Jumbunna Coal Mine No Liability v Victorian Coal Miners' Association

6 CLR 309

---

(Judgment by: Barton J)

Jumbunna Coal Mine No Liability
v.Victorian Coal Miners' Association

Court:

Judges: Griffith CJ

Barton JO'Connor J
Isaacs 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

Hearing date: 12, 15-19 June 1908
Judgment date: 6 October 1908

---

Judgment by:
Barton J

On appeal from the Industrial Registrar, the learned President of the Commonwealth court of Conciliation and Arbitration confirmed the admission to registration of the respondent Association. The formal grounds of the present appeal are, first, that the respondents are not an association capable of being registered under the Act, not being an association capable of being concerned in an industrial dispute extending beyond the limits of any one State; secondly, that the provisions of s 55 (1) ( b ), and all other relevant provisions of Part V of the Act, are invalid, being beyond the legislative powers of the Commonwealth as defined in the Constitution.

The questions involved turn on the extent and the manner of the exercise of two powers to make laws for the peace, order and good government of the Commonwealth. s 51 gives such powers; in subs (XXXV) with respect to "conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;" and in subs (XXXIX) with respect to "matters incidental to the execution of any power vested by this Constitution in the Parliament ... " Conciliation may possibly prevent a dispute, and we know it may settle one; but I do not see how there can be an arbitration unless a dispute calling for settlement already exists. An industrial dispute, in the everyday meaning of the term, does not take place unless a number of employés in an industry unite on their part to enter into controversy with the person or persons employing them, so as to secure what they consider an improvement, or to prevent or remove what they view as a wrong or a hardship in relation to the terms of their employment. An industrial dispute, so as to extend beyond the limits of one State, seems still more insistently to involve the idea of numbers interested in the making or resisting of a claim in respect of industrial conditions. The existence or imminence of such a controversy, and the difficulty of preventing or composing it by any agency or tribunal confined in its influence or power to the territorial limits of one State, might well arouse apprehensions of danger to "peace order and good government," which to the framers of the Constitution would seem to justify the grant of legislative power co-extensive with the possible evil.

In this view of the mischief to be guarded against or remedied, I am, after much consideration, unable to agree with the contention that the terms of subs (XXXV) demand that every disputant, to become one of the parties to what the learned President has called a two-state dispute, must have a sphere of operations extending beyond a single State. That does not follow from the fact that the subject-matter of the dispute permeates, or may permeate, the whole extent of such operations, of which the disputant occupies only a partial area. Surely disputants in different States may make common cause to defend a common interest when it is attacked or threatened, provided that mere sympathy is not confounded with material interest. I think the power granted is wide enough to enable the Legislature to make a body like the respondent Association registrable as, under circumstances which may arise, though not perhaps in all events, a competent participator in a dispute extending beyond State limits, where its industrial interests are wholly or in part at stake. Whether, by reason of its registration or otherwise, it will be a competent party in any future dispute in which it may claim participation, will depend on the nature of that dispute and the question how far its interest in the subject-matter is inherent. I think, too, that the Statute contains an exercise of the power of which, if it survives attack on other grounds, the respondent Association is at liberty to take advantage to the extent of registration. In my judgment, it is not essential, in order to arrive at a just settlement of disputes affecting, say, the whole of the coal miners or the colliery owners of the Commonwealth, or of more States than one, that the whole of the interests on the one side or the other should be gathered together in one huge organisation. What they may respectively consider expedient is one thing; the indispensable requirement of the law is another. I am of opinion that organisations in the States concerned in a dispute within subs (XXXV), each of them consisting wholly of members belonging to one or the other of those States, may join together as claimants, or be joined as respondents in respect at least of an existing dispute in which their interests coincide.

But the appellants impeach for invalidity s 55 (1) ( b ), "and all other relevant provisions of Part V of the Act," alleging these provisions to be beyond the constitutional powers of the Federal Parliament. I take it as beyond doubt that the power in subs (XXXV), even without that in subs (XXXIX), is abundant to authorise legislation to constitute a court of Arbitration, and to provide for the proper representation of parties and the enforcement of its decisions. It is well to say here that I do not encumber this judgment with any avoidable references to the conciliation power and its exercise, because it is enough for the purposes of this appeal if a provision attacked is justified as an exercise of the arbitration power. It is here that resort may be had to subs (XXXIX), in aid, if it be necessary, of subs (XXXV), though I must not be taken to assert that the power it contains would not have been exerciseable without express grant. Still, it has been explicitly given, perhaps largely because a similar express grant of power was thought convenient by the framers of the American Constitution. In this connection we here may well apply, as nearly as may be, the words of the Supreme Court of the United States in Juilliard v Greenman (one of the Legal Tender Cases ), 110 US , at 439 --

A Constitution, establishing a frame of government ... . is not to be interpreted with the strictness of a private contract. 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.

In that Constitution the section which grants to Congress its principal powers of legislation concludes by giving that body authority

to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.

The judgment already quoted says that --

By the settled construction and the only reasonable interpretation of this clause, the words 'necessary and proper' are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution; but they include all appropriate means which are conducive or adapted to the end to be accomplished, and which in the judgment of Congress will most advantageously effect it.

In the case of United States v Fisher , 2 Cranch. 358, Marshall, C.J, says in delivering judgment at 396 --

In construing this clause, it would be incorrect, and would produce endless difficulties, if the opinion should be maintained that no law was authorised which was not indispensably necessary to give effect to a specified power. Where various systems might be adopted for that purpose, it might be said with respect to each, that it was not necessary, because the end might be obtained by other means. Congress must possess the choice of means, and must be empowered to use any means which are in fact conducive to the exercise of a power granted by the Constitution.

In McCulloch v Maryland , 4 Wheaton, at 421, the court says, through the same great Judge --

We admit, 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 which 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.

The rule of interpretation thus laid down has been adhered to and acted on by the Supreme Court of the United States to this day. Now, of the authority given in the American Constitution, to make "all laws which shall be necessary and proper" for carrying the expressly granted powers into effect, and the authority given in the Australian Charter to "make laws with respect to matters incidental to the execution of any power vested by this Constitution in the Parliament," which is the wider? I cannot but think that the word "incidental" gives at least as ample a scope as the expression "necessary and proper" -- probably an ampler one. At any rate, the Australian power is not complicated with any difficulty arising from the condition of necessity, and believing, as I do, that the reasoning of the American jurists as to the extent of the authority conferred on Congress is conclusive, I must attribute a value at least as large to the authority conferred by subs (XXXIX) on the Australian Parliament. Clearly, the questions whether the end is legitimate and within the scope of the Constitution, whether the means are appropriate and plainly adapted to the end, and consistent with the letter and spirit of the Constitution, are questions for the court. But, the end being once found to be legitimate -- that is, authorised by the Constitution -- then whether it is "wise or expedient" to resort to the means proposed is "a political question, to be determined by [the Legislature] when the question of exigency arises, and not a judicial question, to be afterwards passed upon by the Courts" -- 110 US , at 450.

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 its necessity would be to pass the line which circumscribes the judicial department, and to tread on legislative ground

-- 4 Wheat. 423.

The question, then, is whether the provisions challenged by the appellants are within the provisions of ss (XXXV) and (XXXIX), bearing in mind that the later sub-section authorises a choice of any means incidental, or, to use the better word, ancillary to the attainment of the ends warranted by the conciliation and arbitration power. The proper representation of the parties before the tribunal, and the enforcement of its decisions being within the power, it was constitutional to provide by s 55 for such representation to be by means of the registration of such associations as there described, and their conversion thereby into "organisations" capable of being parties if they complied with the other valid conditions prescribed in Part V But as a condition precedent to registration, s 55 (2) requires compliance, so long as they remain unaltered, with the requirements of Schedule B. That schedule insists that the affairs of the applicant association shall be regulated by rules specifying the purposes of its formation, and providing for, among other things, "( d ) the mode in which industrial agreements and other instruments may be made by or on behalf of the association." The appellants urged that this requirement was beyond the powers of Parliament, and in fact challenged the whole of the provisions of the Act relating to industrial agreements. s 73, which is at the head of that part, provides that -- "Any organisation may make an industrial agreement with any other organisation or with any person for the prevention and settlement of industrial disputes by conciliation and arbitration." The attack centres on this section. The remaining sections of this part are ancillary to 73. It is urged that agreements for the prevention and settlement of industrial disputes cannot be authorised by this section. But the agreements are to be for the prevention of such disputes by conciliation and arbitration, and I see no reason why parties should not be allowed thus to bind themselves to resort to the authorities provided by the Act, so that they may prevent disputes by the aid of the one authority, or settle them by the aid of either, or, if necessary, both. The disputes to be prevented or settled are "industrial disputes" -- that is (s 4), disputes in relation to industrial matters ... extending beyond the limits of any one State. So far, I have no difficulty. But it is contended that "industrial matters" depend upon the meaning given by the Act to the term "industry" in the same section; and that this meaning is wider than the Constitution sanctions, so that "industrial disputes" acquire also too wide a meaning. It is true that this court has decided that an "industrial dispute" as defined cannot include a dispute in relation to employment on State railways. But that portion of cl 4, preceded as it is by the word "including," is not essential to the definition, and though we have held that it is not in se severable so as to distinguish between employment in intrastate and employment in interstate traffiv -- see the Railway Servants' Case , 13 ALR 273, still, the segment as a whole is clearly separable from the rest of the definition, even under the test exacted by the reasoning of Miller, J, in the Trade Mark Cases , 100 US , at pp 96, 98, 99, quoting United States v Reese , 92 US 214. Without "making a new law," these objectionable words can as a complete part be dropped out so as not to be "included" in "industrial disputes," and so, if they were held to be unauthorised, could subsequent references to industries carried on by or under the control of a State Government or a State authority. Hence, it is not necessary, in order to bring the provision within bounds, "to introduce words of limitation" into the Statute, "so as to make it specific, when, as expressed, it is general only." In that respect, then, I think s 55 stands. If, however, Schedule B ( d ) referred to industrial agreements generally, it might, in a certain view, affect fatally the whole of the registration provisions. But by definition an "industrial agreement" means such an agreement "made pursuant to this Act," which, as to essentials, means pursuant to s 73. Moreover, assuming that I have taken too liberal a view of s 73, as to the meaning of "industrial dispute" as there used, it does not follow that Schedule B ( d ) is fatal. It is true that it may in that case be looked at as providing for agreements as to matters outside the powers of the Parliament. But the other construction is equally open, that this is a limitation by Parliament of the privilege of registration to associations whose members have agreed by rule to give them leave to deal with matters similar to, if not connected with, the matters authorised, though not quite within their scope. Such a limitation or restriction the Parliament could impose, as it would amount to a grant of a privilege less extensive than it might have validly accorded. In that view, Schedule B ( d ) is constitutional, and as between two constructions equally open, and equally within reason, it is our duty to accept that one which makes for the validity of the enactment. Before we construe an enactment as transcending the powers of Parliament, it should appear that such a construction is the only reasonable one. The Legislature are to be considered as conferring nothing but what they had a reasonable right to grant. "A mere doubt of the constitutional validity of a Statute is never sufficient to warrant its being set aside" -- Cooley, Principles of Constitutional Law , quoted by Thayer, 1 Const. Cases 174.

A very strong assault was made on the provisions of s 58; and I must admit that I was during the argument much disposed to admit its success. That section gives to every registered organisation, for the purposes of the Act, perpetual succession and a common seal, and power to "purchase take on lease hold sell lease mortgage exchange and otherwise own possess and deal with any real or personal property." It was truly urged that the grant of these powers and privileges amounted to the exercise by Parliament of power to create corporations and regulate the holding and use of property, and that such a grant was beyond the competence of Parliament. And it does seem difficult to find in the Act any very substantial purposes to which these grants can be applied. If the enactment is invalid, say the appellants, it brings down with it the whole fabric of registration, for every association otherwise capable of engaging in a dispute will be created, as soon as registered, a corporation in breach of the Constitution. The section was defended on the ground that the powers and privileges conferred were incidental or ancillary to legislation for the main and authorised ends of the Statute, and that they would have been "necessary and proper" provisions in relation to a similar power if existing in the United States Constitution. Hence, it was argued, they were "incidental" provisions within the meaning of s 51, subs (XXXIX). Having regard to the reasoning I have cited and endeavoured to apply, I am of opinion, though not with great confidence, this this is the correct view. The power to use a common seal and to hold land (to summarise the section), are helpful in some measure to the efficiency of the bodies, representing employers as appropriately as employés It is of some consequence that their collections of fees and fines, and any lands they may acquire, should be held in some way conveniently to be reached and dealt with by the court. The degree to which this is a necessity, and the question whether the instrument is wisely selected, are, as I have shown, political questions. If, in our judgment, the enactments of s 58 are means to a constitutional end, if they exist in respect of a matter or matters incidental to the execution of a Constitutional power, then the degree of their mere suitability, if they are applicable at all, and the wisdom of their selection, if other methods could have been adopted, are matters beyond our jurisdiction, and therefore immune from our criticism. We must assume, also, that Parliament has acted from a deep sense of responsibility, and in full consciousness of the limits of its powers, and of its sacred obligation to the Constitution, which they, whom it has called into legislative existence, would surely be the last to violate.

I am of opinion that the respondent Association was duly registered, and that the appeal fails.