938) 32 American Journal of International Law 467 at 473-477.
36 Certain exceptions or qualifications are identified and discussed by J G Starke in "The High Court of Australia and the rule in Walker v Baird (1892) AC 491", (1974) 48 Australian Law Journal 368.


37 (1892) AC 491 at 492.
38 vol 6, "Constitutional Law" at 440-441.
39 (1948) 77 CLR 449 at 478; see also Brown v Lizars (1905) 2 CLR 837 at 851, 860; Bradley v The Commonwealth (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641-642.
40 (1892) AC 491 at 497.
41 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-288, 298, 315.
42 (1974) 131 CLR 477 at 498-499. A similar conclusion was reached by Barwick CJ (at 487-488), McTiernan and Menzies JJ (at 491) and Jacobs J (at 505).
43 R v Sharkey (1949) 79 CLR 121 at 136-137.
44 R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 684-685; New South Wales v The Commonwealth (1975) 135 CLR 337 at 360.
45 See fn 13.
46 (1906) 4 CLR 265 at 286.
47 Opinions of Attorneys-General of the Commonwealth of Australia, (1981), vol 1 at 134.
48 R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 687.
49 (1936) 55 CLR 608 at 680-681; see to similar effect the comments of Wilson J in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 248-249.
50 (1982) 153 CLR 168.
51 (1982) 153 CLR 168 at 216-217.
52 (1983) 158 CLR 1.
53 As to the distinction between these principles, see Re Tyler; Ex parte Foley (1994) 181 CLR 18 at 37-38; cf as to stare decisis in constitutional law decisions of the United States Supreme Court, Payne v Tennessee (1991) 501 US 808 at 827-830, 842-844, 848-855; Seminole Tribe of Florida v Florida (1996) 64 LW 4167 at 4172-4173.
54 (1991) 172 CLR 501.
55 (1991) 172 CLR 501 at 632.
56 (1991) 172 CLR 501 at 528-531.
57 (1991) 172 CLR 501 at 599-603.
58 (1991) 172 CLR 501 at 695-696.
59 (1991) 172 CLR 501 at 712-714.
60 R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 314; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368.
61 (1983) 158 CLR 1 at 221.
62 Zines, The High Court and the Constitution, 3rd ed (1992) at 250 (emphasis in original).
63 (1972) ICJ Rep 46 at 107n. Cited by Brennan J in The Tasmanian Dam Case (1983) 158 CLR 1 at 226.


64 (1983) 158 CLR 1 at 261-262.
65 Airlines of NSW Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54 at 136; The Tasmanian Dam Case (1983) 158 CLR 1 at 130-131, 172, 232, 259; Richardson v Forestry Commission (1988) 164 CLR 261 at 288-289, 303, 311-312, 336, 342.
66 See the statements collected by Gaudron J in Richardson v Forestry Commission (1988) 164 CLR 261 at 341-342.
67 (1994) 182 CLR 272 at 322.
68 (1988) 164 CLR 261 at 326.
69 Richardson v Forestry Commission (1988) 164 CLR 261 at 311-312.
70 (1936) 55 CLR 608 at 688.
71 See The Tasmanian Dam Case (1983) 158 CLR 1 at 172, 233-234, 268; Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1 at 75.
72 (1936) 55 CLR 608 at 688.
73 (1983) 158 CLR 1 at 234.
74 (1983) 158 CLR 1 at 268.
75 The Consolidated Treaty Series, vol 225 at 373.
76 International Labour Organisation Act 1947 (Cth). The changes to the Constitution of the ILO made in the inter-war period were designed to dissociate the ILO from the Treaty of Versailles and from the League of Nations: see Starke, "Australia and the International Labour Organisation", in O'Connell (ed), International Law in Australia, (1965) at 115-140.
77 Section 170AH(1) provides:
"Because of this section, this Division has the effect it
would have if section 170AA were repealed. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section."
78 Section 4(1) of the Act relevantly defines "industrial dispute" to mean:
"(a) an industrial dispute (including a threatened, impending or probable industrial dispute):
(i) extending beyond the limits of any one State; and
(ii) that is about matters pertaining to the relationship between employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of the kind referred to in paragraph (a)".
79 See, for example, Australian Boot Trade EmployEs' Federation v Whybrow and Co (1910) 11 CLR 311 at 335-336; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 401; Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 321, 328.
80 (1947) 74 CLR 31.
81 See, for example, Bank of NSW v The Commonwealth (1948) 76 CLR 1; Victoria v The Commonwealth (The Payroll Tax Case) (1971) 122 CLR 353; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192; Re Lee; Ex parte Harper (1986) 160 CLR 430; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249.
82 (1995) 184 CLR 188.
83 (1995) 184 CLR 188 at 231.
84 Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 247 per Deane J.
85 Re Australian Education Union (1995) 184 CLR 188 at 232.


86 Re Australian Education Union (1995) 184 CLR 188 at 232.
87 Re Australian Education Union (1995) 184 CLR 188 at 233.
88 Note that by s 4(1) "award" is defined as:
"(a) an award or order that has been reduced to writing under subsection 143(1); or
(b) a certified agreement; or
(c) an enterprise flexibility agreement".
89 "State arbitrator" is defined to mean "a State industrial authority that has the power, or powers including the power, to set minimum wages by compulsory arbitration".
90 "State employment agreement" is defined to mean:
"an agreement that:
(a) was entered into under a State law; and
(b) sets minimum wages that, if the agreement had not been entered into, could have been set by a State arbitrator by compulsory arbitration; and
(c) prevails over any inconsistent order, award, decision or determination of a State industrial authority; and
(d) during a particular period, but only during that period, prevents those minimum wages from being set or adjusted by a State arbitrator by compulsory arbitration".
91 Re Australian Education Union (1995) 184 CLR 188 at 240, referring to Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 249-250 per Deane J.
92 See Re Australian Education Union (1995) 184 CLR 188 at 239-240.
93 Note it also provides that nothing in the Act renders the Crown in right of the Commonwealth, the States or the Territories liable to be prosecuted for an offence. See fn 1.
94 (1995) 184 CLR 188.
95 (1947) 74 CLR 31.
96 Section 7A(1) provides:
"Unless the contrary intention appears, if a provision of
this Act:
(a) would, apart from this section, have an invalid application; but
(b) also has at least one valid application;
it is the Parliament's intention that the provision is not to have the invalid application, but is to have every valid application."
97 Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 577; as to provisions of this kind, see R v Poole; Ex parte Henry (No 2) (1939) 61 CLR 634 at 652 and Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 371.
98 See Pidoto v Victoria (1943) 68 CLR 87 at 108; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 517-518; Re F; Ex parte F (1986) 161 CLR 376 at 384-385.


99 Pidoto v Victoria (1943) 68 CLR 87 at 108 per Latham CJ. See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co (1910) 11 CLR 1 at 54; Vacuum Oil Co Pty Ltd v Queensland (No 2) (1935) 51 CLR 677 at 692; Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 369-371; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 348.
100 Pidoto v Victoria (1943) 68 CLR 87 at 108 per Latham CJ. See also R v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow and Co (1910) 11 CLR 1 at 54; Cam and Sons Pty Ltd v The Chief Secretary of New South Wales (1951) 84 CLR 442 at 454; Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
101 Pidoto v Victoria (1943) 68 CLR 87 at 111 per Latham CJ.
102 Pidoto v Victoria (1943) 68 CLR 87 at 111 per Latham CJ.
103 See Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 519-520.
104 Pidoto v Victoria (1943) 68 CLR 87 at 109 per Latham CJ. See also Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 518-519.
105 (1983) 158 CLR 1 at 130-131, 172, 232, 259-260.
106 The Commonwealth Employment Service is established pursuant to Pt VI (ss 48-50) of the Employment, Education and Training Act 1988 (Cth).
107 The Victorian written submissions at par 29 refer to a s 170DA(1)(f) which does not exist. From the reference to the subject-matter of the challenged section, we have assumed that it should refer to s 170EDA(1)(b).
108 See the authorities collected in fn 65.
109 Re Australian Education Union (1995) 184 CLR 188 at 232.
110 Re Australian Education Union (1995) 184 CLR 188 at 232.
111 Re Australian Education Union (1995) 184 CLR 188 at 232.
112 Re Australian Education Union (1995) 184 CLR 188 at 232.
113 Re Australian Education Union (1995) 184 CLR 188 at 232.
114 See the authorities in fn 71.
115 Pursuant to s 150A(1), the Commission must review its awards as follows:
"(a) if the award was in force at the commencement of this section - within 3 years after that commencement; and
(b) otherwise - within 3 years after the award was made; and
(c) in any case - within 3 years after the award was last reviewed for those purposes".
116 Certified and enterprise flexibility agreements are the subject of separate consideration in this judgment.
117 An employer may terminate on the grounds set out in s 170DF(1)(f) if the reason for termination is based on the inherent requirements of the position (sub-s (2)) or if the person is an employee of a religious institution, or an institution of a particular creed, and the employer, in good faith, terminates the employment to protect the religious susceptibilities of adherents to that religion or creed (sub-s (3)).


118 Industrial Relations Regulations, reg 26A(3) and (4).
119 See Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 317-318, 334.
120 See Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (1989) 166 CLR 311 at 317 per Mason CJ. See also at 334 per Gaudron J and the cases there cited.
121 As to which, see, for example, R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (1949) 78 CLR 366 at 372; R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 at 473-475, 482; R v Holmes; Ex parte Victorian Employers' Federation (1980) 145 CLR 68 at 76 per Mason J; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249 at 291-292, 305-307.
122 See, for example, Australian Insurance Staffs' Federation v Atlas Assurance Co Ltd (1931) 45 CLR 409; R v Metal Trades Employers Association; Ex parte Amalgamated Engineering Union (1949) 78 CLR 366; R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461; R v Clarkson; Ex parte General Motors-Holden's Pty Ltd (1976) 134 CLR 56.
123 See, for example, R v Kelly; Ex parte Australian Railways Union (1953) 89 CLR 461 which refers to s 49 of the Conciliation and Arbitration Act 1904-1952 (Cth).
124 Human Rights and Equal Opportunity Commission Regulations, SR 1989 No 407.
125 See the Report submitted by Australia to the ILO pursuant to Art 22 of the Constitution of the ILO on measures taken to give effect to the Convention during the period 30 June 1988 to 30 June 1990.
126 National Committee on Discrimination in Employment and Occupation, Twelfth Annual Report 1984-85, Appendix 4 at 36, function (iii).
127 National Committee on Discrimination in Employment and Occupation, Twelfth Annual Report 1984-85, Appendix 4 at 37.
128 National Committee on Discrimination in Employment and Occupation, Twelfth Annual Report 1984-85. Appendix 6 at 50 defines "physical disability" as "an incapacity caused by injury, disease or other causes".
129 See Human Rights and Equal Opportunity Commission, Annual Report 1989-90, at 27-29.
130 However, the ground of "medical record" recognised by the Committees was defined to refer to "a record of a person's mental or physical complaints, past and present": National Committee on Discrimination in Employment and Occupation, Twelfth Annual Report 1984-85, Appendix 6 at 49.


131 Section 4(1) of the Act defines "Commonwealth authority" to mean:
"(a) a body corporate established for a public purpose by or under a law of the Commonwealth or the Australian Capital Territory; or
(b) a body corporate:
(i) incorporated under a law of the Commonwealth or a State or Territory; and
(ii) in which the Commonwealth has a controlling interest;
other than a prescribed body".
132 See the definition of "award" in s 4(1) of the Act which includes, in pars (b) and (c), a certified agreement and an enterprise flexibility agreement.
133 Section 4(1) of the Act relevantly defines "industrial situation" to mean:
"a situation that, if preventive action is not taken, may give rise to:
(a) an industrial dispute of the kind referred to in paragraph (a) of the definition of 'industrial dispute'; or
(b) a demarcation dispute of the kind referred to in that definition".
134 Section 170MD(5A) states that the Commission should disregard provisions which discriminate on the basis that an employee has not reached a certain age in any determination it makes prior to 22 June 1997. Section 170MD(6) provides that s 170MD(5) does not apply where provisions discriminate as a result of: (a) the inherent requirements of the job; or (b) where the provision deals with staff of an institution conducted in accordance with the doctrines of a particular religion or creed, an attempt to avoid injury, in good faith, to the susceptibilities of adherents to that religion or creed.
135 (1912) 15 CLR 636. See also R v Bain; Ex parte Cadbury Schweppes Australia Ltd (1984) 159 CLR 163 at 168 per Murphy J, 175-176 per Brennan and Deane JJ; and Australian Insurance Staffs' Federation v Atlas Assurance Co Ltd (1931) 45 CLR 409 at 417.
136 (1912) 15 CLR 636 at 643.
137 (1912) 15 CLR 636 at 643-644.
138 (1913) 16 CLR 715 at 731. See also at 725-726 per Barton ACJ.
139 As to the encompassment of incidental matters within the grant of legislative power, see, for example, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1.
140 See, for example, s 47 of the Conciliation and Arbitration Act 1904 (Cth), considered in R v Gaudron; Ex parte Uniroyal Pty Ltd (1978) 141 CLR 204.


141 See s 111(1)(g) of the Act.
142 As to the conditional nature of such agreements, see Australian Agricultural Co v Federated Engine-Drivers and Firemen's Association of Australasia (1913) 17 CLR 261.
143 See part (i) of this section of these reasons for judgment headed "Legislative provisions".
144 See Wenn v Attorney-General (Vict) (1948) 77 CLR 84 at 108-109; Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46 at 56-57; Botany Municipal Council v Federal Airports Authority (1992) 175 CLR 453 at 465; Western Australia v The Commonwealth (1995) 183 CLR 373 at 465-466.
145 See Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529 at 547-549; R v Credit Tribunal; Ex parte General Motors Acceptance Corporation (1977) 137 CLR 545 at 562-564; Metal Trades Industry Association v Amalgamated Metal Workers' and Shipwrights' Union (1983) 152 CLR 632 at 648-649.
146 Reproduced as Schedules to the International Labour Organisation Act 1947 (Cth) and the International Labour Organisation Act 1973 (Cth).
147 Notice - s 170PH; negotiation - s 170PI; authorisation - s 170PK; certification of agreement - s 170PL.
148 There is no offence by the employer if the conduct of the employee results in personal injury, wilful or reckless damage or misappropriation of property (s 334A(3)).
149 Asylum Case (1950) ICJ Rep 266 at 276-277; North Sea Continental Shelf Cases (1969) ICJ Rep 1 at 43.
150 Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 560; Brownlie, Principles of Public International Law, 4th ed (1990) at 7; Brierly, The Law of Nations, 6th ed (1963) at 61.
151 See Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338 at 349, 356-357.

152 It might be contended that Art 4 of the Right to Organise and Collective Bargaining Convention 1949 supports the lock-out provisions. However that relates to measures "to encourage and promote the full development and utilisation of machinery for voluntary negotiation". The provisions protecting lock-outs do encourage the use of voluntary negotiation to reach a collective agreement. But it is not clear whether the reference to "machinery" is designed to mean institutional machinery such as the Commission or to cover negotiation outside such state-endorsed organisations. Only if the latter were included in the notion of "machinery" could the Article be relevant. In any event, the Article is not relied upon by the Commonwealth.
153 See part (i) of this section of these reasons for judgment headed "Immunity from civil liability - Pt VIB, Div 4, ss 170PA-170PP; Non-dismissal - s 334A".


154 The bargaining period ends when either: (a) an agreement is reached; (b) one of the parties states that it will be unable to reach agreement; or (c) the Commission terminates the bargaining period (s 170PN). The Commission may also suspend the bargaining period (s 170PO).
155 See also s 170PG(2) and (3).
156 Federated Iron Workers' Association of Australia v The Commonwealth (1951) 84 CLR 265 at 277. See also R v Bowen; Ex parte Amalgamated Metal Workers and Shipwrights Union (1980) 144 CLR 462 at 468-469.
157 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ, 87 per Dawson J, 93-94 per Gaudron J; British Medical Association v The Commonwealth (1949) 79 CLR 201 at 274 per Dixon J. See also Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 at 515; Alexandra Private Geriatric Hospital Pty Ltd v The Commonwealth (1987) 162 CLR 271 at 281.
158 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 27 per Mason CJ, 93-94 per Gaudron J. See also R v Sweeney; Ex parte Northwest Exports Pty Ltd (1981) 147 CLR 259 at 275.
159 See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 345.
160 Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 28-29 per Mason CJ, 104 per McHugh J.
161 Section 4(1) of the Act defines "trade union" to mean:
"(a) an organisation of employees;
(b) an association of employees that is registered or recognised as a trade union (however described) under the law of a State or Territory; or
(c) an association of employees a principal purpose of which is the protection and promotion of the employees' interests in matters concerning their employment".
162 "(B)ans clause" is defined in s 4(1) of the Act to mean "a term of an award (however expressed) to the effect that engaging in conduct that would hinder, prevent or discourage:
(a) the observance of the award;
(b) the performance of work in accordance with the award; or
(c) the acceptance of, or offering for, work in accordance with the award;
is, to any extent, prohibited, but does not include such a term if it constitutes or forms part of procedures specified in the award for preventing and settling disputes between parties to the award".
163 Note the definition of "award" in s 4(1) includes a certified agreement and an enterprise flexibility agreement.
164 Note that pursuant to s 182 of the Act proceedings may not be commenced for breach of a bans clause unless a Presidential Member of the Commission has issued a certificate under Div 2 of Pt VIII of the Act in relation to the breach.
165 See the definition of "trade union" in s 4(1) of the Act, extracted at fn 161.
166 The definitions of "industrial dispute" and "industrial matter" which apply to ss 162 and 163 may be found in s 156: "'industrial dispute' means an industrial dispute within the meaning of paragraph 51(xxxv) of the Constitution, whether or not it extends beyond the limits of a State"; "'industrial matter' means a matter that is, or could be, the subject of an industrial dispute".
167 Note that by s 163(2)(a), the first person must be "accustomed, or under an obligation, to trade with (that) third person".


168 The definition of "boycott dispute" in s 156 is "a dispute:
(a) that relates to a boycott contravention or a threatened, impending or probable boycott contravention; and
(b) in relation to which either of the following applies:
(i) the dispute relates, or may relate, to work done or to be done under an award;
(ii) the dispute involves an organisation of employees or a member, officer or employee of such an organisation".
169 Note that, by s 163P, the Industrial Relations Court has no jurisdiction to grant an injunction or award damages unless the Commission has certified in accordance with s 163D.
170 Note that the immunity is subject to the exceptions set out in s 164(2) and (3), being the same exceptions set out in s 170PM(3) and (4).
171 See par (d) of the definition of "constitutional corporation" in s 156.
172 Note that, by s 163(2)(a), the corporation must be "accustomed, or under an obligation to trade with (that other) person".
173 See s 45D(1)(b)(i) of the Trade Practices Act 1974 (Cth).
174 (1982) 150 CLR 169 at 184-185 per Gibbs CJ, 194 per Stephen J, 201 per Mason J (Aickin J agreeing at 215), 212 per Murphy J, 215 per Wilson J, 222 per Brennan J.
175 (1982) 150 CLR 169 at 206. See, more generally, at 183 per Gibbs CJ, 212 per Murphy J, 222 per Brennan J; R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 239 per Murphy J.
176 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 207 per Mason J.
177 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 489 per Barwick CJ. See also Trade Practices Commission v Tooth and Co Ltd (1979) 142 CLR 397 at 433 per Mason J; Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 205 per Mason J.
178 (1995) 183 CLR 323.
179 See, for example, Maxwell v Murphy (1957) 96 CLR 261 at 267; Fisher v Hebburn Ltd (1960) 105 CLR 188 at 194; General Motors-Holden's Pty Ltd v Staska (1969) 119 CLR 301 at 315; Staska v General Motors-Holden's Pty Ltd (1972) 123 CLR 673 at 675.


180 Minister of State for the Army v Dalziel (1944) 68 CLR 261 at 290. See also Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 299, 349; Australian Tape Manufacturers Association Ltd v The Commonwealth (1993) 176 CLR 480 at 509; Mutual Pools and Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 172, 176, 184, 194, 201, 222.
181 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297.
182 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 305.
183 Constitution, s 51(xxxv).
184 See Constitution Alteration (Legislative Powers) 1910; Constitution Alteration (Industrial Matters) 1912; Constitution Alteration (Railway Disputes) 1912; Constitution Alteration (Legislative Powers) 1919; Constitution Alteration (Industry and Commerce) 1926; Constitution Alteration (Industrial Employment) 1946.
185 See Constitution Alteration (Industrial Employment) 1946.
186 Constitution, s 51(xiii).
187 See Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371-372 per Dixon CJ.
188 See New South Wales v The Commonwealth (The Incorporation Case) (1990) 169 CLR 482.
189 See Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 367-368.
190 For present purposes, I include a convention or recommendation within the term "treaty".
191 See The Commonwealth v Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1 at 303; Richardson v Forestry Commission (1988) 164 CLR 261 at 321; Polyukhovich v The Commonwealth (1991) 172 CLR 501 at 632.
192 (1988) 164 CLR 261 at 321.
193 cf Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 273 per Kitto J.
194 See Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 at 7 per Kitto J.
195 See Koowarta v Bjelke-Petersen (1982) 153 CLR 168 at 226 per Mason J.
196 That the specification of a power presupposes something not specified was recognised in Gibbons v Ogden (1824) 22 US 1 at 85 and recently reaffirmed by the United States Supreme Court in United States v Lopez (1995) 131 L Ed 2d 626.


197 See R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267.
198 (1982) 153 CLR 168 at 225.
199 (1995) 131 L Ed 2d 626.
200 (1995) 131 L Ed 2d 626 at 643.
201 (1995) 131 L Ed 2d 626 at 648-649, quoting Coleman v Thompson (1991) 501 US 722 at 759.
202 (1937) AC 326.
203 See Rayfuse, "Treaty Practice: The Canadian Perspective" in Alston and Chiam (eds), Treaty-Making and Australia: Globalisation versus Sovereignty? (1995) 253.
204 See Attorney-General (Canada) v Attorney-General (Ontario) (1937) AC 326 at 354.
205 For example, to name but a few subjects, Australia is a party to treaties dealing with extradition, the law of the sea, marine pollution, the exploration for and exploitation of petroleum resources in areas of the continental shelf, air navigation, atmospheric pollution, diplomatic representation, international telecommunications, international child abduction, drug trafficking, conservation of migratory animals, smuggling of endangered species, and international trade.
206 (1982) 153 CLR 168 at 200.
207 (1982) 153 CLR 168 at 216-217.
208 See The Tasmanian Dam Case (1983) 158 CLR 1 at 131-132 per Mason J; 171-172 per Murphy J.
209 See The Tasmanian Dam Case (1983) 158 CLR 1 at 219.
210 (1991) 172 CLR 501 at 561-562.
211 (1983) 158 CLR 1 at 222.
212 (1983) 158 CLR 1 at 259.
213 (1983) 158 CLR 1 at 260. See also Richardson (1988) 164 CLR 261 at 308.
214 (1988) 164 CLR 261 at 325-326.
215 (1988) 164 CLR 261 at 322. See also O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267 per Brennan J.
216 (1984) 154 CLR 311.
217 (1994) 179 CLR 155 at 195-199.