Jumbunna Coal Mine No Liability v Victorian Coal Miners' Association
6 CLR 309(Judgment by: O'Connor J)
Jumbunna Coal Mine No Liability
v.Victorian Coal Miners' Association
Judges:
Griffith CJ
Barton J
O'Connor JIsaacs J
Legislative References:
Conciliation and Arbitration Act 1904 - The Act
Trade Disputes Conciliation and Arbitration Act 1892" (NSW); - The Act
Conciliation Act 1894" (SA) - The Act
Conciliation Act 1896 (England) - The Act
Industrial Conciliation and Arbitration Act 1900 (WA) - The Act
New South Wales Act 1901 (No 59) - s 7
Case References:
United States v Fisher - 2 Cranch 358
McCulloch v Maryland - 4 Wheaton
United States v Reese - 92 US 214
D'Emden v Pedder - 1 CLR
Illinois Central Railway Company v McKendree - 203 US 514
Grenada County Supervisors v Brogden - 112 US
Marshall v Grimes - 41 Miss 27
Nicol v Ames - 173 US 509
Buttfield v Stranahan - 192 US 470
United States v Coombs - 12 Pet 72
Perth Local Board v Maley - 1 CLR 702
Judgment date: 6 October 1908
Judgment by:
O'Connor J
The respondents, an association of employés in the coal mines of Victoria, applied under the Commonwealth "Conciliation and Arbitration Act 1904" for registration as an organisation. The appellants, two Companies working coal mines in that State, objected on certain grounds which they urged before the Industrial Registrar. That officer having decided that the respondents were entitled to registration, the Companies appealed to the President of the court, who, having considered the original grounds of objection, together with a new ground which he permitted to be added, upheld the Registrar's decision. From the President's judgment, the appellants have now come to this court, which has determined on a preliminary objection that the appeal will lie. The grounds of appeal are as follows: --
- 1.
- That the said Association is not an Association capable of being registered under the said Act, inasmuch as it is not capable of being concerned in an industrial dispute extending beyond the limits of any one State.
- 2.
- That the provisions of s 55, subs (1) ( b ) of the said Act, and all other relevant provisions of Part V of the said Act are ultra vires the provisions of the "Commonwealth Constitution Act," and invalid.
Although the first ground is concerned more immediately with the interpretation of the Act, both involve the interpretation of the Constitution. Before adverting to them in detail, it will be convenient to refer, in so far as is material to this controversy, to the language in which the Constitution has conferred the power to legislate, and to the statutory provisions by which the power has been exercised by the Commonwealth Legislature. The Constitution, by s 51, subs (XXXV), enacts that the Parliament shall, subject to the Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State." With this must be read subs (XXXIX), which empowers the Parliament to make laws with respect to "matters incidental to the execution of any power vested by the Constitution in the Parliament, etc" It was open to the Commonwealth Parliament to exercise the power so conferred in such method as they deemed advisable so long as they kept within the limits so laid down. The method they have chosen is embodied in the Commonwealth "Conciliation and Arbitration Act 1904," which by s 2 declares concisely the objects of the enactment.
It will be noted that the scope of the Act is expressly limited to disputes extending beyond the limits of any one State, and generally throughout this judgment I shall use the word "disputes" in that limited sense. The central idea of the enactment is the constitution of a court, which consists of a President, and is invested with the twofold power of conciliation and of arbitration. By s 16, the President is.
charged with the duty of endeavouring at all times by all lawful ways and means to reconcile the parties to industrial disputes and to prevent and settle industrial disputes whether or not the court has cognisance of them in all cases in which it appears to him that his mediation is desirable in the public interest.
The court is also invested with all necessary judicial powers for the investigation and determination of disputes brought before it, and for ensuring obedience to its awards. The provisions most directly challenged in this case are those creating the machinery by which the court obtains cognisance of the dispute, and gets and keeps in touch with the disputants, and by which is secured the permanent settlement of disputes by agreement or by judicial decision and the effective enforcement of awards. An industrial dispute is something more than a dispute between an employer and his individual workmen. It is a dispute between a combination of workmen and their employer or employers. The questions involved generally affect the whole trade, and a settlement is seldom adequate unless it binds the whole trade. It is not practicable to bring all employés in a trade before the court, nor all the masters. Some method of representation of the disputants is therefore essential for the purpose of dealing with the dispute in its initial stages, of bringing the parties before the court, and of enforcing observance of the award.
Part V creates a system by which associations of employers and associations of employés may, on complying with certain conditions, be registered as organisations. By registration they become corporations with powers specifically limited to the purposes of the Act. They represent their members collectively, and thus constitute the parties with whom the court deals for purposes of conciliation, arbitration, and the enforcement of awards. In respect of employés, the organisations are in general the only parties that have a locus standi in court, for it will not, except in special circumstances, entertain a dispute between individual workmen and an employer. An organisation when so constituted may make an industrial agreement with individuals or with other organisations for the prevention and settlement of industrial disputes by conciliation and arbitration -- s 73. As an organisation is constituted for the purpose of representing its members in combination, and stands for them in all the procedure of the court, it is essential, if it is to be effectively representative, that it should be invested with certain powers, duties, obligations and liabilities. The Act, therefore, provides that an organisation may hold property, may sue members for fees and fines; being party to an award, it becomes subject to penalties for disobedience, and the penalties may be enforced against its property and funds.
Having thus described in so far as is material the method by which the Legislature has exercised the powers conferred by the Constitution for the prevention and settlement of industrial disputes, I shall now consider the grounds of appeal. The appellants' first contention is that the registration is invalid, because the respondent Association is one which could not be concerned in a dispute extending beyond the limits of any one State. That position involves the assumption that no organisation can be validly registered which is not at the time of registration capable in itself of being concerned in a dispute extending beyond the limits of any one State. There is no such qualification of the right to register on the face of the Act, nor can it be implied from any of its provisions. The objection is, therefore, really to the constitutionality of the enactment, and may be thus stated. Parliament is empowered by the Constitution to legislate only with respect to disputes extending beyond the limits of any one State. It is conceded that legal bodies might be created to represent groups of employers and of employés for purposes of procedure. But the authority of Parliament extends only, it is contended, to the creation of such bodies as are in themselves capable from the moment of their existence of being parties in such a dispute. In examining this contention, it becomes necessary to inquire into what amounts to an industrial dispute extending beyond the limits of any one State within the meaning of the Constitution. That the parties on either side should be organised in any permanent form of combination is not essential. If all the workmen of an employer in a particular trade take concerted action in demanding and endeavouring to enforce from him some alteration in their conditions of employment -- there is an industrial dispute. If all the workers throughout the State in the same trade unite in the making and endeavouring to enforce the same demand from their respective employers, there is an industrial dispute involving the whole trade throughout the State. If the workers so united obtain the co-operation of their fellow-workers in the same trade in another State in such a way that the combined workers in the trade in both States take concerted action against their respective employers in both States for the making and enforcing of the same demands, there is an industrial dispute extending beyond the limits of one State. It is not at all essential to the concept of such a dispute within the meaning of the Constitution that the workmen should be combined in any formal interstate union, any more than it is necessary to constitute an industrial dispute within the limits of a State that it should be carried on by a trade union representing the workers in that trade.
On the other hand, the workers in the trade in both States may be combined in some permanent form of interstate union; or the workers in each State may be combined in some permanent form of State union, and the two State unions may combine and agree upon joint action against their respective employers for the purpose of making and enforcing the same demands in both States. In each case the industrial dispute is between the united body of workmen and their employers. Where the workmen of both States combine to take united action for the purpose of gaining the same alteration of conditions of employment in both States, it is immaterial whether the combination is of individuals or of unions, whether the unit of the combination is the workman or the union. Such being the nature of the disputes covered by the Constitution, it was open to the Legislature to adopt any method which they deemed effective for "prevention and settlement by conciliation and arbitration." They might, if they had thought fit, have dealt with the individual workman or employer as the unit of combination, and provided for the registration of all workmen and all employers in a trade as a step in aid of procedure. It was equally open to them to take the State trade union or association as the unit of combination, and provide for their registration as a step in the same direction. For as the individual workman may, in combination with other workmen in his own or another State, become concerned in an industrial dispute extending beyond the limits of any one State, so a State trade union or State association of workmen may, by combination with trade unions or associations of workmen in another State, become concerned in such a dispute.
It follows that the power of Parliament would extend to the creation of organisations such as those contemplated by the Act, even though they might be incapable at the time of registration of being in themselves parties to an industrial dispute within the meaning of the Constitution, provided that they are so constituted as to be capable of becoming at any time parties to such a dispute as members of a combination of the organisations of more than one State acting together in carrying on an industrial dispute for the attainment of a common end. In reference to this objection, therefore, only one question can arise in this case, and that a question of fact, namely -- Is the Victorian Coal Miners' Association capable of being at any time one of a combination of organisations engaged in a dispute extending beyond the limits of any one State? It is hardly necessary to say that the answer must be in the affirmative. It would, for instance, be within the rights of the Victorian Coal Miners' Association to combine with one or more of the Coal Miners' Associations of New South Wales in taking united and simultaneous action in both States for the attainment of some common end by raising in each State the same dispute with their respective employers. In readiness for such a contingency, the respondent Association is, in my opinion, entitled to be registered as an organisation, and thus to obtain at once the advantages which registration confers.
The appellants next attack the constitutionality of the Act upon various other grounds, each of them of such importance as to demand separate consideration. It is contended that Parliament has exceeded its rights in conferring on registered associations the status of corporations, and investing them with the power of holding property, and of suing for fees and fines and contributions and penalties as provided by ss 58, 66, 68 and 69, and that the whole enactment is therefore unconstitutional and void, inasmuch as these incidents and powers are inseparable from the scheme of registration, which is a vital part of the Act. s 58 is as follows: --
Every organisation registered under this Act shall for the purposes of this Act have perpetual succession and a common seal and may purchase take on lease hold sell lease mortgage exchange and otherwise own possess and deal with any real or personal property.
s 66 enacts that an organisation may sue or be sued for the purposes of the Act, and deals with details of procedure. s 68 provides that the organisation may recover "all fines fees levies or dues payable to an organisation by any member thereof under its rules ... in any court of summary jurisdiction constituted by a police stipendiary or special Magistrate." s 69, which gives power to the Commonwealth Arbitration court to determine disputes between the organisation and its members, also authorises that court to order payment by any member of his contribution towards a penalty incurred by the organisation for breach of an award. ss 44, 45 and 46 provide for the recovery from the organisation of penalties incurred by them for breaches of an award or order of the court. s 47 (1) is as follows: --
For the purpose of enforcing compliance with any order or award process may be issued and executed against the property of any organisation or in which any organisation has a beneficial interest whether vested in trustees or howsoever otherwise held in the same manner as if the organisation were an incorporated company and the absolute owner of the property or interest.
And subs (3) of the same section provides that where
the property of an organisation on execution is insufficient to satisfy fully any process for enforcing any order or award the members of the organisation shall to the extent of the maximum penalties defined in para ( c ) of s 38, be liable for the deficiency.
s 58 adopts a somewhat unusual form of limiting the powers conferred upon the organisation as a corporation. But there can be no doubt as to its meaning. It does create a corporation, but of powers strictly limited to the purposes of the Act. The sections I have quoted and referred to indicate sufficiently for the purposes of this case the constitution and powers of the representative body which the Act has created under the name of "organisation."
The Constitution, it is urged, confers upon the Parliament no general power to create corporations; it gives express power to create them only in the instances set forth in ss (XIII) and (XX) of s 51. For the purpose of exercising the powers conferred in subs (XXXV), there is no justification for creating corporate bodies with such rights and incidents. Such is the appellants' argument. The respondents answer, in this way -- It is true that the organisation is a corporation, but it is invested only with such powers as are necessary for carrying out the Act, which in its turn is limited to the subject-matter of industrial disputes as set forth in subs (XXXV), and further, that the creation of a corporation with powers so limited is proper and necessary for the effective exercise of the authority to make laws in respect of "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," and is therefore incidental to the exercise of that power within the meaning of subs (XXXIX). That contention brings to a point the whole matter for consideration in this part of the case, namely, whether the legislation complained of is really incidental to the effective exercise of the powers conferred by subs (XXXV).
All powers of legislation granted to Parliament by the Constitution are necessarily conferred in broad, general terms. Mr Justice Gray, in delivering judgment in the Legal Tender Case , 110 US , at p 439, makes some observations on the same feature in the American Constitution which are worthy of consideration --
The Constitution of the United States, by apt words of designation or general description, marks the outlines of the powers granted to the national legislature; but it does not undertake, with the precision and detail of a code of laws, to enumerate the subdivisions of those powers, or to specify all the means by which they may be carried into execution.
The extent of the power conferred must, of course, be ascertained by the words which the Legislature has used, but in their interpretation the maxim referred to by this court in D'Emden v Pedder , 1 CLR, at p 109, must always be kept in mind --
In other words, where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor, and without special mention, every power and every control the denial of which would render the grant itself ineffective. This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants of power, whether by unwritten constitution, formal written instrument, or other delegation of authority, and applies from the necessity of the case, to all to whom is committed the exercise of powers of government.
But the framers of the Constitution were not satisfied to leave the grant of ancillary powers to be inferred. They have by subs (XXXIX) of s 51 expressly authorised the making of laws with respect to "matters incidental to the execution of any power" vested by the Constitution in the Parliament. In this they follow, though in different language, the Constitution of the United States, which empowers Congress "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers." In considering whether the legislation challenged is incidental to the execution of the power conferred by subs (XXXV), it must be conceded that it is for the Parliament to determine by what means and in what method the exercise of the power shall be made effective, and it is for the court to decide whether the means and the method are "incidental to the execution of the power" within the meaning of the Constitution. This raises the exceedingly important question how is the word "incidental" to be interpreted, and at what point and on what principle will the court interfere with the discretion of the Legislature? The same question arose very early in the history of the American Constitution in reference to the corresponding provision to which I have already referred, and which is in substance and meaning identical with that now under consideration. The principles laid down in McCulloch v Maryland , 4 Wheaton, at p 421, by Chief Justice Marshall in 1819, have ever since been followed by the American Courts. "We admit," he says,
as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national Legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional.
Again (at p 423) --
But, were its necessity less apparent, none can deny its being an appropriate measure; and if it is, the degree of its necessity, as has been very justly observed, is to be discussed in another place. Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land. But where the law is not prohibited, and is really calculated to effect any of the objects entrusted to the Government, to undertake here to inquire into the degree of necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground. This court disclaims all pretensions to such a power.
That reasoning is unanswerable, and is as applicable to the Australian as to the American Constitution. It furnishes, as it seems to me, a reasonable test to be applied in the determination of the matter now under consideration. Is the end aimed at by the Legislature within its powers? Are the means which it has devised appropriate and plainly adapted to that end? If the answer to both those questions is in the affirmative, the court cannot interfere. If the answer to either of them is in the negative, the legislation challenged cannot stand. The end aimed at by the Act in question here is the prevention and settlement of industrial disputes extending beyond any one State by conciliation and arbitration. It may well be conceded that there is no general power to prevent and settle industrial disputes by any means the Legislature may think fit to adopt. The power is restricted to prevention and settlement by conciliation and arbitration. Any attempt to effectively prevent and settle industrial disputes by either of these means would be idle if individual workmen and employés only could be dealt with. The application of the "principle of collective bargaining" not long in use at the time of the passing of the Constitution is essential to bind the body of workers in a trade and to ensure anything like permanence in the settlement. Some system was therefore essential by which the powers of the Act could be made to operate on representatives of workmen and on bodies of workmen, instead of on individuals only. But if such representatives were merely chosen for the occasion without any permanent status before the court, it is difficult to see how the permanency of any settlement of a dispute could be assured. Even when the dispute is at the stage when it may be prevented or settled by conciliation, the representative body must have the right to bind and the power to persuade, not only the individuals with whom the dispute has arisen, but the ever-changing body of workmen that constitute the trade.
It has been contended that it was unnecessary for this purpose that the court should do more than give to the trade unions and other associations constituted under the State laws a locus standi before the Commonwealth. But such a course would very much limit the effective exercise of the power. All employés likely to seek the aid of the court are not in State unions or associations. Besides, it may be fairly said that it is essential to the proper control of the organisation by the court that their rules and constitutions should be under the control of the court, and that the constitution of all organisations having a status in the court should, in certain respects at least, be uniform. Every effective agreement for the settlement of disputes brought about by conciliation and by compromise must regulate the working relations of the parties for a definite period. Similarly, an award must be for a definite period. In either case, it is essential that the representative body should be strong enough to secure obedience by individual workers of the conditions of the agreement or award, and, in the case of an award, it is essential not only that the court should have the representative before it in the hearing of the dispute, but that it should be able to make that body responsible for the observance of that award by those whom it represents. Again, if the award is to have any value the court must be able to enforce obedience on the representative bodies. That can only be accomplished by the infliction of penalties. But the award of penalties is a mere form unless there are funds available for the payment of penalties, and property which may be levied on if penalties remain unpaid. Without any further examination of the requirements essential in the representative body which is to stand for the workmen in the industrial dispute, I have said enough, I think, to lead fairly to the inference that, if the judicial power of the Commonwealth is to be effectively exercised by way of conciliation and arbitration in the settlement of industrial disputes, it must be by bringing it to bear on representative bodies standing for groups of workmen. Further, that the representative body must have some permanent existence irrespective of the change in personnel of its members from time to time, which is always going on. That it must have a power to control by enforcement of its rules, and so to influence its members individually to perform the conditions of agreements and awards made in settlement of industrial disputes. That it must be endowed with the legal capacity for holding moneys for purposes of its business and of investment.
It is obvious that a representative body of the kind I have indicated could be constituted only by the creation of some legal entity, whether it be of the nature of trade union, friendly society, or corporate body with limited powers. It being once established, as I think it has been, that it is essential for the effective exercise of the power conferred by the Constitution that provision should be made for the creation of some such legal entity invested with the necessary incidents and rights, it is for the Parliament, not for this court, to determine the particular form in which the legal existence should be conferred. If it were necessary to decide the question, I am disposed to think that the form adopted by the Legislature is perhaps the most convenient that could have been chosen. But it is not necessary to decide that question. The choice which Parliament has made of several means for effecting the same end cannot be questioned if "the means chosen are appropriate and plainly adapted to the end."
The appellants' Counsel has urged it as an objection that the organisations have been constituted corporations. I am unable to understand why the creation of a corporation as incidental to the exercise of a power within the competency of Parliament should not be constitutionally as valid as the creation of any other legal entity. Story's comment on a similar argument on the corresponding American clause is very much in point -- Story's Commentaries on the Constitution , Vol II., s 1263 --
A strange fallacy has crept into the reasoning on this subject. It has been supposed that a corporation is some great, independent thing; and that the power to erect it is a great, substantive, independent power; whereas, in truth, a corporation is but a legal capacity, quality, or means to an end; and the power to erect it is, or may be, an implied and incidental power. A corporation is never the end for which other powers are exercised, but a means by which other objects are accomplished.
So here, the constitution of these representative bodies as legal entities in the corporate form is merely the adoption of a means for effectually carrying out the powers expressly conferred by subs (XXXV). Being, therefore, according to the test I have laid down, means appropriate and plainly adapted to that end, their creation in the form enacted is within the power conferred on Parliament by subs (XXXIX).
It was further objected that, even if the creation of the organisations as constituted by the Act was within the competence of the Parliament, the power did not extend to investing them with the capacity to make and enforce industrial agreements as provided by s 73 of the Act. The section is somewhat obscurely worded, but it may be fairly construed as extending either to agreements made in the course of conciliation or arbitration proceedings, or to agreements for voluntarily referring matters in difference which may result in disputes to arbitration and conciliation under the Act. In either case the dispute, either to be prevented or settled, must, according to the definition clause, be one extending beyond the limits of any one State. The aim of conciliation is the voluntary agreement of the parties. If the agreement is to be an effective settlement of differences, it seems reasonable to provide that it may be made for a definite term, and shall be enforceable by any of the parties in the court constituted by the Act. For all these purposes, the provisions of Part VI. relating to industrial agreements are, in my opinion, appropriate, and plainly adapted to the end which the Act is seeking to obtain.
One further objection was urged by the appellants to the status and powers of organisations under the Act, but it stands on a different footing from those which I have been considering. s 9 provides that no employer shall dismiss any employe from his employment by reason merely of the fact that the employe is an officer or member of an organisation, or is entitled to the benefit of an industrial agreement or award. It was contended that such an interference with the employer's liberty to carry on his business in his own way could not be authorised under the power to prevent and settle industrial disputes by conciliation and arbitration, particularly as it was a prohibition which applied permanently, and not merely during the pending of a dispute before the court. There is considerable force in the answer that, without such protection to its members, it would be difficult to ensure that the organisation would be sufficiently strong to influence any considerable body of workmen in the observance of industrial agreements and awards. But it is not necessary to express any opinion upon the matter. The point does not arise in this case, and the section is so clearly separable from the rest of the Act that, even if it were beyond the competence of Parliament to enact, the validity of the Act generally is not thereby affected.
I pass now to the next objection arising under s 55. That section, in so far as it is material, is as follows: --
- (1)
- Any of the following associations may on compliance with the prescribed conditions be registered in the manner prescribed as an organisation: -- ( a ) Any association of employers in or in connection with any industry who have in the aggregate throughout the six months next preceding the application for registration employed on an average taken per month not less than one hundred employés in that industry; and ( b ) any association of not less than one hundred employés in or in connection with any industry.
I omit here a proviso relating to preference to unionists, the terms of which are not material in the questions now under consideration. The section goes on -- "(2) The conditions to be complied with by associations so applying for registration shall until otherwise prescribed be as set out in Schedule B. (3) Upon registration the association shall become and be an organisation." Schedule B sets out a code of rules for the regulation of the affairs of the association. "Association" is defined in s 4 as follows: -- "'Association' means any trade or other union or branch of any union or any association or body composed of or representative of employers or employés or for furthering or protecting the interests of employers or employés " "Employer" and "employe" are also defined as employer and employe in any industry. "Industry" is also defined, and it will be necessary to examine that definition in considering the next objection.
Under these circumstances, it is contended by the appellant that the words of the section are not, on the face of them, limited so as to restrict the right of registration to associations which could be concerned in an industrial dispute extending beyond the limits of one State, that there is nothing in the Act to confine the application of the general words of the section within constitutional limits, that the whole section, therefore, and consequently the whole Act, is unconstitutional and void on the principle laid down in the Trade Mark Cases , 100 US 82; Illinois Central Railway Company v McKendree , 203 US 514, 529, and other cases cited. It will no doubt be admitted that if the general words, "any association," must be construed so as to include associations which are not within the purview of the Constitution, as well as those that are the whole section, and, as the section is vital to the scheme of the enactment, the whole Act must be declared ultra vires . The validity of the objection therefore depends upon the proper construction of s 55. In the interpretation of general words in a Statute, there is always a presumption that the Legislature does not intend to exceed its jurisdiction. Most Statutes, if their general words were to be taken literally in their widest sense, would apply to the whole world, but they are always read as being primá facie restricted in their operation within territorial limits. Under the same general presumption, every Statute is to be so interpreted and applied as far as its language admits as not to be inconsistent with the comity of nations, or with the established rules of international law -- Maxwell on Statutes (3rd ed ), p 200. The same principle of interpretation is applied to enactments of a legislature of limited jurisdiction. In America, the principle is well established as a rule of interpretation when the constitutionality of Statutes is in question. In Grenada County Supervisors v Brogden , 112 US , at p 269, Mr Justice Harlan, in delivering the judgment of the court, adopts with approval the following statement of the law: --
'General words in the Act should not be so construed as to give an effect to it beyond the legislative power, and thereby render the Act unconstitutional. But, if possible, a construction should be given to it that will render it free from constitutional objection, and the presumption must be that the legislature intended to grant such rights as were legitimately within its power' -- Marshall v Grimes , 41 Miss 27, 31.
The principle would appear to be equally applicable in the interpretation of Commonwealth Acts when the question to be considered is whether the Legislature has used general words in a sense which will extend their powers beyond Constitutional limits. The proviso which applies to all associations authorised to register clearly contemplates that the association when registered will be a party to a dispute within the meaning of the Act, that is by definition a dispute within subs (XXXV) of the Constitution. Fairly construed, therefore, the general words in the main body of the section must, I think, be read as so restricted. An examination of the rest of the section, of the Schedule B, and of the whole Act, would seem to support the same view. I am therefore of opinion that the general words of s 55 must be read in the restricted sense I have mentioned, and that it therefore does not permit registrations which it would be beyond the competence of the Parliament to authorise.
The remaining objection is that the enactment expressly extends to persons and employments which are not included in the term "industrial" as used in the Constitution. s 4 contains a series of definitions which in effect mark out the scope of the Act. "Employé" means an employé in an industry. "Industry" means.
business trade manufacture undertaking calling service or employment on land or water in which persons are employed for pay hire advantage or reward excepting only persons engaged in domestic service and persons engaged in agricultural viticultural horticultural or dairying pursuits.
The right of registration is given by s 55 to any association of not less than one hundred employés in or in connection with an industry. If, therefore, "industry" includes classes of labour not covered by the word "industrial" in subs (XXXV) of s 51 of the Constitution, it is clear that the Act has gone beyond the limits within which the Parliament has power to legislate. I cannot assent to Mr Duffy's very ingenious construction of the definition of "industry" in the Act. The words are free from ambiguity, and must be construed with their ordinary grammatical meaning. So construed, the definition includes within the term "industry" every kind of employment for pay, hire, advantage or reward, except agricultural, viticultural, horticultural, or dairying pursuits.
The appellants contend that the word "industrial" in the Constitution does not cover so wide a field, that it is restricted to work connected directly or indirectly with production and manufacture. "Industrial dispute" was not, when the Constitution was framed, a technical or legal expression. It had not then, nor has it now, any acquired meaning. It meant just what the two English words in their ordinary meaning conveyed to ordinary persons, and the meaning of these words seems to me now much what it was then. Taking first the authority of dictionaries. Webster's International Dictionary , in the 1892 edition, defines "industrial" as follows: -- "Consisting in industry; pertaining to industry, or the Arts and products of industry; concerning those employed in labour, especially in manual labour, and their wages, duties and rights." The Standard Dictionary (1893) defines "industry" --
Labour employed in production, especially in manufacturing; useful labour in general; also, labourers as a body; as organised industry. Any single branch of productive activity; the labour and capital employed in a trade or department of business, as the iron industry, the farming industry, American industries.
Murray's New English Dictionary , of later date, and high authority, gives many uses of the word, but that bearing on the question in controversy is -- "Industry, systematic work or labour; habitual employment in some useful work, now especially in the productive Arts or manufactures." The dictionaries apparently agree in recognising both uses of the words "industry" and "industrial" as referring to labour in the production and manufacture of goods, and as referring to labour of any kind.
While the Constitution was being framed by the Convention, there were two Industrial Arbitration Statutes in force in Australia. The New South Wales Act was passed in 1892, and was entitled -- "An Act to provide for the establishment of conciliation and arbitration for the settlement of 'industrial disputes.'" It does not define "industry" or "industrial," but it extends to any kind of employment. The South Australian Act was passed in 1894. In its title it is described as "An Act to facilitate the settlement of 'industrial disputes.'" The definition of "industry" includes any kind of employment. The early New Zealand Act which purports to deal with industrial disputes defines "industry" in the restricted sense of labour engaged in production and manufacture, but late in 1900 it was amended so as to extend to employment of any kind. In the same year the colony of West Australia in an Act purporting by its title to deal with industrial disputes, defined "industry" in the wider sense as covering any kind of employment. These instances of the legislative use of the expression are not, of course, conclusive, but they furnish strong evidence that the Legislatures of New South Wales, South Australia, West Australia and New Zealand, considered that enactments constituting a court for the settlement of disputes between employer and employé in every kind of employment might properly be entitled as Acts for the Settlement of Industrial Disputes. And it is certainly fair to assume that the expression "industrial disputes" was at the time of the passing of the Acts commonly used in Australia to cover every kind of dispute between master and workmen in relation to any kind of labour. During the six or seven years preceding the enactment of the Constitution in 1900, the subject of industrial disputes had been much discussed in England. The great Commission of Labour in 1894 brought up a report dealing with the relation of employers and employés in every branch of labour. Throughout the reports of that commission the word "industrial" is frequently used as applying to every kind of employment.
After an examination of all these sources of information as to the sense in which the word "industrial" in connection with labour disputes was used at the time of the passing of the Constitution, I have come to the conclusion that it was used in two senses -- in the narrower sense contended for by the appellants, and in the broader sense contended for by the respondents. There is nothing in the Constitution to show that the word was intended to be used in the narrower sense. On the contrary, the scope and purpose of subs (XXXV) would lead to a contrary conclusion. The use of the word in its wider sense does not offend against any prohibition of the Constitution, nor is it inconsistent with any of its provisions. The control and regulation of employment and the relations of employers and employés within the State are no doubt within the exclusive powers of the State Parliaments, but disputes extending beyond the limits of a State are within State cognisance only in so far as the parties are within State territory. Such disputes cannot be reached effectively except by Commonwealth authority.
It was to remedy the evils of industrial disturbances extending beyond the territorial limits of any one State that the power in question was conferred. It must have been well known to the framers of the Constitution that such disturbances are not confined to industries connected directly or indirectly with manufacture or production. The case of cooks, stewards, waiters, hair-dressers, are instances of trades which would not come within the narrower sense of the term "industry." Yet it is well known that unions existed in those trades long before the enactment of the Constitution. There seems to be nothing in the Constitution itself to indicate that the power conferred was intended to cover part only of the evils aimed at. The words used are large enough to cover all of them, and where it becomes a question of construing words used in conferring a power of that kind on the Commonwealth Parliament, it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of our community must involve. For that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, the court should, in my opinion, always lean to the broader interpretation, unless there is something in the context or in the rest of the Constitution to indicate that the narrower interpretation will best carry out its objective and purpose. There is no such indication in any part of the Constitution; on the contrary, I do not see how its object in this respect can be effectually attained unless the broader interpretation is adopted. I am therefore of opinion that the definition of "industry" in the Act is within the terms of the Constitution, and that that objection also must fail.
For these reasons, I am of opinion that Mr Justice Higgins arrived at a right conclusion in upholding the registration of the respondent Union, and that this appeal must be dismissed.