Between: Amalgamated Society of Engineers
And: Adelaide Steamship Co Ltd

Judges: Knox CJ
Isaacs J
Higgins J

Gavan Duffy JRich J
Starke J

Subject References:
Constitutional law
Interpretation
Rule in D'Emden v Pedder
State instrumentalities
Jurisdiction of President of Commonwealth Court of Conciliation and Arbitration

Legislative References:
Commonwealth of Australia Constitution Act (Cth) - 63 & 64 Vic c 12 s v
The Constitution - ss 51, 106-109
Conciliation and Arbitration Act 1904 (Cth) - s 4
State Trading Concerns Act 1916 (WA) No 12 - Act

MELBOURNE

Judgment by:
Gavan Duffy J

As I have the misfortune to differ from my brother Judges in this case, my opinion can have no effect on the ultimate decision of the Court, but I think it respectful to them that I should briefly state the reasons for my dissent.

The Government of Western Australia, through its agents, is carrying on certain industrial enterprises in which it employs members of the Amalgamated Society of Engineers. The Society, by plaint No. 52 of 1919, sought the intervention of the Commonwealth Court of Conciliation and Arbitration in respect of an industrial dispute alleged to exist between it and a number of respondents, including the said agents. The Society assumed that the Government of Western Australia would not be willing to submit to the jurisdiction of the Court, and for the purpose of determining whether the State of Western Australia, in these circumstances, was amenable to the jurisdiction of the Court, made application to my brother Higgins, as a Justice of the High Court sitting in Chambers, for a decision on the question whether a dispute or any part thereof existed, or was threatened, impending or probable, as an industrial dispute extending beyond the limits of any one State, between the Society and each of the respondents. When the application came on for hearing, my brother Higgins, acting under the provisions of s. 18 of the Judiciary Act, stated a case for the opinion of the Full Court in which he asked the following questions:"(1) Is the Court of Conciliation and Arbitration competent to entertain for the purpose of conciliation, and (if necessary) arbitration, the claims in the plaint, or any and which of them, as between the claimant and the respondents mentioned in par. 4 or any or which of them? (2) What is the proper decision for me as a Justice of the High Court to give under s. 21 AA as to the said respondents?"

By s. 4 of the Commonwealth Conciliation and Arbitration Act an industrial dispute extending beyond the limits of any one State includes a dispute in relation to employment in an industry carried on by or under the control of the Commonwealth or a State or any public authority constituted by the Commonwealth or a State, and, as the only reason suggested in this case for holding that an industrial dispute extending beyond the limits of any one State does not exist between the Society and the agents of the Government of Western Australia is that the industry was carried on by or under the control of the State, the answer to question 2 must, of course, be that the alleged dispute did exist. My brother Higgins should have so answered it, and we should so answer it now, and refuse to answer question 1, which, in the circumstances, could not arise in determining the subject matter of the application. An application under s. 21AA might perhaps have been made to determine question 1 as a question of law arising in relation "to the dispute or to the proceeding," but no such application was in fact made to my brother Higgins. The substantial question which the parties were anxious to argue, and in fact did argue, before us was whether the Federal Parliament had jurisdiction under s. 51 (XXXV.) to legislate with respect to disputes between a State carrying on industrial operations and its employees. The other members of the Court are unanimously of opinion that we ought to take the opportunity of deciding that question without too nicely considering the means by which it has been brought before us, and, in deference to their opinion, I shall proceed to consider it. We have been asked to approach the question as if it were free of authority, and, if necessary, to overrule any cases already decided by this Court. I shall therefore not rely on such cases as authorities, and, since my opinion on the constitutional question does not commend itself to the majority of the Court, it is unnecessary for me to indicate how far i t is inconsistent with any decided case. The relevant portions of s. 51 are as follows; "The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to ... (XXXV.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State."

For the Society it is said that the opening words of the section are so large that they enable Parliament to impose upon all persons, whether natural or artificial, and whether sovereign or subject, obedience to any laws with respect to a subject matter committed to Parliament by any of the succeeding sub-sections, or placita, as they have sometimes been called, so far as such laws are for the peace, order and good government of the Commonwealth, and that sub-section XXXV. includes every industrial dispute extending beyond the limits of any one State, and applies no less because one of the parties to the dispute happens to be a State, or, speaking more technically, the Crown operating in a State. Let us assume that the Crown operating in Western Australia is a party to a "dispute extending beyond the limits of any one State" within the meaning of the sub-section; we have still to consider whether the Federal Parliament can legislate with respect to the Crown so operating. It will be observed that the power conferred by s. 51 is a power to legislate "subject to this Constitution," and if the section determines not only the subject matter of legislation, but also the persons who may be bound by it, it follows that no persons can be bound if to bind them would be inconsistent with any part of the Constitution. The existence of the State as a polity is as essential to the Constitution as the existence of the Commonwealth. The fundamental conception of the Federation as set out in the Constitution is that the people of Australia, who had theretofore existed in several distinct communities under distinct polities, should thenceforward unite for certain specific purposes in one Federal Commonwealth but for all other purposes should remain precisely as they had been before Federation. In pursuance of that conception, ss. 106 and 107 preserve the Constitution of each State as it existed at the establishment of the Commonwealth and every power of a State Parliament unless it is by the Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. In this case it is nor disputed that the industrial operations conducted by the Crown in Western Australia are within the Constitution of that State. They are authorized under its legislative power and conducted under its executive power, and therefore free from the authority conferred upon the Federal Parliament by s. 51. But in my opinion s. 51 does not determine the persons who may be bound by the legislation which it authorizes. The words "for the peace, order, and good government" have constantly been adopted in the Constitutions of self-governing British colonies where the power to legislate is general, and where they are used to describe the content of that power. It is not easy to give them a meaning in s. 51, which deals with enumerated powers; it is enough to say that they seem to delimit the subject matter of legislation, not to enumerate the persons whom the legislation shall bind. It was argued for the respondents that if authority to bind the Crown operating in Western Australia was not conferred by s. 51 it was to be found in s. V. of the Constitution Act, which provides that the Act (and consequently the Constitution, which is part of the Act) and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the Courts, Judges and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State. If this section is to be taken as enumerating those whom the Federal Parliament has power to bind, it is important to notice that it does not in terms include the Crown, though the Crown was a party to the agreement recited in the preamble of the Constitution Act, and when that Act was submitted in bill form for the consideration of the law officers of the Crown in London, it provided that the Act should bind the Crown, and we know as an historical fact that the provision was deleted at their instance. But in my opinion the section cannot be taken as an enumeration of those whom the Federal Parliament has power to bind: it cannot be pretended that the Parliament has not power to control the Crown exercising the ordinary executive power of the Commonwealth, nor that an alien, coming temporarily within the Commonwealth, would remain wholly unaffected by the Constitution or by any of the laws made under it, though the section is silent on these matters. It is beyond doubt that the Imperial Parliament had power to authorize Federal legislation with respect to any operation of the Crown within a State, and where it has done so in express words, no difficulty arises, but, where there are no such words, what is the test of Federal jurisdiction? In no case, so far as I am aware, does the Constitution of a British colony enumerate those who shall be subject to its legislative power, but it is a commonplace in constitutional law that underlying the grant of legislative power in the Commonwealth of Australia, as in every other self-governing British colony, is the hypostasis that such power binds only the Crown operating within that colony, British subjects who are citizens of the colony, and, to a modified extent, others with respect to their rights within the colony. In Macleod v Attorney-General for New South Wales, ^[F87] a case which is commonly cited by writers on constitutional law as establishing the proposition that a colonial Legislature has no power to make laws having extra-territorial validity and operation, the Privy Council expressly recognized the limitation which I have just stated. In delivering the judgment of the Court, Lord Halsbury L.C. said: ^[F88] "Their jurisdiction is confined within their own territories, and the maxim which has been more than once quoted. Extra territorium jus dicenti impune non paretur, would be applicable to such a case. Lord Wensleydale, when Baron Parke, advising the House of Lords in Jefferys v Boosey, ^[F89] expresses the same proposition in very terse language. He says: ^[F90] 'The Legislature has no power over any persons except its own subjects-that is, persons natural-born subjects, or resident, or whilst they are within the limits of the kingdom. The Legislature can impose no duties except on them; and when legislating for the benefit of persons, must, prima facie, be considered to mean the benefit of those who owe obedience to our laws, and whose interests the Legislature is under a correlative obligation to protect.' "

Wherever representative government is established in a British colony the King legislates with the advice of the representatives of the people. His laws bind his subjects within the colony because they are his subjects, they bind himself as King under the Constitution of the colony so far as he chooses to make himself subject to them, and they bind strangers with respect to their rights within the colony because such persons must to that extent be deemed to have submitted themselves to his jurisdiction. It is recognized that it would be intolerable that a stranger should be at liberty to claim the hospitality and protection of a community without subjecting himself to such general regulations as may be necessary for the peace, order, and good government of the community. For the purposes of the present case it is unnecessary to consider what portion of the municipal law is binding on an alien, or how far the Crown, operating under the Constitution of one State, can be amenable to the laws of another State. I shall assume that the operations now conducted by the Crown in Western Australia would be subject to the laws of South Australia with respect to industrial undertakings if such operations extended into that State, because in such circumstances the Crown could not take with it its character of maker and administrator of the law, and must be deemed to have submitted itself to the laws of South Australia, as if it were a private person. Why should not these operations be subject to the laws of the Commonwealth within the Commonwealth territory? As we have seen, the legislative power of the Commonwealth under s. 51, being subject to the Constitution, cannot affect the State in the performance of functions allotted to it by the Constitution. But apart from this limitation it is quite clear that though the territory of the State is the territory of the Commonwealth for the purpose of executing the functions committed to it by the Constitution, for every other purpose it is the territory of the State and of th e State alone. In performing the functions allotted to it by the Constitution, the Crown operating in the State cannot in any way be said to abandon its legislative and administrative powers or to submit itself to the jurisdiction of the Commonwealth Parliament.

It follows from what I have said, that in my opinion the Federal Parliament has not jurisdiction under s. 51 (XXXV.) to legislate with respect to disputes between a State carrying on industrial operations as in this case, and its employees.