Boards of Reference can determine classification disputes under awards without constitutional objection on judicial power or intrastate dispute grounds, provided the award validly settles an interstate industrial dispute.
Later decisions that cite R v Hegarty; Ex parte City of Salisbury
Decisions cited by R v Hegarty; Ex parte City of Salisbury
THE QUEEN v. HEGARTY; Ex parte CITY OF SALISBURY [1981] HCA 51; (1981) 147 CLR 617
Industrial Law (Cth)
High Court of Australia
Gibbs C.J.(1), Stephen(2), Mason(3), Murphy(4) and Wilson(5) JJ.
CATCHWORDS
Industrial Law (Cth) - Conciliation and Arbitration - Board of Reference - Award providing for classification of officers - Disputes over classifications to be determined by Board of Reference established by award - Board to have regard to "factors that include the officers' degree of responsibility, qualifications including ability and experience, and length of service" - Whether Board required to exercise judicial power of Commonwealth - Award in settlement of interstate industrial dispute - Power of Board to determine intrastate classification dispute arising under award - The Constitution (63 & 64 Vict. c. 12), s. 51 (xxxv), Ch. III - Conciliation and Arbitration Act 1904 (Cth), s. 50.
HEARING
Adelaide, 1980, September 23;DECISION
1981, September 18.STEPHEN J. I have read the reasons for judgment of Mason J. with which I am in full agreement. (at p622)
MASON J. This is an application to make absolute an order nisi for prohibition directed to the members of a Board of Reference and The Municipal Officers' Association of Australia ("the Association") restraining them from proceeding further with an application for the reclassification of Ian William Tyler, an employee of the prosecutor, under the Municipal Officers (South Australia) Award 1973, an award of the Australian Conciliation and Arbitration Commission binding various Local Government Councils (including the prosecutor) and the Association. (at p622)
2. The Award, which was an industry award, was made in 1973 and later varied on several occasions. It prescribes the minimum annual rates of salary payable to employees in particular classifications (cl. 6 (1) (a)). It requires the employer Council to properly classify an officer on his initial engagement or upon his promotion (cl. 6 (1) (b)). It provides that the Association has the right to negotiate on behalf of its member with the employer Council in relation to his classification and that, in the event of a disagreement, either party may bring the matter for determination to (i) the Australian Conciliation and Arbitration Commission if the matter goes to equal pay for female officers; or (ii) either the Board of Reference constituted under the Award or, should the parties concerned agree upon such a reference, the Commission, in all other cases: (cl. 6 (1) (c)). (at p622)
3. The Award enables an officer, or the Association, by written request to have his classification reviewed by the employer Council, the review to be conducted in accordance with cl. 6 (1) (c) (see cl. 6 (1) (e)). It also requires that reclassification will take place on a "point-to-point" basis, i.e. the officer shall be placed on that step of the range of his classification which is appropriate to the length of time that he has been performing the duties on which the reclassification is based (cl. 6 (1) (f)). (at p622)
4. Tyler commenced working for the prosecutor in August 1971 as a Drafting Officer Grade 1. On 23 August 1972 he was appointed Drafting Officer Grade 2. Having completed four years' service in that position he sought to be reclassified as a Drafting Officer Grade 3. (at p622)
5. The classification of Drafting Officers is set out in cl. 6 (9) of the
Award which contains the following provisions with respect
to Drafting
Officers Grades 1, 2 and 3:
"Drafting Officer Grade 1.is not of a highly skilled nature.
An adult Drafting Officer who is required to perform drafting work which
Years Drafting Officer who Drafting Officer who
of does not hold an does hold an Ordinary
service Ordinary Certificate Certificate of the
of the Institute of Institute of Technology
Technology or its equivalent
$ $
1st 8711 9487
2nd 9039 9872
3rd 9408 10263
4th 9700 10633
5th and 9954 11010
thereafter
Drafting Officer Grade 2.at the South Australian Institute of Technology or its equivalent and has had at least five years' service and who performs drafting work of a more complicated nature, including some design work.
(i) An officer who has qualified for an appropriate Ordinary Certificate
Years of service $
1st 11379
2nd 11747
3rd 12115
4th and thereafter 12480
Drafting Officer Grade 3.Drafting Officer Grade 1 and at least four years' experience as a Drafting Officer Grade 2 or experience deemed equivalent thereto and who performs drafting work of a high grade, individual nature, including design work, with a capacity for independent judgment, and who may be required to supervise the work of other Drafting Officers.
An adult officer who has had at least five years' experience as a
6. Tyler's request for reclassification was made on the footing that he was
entitled to be reclassified as from 23 August 1976 with
the consequence that
he would become entitled to the higher salary from that date. The prosecutor
did not agree to his reclassification
and the Association, by letter dated 28
March 1979, requested that a Board of Reference be convened under cl. 27 of
the Award to
deal with the difference which had arisen between the prosecutor
and the Association acting on Tyler's behalf. (at p624)
7. Clause 27 provides:
"(a) A Board of Reference for the purpose of this award shall be
constituted and shall consist of two persons to be from time
to time appointed
by a respondent Council and two persons appointed from time to time by The
Municipal Officers' Association of Australia
and the Association of
Architects, Engineers, Surveyors and Draughtsmen of Australia, with the Deputy
Industrial Registrar for South
Australia, or his nominee, as Chairman. Three
members shall form a quorum. The Board shall sit at such time and place as the
parties
may agree, or in default of agreement as the Chairman may fix. The
functions of the Board shall be -
(i) to consider any matters pertaining to this award brought before it
from time to time by a respondent Council or by The Municipal
Officers'
Association of Australia or by the Association of Architects, Engineers,
Surveyors and Draughtsmen of Australia;
(ii) to inquire into and if possible settle differences between the
Associations and any respondent Council; and
(iii) to decide by a majority decision any matter which by this part of
this award is assigned to the Board of Reference for
determination.
(b) The Board of Reference shall not be empowered to determine or fix the
salary of an officer.
(c) Nothing in this clause shall prevent any party from applying to the
Australian Industrial Court for an interpretation of
any clause of this
award.
(d) There shall be an appeal from any decision of the Board of Reference
to the Australian Conciliation and Arbitration Commission.
Such appeal shall
be lodged within 21 days of the decision of the Board." (at p624)
8. A Board of Reference, constituted in accordance with cl. 27, was convened
to determine the difference. Objection was taken by
the prosecutor that the
function entrusted to the Board involved it in exercising the judicial power
of the Commonwealth contrary
to Ch. III of the Constitution. After lengthy
argument the Board rejected this contention and indicated that it would
proceed to hear and determine the difference.
It was at this stage that the
order nisi was granted. (at p624)
9. The prosecutor's case rests on two grounds. The first is that taken before the Board, namely, that it is exercising the judicial power of the Commonwealth. The second is that the Board is engaged in deciding or settling an industrial dispute which does not extend beyond the limits of a single State and that the Commonwealth Parliament does not possess legislative power to enable the Board to do so. (at p625)
10. The prosecutor's case appears to accept, in accordance with earlier decisions of this Court, that s. 50 of the Conciliation and Arbitration Act 1904 (Cth), as amended, confers power on the Commission by award to give power to appoint a Board of Reference and to assign to it the function of "allowing, approving, fixing, determining or dealing with . . . a matter or thing which, under the award, may from time to time require to be allowed, approved, fixed, determined or dealt with by the Board". In essence the prosecutor submits that the power cannot be exercised so as to enable the Board to exercise the judicial power of the Commonwealth (see R. v. Darling Island Stevedoring and Lighterage Co. Ltd.; Ex parte Halliday and Sullivan [1938] HCA 44; (1938) 60 CLR 601, esp at 620 ; The Builders' Labourers' Case (1914) [1914] HCA 32; 18 CLR 224, at pp 236, 252, 257, [1914] HCA 58; 272 ; The Tramways Case (No. 2) (1914) 19 CLR 43, at pp 82, 135, 163 ) or so as to enable the Board to settle an industrial dispute which does not extend beyond the limits of a single State. (at p625)
11. The argument presented in support of the first ground relies very heavily
on the provisions of the Award, notably cll. 6 (1)
(b) and 6 (1) (c). Clause 6
(1) (b) provides as follows:
"The Council shall, upon the initial engagement or upon the promotion of
an officer, properly classify the officer within an
appropriate classification
having regard to the nature and range of duties that it is proposed to assign
to that officer. The Council
shall then advise The Municipal Officers'
Association of Australia or the Association of Architects, Engineers,
Surveyors and Draughtsmen
of Australia or both organisations, as the case may
be, of the position to which the officer is appointed or promoted, the nature
and range of its duties, and the award classification, if any, to which it has
been assigned."
Clause 6 (1) (c) provides:
"In exercising its discretion with regard to the classification of an
officer within a graded structure, a Council shall give
due regard to factors
that include the officer's degree of responsibility in its service,
qualifications including ability and experience,
and length of service with
the Council. In regard to such classification, The Municipal Officers'
Association of Australia or the
Association of Architects, Engineers,
Surveyors and Draughtsmen of Australia, as the case may be, shall have the
right to negotiate
with the Council on behalf of its member . . . "
The prosecutor contends that the discretion referred to in cl. 6 (1) (c) is
not exercisable in relation to the classification of
Tyler as a Drafting
Officer. The prosecutor submits that the discretion is exercisable only in
relation to the classification of
an officer within a graded structure where
the Award contains no definition or description of the criteria which
distinguish the
various grades. In relation to some classifications in graded
structures, such as Drafting Officers, the Award sets out criteria
which
distinguish between the grades. However, in relation to other classifications,
such as Overseers and Supervisory Officers and
Swimming Pool Officers, no
criteria are specified. The argument is that the discretion can only apply to
classifications of the latter
kind. (at p626)
12. I doubt that the argument is well founded. But, even assuming it to be soundly based, it does not compel the conclusion that the determination of the appropriate classification for an officer is one that involves no exercise of discretion and value judgment. It is for a Council "upon the initial engagement or upon the promotion of an officer" to properly classify him within an appropriate classification having regard to the nature and range of duties to be assigned to him. This function involves a process of personal or subjective evaluation and value judgment invariably exercised by an employer in making an appointment or in making a promotion of an employee. Inherently it is a function that is more appropriately classified as administrative and non-judicial. It is verging on the ludicrous to suggest that the Council in appointing or promoting an employee is exercising judicial power. (at p626)
13. A Board of Reference in discharging its function under cl. 27 stands in the shoes of the employer. Of necessity it is required on appeal, as was the Council initially, to properly classify the employee under the Award. It follows that what the Board of Reference does necessarily has the same character as the function undertaken by the employer Council, for there is nothing in the Award or in the nature of the Board to suggest that it is to approach the question in such a different fashion that one could say that the function which was administrative at first instance involves the exercise of judicial power by the Board. (at p626)
14. The fact that the Board is called upon to discharge its function by way of settling a difference that has arisen does not involve it in the exercise of judicial power. Indeed, it tends to suggest that the Board is acting in the capacity of an arbitrator and this impression is reinforced by the provision made in cl. 27 for the constitution of a Board of Reference which is to consist of two persons appointed by a respondent Council and two persons appointed by the associations mentioned therein with the Deputy Industrial Registrar for South Australia, or his nominee, as Chairman. The preservation of the parties' right to apply to the Australian Industrial Court for an interpretation of the Award also suggests that the Board is not exercising judicial power, that Court having authority to give a conclusive and binding interpretation of the Award. (at p627)
15. I accept that the decision of the Board binds the parties, except as to the interpretation of the Award. Clause 27 proceeds on the footing that the decision of the Board on a classification issue is binding unless and until it is set aside on appeal - see Ex parte Halliday and Sullivan (1938) 60 CLR, at pp 609, 611, 616, 618 . But it is not, and could not be, suggested that this of itself gives rise to an exercise of judicial power. (at p627)
16. The prosecutor seeks to take comfort from the circumstance that the Award provided for the application of certain criteria distinguishing the three grades of Drafting Officer, with the consequence that a determination of Tyler's classification called for the application of those relevant criteria to the facts as found. This, so it was said, was a hallmark of the exercise of judicial power. As we have seen, the application of the criteria calls for personal or subjective evaluation or value judgment ordinarily associated with the administrative process. (at p627)
17. But in any event the application of criteria to facts as found is not a characteristic which definitively distinguishes the exercise of judicial from non-judicial power. The application of prescribed criteria to facts may be, and frequently is, an element in the administrative, as well as the judicial, function; it may also be an element in the arbitral function. It is but one of the many illustrations of the impossibility of providing a definition which clearly marks off the judicial from the non-judicial. (at p627)
18. It is acknowledged that the historical or traditional classification of a function is a significant factor to be taken into account in deciding whether there is an exercise of judicial power involved (Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 365, 369-370, 381-382 ; Cominos v. Cominos [1972] HCA 54; (1972) 127 CLR 588, at pp 600, 605, 608 ). It is therefore important to note that the engagement and promotion of employees has never been regarded as involving the exercise of such a power. In Reg. v. White; Ex parte Byrnes [1963] HCA 58; (1963) 37 ALJR 297 , this Court unhesitatingly rejected the contention that the application of the disciplinary provisions of the Public Service Act 1922-1960 (Cth) invaded the realm of judicial power, notwithstanding that the functions thereby entrusted to a Chief Officer and an Appeal Board in determining whether a public servant had committed "an offence" and, if so, the punishment to be imposed, would in a different context have been susceptible of the exercise of judicial power. The Court observed (1963) 37 ALJR, at p 298 : "We are dealing with the regulation of what is, no doubt, a very large body of people with respect to their work for and their relations with the Commonwealth Crown" and went on to note that the disciplinary measures related to "status, conditions or other relations in the service". The case for judicial power there was stronger than here. Certainly if the prosecutor were to receive a favourable answer in this case it would be difficult to resist the conclusion that the appointment, promotion, transfer and disciplinary provisions of the Public Service Act involved an exercise of judicial power. (at p628)
19. It is also recognized that there are functions which may be classified as
either judicial or administrative, according to the
way in which they are to
be exercised. A function may take its character from that of the tribunal in
which it is reposed. Thus,
if a function is entrusted to a court, it may be
inferred that it is to be exercised judicially; it is otherwise if the
function
be given to a non-judicial tribunal, for then there is ground for the
inference that no exercise of judicial power is involved. As
Kitto J. said in
Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100
CLR 277, at p 305
:
". . . sometimes a grant of a power not insusceptible of a judicial
exercise is to be understood as a grant of judicial power
because the
recipient of the grant is judicial. . . . The reason for concluding in some
such cases that the judicial character of
the repository imparts a judicial
character to the power is simply that the former provides a ground for an
inference, which in those
cases there is nothing or not enough in other
considerations to preclude, that the power is intended and required to be
exercised
in accordance with the methods and with a strict adherence to the
standards which characterise judicial activities." (at p628)
20. In the result, even if it be assumed that the function entrusted to the
Board is one which is capable in another context of
involving an exercise of
judicial power, the function here involves no exercise of that power. (at
p628)
21. The prosecutor's second submission looks exclusively to the dispute concerning Tyler's classification and asserts that it is intrastate in character, as indeed it is when viewed in isolation. But this is by no means the end of the matter. If the provisions in the Award relating to the Board of Reference's functions were within the ambit of the original interstate dispute, they constitute a valid settlement of that dispute. It should be noted that on the material available before this Court there is nothing to indicate that the original Award exceeded the ambit of the log of claims upon which it was based. (at p629)
22. Where there is an interstate industrial dispute as to the means by which differences as to the classification of employees are to be determined, that dispute may be validly settled by an award which provides that all future such differences shall be resolved by a Board of Reference, so as to bind the parties to the dispute. Such an award is a settlement of the original dispute. The settlement is the more effective and enduring because it provides procedures and continuing machinery for the resolution of classification issues, the mode of resolution being germane to the original interstate dispute. These procedures and that machinery apply to the parties bound by the award wherever they may be, including an employer and an employee in a single State, in the same way that other provisions of the award apply to an employer and an employee in a single State. The application of the procedures results in a determination that an employee is within a particular classification, a factum on which the provisions of the award then operate. (at p629)
23. It is not to the point that the difference between the prosecutor and Tyler is not in itself an interstate dispute or that the Award is so expressed that a Board of Reference is authorized to deal with that difference. What is to the point is that the provisions constitute the settlement of an interstate industrial dispute and that the procedures and machinery prescribed for the resolution of a person's classification are designed to ensure that the settlement of that dispute is effective and enduring. (at p629)
24. I note that in Reg. v. Commonwealth Conciliation and Arbitration
Commission; Ex parte Melbourne and Metropolitan Tramways Board
[1965] HCA 50; (1965) 113 CLR
228, at p 256 , Menzies J. said:
". . . when the award sought is, in reality, for the provision of
machinery for the settlement of local disputes, the demand
for an award
cannot, in my opinion, give rise to an industrial dispute for the purposes of
s. 51 (xxxv.) of the Constitution. In saying this, I am not casting doubt upon
the validity of provisions in awards providing for boards of reference to
supervise
the carrying out of awards properly made. What I am concerned with
is whether a dispute about how local differences should be settled
is a
dispute within s. 51 (xxxv.) of the Constitution, and I think it is not."
In the present case no attempt was made to establish that the original Award
was sought in reality for the provision of machinery
for the settlement of
local disputes. As I have already said, we must proceed on the footing that
the Award was within ambit. (at
p630)
25. Some assistance is provided by the decisions of this Court in connexion with the power to vary awards. That power extends to variations, not only to correct or improve upon the provisions of the original award independently of change of circumstances, but also to meet altered conditions (Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461, at pp 473-474 ; Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615, at p 626 ), so as to maintain the award in an expedient and satisfactory form. What can be done by variation, can plainly be done by the original award. It can be so shaped as to provide for eventualities that will or may arise in the future. (at p630)
26. The prosecutor's argument seems to proceed on the unspoken assumption that there is a constitutional prohibition against any exercise of the power conferred by s. 51 (xxxv) which would result in the settlement of an intrastate dispute. There is no such prohibition. The power conferred by s. 51 (xxxv) is of course circumscribed by reference to industrial disputes extending beyond the limits of one State. But this does not prohibit an exercise of the power which will result in the settlement of a dispute on a one-State basis. (at p630)
27. Cases such as Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615 decide that, once an interstate industrial dispute arises, the Commission may decide the dispute in a piecemeal fashion and ultimately by its award settle the residue of the dispute, notwithstanding that the residue is confined to a single State. The underlying principle is that once an inter-state industrial dispute arises so as to give the Commission jurisdiction, the Commission in the exercise of that jurisdiction may settle part of the dispute which, taken in isolation, does not extend beyond one State and, further, may vary an award settling that part of the dispute. (at p630)
28. I would discharge the order nisi. (at p630)
MURPHY J. The application seeks to restrain a Board of Reference under the Municipal Officers (South Australia) Award 1973, from deciding a question whether an employee of the Corporation should be reclassified under the Award. The Award provides that in the event of disagreement between the corporation and the Municipal Officers' Association on a matter of classification, it may be referred to the Board of Reference constituted under the Award. The applicant contends that the Board of Reference proposes to exercise judicial power in contravention of the constitutional separation of powers (see Reg. v. Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 (the Boilermakers' Case)) and also that the dispute over the grading of the particular officer is not a dispute extending beyond the limits of any one State and is therefore outside constitutional legislative power (see s. 51 (xxxv)). (at p631)
2. The statutory provision for Boards of Reference was first inserted in the
Conciliation and Arbitration Act 1904 in 1910 (see
Act No. 7 of 1910). Boards
of Reference are a necessity of industrial relations for avoidance of
disruption arising from minor differences.
As Mr Hegarty the Chairman of the
Board of Reference said:
"It is generally accepted that Boards of Reference perform a worth while
function in providing a ready and effective means
of settling certain types of
industrial disputes arising out of the operation of awards and that the
informal nature of the proceedings
are conducive to the settlement of disputes
by conciliation." (at p631)
3. The prosecutor's argument here correctly pointed out the adjudicative
nature of the particular powers exercisable by the Board.
The fallacy in the
prosecutor's argument is the assumption that at the federal level all
determinations of fact (or of law) must
be made by courts exercising the
judicial power of the Commonwealth. Adjudicative decisions involving
application of known criteria
to particular facts are a daily part of the work
of numerous administrative officers and bodies. As McTiernan J. said "it is
commonplace
in the field of administrative law that adjudication is not
distinctive of judicial power exclusively: and it is not necessarily
inconsistent with true executive or administrative action" (Reg. v. Trade
Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd
[1970] HCA 8; (1970) 123 CLR 361,
at p 371 ). (at p631)
4. The courts vested with judicial power of the Commonwealth by and under Ch. III are given directly by the Constitution or by Parliament certain judicial functions. These include giving binding determinations of fact and law (and extend to review of determinations of fact and law by other adjudicative bodies, administrative as well as judicial). Subject to this, the exercise of the executive power of the Commonwealth requires the daily exercise of adjudicative functions, similar analytically to those performed by the courts exercising judicial power. It would be hairsplitting to distinguish the judicial functions of many federal administrative agencies from those carried out by courts. Administrative determinations made by these agencies are not binding on the courts, but in practice and unless set aside by courts are operative and constitute the cement which binds the whole administrative process. The judicial and executive powers thus overlap, but of course far from completely. (at p632)
5. Whether adjudication is treated as part of the judicial power or not is often in practice the decision of the legislature. If it places the function with a court (within Ch. III) then in general the adjudicative power is treated by this Court as part of the judicial power of the Commonwealth, if not, it is treated as administrative adjudication. For a recent example see Registrar of Trade Marks v. Muller [1980] HCA 35; (1980) 144 CLR 37 . Other functions, even with a minimal adjudicative aspect, because traditionally they have been dealt with by courts, can be regarded as part of judicial power if the legislature cares to place them with the courts. (at p632)
6. The Commonwealth Conciliation and Arbitration Commission daily exercises legislative and adjudicative powers. In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers, Australia [1959] HCA 47; (1959) 107 CLR 208, at pp 240-242 , Dixon C.J. (with whom Fullagar J. agreed) indicated that the Commission in making its award was to determine whether the work done by particular professional engineers fell within the constitutional and statutory conceptions of "industrial" as stated in that case (see also Kitto J. (1959) 107 CLR, at pp 251-252 ). That adjudicative task was analytically the same as that performed in the exercise of judicial power. Had it been vested in a court its performance would have been an exercise of judicial power. The Boilermakers' Case (1956) [1956] HCA 10; 94 CLR 254 has led to a hyperanalysis of adjudicative functions sometimes resulting in carrying the notion of separation of powers to an extreme of inconvenience as in Kotsis v. Kotsis [1970] HCA 61; (1970) 122 CLR 69 , in which, in my opinion, the dissenting conclusion of Gibbs J. was correct. However the necessities of industrial life have so far prevented this unrealistic approach to Boards of Reference which commonly exercise adjudicative as well as legislative functions. (at p632)
7. It is clear that a Board's adjudicative functions do not necessarily mean that there is a purported conferring on it of judicial power. Further, a pointer away from judicial power in this Board is the breadth of discretion vested in it (see Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277 ; Reg. v. Spicer; Ex parte Waterside Workers' Federation of Australia [1957] HCA 96; (1957) 100 CLR 312 ) although this is a dubious criterion by which to determine whether judicial power is being exercised because standards and discretions commonly applied or exercised by courts exercising judicial power are often very broad. (at p633)
8. The Board's functions are no part of the judicial power of the
Commonwealth.
Is there necessity for a dispute extending beyond one State? (at p633)
9. Claims for machinery to settle workshop or local disputes often raise important industrial issues. Claims for such Boards of Reference have been a common feature of logs of claims for very many years. In my opinion, such a claim may give rise to an industrial dispute within s. 51 (xxxv). In Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board [1965] HCA 50; (1965) 113 CLR 228 , Menzies J. thought otherwise. However, he carefully avoided casting doubt on the validity of provisions in awards for Boards of Reference to supervise the carrying out of awards properly made; (see also Windeyer J. in Reg. v. Gough; Ex parte Meat and Allied Trades Federation of Australia [1969] HCA 71; (1969) 122 CLR 237, at p 216 ; and Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd [1913] HCA 71; (1913) 16 CLR 245, at pp 262-263, 271-272 ). (at p633)
10. There is no exception to s. 51 (xxxv) of the Constitution which prevents the use of that legislative power for the establishment of such machinery by conciliation and arbitration. In the course of arbitration to prevent or settle an existing or potential dispute extending beyond one State, machinery can be set up to resolve disputes or issues which do not extend beyond the limits of one State. The passages referred to from the Professional Engineers' Case [1959] HCA 47; (1959) 107 CLR 208 suggest that (assuming the power exercised is arbitral) the dispute resolving machinery may be aplied to adjudication of intrastate questions or issues. In that case the Commission was required to determine questions each of which was of an intrastate nature and related to the work of particular individuals. (at p633)
11. Provision for Boards of Reference can be justified (even where there is no claim for a dispute resolving mechanism in the original dispute) by treating it as a provision for the maintenance of an award (Reg. v. Kelly; Ex parte Australian Railways Union [1953] HCA 96; (1953) 89 CLR 461 ). Such a provision helps to ensure that the settlement of the dispute (hopefully achieved by an award) will not be unsettled because of disputes and differences about the operation of the award which may be local and even confined to individuals. Once the authority of the Commission has been validly invoked (to settle or to prevent an industrial dispute extending beyond one State) the Commission may make an award and restrict it to one State or part of one State or even to one employer and one employee. An actual or potential dispute extending beyond one State may serve as the constitutional and statutory umbrella for awards and provisions which may not in themselves possess any interstate character (see Reg. v. Isaac; Ex parte State Electricity Commission (Vict.) [1978] HCA 33; (1978) 140 CLR 615 ), and powers to make, vary or revoke awards can be exercised in relation to circumstances which do not extend beyond one State. Likewise Boards of Reference may be, and usually but not always are, empowered to deal with individuals or circumstances without any qualification of "extending beyond the limits of any one State". (at p634)
12. The order should be discharged. (at p634)
WILSON J. I have had the advantage of reading the reasons for judgment prepared by Mason J. I agree with his conclusions and the reasons advanced in support of them. (at p634)
2. I would discharge the order nisi. (at p634)
ORDER
Order nisi for writ of prohibition discharged.