Victorian Chamber of Manufactures v The Commonwealth (Women's Employment Regulations)

[1943] HCA 21

67 CLR 347

THE VICTORIAN CHAMBER OF MANUFAC-

TURES AND OTHERS

THE COMMONWEALTH AND OTHERS

DEFENDANTS. (WOMEN'S EMPLOYMENT REGULATIONS.) Constitutional Law-Defence-National security-Women's employment-Statute-

Regulations-Validity-Disallowance of regulations by Senate-New regulations " the same in substance" as those disallowed-The Constitution (63 &64 Vict. c. 12), 8. 51 (vi.)-Women's Employment Act 1942 (No. 55 of 1942)-Acts MELBOURNE, Interpretation Act 1901-1941 (No. 2 of 1901-No. 7 of 1941), S8. 48, 49-National June 21-23. Security Act 1939-1940 (No. 15 of 1939-No. 44 of 1940), 8. 5 (4)-Women's Employment Regulations (S.R. 1942 No. 548-1943 Nos. 75, 92).

The Women's Employment Act 1942 was validly enacted under the defence power of the Commonwealth Parliament.

So held by Latham C.J., Rich, McTiernan and Williams JJ. (Starke J. dissenting).

Held, further, by Latham C.J., Rich and Williams JJ. (McTiernan J. dis- senting), that reg. 2 of the Women's Employment Regulations (No. 2) (Statutory Rules 1943 No. 75) contravenes S. 49 (1) of the Acts Interpretation Act 1901- 1941 and is therefore void; by Latham C.J., Rich, McTiernan and Williams JJ., that reg. 4 of Statutory Rules 1943 No. 92 contravenes S. 49 (1) and is void; by Rich, McTiernan and Williams JJ. (Latham C.J. dissenting), that reg. 3 of the Women's Employment Regulations (No. 2) does not contravene S. 49 (1) and is valid.

Observations on the bearing of S. 5 (4) of the National Security Act 1939- 1940 and S. 48 (1) (c) and (3) of the Acts Interpretation Act 1901-1941 upon decisions of the Women's Employment Board. DEMURRER.

The Victorian Chamber of Manufactures, the Metal Trades Employers' Association and certain companies engaged in the industries mentioned hereunder brought an action in the High

67 CLR 348

Court against the Commonwealth, the Minister for Labour and National Service and the members of the Women's Employment Board.

In their statement of claim the plaintiffs alleged " 1. The plaintiff the Victorian Chamber of Manufactures is a company incorporated in Victoria as a company limited by guarantee and registered as an organization of employers under the provisions of the Commonwealth Conciliation and Arbitration Act 1904-1934, the members of which include upwards of 2,800 persons firms and/or (WOMEN'S

companies engaged in manufacturing in the State of Victoria many of whom at present employ or desire or propose in the future to TIONS).

employ women in manufacturing work. Of such members, upwards of 1,000 are engaged in one or more of the industries or branches of industry referred to in clause 1 of an award of the Commonwealth Court of Conciliation and Arbitration made on 5th December 1941 in the matter of a dispute between The Amalgamated Engineering Union and others and Metal Trades Employers' Association and others and known as the Metal Trades Award and upward of 800 are bound by the said Metal Trades Award and many of the members engaged as aforesaid at present employ and others desire or propose in the future to employ women in manufacturing work of the kind specified in " a decision of the Women's Employment Board of 11th December 1942 and/or a decision of the Board of 29th January 1943. "2. The plaintiff Metal Trades Employers' Association is an unincorporated association registered as an organization of employers under the provisions of the Commonwealth Conciliation and Arbitra- tion Act 1904-1934, the members of which include upwards of 1,100 persons firms and/or companies bound by the said Metal Trades Award, many of whom at present employ and others desire or propose in the future to employ women in manufacturing work of the kind specified in the said decision of the Women's Employment Board of " 29th January 1943. " 3. The remaining plaintiffs are companies incorporated in Victoria and/or in New South Wales and carrying on one or more of the industries or branches of industry referred to in clause 1 of the said Metal Trades Award all of whom employ women in manufacturing work of the kind referred to in paragraph 2 hereof."

The statement of claim also contained allegations the substance of which was as follows :-On 25th March 1942 the Governor-General, purporting to act under the National Security Act 1939-1940, made the National Security (Employment of Women) Regulations (Statutory Rules 1942 No. 146), and from time to time prior to 23rd September made amending Regulations including Statutory Rules 1942 Nos.

67 CLR 349

236, 263 and 294. The Regulations empowered the Minister to appoint a Women's Employment Board. The Board was appointed in June 1942, and applications were made to it for decisions in relation to the employment of women by several of the plaintiffs. On 23rd September 1942 the Board made a decision purporting to bind one of the plaintiffs and other named employers. On the same day the Senate disallowed the amending Regulations above mentioned. On 6th October 1942 the Royal assent was given to the Women's Employment Act 1942, which provided (by S. 3) that the provisions in the schedule to the Act (entitled Women's Employment Regula- tions and reproducing the previous Regulations) should have, and continue to have, and be deemed as on and from 23rd September 1942 to have had, the force of law. The Governor-General was given power (by S. 6) to make regulations for the repeal, alteration of, or addition to, the provisions in the schedule to the Act; it was pro- vided (by S. 5) that the National Security Act should, SO far as applicable, apply to the provisions in the schedule and to regulations made under the Act, and (by S. 4) that " all decisions, variations and interpretations" of the pre-existing Board up to and including 23rd September 1942 should have full force and effect and that applica- tions to the Board which were pending on 22nd September 1942 might be dealt with by the new Board to be established in accordance with the schedule to the Act. This Board was constituted in October 1942. It made decisions affecting some of the plaintiffs in respect of applications which were pending on 22nd September 1942 and also in respect of fresh applications. On 22nd December 1942 the Governor-General made Regulations (Statutory Rules 1942 No. 548) amending the Regulations in the schedule to the Act in particular (by reg. 4), they repealed reg. 6 in the schedule (which defined the conditions upon which applications should be made to the Board and the functions of the Board in relation thereto) and inserted in its stead a new reg. 6. Subsequently, other relevant decisions were made by the Board. On 16th March 1943 Statutory Rules 1942 No. 548 was disallowed by the Senate. On 25th March 1943 the Governor-General made the Women's Employment Regulations (No. 2) (Statutory Rules 1943 No. 75), which provided (by reg. 2) that the Women's Employment Regulations, as existing prior to the date on which Statutory Rules 1942 No. 548 came into operation, should have full force and effect, and (by reg. 3) that all decisions, variations and interpretations of the Women's Employment Board given or made between the commencement of the Women's Employment Act 1942 and the date of disallowance of Statutory Rules 1942 No. 548

67 CLR 350

should have full force and effect. On 8th April 1943 the Governor- General made Regulations (Statutory Rules 1943 No. 92), which purported to amend reg. 6 and other regulations.

The plaintiffs further alleged-and (amongst other relief) claimed declarations--that (a) " the Women's Employment Act 1942 or alternatively that SS. 3 and/or 4 and/or 5 and/or 6 of the said Act, is or are beyond the powers of the Parliament of the Commonwealth and is or are void and of no effect" (b) the Women's Employment Regulations and/or each and every regulation thereof are beyond (WOMEN'S

the powers of the Parliament of the Commonwealth and/or the Governor-General and are void and of no effect"; (c) the Women's Employment Regulations (No. 2) and/or reg. 2 and/or reg. 3 thereof are beyond the powers of the Governor-General and/or are contrary to the Acts Interpretation Act 1901-1941 and are void and of no effect ": (d) "Statutory Rules 1943 No. 92 and/or each and every regulation thereof are beyond the powers of the Governor- General and/or are contrary to the Acts Interpretation Act 1901-1941 and are void and of no effect"; (e) " each and every decision pur- porting to have been made by the Women's Employment Board between the 6th day of October 1942 and the 16th day of March 1943 and expressed to be binding on any member of the plaintiff Chamber or the plaintiff Association or any of the other plaintiffs is void and of no effect :-(i) By reason of the promulgation and subse- quent disallowance by the Senate of Statutory Rules 1942 No. 548; and/or (ii) By reason of the fact that none of the said decisions was laid before each House of Parliament as required by S. 48 of the Acts Interpretation Act 1901-1941."

The defendants demurred to the statement of claim on grounds which dealt seriatim with the plaintiffs' claims a to e and alleged the validity of all the matters challenged by the plaintiffs.

The demurrer now came on for hearing, and it was agreed that counsel for the plaintiffs should begin.

Fullagar K.C., S. C. G. Wright and R. Ashburner, for the plaintiffs. Fullagar K.C. (1) The Women's Employment Act, including the Women's Employment Regulations contained in the schedule, is not within the defence power of the Commonwealth and is therefore void. The defence power does not authorize general industrial regulation by the Commonwealth. Neither the war nor any circum- stance arising out of it empowers any such general regulation. The Regulations in the schedule cover females on work usually performed by males even though these females may have performed that work

67 CLR 351

previously, although the work may have no connection with the defence of the country, and is not occasioned by any circumstance arising out of the war. It may be said that in order to deal with conditions arising out of a great plenty of money circulating in the community and the great scarcity of consumer goods, it is necessary to control what is commonly called inflation, to peg wages, &. that could be connected with circumstances arising out of the war, but there is no such connection as regards general regulation of conditions of employment. Such regulation may be desirable, but that does not bring it within the defence power. The general pro- position that peace in industry is SO important during war that the Commonwealth can do anything to obtain it is negatived by Victoria v. The Commonwealth 1. (2) The disallowance by the Senate of Statutory Rules 1942 No. 548 had the effect of depriving the Board of all jurisdiction for the future that jurisdiction was not effectively restored by Statutory Rules 1943 No. 75, and Statutory Rules 1943 No. 92 is void. The disallowance of Statu- tory Rules 1942 No. 548 had the effect of repealing regs. 4 and 5 thereof, including the words repealing the scheduled regs. 6 and 7 respectively (Acts Interpretation Act, S. 48 (6)-See also S. 50); but No. 548 is an "instrument" within the meaning of S. 46 (a) of the Acts Interpretation Act, and therefore that Act applies to the instrument as if it were an Act; accordingly, S. 7 of the Act applies, with the result that the scheduled regs. 6 and 7 were not revived by the disallowance, and, as these were the vital provisions relating to the Board's jurisdiction, it had no jurisdiction after the disallow- ance. Statutory Rules 1943 No. 75 is void. As to reg. 2 thereof, in attempting to restore (in particular) regs. 6 and 7 of the scheduled regulations it contravenes S. 49 (1) of the Acts Interpretation Act, which prohibits the making of regulations " the same in substance" as the disallowed Statutory Rules 1942 No. 548 within six months after the disallowance. Regs. 6 and 7 as inserted by No. 548 and regs. 6 and 7 of the scheduled Regulations do not differ in substance: there are differences of expression and also some difference in details, but the tenor generally is the same. Similarly, Statutory Rules 1943 No. 92 is void: its purport is substantially to restore Statutory Rules 1942 No. 548; it altogether disregards S. 49 (1) of the Acts Interpretation Act. (3) None of the decisions of the Board was tabled in Parliament, and all the decisions (other than those saved by the Women's Employment Act, if it is valid) are therefore void. This results from the combined operation of S. 5 of the Women's Employment Act, S. 5 (4) of the

1(1942) 66 C.L.R. 488. 67 CLR 352

National Security Act, and S. 48 1 (c) and 3 of the Acts Interpreta-

tion Act. The decisions of the Board are " orders are of a legislative and not an executive character" within the meaning of S. 5 4 of the National Security Act, which applies by virtue of S. 5 of the Women's Employment Act (See also S. 5 (3) of the National Security Act) and makes S. 48 (1) (c) of the Acts Inter- pretation Act applicable S. 48 (3) then makes the decisions void if not tabled as provided in S. 48 (1) (c). A legislative order " means an order which purports of its own force to create legal rights or (WOMEN'S

obligations; it is distinguished from an executive order, which is an order that does not of its own force create legal rights or obliga- tions. The decisions of the Board are therefore legislative in character; if this is not SO in respect of all the decisions, it is SO at least in respect of those decisions which make a common rule. [He referred to Australian Boot Trade Employees Federation V. Whybrow &Co. (1); R. v. Commonwealth Court of Conciliation and Arbitration Ex parte Whybrow &Co. 2; Australian Boot Trade Employees' Federation v. Whybrow &Co. (3) Clyde Engineering Co. Ltd. v. Cowburn (4); Ex parte McLean 5.]

R. Ashburner. Decisions of the Board given between 6th October 1942 (when the Women's Employment Act came into force) and 16th March 1943 (when Statutory Rules 1942 No. 548 was disallowed) have no effect after the latter date. Decisions given between 6th October and 22nd December 1942 (when Statutory Rules 1942 No. 548 was made) depended for their efficacy upon the scheduled regs. 6 and 7. When those regulations were repealed by No. 548, the decisions given between the last-mentioned dates did not have any further efficacy alternatively, if they were saved impliedly by the new reg. 6 (1) inserted by No. 548, the saving ceased to operate when the regulation was disallowed. [He referred to Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes V. Dignan 6.] Statutory Rules 1943 No. 75, reg. 3, is not a regulation for carrying out or giving effect to the Women's Employment Act: it does not give the prior decisions force as such, but re-enacts them, directly fixing conditions of employment in terms of the prior decisions. It is not a saving clause and is beyond the powers conferred by the Act, which contemplates a board, an application and a decision. If this argument is not correct, then reg. 3 is void

1(1910) 10 C.L.R. 266, at pp. 279, 3(1910) 11 C.L.R. 311, at pp. 318, 4(1926) 37 C.L.R. 466, at pp. 494- 289, 318, 320, 333. 2(1910) 11 C.L.R. 1, at pp. 36, 39. 5(1930) 43 C.L.R. 472. 6(1931) 46 C.L.R. 73, at p. 106. 67 CLR 353

for the same reason as reg. 2-it purports to create conditions which are "the same in substance" as the disallowed Regulations. A further ground of invalidity is that it contravenes S. 48 (2) of the Acts Interpretation Act.

Ham K.C. and P. D. Phillips, for the defendants. Ham K.C. (1) The Women's Employment Act, including the Regulations in the schedule, is valid under the defence power. The object of the Act is to encourage women to take the places previously held by men because the men are required for war purposes and essential industries could not be carried on without them unless women took their places. This cannot be confined to industries having an immediate relation to the war. It is essential to the efficiency of the community for the purposes of the war that its industries generally be carried on. The Act contemplates that the Board will provide conditions which will make it possible for women to carry on the work effectively. Whether it has chosen the best means of achieving that result is not to the point. (2) Statutory Rules 1942 No. 548 did not repeal the scheduled regs. 6 and 7, but merely amended them. The expression of the amendment in each case as a repeal and substitution did not make it any the less an amendment; that is merely the machinery of amendment. On the disallowance of No. 548, the amendments ceased to have effect and the scheduled regulations reverted to their original form. The schedule cannot be destroyed by regulations under the power to repeal. Regulations made under the Act must be necessary or convenient for carrying out the purposes of the Act. In any event, the schedule was validly revived by Statutory Rules 1943 No. 75, which does not contravene S. 49 of the Acts Interpretation Act. The contention that No. 75 is substantially the same as No. 548 is unsound. Comparing what appears on the face of the two sets of regulations, nothing could be more different. Even if-as contended for the plaintiffs-the comparison is to be, not between the words of the two Regulations, but between the results of the operation of each of them, they are still not the same in substance-they are as unlike as they could possibly be. No. 548 is merely a series of amendments it does not contain any scheme which could have an independent operation, whereas No. 75 reinstates something which is assumed to have been repealed. To be the same in substance" No. 75 must not differ at all from No. 548 in subject matter-it must produce exactly the same legal result. If the comparison is to be between the scheduled Regulations which No. 75 revives and the

67 CLR 354

provisions of No. 548, they clearly do not produce the same legal result. No. 75 could do no more to the schedule to the Act than to restore the repealed regs. 6 and 7 (if they had been repealed), and those regulations differ substantially from those which had been inserted by No. 548. No. 75 is not retrospective SO as to contravene S. 48 (2) of the Acts Interpretation Act: See Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. 1. 3 The decisions of the Board are not legislative in character; they merely implement the Regulations and are executive (The Com- (WOMEN'S

monwealth v. Grunseit (2); Opp Cotton Mills v. Administrator of Wage and Hour Division of Department of Labour (3) ). TIONS).

[WILLIAMS J. referred to R. v. City of Westminster Assessment Committee Ex parte Grosvenor House (Park Lane) Ltd. 4.

Perhaps the word "administrative" would be more apt than "executive" to describe the functions of the Board in any event, those functions are not legislative.

P. D. Phillips. The decisions of the Board are not of a legislative character alternatively it cannot be postulated in general terms that all the decisions are legislative. The test applied by the Supreme Court of the United States is to ascertain the extent of independent discretionary power given to the authority making the order. Another test is that an order is of a legislative character if it contains within its own four corners all the essential details of the legislative rule, prescription, law or standard laid down; it is executive if it contains only part of the rule or prescription. There is logical ground for saying that to determine whether an order is of a legis- lative or an executive character one should look at the order and see what it has done by way of giving commands to the subject rather than look at the nature of the power to make orders. Whichever of these tests is applied, the decisions of the Board lack an element which is essential to a legislative command--the Board has not a discretion to say who shall be the beneficiaries of the command. Even as to "common-rule" decisions all that the Board does is to implement the legislative policy contained in the Act and Regula- tions.

Fullagar K.C., in reply. For the purposes of S. 49 (1) of the Acts Interpretation Act the distinction is between substance and detail, not between substance and form. The differences between the relevant Regulations here are no more than differences in details;

1(1942) 66 C.L.R. 161. 3(1941) 312 U.S. 126 [85 Law. Ed. 624]. 4(1941) 1 K.B. 53. 67 CLR 355

there is no difference in substance. The legal result of each of the two sets of regulations is the same in substance. The decisions of the Board impose obligations and are therefore legislative. [He referred to Baxter v. Ah Way 1.]

Cur. adv. vult. The following written judgments were delivered :-

LATHAM C.J. Demurrer to statement of claim. Acting under authority assumed to be given by the National Security Act 1939-1940, the Governor-General in 1942 made three statutory rules, Nos. 236, 263 and 294, relating to the employment of women. All these Regulations were disallowed by the Senate, and therefore became void and of no effect (Acts Interpretation Act 1901-1941, S. 48 (4) ). The Parliament then passed the Women's Employment Act 1942, including in the schedule to the Act pro- visions (entitled Women's Employment Regulations) corresponding with the Regulations which had theretofore been made. The plaintiffs in this action ask for a declaration that the Act is beyond the powers of the Parliament and is therefore void.

The Women's Employment Act in S. 6 provides that the Governor- General may make regulations for, inter alia, the repeal or alteration of, or addition to, any of the provisions in the schedule relating to the employment of women. Under this power Statutory Rules 1942 No. 548 was made on 22nd December 1942. On 16th March 1943 that statutory rule was disallowed by the Senate. It thereupon ceased to have effect (Acts Interpretation Act 1901-1941, S. 48 (4) ). On 25th March 1943 a new statutory rule entitled the Women's Employment Regulations (No. 2) (Statutory Rules 1943 No. 75) was made, and on 8th April 1943 Statutory Rules 1943 No. 92 made further changes in the Women's Employment Regulations. It is contended for the plaintiffs that Statutory Rules 1943 No. 75 and No. 92 are void and of no effect because they were made in contra- vention of S. 49 of the Acts Interpretation Act, which provides that where either House disallows a regulation, no regulation " being the same in substance as the regulation SO disallowed shall be made within six months after the date of disallowance, except in circum- stances which do not exist in the present case. It is contended by the plaintiffs that on this ground these statutory rules are invalid.

The Women's Employment Act provides in S. 5 that the provisions in the schedule and any regulations made under the Act shall be subject to the provisions of the National Security Act. Accordingly S. 5 (3) and (4) of that Act are applicable, with the result that if

1(1909) 8 C.L.R. 626. 67 CLR 356

" orders, rules or by-laws " made under the provisions in the schedule or under regulations made under the Act were " of a legislative and not an executive character," certain provisions of S. 48 and the provisions of S. 49 of the Acts Interpretation Act 1901-1941 became applicable to such orders, rules and by-laws. Section 48 (3), SO applied, provides that if such orders, &., are not laid before each House of the Parliament they shall be void and of no effect. The provisions in the schedule, and regulations which were subsequently (WOMEN'S

substituted for some of them, provided that a Board, entitled the Women's Employment Board, should have power to make certain decisions with respect to the employment of women. The Board made decisions upon this subject which applied to certain of the plaintiffs. It is contended for the plaintiffs that these decisions were orders of a legislative and not an executive character. They were not laid before each House of the Parliament pursuant to S. 48 (3) of the Acts Interpretation Act, and if the section applied they were therefore void and of no effect and the plaintiffs seek an appro- priate declaration. The defendants have demurred to the statement of claim, contending that the Act, the Regulations, and the decisions of the Board are valid.

I. The first question which arises concerns the validity of the Women's Employment Act. This Act is entitled: "An Act to encourage and regulate the employment of women for the purpose of aiding the prosecution of the present war." It is argued for the plaintiffs that the general subject of the encouragement and regula- tion of the employment of women is not and cannot be SO connected with the prosecution of the war as to authorize the Parliament to legislate upon that subject under the defence power. It is further argued that even if there is any authority under the defence power of the Commonwealth Parliament to deal with the employment of women, there is no authority to deal with such employment in the manner in which the relevant legislation has dealt with it, because that legislation is not limited by any reference to women engaged in work which is directly associated with the war, but extends to all kinds of work which may be done by women if that work had not formerly been done by women either at all, or usually, or in a particular establishment.

The war has withdrawn, and necessarily withdrawn, large numbers of men from their normal work into the fighting and other war services. In order to supply the needs of the fighting services, and to maintain the activities of the civil population which are necessary both for the purpose of supplying such services and for the continued existence of the community, replacement of the men who have given

67 CLR 357

up their customary work has become an important matter. As men are no longer available in sufficient numbers, it has become necessary to resort to the services of women. The Act and the Regulations, as is apparent from their terms, are designed to deal with these new circumstances. The operation of the legislation is limited to certain cases which have been defined in the Act and the Regulations which have been passed from time to time. The scope of the Regulations may be illustrated by taking as an example reg. 4 of Statutory Rules 1943 No. 92, which provides as follows :-

(1) Where an employer proposes to employ, is employing, or has at any time since the second day of March, 1942, employed, females on work-

(a) which is usually performed by males; (b) which within the establishment of that employer, was per- formed by males at any time since the outbreak of the present war

(c) which prior to the outbreak of the present war, was not per- formed in Australia by any person, the employer shall, unless an application in relation to that employ- ment has already been made (whether before or after the commence- ment of this sub-regulation), or a decision of the Board in respect of that work is in force, or a decision in respect of that work is in force by virtue of the Act, forthwith make application to the Board for a decision in accordance with this regulation."

This legislation is directed to dealing with certain cases which have become more common by reason of changes in employment brought about by the war. The legislation does not (as it might have done) compel women to work; it provides means for determining their wages and conditions of employment in the hope that the offer of such wages and conditions will encourage them to work.

In my opinion the legislation, that is, the Act and the Regulations, deals with a problem which has arisen from the war, and with which it may reasonably be considered to be necessary to deal in order to promote the successful prosecution of the war. The legislation is directed towards the efficient supply of goods and serviçes, both for the army and for the civil community, by organizing the labour power of the community, in SO far as it may depend upon the work of women, who in large numbers have been brought into such employ- ment by reason of war exigencies. Legislation to deal with such a war-created problem (whether considered in relation to the general community or to the fighting services) is, in my opinion, within the power to legislate with respect to the naval and military defence of the Commonwealth conferred upon the Parliament by S. 51 (vi.)

67 CLR 358

the Constitution. The method of dealing with the problem and the extent to which it should be dealt with are matters for the con- sideration of the legislature and not of the courts. In Victoria V. The Commonwealth 1 I expressed my view of the nature of the defence power by saying that the defence power should be regarded as enabling the Commonwealth to make such laws as have a real connection with defence See also South Australia v. The Common- wealth (Uniform Taxation Case) 2. Judged by this test, legislation relating to women's employment can be validly enacted under the (WOMEN'S

defence power, even though it is not limited to employment in munition factories or war activities, or to cases in which women as a direct result of the war have replaced men. The same result, in my opinion, follows from the application of the test adopted by my brother Starke in Attorney-General (Vict.) v. The Commonwealth 3: " 'It is not for the courts to determine whether the matters and things deemed necessary or desirable by the Governor-General are or are not appropriate for the constitutional object: all that the courts have to consider is whether the means selected have some real and substantial relation to that object, or are calculated in some appreci- able degree to advance it," with a reference to Farey v. Burvett 4. Applying this test, I am of opinion that legislation with respect to the encouragement and regulation of the employment of women has a real and substantial relation to the prosecution of the war and is calculated in an appreciable degree to advance it.

II. The next question which arises relates to the effect of the disallowance of the Regulations contained in Statutory Rules 1942 No. 548. It will be convenient in the first place to examine the relevant provisions of the Acts Interpretation Act 1901-1941. Section 48 of the Act provides that when an Act confers power to make regulations, unless the contrary intention appears, regulations shall be notified in the Gazette, shall take effect from a date as pre- scribed in the section, and shall be laid before each House of the Parliament within a specified time. Sub-section 4 provides " If either House of the Parliament passes a resolution (of which notice has been given at any time within fifteen sitting days after any regulations have been laid before that House) disallowing any of those regulations, the regulation SO disallowed shall thereupon cease to have effect." Sub-section 6 provides "Where a regulation is disallowed

under this section, the disallowance of the regulation shall have the same effect as a repeal of the regulation."

1(1942) 66 C.L.R. 488, at p. 507. 2(1942) 65 C.L.R. 373, at pp. 431, 3(1935) 52 C.L.R. 533, at p. 566. 4(1916) 21 C.L.R. 433. 67 CLR 359

Sub-section 4 provides that, if a regulation is disallowed by resolution, the regulation disallowed shall "thereupon" cease to have effect. The regulation therefore operates up to the date of its disallowance. Some provisions of a regulation may accordingly completely attain their objective during the period of operation of the regulation, even though the regulation is subsequently disallowed. In the present case the disallowed Regulations (1942 No. 548) pro- vided in reg. 4 for the repeal of reg. 6 of the Women's Employment Regulations-a regulation contained in the schedule to the Act which defined the conditions upon which the Women's Employment Board could exercise its functions. No. 548 was in operation from 23rd December 1942 to 16th March 1943, when it was disallowed by the Senate. It therefore brought about the repeal of reg. 6 of the Women's Employment Regulations. From and after 16th March 1943, the new Regulations contained in Statutory Rules 1942 No. 548 ceased to have effect, but a blank had been effectively created in the Women's Employment Regulations by removing reg. 6 therefrom.

The disallowance of No. 548 of 1942 had the same effect as a repeal (Acts Interpretation Act, S. 48 (6) ). Section 7 of the Act provides that the repeal of an Act or part thereof by which a previous Act or part thereof was repealed shall not have the effect of reviving such Act or part thereof without express words. Section 46 of the Acts Interpretation Act provides that where an Act confers upon any authority power to make (inter alia) regulations, then, unless the contrary intention appears, the Acts Interpretation Act shall apply to any regulation SO made as if it were an Act. Accordingly the Acts Interpretation Act applies to No. 548 of 1942 as if it were an Act, and accordingly produces the result, by virtue of S. 7, that the repeal of No. 548 did not revive the Women's Employment Regula- tions which had been repealed by No. 548.

A statute is made by both Houses of Parliament. Regulations under a statute are made by the Governor-General. The Acts Interpretation Act has at all times since 1904 contained provisions providing for the disallowance by either House of the Parliament of regulations made under a statute. It was found, however, that these provisions were ineffective to prevent the immediate or early re-introduction of a new regulation which produced the same legal effect as the disallowed regulation. A regulation could be dis- allowed by a House, and could be immediately promulgated again even in the same terms. Thus a regulation, though disallowed, could, as Starke J. pointed out in Dignan v. Australian Steamships Pty. Ltd. 1, be kept in perpetual operation, notwithstanding even

1(1931) 45 C.L.R. 188, at p. 202. 67 CLR 360

OF A. repeated disallowance. See the further references to this practice

in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan 1. These cases provided examples of regulations being disallowed and then being re-enacted in terms which had, as Starke J. said, "substantially the same effect." These cases were decided in 1931.

By the Acts Interpretation Act 1932, S. 4, a new section was inserted in the Acts Interpretation Act which dealt with the re-enactment of regulations being the same in substance as a regulation which had (WOMEN'S

been disallowed. That provision now appears in S. 49 of the Acts Interpretation Act 1901-1941, with an addition to deal with the TIONS).

case of regulations which are 'deemed to have been disallowed " in pursuance of a provision contained in S. 48 (5). Section 49, SO far as relevant to the present case, is in the following terms :-

(1) Where, in pursuance of the last preceding section, either House of the Parliament disallows any regulation regulation, being the same in substance as the regulation SO dis- allowed

shall be made within six months after the date of the disallowance, unless

the resolution has been rescinded by the House of the Parliament by which it was passed.

(2) Any regulation made in contravention of this section shall be void and of no effect."

It should be observed that SS. 48 and 49 deal with regulations contained in statutory rules. A statutory rule frequently consists of a number of regulations, and either House may disallow a single regulation or a number of regulations or all the regulations in a statutory rule. (See the words ' any of those regulations" in S. 48 (4).) Both plaintiffs and defendants in the present case contended that the sections should be SO interpreted, and that, for the purpose of applying S. 48 (4), regulation could be compared with regulation, and not necessarily statutory rule with statutory rule. I agree that regulation may be compared with regulation, but in my opinion this proposition should not be adopted as an exhaustive statement of the manner in which S. 49 may be applied. A particular new regulation may, it is true, be compared with a particular disallowed regulation for the purpose of determining whether those particular regulations are the same in substance. But I see nothing to prevent the comparison of a new set of regulations, as a whole, with a dis- allowed set of regulations, for the same purpose. In such a case it might appear that no single one of the new regulations was the same in substance as any particular disallowed regulation, and yet the effect of the new re-drafted and re-arranged regulations, taken as a

1(1931) 46 C.L.R. 73, at pp. 103, 104, 129-131. 67 CLR 361

whole, might be the same in substance as that of the regulations which had been disallowed. In such a case, it should, in my opinion, be held that the new regulations were void if they were passed within six months of the disallowance.

Further, a new set of regulations may be SO drafted as to deal in the same way with cases covered by disallowed regulations but SO as also to deal with other cases to which the disallowed regulations did not apply. Such new regulations would have the same operation as the previous regulations, but would have an additional operation as well. Such a re-enactment of old regulations with additions should, in my opinion, be held to be ineffectual to escape the opera- tion of S. 49. To hold otherwise would be to reduce the section to a complete futility. If it should happen that the objection of a House to the old regulations was that they were not sufficiently extensive in their operation, S. 49 provides a method which will enable the Government to procure the re-enactment of the old regulations, but with an addition which would give effect to the objection which had brought about their disallowance. The House which had disallowed the regulations could in that case rescind the resolution of disallowance, and there would then be no obstacle in the way of making the new regulations (s. 49 (1) (a) ). Similar considerations apply to any case where the ground of disallowance is an objection that the regulations are too extensive in their opera- tion.

When a regulation has been disallowed more than one course is open if it should be desired by Parliament, by the House of the Parliament which has disallowed the regulation, or by the Govern- ment, to enact provisions applying to the matters to which the dis- allowed regulation related. In the first place Parliament may itself legislate upon the matter. Parliament may, if it thinks proper, incorporate in a statute all the provisions of the disallowed regula- tions, and no question can arise as to their validity under S. 49, because that section applies only to the re-enactment of regulations being the same in substance as disallowed regulations, and not to statutes. This course was adopted when, after the disallowance of certain regulations, the Women's Employment Act was passed.

In the second place (as already stated) the House which has disallowed a regulation may, if it thinks proper, rescind the resolu- tion of disallowance. In such a case S. 49 has no application and regulations may then properly be enacted forthwith even though they are the same in substance as the disallowed regulations.

In the third place, if the Government desires to re-enact a regula- tion which is the same in substance as the regulation disallowed

67 CLR 362

and cannot persuade the disallowing House to rescind its resolution, it may, after waiting six months from the date of the disallowance, move the Governor-General to make such a regulation, and S. 49 will not be applicable to the new regulation.

In the fourth place, regulations relating to the same subject matter may be made immediately after the disallowance and not- withstanding the disallowance, provided that they are not the same in substance as the regulation disallowed.

But, finally, it is not open to the Governor-General, acting upon (WOMEN'S

the advice of the Government of the day, to re-enact within six months of disallowance any regulation which is the same in sub- stance as the regulation disallowed.

This provision must be applied by the court without any know- ledge of the reasons which prompted a House of the Parliament in disallowing a regulation. No statement of reasons is required in the resolution of disallowance. The Regulations in question in the present case may have been disallowed for many reasons. They may have been disallowed because the Senate objected to any legis- lation at all upon the subject in question, to the manner in which the subject was dealt with by the Regulations, to the method in which the Board applying the Regulations was constituted, to the personnel of the Board appointed, to the extent of the powers given to the Board, to provisions requiring the Board to fix rates of wages within particular limits, to decisions given by the Board, or to many other matters. In the absence of a statement of reasons in a resolution of disallowance, reasons for disallowance could be ascer- tained, with more or less accuracy, only by an examination of such speeches as might have been made in support of the resolution for disallowance. But such a resolution might be carried without any speeches, and in most cases some members would have voted for it without speaking. The court must apply the section independently of any knowledge or any speculation as to the reasons which prompted disallowance. It is left to the court to determine whether a new regulation is the same in substance as a disallowed regulation by applying such tests as the court may think proper. The court can have no basis for saying that a regulation was disallowed only because it was objectionable in some particular characteristic, SO that a new regulation which has omitted that characteristic would for that reason necessarily be not the same in substance as the disallowed regulation. The court must do its best to determine in each case whether such differences as exist between the disallowed regulation and the new regulation are differences in substance.

67 CLR 363

The statutory provision preventing the re-enactment of a dis- allowed regulation within six months of disallowance is plainly intended to give effective parliamentary control over such subor- dinate legislation as Parliament has authorized the Governor-General, upon the advice of the Government of the day, to enact. That authority is given by a statute passed by both Houses. The principle introduced in SS. 48 and 49 of the Acts Interpretation Act taken together is that if either House objects to the substance of a regula- tion made in pursuance of that authority the regulation shall be of no force or effect, SO that no Government can exercise a legislative power against an objection of either House.

The court should not, in my opinion, hesitate to give the fullest operation and effect to such legislation. The question whether a new regulation is the same-not identically in all particulars, but "in substance ---as a disallowed regulation will often be a question of degree, upon which opinions may reasonably differ. But, if the intention of the disallowing House has been misunderstood by the court, that House can easily put the matter right by rescinding the resolution of disallowance and SO making possible the immediate re-enactment of the substituted regulation. No decision of the court that one regulation is the same in substance as another regula- tion can prevent the disallowing House from giving effect to a con- trary opinion if it wishes to do SO.

The words which are found in S. 49 (1) have a long history, but they have apparently not been the subject of judicial interpretation. On 1st June 1610 the House of Commons agreed for a rule that "no Bill of the same substance be brought in the same session." It is a rule in both Houses at Westminster that no question or Bill shall be offered which is substantially the same as one on which their judgment has already been expressed in the current session. It is established that a mere alteration of the words of a question "with- out any substantial change in its object" will not be sufficient to evade the rule: See May's Parliamentary Practice, 10th ed. (1893), pp. 292, 286, 288. Provisions of a similar character are contained in the Standing Orders of both Houses of the Commonwealth Parlia- ment Senate Standing Order 133, House of Representatives Standing Order 125.

Two views of the meaning of S. 49 have been submitted to the Court. In the first place, it has been said that the section must be interpreted as relating to substance, as distinct from form, and as meaning that the provision is intended only to prevent the re-enact- ment of regulations which are identical in substance with a disallowed regulation, and which vary only in form from that regulation. The

67 CLR 364

result of the adoption of this view would be that any variation (however small) in substance (that is, in what may be described as the matter of the regulation, as distinct from its manner of expres- sion), would be effective to prevent the application of the invalidating provision to the new regulation.

On the other hand it is submitted that the interpretation above suggested would, in practice, deprive the legislation of all effect. In almost every case it would be simple for a draftsman of any dexterity to provide in new regulations some alteration which would (WOMEN'S

vary the matter of the provision but which would leave its legal operation and its practical effect unchanged. Accordingly, it is TIONS).

said that, in order to give any real effect to the legislation, it should be interpreted as preventing the re-enactment within six months of any regulation which is "substantially the same" as any disallowed regulation; and that regulations should be held to be substantially the same not only if they differ only in form but also if their material provisions, as in fact operative, produce the same substantial result as a disallowed regulation, even though there may be a difference in details. Upon the first view suggested, the distinction upon which S. 49 is based is a distinction between substance and form. Upon the second view the relevant distinction is the distinction between sub- stance and detail-between essential characteristics and immaterial features.

In my opinion the words are capable of either interpretation. But upon the first view they would not deal with the position to which attention had pointedly been called in Dignan v. Australian Steam- ships Pty. Ltd. 1 and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan 2. It would still be possible, by making any variation in the substance (in the sense of the matter as distinct from the form) of a regulation to prevent the application of S. 49. In my opinion, in order to give any practical effect to the section, it should be construed in the second of the senses above stated: that is to say, the section prevents the re-enactment by action of the Governor-General, within six months of disallowance, of any regulation which is substantially the same as the disallowed regulation in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect as the dis- allowed regulation. The adoption of this view prevents the result that a variation in the new regulation which is real, but quite immaterial in relation to the substantial object of the legislation, would exclude the application of S. 49.

1(1931) 45 C.L.R. 188. 2(1931) 46 C.L.R. 73. 67 CLR 365

It is now necessary to consider whether certain re-enacted Regula- tions were the same in substance as Regulations contained in Statu- tory Rules 1942 No. 548. The Regulations in question are Statutory Rules 1943 No. 75 and No. 92. Statutory rule No. 548 was dis- allowed on 16th March 1943. A temporary regulation, No. 41 of 1943, the effect of which is now exhausted, was made, and on 25th March 1943 statutory rule No. 75 was made.

Statutory Rules 1943 No. 75.-Reg. 2 of this statutory rule pro- vides that the Women's Employment Regulations, as existing prior to the date on which Statutory Rules 1942 No. 548 came into opera- tion, shall have full force and effect. The effect of this regulation, if valid, was to bring into operation again the provisions of the schedule to the Women's Employment Act. The words of reg. 2 are quite different from anything contained in statutory rule No. 548, but the important matter to consider is the legal effect of the words. If the provisions of the schedule brought into operation by reg. 2 are the same in substance as the provisions of statutory rule No. 548, then the regulation is obnoxious to S. 49 of the Acts Interpretation Act and is void and of no effect.

Reg. 3 of Statutory Rules 1943 No. 75 provides that all decisions, variations and interpretations of the Women's Employment Board given or made between the commencement of the Women's Employ- ment Act 1942 and the date of disallowance of Statutory Rules 1942 No. 548 shall have full force and effect. The effect of this regulation is to continue in operation all decisions, &., made under either the schedule to the Act, or the disallowed statutory rules. A question arises as to whether in continuing the operation of decisions made under statutory rule No. 548 this regulation is not in a relevant sense the same in substance as statutory rule No. 548.

The disallowed statutory rule No. 548 must be taken as the starting point in making the comparison required by S. 49. The question is whether statutory rule No. 75 is the same in substance as statutory rule No. 548. Thus the question is whether provisions of the schedule to the Act, re-introduced by statutory rule No. 75, are the same in substance as provisions contained in statutory rule No. 548.

It will be pointed out later that some of these provisions are identical, not only in substance, but in terms. In others, however, there are variations. The most important regulation is reg. 6 as enacted by reg. 4 of statutory rule No. 548. Reg. 6 of the schedule must be compared with this regulation. These regulations specify the cases in which the Women's Employment Board is authorized to act. The two regulations are in very similar terms, but there are

67 CLR 366

some variations. The variations which require attention are those which are to be found in par. 1 of reg. 6 in each case.

Reg. 6 1 in statutory rule No. 548 is as follows :-

'6.-(1) Where an employer is employing or proposes to employ females on work-

(a) which is usually performed by males: (b) which was, during the period from the third day of September, 1939, to the date of the employment of, or proposal to employ, females, performed by males in the establishment of the employer (WOMEN'S

(c) which was not, during that period, performed in Australia by any person, the employer shall, unless an application under these Regulations (including an application within the meaning of sub-section (2.) of section 4 of the Act) in relation to that employment has already been made or the Board has given a decision in respect of that work under these Regulations, or a decision in respect of that work is in force by virtue of the Act, forthwith make application to the Board for a decision in accordance with this regulation."

Reg. 6 (1) in the schedule is as follows :-

6.-(1.) Where an employer has, since the second day of March, 1942, employed, is employing, or proposes to employ, females on work which is usually performed by males or work which was, prior to that employment of females, or is, performed by males in the establishment of that employer, or is work which, prior to that employment or proposed employment of females, was not being performed in Australia by any person, the employer shall, unless an application in relation to that employment has already been made, forthwith make application to the Board for a decision in accordance with this regulation."

The two regulations are framed upon a similar plan, the regulation in No. 548 being more clearly expressed than the regulation in the schedule. In outline each regulation provides as follows :- In certain cases of employment of females (2) upon defined work (3) an application, with certain exceptions, must be made by an employer to the Women's Employment Board for a decision in accordance with the regulation. I deal with these three parts of the regulations in turn.

1Reg. 6 (1) in statutory rule No. 548 begins : Where an employer is employing or proposes to employ females on work" which is defined in the regulation. These words do not cover the case of an employer who has employed females only in the past. Reg. 6 (1) in the schedule begins with the following words : "Where 67 CLR 367

an employer has, since the second day of March, 1942, employed, is employing, or proposes to employ, females on work" " which is defined by the regulation. Accordingly, reg. 6 in the schedule (as re-introduced by statutory rule No. 75) applies to cases of employ- ment before the introduction of statutory rule No. 548 (on 23rd December 1942) to which No. 548 did not apply. The regulation contained in the schedule includes all the cases to which No. 548 applied, and SO far is identical with No. 548 but it adds another case, namely, the case mentioned of certain past employment (between 2nd March 1942 and 22nd December 1942), to the cases included in No. 548. This is the difference between the two regulations SO far as element 1 is concerned. No. 548 is re-enacted with a small addition.

(2) The next element in the regulations relates to what I have called the defined work. In reg. 6 in statutory rule No. 548, the work is defined as follows: Work-

"(a) which is usually performed by males

(b) which was, during the period from the third day of September, 1939, to the date of the employment of, or proposal to employ, females, performed by males in the establishment of the employer; or

(c) which was not, during that period, performed in Australia by any person"

In reg. 6 in the schedule the work is defined in the following manner (I have added distinguishing letters for the sake of clearness)

(a) work which is usually performed by males; (b) work which was, prior to that employment of females (that is, employment by the particular employer concerned), or is, per- formed by males in the establishment of that employer

(c) work which, prior to that employment, or proposed employ- ment of females, was not being performed in Australia by any person.

The definition of work in (a) is the same in each case. In (b) and (c) it is the same except in relation to the period during which the work has been performed. In No. 548 the relevant period is "from the third day of September, 1939, to the date of the employment of, or proposal to employ, females." In the schedule the period in the case of (b) is described by the words "prior to that employment of females," and in the case of (c) by the words "prior to that employment or proposed employment of females."

The effect, therefore, of the re-introduction of the provision in the schedule is to repeat in respect of this part of the regulation all the provisions of statutory rule No. 548 but to include also in respect of the definition of "work" contained in (b) and (c) the period before 3rd September, as well as a period after that day. Thus the

67 CLR 368

provision introduced by statutory rule No. 75 of 1943, as far as this part of the regulation is concerned, re-enacts the old No. 548 and makes its operation more extensive in the particular mentioned. The difference does not, in my opinion, for reasons which I have stated, amount to a difference in substance which excludes the application of S. 49 of the Acts Interpretation Act.

(3) The third element in the regulation relates to the obligation of the employer, if the circumstances already mentioned exist, to make an application to the Board for a decision in accordance (WOMEN'S

with the regulation. Under statutory rule No. 548 the employer is bound to make an application to the Board unless (1) an application TIONS).

under the Regulations (including applications pending when prior Regulations had been disallowed) in relation to the employment in question has already been made, or (2) the Board has given a decision in respect of work under the Regulations, or (3) a decision in respect of that work is in force by virtue of the Act (see S. 4 (1) of the Act, a saving clause as to decisions given under prior Regulations).

The provision in the schedule dealing with this matter requires the employer to make an application to the Board unless an applica- tion in relation to the employment has already been made. The words an application include pending applications without express mention.

The schedule provision is different from the provision in No. 548 in that it excludes exceptions 2 and 3 which are included in No. 548. The question is whether the omission of exceptions 2 and 3 makes any substantial difference to the operation of the regulation. Exception 1-when an application has already been made-is the same in each case. Exception 2 is the case where the Board has given a decision in respect of work under the Regulations. Under Statutory Rule No. 548 the Board would normally give such a decision only when an application has been made and in such cases exception No. 2 would add nothing to exception No. 1. But reg. 7B, introduced by reg. 5 of statutory rule No. 548, enabled the Board of its own motion to give in respect of any work specified in sub-reg. 1 of reg. 6 any decision which it would be required or empowered to give under these Regulations if an application were made there- under in respect of that work. The Board may have given a decision under reg. 7B without any application being made to it, and if such a decision had been given, the second exception mentioned in reg. 6 (1) of No. 548 would become applicable. Exception No. 3 relates to decisions which are in force by virtue of the Act. These decisions are the decisions referred to in S. 4 of the Act; that is, decisions which had been made at any time up to and including 23rd September

67 CLR 369

1942. Those decisions were made under certain prior statutory rules of 1942, namely, No. 146 as amended. Under these Regula- tions no decision of the Board could be given except upon an applica- tion. Accordingly, exception No. 3 makes no addition to exception No. 1. Therefore the only difference between the regulation as contained in statutory rule No. 548 and as contained in the schedule,

SO far as the third element of the regulations is concerned, is that already pointed out-namely, that if a decision has been given by the Board without any application having been made to it and that decision applies to an employer, that employer need not make an application to the Board for a decision in his case. Such a difference, from any practical point of view, may be called a distinction without a difference.

It is now necessary to compare the other provisions of reg. 6 as contained in statutory rule No. 548 and in the schedule. Sub-reg. 2 in the schedule is identical with sub-reg. 2 in No. 548. Sub-reg. 3 in the schedule is identical with sub-reg. 3 in No. 548. Sub-reg. 4 (a) in the schedule is the same, with a variation only in language, as sub-reg. 4 in No. 548. Sub-reg. 4 (b) (i), (ii), (iii) and (iv) in the schedule are the same as sub-reg. 5 (a), (b) and (c) in No. 548. Authority to fix rates of payment for females is contained in (4) (b) (v) and (vi) in the schedule and in (7) in No. 548. There is a provision contained in a proviso to (5) in the schedule that the rate of payment to be made to any adult female employed shall not be less than sixty per cent nor more than one hundred per cent of the rate of payment made to adult males employed on work of a substantially similar nature. Sub-reg. 9 of No. 548 contains the same provision, though not in the form of a proviso. Sub-reg. 5 in the schedule gives a direction as to the matters to be taken into consideration in assess- ing rates of payment. This provision is the same as that contained in sub-reg. 8 in No. 548.

The purpose and effect of Statutory Rules 1943 No. 75 (or, in other words, their substance) was (1) to restore to the Board the same power to entertain fresh applications and to give fresh decisions as though reg. 6 and Statutory Rules 1942 No. 548 had not been repealed, and (2) to re-enact the decisions of the Board which had perished upon the repeal. At the date of Statutory Rules 1943 No. 75, the Act, the decisions saved by S. 4, and the whole of the Regulations in the schedule except regs. 6 and 7, were still in force. The Act, S. 6 (a), gave the Executive power to make regulations prescribing all matters that were necessary or convenient to encourage and regulate the employment of the "new women." Reg. 6 in the schedule, which received the approval of Parliament,

(2) (1942) 66 C.L.R. 233.

67 CLR 409

prescribed the classes of work in which the employment of women could be regulated and the principles upon which their conditions, including their wages, were to be fixed. The question is whether the repeal of Statutory Rules 1942 No. 548 had such a wide effect that regulations made by the Executive with respect to these classes of work and fixing wages in accordance with these principles in cases dealt with by the Board would be the same in substance as previous decisions of the Board made under the repealed Regula- tions, SO that the Executive could not deal with any case covered by a decision of the Board made between 6th October 1942 and 16th March 1943 without infringing the Acts Interpretation Act, S. 49 or whether it had a narrower effect, SO that while to restore the authority of the Board to entertain fresh applications in accordance with these principles would be to enact legislation the same in sub- stance as that which had been repealed, it would not be the same in substance for the Executive to regulate such classes of work in accordance with such principles by direct legislation. If the section has the wider operation, then, for six months after the repeal, in the absence of a new statute or rescission of the motion by the Senate under S. 49, the Executive would not be able to regulate wages within the limits of sixty per cent to one hundred per cent of the wages of males for any of the establishments covered by these decisions of the Board, although there were decisions of the Board based on these limits regulating employment in respect of other establishments, and the Executive could have legislated either directly or by some other delegate for any other establishments. The narrower operation avoids such an anomalous result. There is a real difference in substance to my mind between the Executive itself regulating the conditions of employment of the " new women and delegating the responsibility for doing SO to a Board. If this is correct, then it is a matter of form and not of substance for the Executive itself to regulate these conditions where they have been dealt with by the Board by enacting a regulation that the decisions of the Board made between 6th October 1942 and 16th March 1943 shall have full force and effect instead of setting out the details of these decisions at length in the regulations. As I have said, each case under S. 49 must depend upon its own circumstances. Where an Act dealing with a particular subject matter gives power to make regulations on that subject matter it would be difficult to draft two sets of regulations within the power which would not be, in many respects, similar in substance. But S. 6 of the Women's Employment Act appears expressly to contemplate that the Regulations in the schedule constituting the Board might be repealed and the conditions

67 CLR 410

of employment regulated by direct legislation. The Act contains a clear indication in the schedule that Parliament considered that to give effect to the Act it would be proper that the wages of females should be fixed at some rate between sixty per cent and one hundred per cent of that of males, and that the Regulations in the schedule could be repealed and their employment regulated by direct enact- ment. The repeal of Statutory Rules 1942 No. 548 destroyed the power of the Board to administer the Act and thereby in effect repealed the schedule for a period of six months, but it did not in (WOMEN'S

my opinion prevent the Executive directly enacting that the con- ditions of employment of the new women' should be fixed on the basis laid down in reg. 6.

For these reasons I am of opinion that this regulation is not the same in substance as any regulation contained in Statutory Rules 1942 No. 548 and is within the power to make regulations delegated to the Executive by S. 6 (a) of the Act. The decisions to which it refers are not dependent for their validity upon the Regulations in the schedule continuing to include a valid reg. 6, because they are not made pursuant to the powers contained in such a regulation, but derive an independent legislative force from reg. 3. It follows that all decisions, variations and interpretations of the Board made between 6th October 1942 and 16th March 1943 have been in force since the date they were made except for the period 16th to 25th March 1943.

It was contended that decisions made by the Board were of a legislative and not an executive character within the meaning of S. 5 (4) of the National Security Act and that, as they were not laid before each House of Parliament in accordance with the Acts Inter- pretation Act, S. 48, they are void. As this contention, if upheld, would not apply to decisions of the Board validated by S. 4 of the Women's Employment Act and by reg. 3 of Statutory Rules 1943 No. 75, it could only avoid decisions made between 6th October 1942 and 16th March 1943 during this period. After 25th March 1943 they would be validated by Statutory Rules 1943 No. 75. There are statements in the judgments of this Court to the effect that awards made under the Commonwealth Conciliation and Arbitration Act 1904-1934 are of a legislative character see R. v. Hibble; Ex parte Broken Hill Pty. Co. Ltd. 1; Clyde Engineering Co. Ltd. V. Cowburn 2. But the judgments in Ex parte McLean 3 make it clear that, although an award made by the Commonwealth Court of

1(1920) 28 C.L.R. 456, at pp. 475, 2(1926) 37 C.L.R. 466, at pp. 495, 3(1930) 43 C.L.R. 472. 67 CLR 411

Conciliation and Arbitration prescribes both the obligation to make an agreement and to observe it (see per Isaacs C.J. and Starke J. 1 ), the award is not a law but merely a factum and that it is the Act which brings the terms of the award into force as part of the law of the Commonwealth. Moreover, these statements are refer- able to the exercise of the powers conferred upon the Parliament by the Constitution, S. 51, placitum xxxv., which require that disputes shall be settled and that rules of conduct for that purpose shall be prescribed not by the Parliament but by arbitrators. In the case of the Women's Employment Act the Parliament was legislating under the defence power. Under that power it could have deter- mined in detail the industries in which it was suitable to employ the "new women and the terms and conditions upon which they were to be employed. It preferred to give general directions with respect to these matters, leaving it to the Board to complete the details. In J. W. Hampton Jr. &Co. v. United States 2, cited by my brother Dixon in Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan 3, Taft C.J. said The true distinction" (between legislative and executive power) " is, between the delega- tion of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done; to the latter no valid objection can be made." The present case is, in my opinion, a case of the second class. The Regulations confer an authority on the Board to administer a law to be exercised under and in accordance with that law. Its duties are to find certain facts and, in the exercise of a limited discretion, to prescribe certain rules of conduct. Section 5 of the National Security Act delegates to the Executive the power to exercise the defence power conferred upon the Commonwealth Parliament by the Constitution. Sub-section 3 of that section authorizes the Executive by regulations to sub-delegate powers to make orders, rules or by-laws for any of the purposes for which regulations are authorized by the Act to be made. Sub-section 4 is directed to cases where the Executive sub-delegates some portion of the power to legislate upon the subject of defence conferred upon it by the section. If the regulation had delegated to the Board a general power to determine in what industries women could be employed and the conditions of their employment, decisions of the Board on these matters might have been of a legislative character.

1(1930) 43 C.L.R., at p. 479. 2(1928) 276 U.S. 394, at p. 407 [72 Law. Ed. 624, at pp. 629, 630]. 3(1931) 46 C.L.R., at pp. 92, 93. 67 CLR 412

But Parliament has determined the classes of work in which employers must apply for permission to employ women, and the limits within which the Board can regulate the terms and conditions of their employment, including the factors which the Board must take into account in fixing rates of pay. It is the Regulations which prescribe how decisions are to be enforced and which cause them to prevail over any other laws or awards, Commonwealth or State, relating to the same subject matter. It is the Act and Regulations which are an exercise of legislative power. The decisions of the Board, (WOMEN'S

including the making of a common rule, are of an executive quasi- judicial character and need not therefore be tabled before the Houses of Parliament.

In the result the defendants are entitled to succeed on the demurrer, except that Statutory Rules 1943 No. 75, reg. 2, SO far as it re-enacts reg. 6 of the schedule, should be declared to be void and decisions, variations and interpretations of the Board given and made between 6th October 1942 and 16th March 1943 should be declared to be inoperative during the period 16th March to 25th March 1943.

Demurrer allowed as to claims a, b and c, except as to reg. 2

of Statutory Rules 1943 No. 75, and overruled as to that regulation: overruled as to claim d: allowed as to claims e, f, g and h. Liberty to plaintiffs to amend statement of claim within 21 days. No order as to costs. Solicitors for the plaintiffs, Moule, Hamilton &Derham. Solicitor for the defendants, H. F. E. Whitlam, Crown Solicitor for the Commonwealth.