R v Duncan; Ex parte Australian Iron & Steel Pty Ltd

R v Duncan; Ex parte Australian Iron & Steel Pty Ltd [1983] HCA 29; (1983) 158 CLR 535 (6 September 1983)


HIGH COURT OF AUSTRALIA


THE QUEEN v. DUNCAN; Ex parte AUSTRALIAN IRON AND STEEL PTY. LTD. [1983] HCA 29 ; (1983) 158
CLR 535
Constitutional Law (Cth)
High Court of Australia


Gibbs C.J.(1), Mason(2), Murphy(3), Wilson(4), Brennan(5), Deane(6) and
Dawson(4) JJ.
CATCHWORDS

Constitutional Law (Cth) - Commonwealth legislative power -
Commonwealth-State legislative scheme - Commonwealth and State Acts
-
Regulation of coal industry in State - Constitution of Coal Industry Tribunal
by legislation of Commonwealth and State - Awards made under Commonwealth Act
- Power of Tribunal to vary
awards pursuant to power conferred by State Act -
Inconsistency between laws - Whether Commonwealth Act covers field -
Application
of s. 109 of Constitution to co-operative legislation - Whether
application to vary award within ambit of original interstate dispute - The
Constitution (63 & 64 Vict. c. 12), ss. 51 (i), (xxxv),(xxxix), 109 - Coal
Industry Act 1946 (Cth), ss. 4, 30, 32, 34 - Coal Industry Act 1946 (N.S.W.),
ss. 4, 36, 38, 40.


HEARING

1982, December 7-9; 1983, September 6. 6:9:1983


PROHIBITION.
DECISION

1983, September 6.


The following written reasons for judgment were delivered:-


GIBBS C.J. Before the Court are applications to make absolute two orders
and Steel Pty. Limited, a company which owns and operates
a number of coal
mines in New South Wales. The respondents in each case are David Anthony
Duncan (the Coal Industry Tribunal), the
Australian Coal and Shale Employees'
Federation (Miners' Federation), the Federated Mining Mechanics' Association
of Australasia
(Mining Mechanics), Electrical Trades Union of Australia (ETU),
The Amalgamated Metal Workers' and Shipwrights Union (AMWSU), The
Federated
Engine Drivers' and Firemen's Association of Australasia (FEDFA), Australian
Colliers' Staff Association (ACSA) and The
New South Wales Colliery Officials'
Association, Illawara District (Deputies' Association). Each of the
respondents, other than Mr.
Duncan and the Deputies' Association, is an
association of employees registered under the provisions of the Conciliation
and Arbitration
Act 1904 (Cth), as amended (the Conciliation and Arbitration
Act) as an organization of employees. Mr. Duncan constitutes The Coal
Industry
Tribunal (the Tribunal) under the Coal Industry Act 1946 (Cth), as amended
(the Commonwealth Coal Industry Act), and the
Coal Industry Act 1946 (N.S.W.),
as amended (the State Coal Industry Act). The Deputies' Association is a trade
union registered
under the Industrial Arbitration Act 1940 (N.S.W.), as
amended, as an industrial union of employees. The prosecutor employs, in or
in
connexion with its coal mines, members of the respondent unions. (at p543)

2. What is sought by the prosecutor are writs of prohibition prohibiting the
respondents from proceeding further on decisions and
orders of the Tribunal
made respectively on 27 October 1982, 29 October 1982 and 12 November 1982.
The effect of those decisions
and orders will be stated hereunder. (at p543)

3. The prosecutor's collieries in the Wollongong district supply coal to the
steelworks at Port Kembla. The steel industry in Australia
is today faced with
grave problems caused, inter alia, by surplus production throughout the world,
reduced domestic demand and considerable
increases in the cost of production.
Some steel plants have become redundant and the requirements of the steelworks
for coal have
been reduced. In consequence the prosecutor is unable to find
markets for its coal and has found it necessary to reduce its output
and to
retrench the workforce at the collieries. Accordingly, on 1 October 1982,
dismissal notices were given to a number of employees,
members of the
respondent unions, whom the prosecutor considered to be redundant. Each notice
informed the employee to whom it was
given that "it is necessary to terminate
your services from Friday, 29th October, 1982". The conditions of employment
of the employees
were governed by awards made by the Tribunal. The awards
which related to members of the unions registered under the Conciliation
and
Arbitration Act were expressed to be made under the Commonwealth Coal Industry
Act and provided that the employment of the employees
might be terminated by a
week's notice or, in one case, by two weeks' notice. The award which related
to members of the Deputies'
Association appears to have been made under the
State Coal Industry Act; its provisions were not before the Court, but it
appears
to have been common ground that in all cases the notices of dismissal
given by the prosecutor were in accordance with the relevant
awards. (at p543)

4. The unions promptly responded to the dismissal notices. On 1 October 1982
an application was made to the Tribunal on behalf of
all the respondent unions
except ACSA to vary the relevant awards by including provisions that would
prevent the prosecutor from
terminating the employment of any employee on
account of redundancy until the finalization of a report by the Industrial
Commission
of New South Wales on matters concerning the steel and coal
industries in New South Wales. On 5 October 1982 ACSA applied to be included
in the application. The two applications were listed together. The Tribunal,
after hearing argument which extended over a number
of days, gave its decision
on the applications on 18 October 1982. It held that all of the awards except
that governing the members
of the Deputies' Association were made under the
Commonwealth Coal Industry Act, and that there was no power to vary them
because
the dispute raised by the respondent unions was not an interstate
dispute. However, the Tribunal held that it did have power to vary
the award
applicable to members of the Deputies' Association, since that award was made
under the State Coal Industry Act. However,
in view of subsequent
developments, the application, so far as it relates to the Deputies'
Association, has since been adjourned
indefinitely. (at p544)

5. On 22 October a further application was made to the Tribunal on behalf of
the respondent unions except the Deputies' Association.
The application,
omitting immaterial parts, was in the following terms:


"In the matter of an industrial
dispute


where in the following unions:-


Australian Coal and Shale Employees


Federation,


Federated Mining Mechanics,


Electrical Trades Union,


Amalgamated Metal Workers and


Shipwrights Union,


Federated Engine Drivers and


Firemens Association


and Australian Collieries Staff


Association


and


The New South Wales Coal


Association,


The Queensland Coal Owners'


Association


and Cornwall Coal Co., Tasmania and


others are parties.


AND IN THE MATTER OF an application


by the Australian Collieries' Staff


Association


APPLICATION IS HEREBY MADE to vary or insert into the


appropriate awards the following clause:


RETRENCHMENT AND REDUNDANCY


An employee may only be retrenched or deemed redundant


after it has been established by the employer, to the satisfaction


of the employee and of the union, that no other alternative


exists.


Where an employee is retrenched or deemed redundant he or


she shall be entitled to -


(a) Three months' notification of the cessation of his or her


services, and


(b) 12 weeks' pay, at the rate which would have been paid if at


work, for each year of service, and


(c) All Long Service Leave entitlements.


We wish also, to request that if no determination has been


made by Wednesday afternoon, that the Tribunal issue orders


extending the terminating date of those members of all unions


on threat from Australian Iron and Steel until after this


application has been finalised."


On 27 October 1982 the Deputies' Association made a similar application to
vary the award applicable to it. (at p545)

6. The applications of 22 and 27 October were heard on 27 October. Argument
was advanced at some length on the question of jurisdiction.
In the course of
that argument ACSA submitted that it had created a new dispute by the service
of a new log of claims, but the other
unions submitted that their present
claim was within the ambit of the disputes raised by the delivery of earlier
logs of claims.
The Tribunal found itself unable to resolve the question of
jurisdiction so far as it concerned the claims by the unions whose members
were subject to awards made under the Commonwealth Coal Industry Act, but it
held that it had jurisdiction to deal with the application
by the Deputies'
Association. In relation to that application it made an interim order in the
following terms:


"Pending completion of a hearing on that matter I hereby order


(by way of interim order) Australian Iron & Steel Pty. Limited


to extend the notice of, or in the alternative reinstate in its


employment members of the New South Wales Colliery


Officials Association currently under notice of termination


expiring on Friday next 29 October at its Kemira, Nebo,


Cordeaux and Tower Collieries. Such extension or


reinstatement


is for a period expiring on Friday, 12 November 1982 and


is for the purpose only of completion of proceedings currently


before me."


The Tribunal went on to recommend to the other unions, and to the prosecutor,
that the unions should cease industrial action and should
bring to an end a
"sit-in" which was taking place at the Kamira Colliery and that, subject to
those conditions, the employment of
all employees of the prosecutor should be
extended for a period of two weeks expiring on 12 November 1982 and that
miners dismissed
for taking part in the sit-in should be reinstated. (at p545)

7. On 29 October the Tribunal heard further argument. The Tribunal held that
the claim by ACSA had not been properly served and
that the Tribunal had no
jurisdiction in regard to ACSA. The Tribunal then proceeded to make a further
interim order in the following
terms:


"By way of interim order I therefore order -


(1) Cessation of all industrial action by mining unions on the


issue


(2) The extension of the employment of employees of A.I. & S.


Pty. Limited under notice at Kemira, Cordeaux, Tower and


Nebo collieries for a period of two weeks expiring on 12


November 1982. Such extension is for the purpose only of


consideration by the Tribunal of certain matters relating to


benefits on retrenchment and no other matters."


It appears that this order was not intended to affect the members of the ACSA.
(at p546)

8. The prosecutor complied, under protest, with the orders made on 27 and 29
October. In fact, the employees concerned were told
that there was no work for
them, and that they need not attend for work, but that they would nevertheless
be paid. Some of the employees
in fact reported for work and some did not. (at
p546)

9. On 5 November an order nisi was made in relation to the orders made on 27
and 29 October. On 8 November the Miners' Federation
applied to the Tribunal
for "the making of further interim orders concerning the men employed by
Australian and (sic) Iron and Steel
until such time as the case before the
High Court has been determined". The Tribunal, misconceiving the effect of an
order for a
stay made by Mason J. on 5 November when he made the first order
nisi, held that it was bound to refrain from dealing with the matter.
At a
further hearing on 12 November the misunderstanding as to the effect of the
order was corrected, and after hearing further argument
the Tribunal made a
further interim order as follows:


"I hereby order that:


1. The notices, the subject of the existing interim order are


hereby further extended for a period of one week, expiring on


19 November 1982;


2. Leave is reserved to the union to argue for


retrospectivity at the appropriate time of any final order that


may, subject to the High Court proceedings, be issued in this


matter."


The second order nisi was made on 23 November 1982 in respect of the
Tribunal's order of 12 November 1982. (at p546)

10. The orders nisi are sought on a number of grounds, but it is first
convenient to consider a submission advanced on behalf of
the prosecutor that
the orders of 27 and 29 October were made in disregard of the rules of natural
justice. First it was submitted
that the order of 27 October was made without
affording to the prosecutor a fair and proper opportunity, or any opportunity,
to be
heard. The proceedings before the Tribunal on 27 October occupied the
better part of a day. Early in those proceedings the representative
of the
Miners' Federation said:


"We have requested that if no determination has been made by


this afternoon, that the Tribunal issue orders extending the


termination date of those members of all unions on threat from


A.I. & S. until after this application has been finalised."


During the course of argument Mr. Duncan asked Mr. Crawford, who appeared for
the prosecutor, whether the company would agree to extend
the employment of
the people affected. Mr. Crawford said: "Clearly no and at an appropriate time
I would like to address you on the
question of interim orders, on what the
unions have put and jurisdiction also." Mr. Duncan replied: "Yes." Later, Mr.
Crawford made
his submissions. He adopted some submissions he had previously
made to the Tribunal but he went on at some length to address the
Tribunal on
various aspects of the jurisdictional questions that arose. At the conclusion
of his address Mr. Duncan said:


"Now Mr. Crawford, the application that is currently being


dealt with is this initial one at the bottom of the application.


(The reference can only have been to the request for interim


orders which appears at the foot of the application made on 22


October.) You have directed various submissions going to


jurisdiction. I take it that they are all directed really to that


particular matter. Is that correct? I know other things were


covered but is that the point of the submissions at the present


time?"


The transcript may be defective, but Mr. Crawford's reply is recorded as
follows:


"They are, sir. They are directed to both the application 'coal'


and to that aspect of the application because quite clearly if you


have any power to make an interim order then it is a question


of whether there is a matter before you."


Mr. Duncan replied: "Yes, I follow, yes. The issues are the same in both parts
of the application." Submissions by other parties were
then heard and the
Tribunal, after adjourning for a short period, proceeded to give reasons and
make its order. (at p547)

11. The argument for the prosecutor was that before the order was made on 27
October, the prosecutor had not been heard in relation
to the making of
interim orders. Indeed, it was said that the Tribunal expressed the opinion
that it was not necessary to give to
persons who would be affected by its
orders an opportunity to be heard before those orders were made. This last
mentioned submission
is based on something that occurred at the hearing on 29
October. Mr. Crawford then complained that he had not been heard on the
question whether the interim orders should be made. When the Tribunal came to
give its reasons Mr. Duncan said:


"I find it regrettable that the company has refused to accept the


recommendations I made on Wednesday. In the midst of an


industrially difficult situation it apparently believes that I


should determine a host of complex jurisdictional points before


I took any initiative to resolve this situation. That is not a view


I share.


Further, it suggests that I should have awaited further


submissions before taking the action I did. I reject that


proposition entirely. The Tribunal is not and will not be seen to


be an arbitral body which will not take its own initiatives to


contain a serious, devisive and complex industrial situation in


the coal mining industry."


The concluding words of that statement fall far short of the expression of a
view that the Tribunal was not bound to give a proper
hearing to persons
affected by its orders. (at p548)

12. It appears from what Mr. Crawford said on 29 October that he thought that
he had not been fully heard on 27 October. However,
it was perfectly clear
from the course which the proceedings had taken on 27 October that the
Tribunal had been requested to make
an interim order and was considering that
request. Mr. Crawford was given an opportunity to address the Tribunal and he
availed himself
of that opportunity. He was not prevented from putting
whatever argument he wished to put. It was incumbent upon him either to
address
to the Tribunal the submissions that he wished to make or to ascertain
clearly from the Tribunal whether he would be given a further
opportunity to
make submissions before an order was made. If Mr. Crawford was under a
misapprehension as to the procedure that was
being followed, it is impossible
to conclude that anything said or done by the Tribunal contributed to his
misunderstanding. It has
not been shown that the Tribunal on 27 October failed
to give the prosecutor a full and fair opportunity to be heard. A party which
is given such an opportunity, and fails to take advantage of it, cannot
complain that it has been denied natural justice. (at p548)

13. Then it was submitted, in relation to the order of 29 October, that the
Tribunal was affected by bias, or at least that the
parties or the public
might, in all the circumstances, have reasonably concluded that the Tribunal
had prejudged the issue, and that
it had decided to give the effect of an
order to the recommendations which it had made on 27 October. During the
hearing on 29 October
this exchange occurred:


"MR. CRAWFORD: Well, sir, we are prepared to make


submissions


to you on the question of interim orders, but, as you


have already made an interim order without hearing us on the


question, it seems clear that you have already made up your


mind.


MR. DUNCAN: No, that is not the case at all.


MR. CRAWFORD: Well, sir, I do have submissions to put to you


on interim orders.


MR. DUNCAN: I think that I should remind you of the fact that


the authorities in regard to interim awards suggest that reasons


should not be given or, if so, should be confined to the smallest


detail, but so far as I am concerned anybody who wishes to put


anything in relation to the question of orders should put them


before the orders are going to be made."


Mr. Duncan went on to say that Mr. Crawford should put whatever he wished in
relation to the orders. It is giving altogether too much
weight to words
spoken in the course of argument to suggest that when Mr. Duncan used the
words "before the orders are going to be
made" he meant that he had already
decided what orders he would make. The context shows that that was not his
meaning. No doubt it
might reasonably be concluded that a tribunal which had
made strong recommendations to the parties would be likely to hope that those
recommendations would be adopted. It could not, however, reasonably be
concluded that the Tribunal had decided to make orders to
give effect to those
recommendations, whatever evidence or arguments might be placed before it. In
fact Mr. Duncan dealt at some
length with the arguments advanced on 29 October
before reaching the decision at which he arrived on that date. (at p549)

14. It was submitted that if the orders of 27 or 29 October were bad by
reason of a denial of natural justice, those made on 12
November were infected
by the earlier invalidity. However, the argument that there was a denial of
natural justice in relation to
any of those orders must fail. (at p549)

15. The other grounds on which prohibition was sought relate to the
constitution and powers of the Tribunal. First, it was submitted
that the
Tribunal is not validly constituted. As has been said, the Tribunal is
constituted under two statutes, one of the Commonwealth
and one of the State
of New South Wales. Those statutes are, to use the words of Dixon C.J. in
Australian Iron & Steel Ltd. v.
Dobb
[1958] HCA 26 ; (1958) 98 CLR 586, at p 596. ,
"corresponding enactments of the two legislatures setting up joint or combined
authorities by the
concurrent exercise of their respective constitutional
powers". In that case Dixon C.J. went on to say that it
was "not the occasion
to inquire into the extent constitutionally to which such a legislative
conflation may succeed" [1958] HCA
26 ; [1958] HCA 26 ; (1958) 98 CLR 586, at p 596. The
prosecutor submits
that this is the occasion to make such an inquiry and that the Tribunal is
a
hybrid body whose formation the Commonwealth
Parliament could not validly
authorize. (at p549)

16. The relevant provisions of the Commonwealth Coal Industry Act and the
State Coal Industry Act closely correspond. The preamble
to the Commonwealth
Coal Industry Act records that it has been agreed between the Government of
the Commonwealth and the Government
of the State that they shall jointly
establish authorities vested with power to take action designed to attain the
objectives set
out in the preamble, which include the taking of measures for
securing and maintaining adequate supplies of coal to meet the need
for the
commodity throughout Australia and in trade with other countries, and for
providing for the regulation and improvement of
the coal industry in the State
of New South Wales. By s. 30(1) of the Commonwealth Coal Industry Act it is
provided as follows:


"The Governor-General may enter into an arrangement with


the Governor of the state for the constitution, subject to this


Act, of a Coal Industry Tribunal and for the appointment of a


person to constitute that Tribunal."


It further appears clear enough from s. 30(2), s. 30(3), s. 31 and s. 31A that
it is intended that one person only shall constitute
the Tribunal. Section 32
provides as follows:


"(1) In pursuance of agreement between the Government of the


Commonwealth and of the State it is declared that any


authority constituted under this Part is to have all the powers


and functions specified in this Part in relation to that authority.


(2) Subject to the Constitution those powers and functions are


by this sub-section, but not otherwise, vested in the authority in


relation to which they are specified to the extent to which they


are not in excess of the legislative power of the


Commonwealth."


Section 34 provides (inter alia) as follows:


"(1) Subject to this section, the Tribunal is to have power to


consider and determine -


(a) an industrial dispute extending beyond the limits of any


one State;


(b) an industrial dispute in the State;


(c) an industrial matter arising under an award or order of


the Tribunal relating to the coal mining industry in the


State;


(d) an industrial matter arising under an award, order,


determination or agreement continued in force by


section


3 of the Coal Industry Act 1951 and relating to the


coal mining industry in the State;


(e) an industrial dispute or matter referred to the Tribunal


by a Local Coal Authority; and


(f) any other matter affecting industrial relations in the coal


mining industry in the State which the Board declares to


be, in the public interest, proper to be dealt with under


this Act.


(1A) For the purpose of the exercise of the power referred to in


sub-section (1), the Tribunal is, subject to this section, to have


(in addition to all other powers conferred on it by this Act or


the State Act) all powers which are given by the Conciliation


and Arbitration Act 1904-1956 to the Commission or to a


member of the Commission in relation to industrial disputes


before it under that Act.


. . .


(7) The power specified in sub-section (1) to consider and


determine industrial disputes, in so far as that power is vested in


the Tribunal by this Act, is declared to be a power exercisable


by way of conciliation and arbitration for the prevention and


settlement of those disputes."


"Industrial dispute" is defined by s. 4 to mean -


"(a) a dispute (including a threatened, impending or probable


dispute) as to industrial matters; and


(b) a situation which is likely to give rise to a dispute as to


industrial matters."


"Industrial matters" is defined to mean "all matters pertaining to the
relations of employers and employees in the coal mining industry",
and without
limiting the generality of the foregoing, includes, in respect of that
industry, inter alia:


"(k) the right to dismiss or to refuse to employ, or the duty to


reinstate in employment, a particular person or class of


persons."


By s. 36(1) an award or order made by the Tribunal by virtue of the powers and
functions vested in it by s. 32(2) has effect in all
respects as if it were an
award of the Commonwealth Conciliation and Arbitration Commission and is
binding on the parties, or the
persons or whom it is expressed to be binding,
including an organization if it is expressed to be binding on an organization,
and
the provisions of the Conciliation and Arbitration Act under which awards
of the Commission may be enforced apply in relation to
such an award or order
as if it were an award of the Commission. By s.44 it is provided as follows:


"An award, order or determination of the Tribunal or a


decision of a Local Coal Authority under this Act shall not be


challenged, appealed against, quashed or called into question, or


be subject to prohibition, mandamus or injunction, in any court


on any account whatever."


Section 45 provides:


"During the currency of any award or order made by the


Tribunal or of a decision of any Local Coal Authority under


this Act, no award or order made by any tribunal having


jurisdiction in industrial matters in the Coal Mining Industry


dealing with the same subject-matter and inconsistent with the


award or order made by the Tribunal or Local Coal Authority


(except an award, order or decision made under this Act or the


State Act) shall be effective." (at p551)


17. The preamble to the State Coal Industry Act is in the same terms as that
of the Commonwealth Coal Industry Act. The definitions
of "industrial dispute"
and "industrial matters" in s. 4 of the State Act are the same as those in the
Commonwealth Act. Section
36(1) of the State Act provides as follows:


"The Governor may enter into an arrangement with the


Governor-General of the Commonwealth for the constitution,


subject to this Act, of a Coal Industry Tribunal and for the


appointment of a person to constitute that Tribunal."


Sections 36(2) and (3), 37, 37A, 38, 40(1) and (1A), 42(1), 50 and 51 of the
State Act are in substantially the same terms as those
of sections 30(2) and
(3), 31, 31A, 32, 34(1) and (1A), 36(1), 44 and 45 of the Commonwealth Act,
except that where necessary a State
authority or statute is mentioned in the
State Act where a Commonwealth authority or statute is referred to in the
corresponding
Commonwealth provisions. The State Act has no counterpart of s.
34(7). (at p552)

18. In the argument on behalf of the prosecutor a challenge was made to the
legislative competence of the Commonwealth to create
an authority jointly with
a State, or at least an authority which derives from a State power which the
Commonwealth itself could
not confer upon it. It does not seem to me to matter
whether the effect of the statutes of the Commonwealth and the State was to
create one tribunal which derived power from two sources, or two tribunals,
deriving power from different sources, but constituted
by one person. In my
opinion, it was within the power of the Commonwealth Parliament to follow
either course. The Constitution effects a division of powers between the
Commonwealth and the States but it nowhere forbids the Commonwealth and the
States to exercise
their respective powers in such a way that each is
complementary to the other. There is no express provision in the Constitution ,
and no principle of constitutional law, that would prevent the Commonwealth
and the States from acting in cooperation, so that each,
acting in its own
field, supplies the deficiencies in the power of the other, and so that
together they may achieve, subject to such
limitations as those provided by s.
92 of the Constitution , a uniform and complete legislative scheme. Examples of
co-operative action of that kind, which this Court has assumed to be valid,
are to be found discussed in such cases as Wilcox Mofflin Ltd. v. State of
N.S.W. [1952] HCA 17 ; (1952) 85 CLR 488, at pp 508-511,
526-528. Airlines
of N.S.W. Pty. Ltd.
v. New South Wales [1964] HCA 2 ; (1964) 113 CLR 1, at pp 40, 42, 48, 51-52. and Clark King
&
Co. Pty. Ltd. v. Australian Wheat
Board [1978] HCA 34 ; (1978) 140 CLR 120, at p 179. Further,
no reason is provided by constitutional
enactment or constutional principle
why the
Commonwealth
and a State or States should not simultaneously confer
powers on one person
and empower that person to exercise any
or all of those
powers alone or in conjunction. In one instance the Constitution has expressly
recognized the possibility of co-operation of that kind when it enables the
Parliament to invest a court of a State
with federal jurisdiction:
Constitution , ss. 71 , 77 (iii). It would be an absurd result, for example, if
the Commonwealth and a State were unable, by complementary legislation, to
empower
an officer of police to enforce both the laws of the Commonwealth and
the laws of the State, or to give power to a fisheries inspector
to act in
Australian waters both within and beyond territorial limits, or to authorize a
public servant to collect State taxes as
well as Commonwealth taxes. There is
nothing in the decisions of this Court to provide authority for such a
restrictive view of constitutional
power. The position of an administrative
body such as the Tribunal is no different; legislation of the Commonwealth
Parliament, otherwise
within power, is not invalid because it establishes,
jointly with a State, one body which derives its powers from the State as well
as from the Commonwealth. (at p553)

19. Although, as I have indicated, it is not necessary to decide the
question, it seems to me that the intention of the two legislatures
was to
constitute one Tribunal whose authority depended on the combined exercise of
Commonwealth and State powers. The Tribunal is
constituted by the statutes,
rather than by the arrangement between the Governor-General and the Governor.
The terms of the arrangement
can have nothing to say as to the powers of the
Tribunal, since, once an arrangement is made, and a person has been appointed
to
constitute the Tribunal, the powers and functions of the Tribunal will
depend entirely on the provisions of the statutes. I incline
to the view that
the Tribunal, once constituted, can exercise any of the powers validly
conferred on it either by the Commonwealth
or by the State Act. In other
words, it can exercise both Commonwealth and State powers in the one case. If
this is so, it would
appear unnecessary in the present case to find the
existence of an industrial dispute extending beyond the limits of any one
State,
even though the awards applicable to the members of the respondent
unions which were registered under the Conciliation and Arbitration
Act
purported to have been made under the Commonwealth Coal Industry Act. As at
present advised, I can see no reason why a body which
derives power from two
sources cannot exercise whichever power appears available and appropriate in
any particular case. If, in settlement
of an interstate dispute, the Tribunal
made an award under powers which it derived from the Commonwealth Coal
Industry Act, the Tribunal
might later amend that award in the exercise of
powers which derived from the State Coal Industry Act for the purpose of
settling
a purely intrastate dispute. The inconsistency between the original
award and the amendment would be resolved in favour of the amendment,
since
that would be later in time. Section 109 of the Constitution would have no
operation, because, on the view which I am suggesting, the relevant law of the
Commonwealth, i.e., the Commonwealth
Coal Industry Act, reveals the intention
that the Tribunal may use powers given to it by the State Coal Industry Act
for the purpose
of varying an award which it has made in the exercise of power
given by the Commonwealth Coal Industry Act. If this view is correct,
the
prosecutor must fail. However, I shall discuss the case on the assumption that
the Tribunal needed to resort to the powers conferred
by the Commonwealth Coal
Industry Act when it made the orders which it did in the present case. (at
p554)

20. A further objection raised to the validity of the provisions constituting
the Tribunal was that s. 32(1) and s. 34(1) of the
Commonwealth Coal Industry
Act attempted to confer on the Tribunal powers which it was beyond the
legislative competence of the Parliament
to bestow. This argument depends on a
view of the construction of s. 32 which cannot be accepted. The argument was
that notwithstanding
the provisions of s. 32(2), the intention of s. 32(1) was
to confer on the Tribunal all the powers specified in s. 34(1) in their
full
generality. The powers conferred in the later subsection may in some
circumstances be within legislative competence, but they
will in other
circumstances be beyond Commonwealth power. For example, the legislative power
of the Commonwealth will in some cases
extend to enable it to legislate with
regard to industrial disputes within a State (e.g., where the dispute is
likely to affect trade
with other countries or among the States) but there
will be other cases of intrastate disputes which will not attract any of the
legislative powers of the Commonwealth. Therefore, it was said, s. 32(1) is
too wide and therefore invalid, and it is not possible
to sever or divide its
provisions, since s. 30 envisages the constitution of a Tribunal which has all
the powers and functions which
s. 32(1) declares that it shall have. It is a
sufficient answer to this argument to say that, according to ordinary
principles of
construction, s. 32(1) must be read together with s. 32(2). The
words "specified in this Part" in s. 32(1) do not simply mean "specified
in s.
34(1)", since s. 32(2) appears in the same part of the Act and modifies the
effect of s. 34(1). It is clear that the intention
of the Parliament was that
the powers mentioned in s. 34(1) should only be vested in the Tribunal to the
extent to which they are
not in excess of the legislative power of the
Commonwealth. That this was the intention of the legislature was recognized in
Reg.
v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19 ; (1960) 103 CLR 15, at p 20. ,
where the Court said: "By this ingenious
legislative device
the best is done
to give powers expressed
almost in identical terms and conferred by the two
respective Parliaments
a combined operation
so that they will operate
according
to the constitutional validity which each respective Parliament was
able
to give to them." (at
p555)

21. For these reasons I hold that the Tribunal was validly constituted. (at
p555)

22. It was then argued that the orders were beyond the power of the Tribunal
because they were not made in settlement of or in relation
to an interstate
industrial dispute. This argument can have no application to the order made on
27 October 1982, which related only
to members of the Deputies' Association,
so that on any view the powers conferred by the State Coal Industry Act were
available.
The argument that the orders made on 29 October and 12 November in
relation to the other respondent unions will be valid only if
they relate to
an interstate industrial dispute proceeds on an assumption which, as I have
already indicated, I am not prepared to
make without further examination.
However, assuming that it was necessary to the validity of those orders that
they should have been
made in relation to an interstate dispute, they were so
made in the present case. In Reg. v. Isaac; Ex parte State Electricity
Commission
(Vict.) [1978] HCA 33 ; (1978) 140 CLR 615, at p 624. , Mason J. said:


"It has long been established that Parliament may legislate so as


to give the Commission power to vary its awards, even in cases


where the proposed variation does not immediately or directly


arise out of a fresh industrial dispute extending beyond the


limits of a single State."


His Honour proceeded to refer to a number of authorities in support of that
proposition. In the same case I said (1978) 140 CLR, at
p. 619.


" . . . 'to maintain a settlement made by award of an industrial


dispute in an expedient and satisfactory form adjusted to


changing conditions' is incidental to the subject described in


s. 51(XXXV) of the Constitution . The Commission may be


invested with power to make a variation whether or not a new


dispute has arisen, but if there is no new dispute the variation


of the award cannot go beyond the limits of the original


dispute."


If the application made on 22 October 1982 to amend the awards was within the
ambit of the original disputes it was an application
to the Tribunal to
determine the undetermined residue of those disputes, or to keep effective the
settlement of those disputes made
by the awards. In those circumstances, the
Tribunal had power to deal with the application, notwithstanding that it did
not arise
out of a fresh interstate dispute, because it formed part of the
original disputes whose interstate character was not lost. The question
then
is whether the application was within the ambit of the original disputes. The
ambit of a dispute is to be gleaned from the extent
of the claim made in the
log of claims which the union has delivered to the employer and to which the
employer has declined to accede.
The logs with which we are concerned in the
present case were delivered to the prosecutor by the five respondent unions
other than
ACSA and the Deputies' Association. They are Exhibits W, X, Y, Z
and AA. The logs delivered by Mining Mechanics, and AMWSU contained
a claim in
the very words of the application of 22 October, except that the phrase "to
the satisfaction of the union" appeared in
the log where the words "to the
satisfaction of the employee and of the union" appear in the application. The
log delivered by FEDFA
was identical with those of Mining Mechanics and AMWSU
except that it claimed six weeks' and not twelve weeks' pay for each year
of
service. The logs delivered by Miners' Federation and by ETU were less
elaborate, but the former contained a claim that any employee
retrenched must
be given at least three months' notice of such retrenchment and in addition he
should be paid twelve weeks' pay for
each year of service, and the latter
claimed that employment should be terminated by a week's written notice or by
paying two weeks'
wages in lieu of notice, and further claimed six weeks'
severance pay for each year of service. It was clear that in the case of
all
those unions, except ETU, there was ambit to deal with a claim that an
employee deemed redundant should receive three months'
notification of
cessation of employment. The Tribunal on 29 October found that there was ambit
in the case of all unions except ETU.
In relation to that union Mr. Duncan
said that he was satisfied that there was an actual interstate dispute in
existence and went
on to say:


"Where the distinction between the unions party to the one


award brought about by the terms of the application is so fine I


believe that if the occasion is appropriate I should exercise the


powers conferred on the Tribunal on my own motion."


It is however by no means clear what power the Tribunal intended to exercise
of its own motion. However, although part of the application
was outside the
ambit of the original dispute to which ETU was a party, some of the claim -
including the claim for severance pay
up to a period of six weeks - was within
the ambit of that original dispute. (at p557)

23. I therefore conclude that the Tribunal had power to consider and
determine the applications made on 22 and 27 October, although
in the case of
ETU the power was limited to a claim for six weeks' severance pay. (at p557)

24. The final question in the case is whether the orders made by the Tribunal
were within its powers. No difficulty arises as to
the order made on 27
October 1982 in respect of the members of the Deputies' Association. The
powers conferred by the State Coal
Industry Act were available and ample to
enable the Tribunal to deal with the application for an interim order that the
prosecutor
should extend the period of the notices which it had given, or
should reinstate its employees. Such an application was clearly within
both
the opening words and par. (k) of the definition of "industrial matters": see
Australian Iron & Steel Ltd. v. Dobb (1958)
98
CLR, at pp 597-598. Since it
was not necessary to establish that the application made by the Deputies'
Association was within
the
ambit of an interstate dispute the Tribunal clearly
had jurisdiction to entertain it. In the case of the other respondents, the
ambit
of the interstate disputes was defined by the logs of claims. The
interim orders which were made were not, in terms, in settlement
of a dispute
raised by the logs. They did not provide for a period of notice of dismissal,
or for serverance pay or long service
leave, and those were the relevant
matters claimed by the logs. However, there can be no doubt that the intention
of the Tribunal
in making the orders was to preserve things in statu quo until
the dispute had been resolved. The question is whether the Tribunal
had power
to make orders of that kind for that purpose. By s. 34(1A) of the Commonwealth
Coal Industry Act, the Tribunal is to have
all the powers given by the
Conciliation and Arbitration Act to the Commonwealth Conciliation and
Arbitration Commission in relation
to industrial disputes before it under that
Act. By s. 41(1)(b) of the Conciliation and Arbitration Act, the Commission
may, in relation
to an industrial dispute, "make an award (including a
provisional or interim award relating to any or all of the matters in dispute)
or give a direction in pursuance of the hearing or determination". By s.4 of
that Act "award" includes an order. The orders made
in the present case were
clearly interim orders. The question is whether they related to the matters in
dispute. When a claim is
made to vary an award by providing that an employee
shall be given notice before he is dismissed on the ground of redundancy, or
shall, if so dismissed, be entitled to severance pay, an order which protects
the position of existing employees until the dispute
arising out of the claims
can be determined is related to the matters in dispute. The relationship
consists in the fact that the
order ensures that if the matters in dispute are
decided favourably to the employees, persons presently in employment, but
under
threat of dismissal, will not be deprived of the benefit of the
resulting award. In other words, the order is intended to ensure
that a
settlement of the matters in dispute, when made, will be effective, and is
reasonably adapted for that purpose. It goes without
saying that an order that
an employee should be kept in employment for the purpose of ensuring that he
has notice of dismissal or
receives severance pay on dismissal would not be
sufficiently related to the matters in dispute if the period for which the
employee
was kept in employment exceeded the period of notice, or the period
of weeks of severance pay, claimed in the dispute, and that the
fact that the
interim order was made should be given due consideration in the making of the
final award. In the present case the
employees were kept in employment for
three weeks as a result of the interim orders. That result was no different in
substance from
giving them three weeks' notice of dismissal, or giving them
three weeks' severance pay. In other words, the interim orders did not
produce
a result substantially different from that sought by the logs. (at p558)

25. It was submitted on behalf of the prosecutor that an award, when made,
could be given a retrospective operation, and that the
interim orders were
accordingly unnecessary. It was pointed out that the Tribunal did not extend
the employment of the employees
concerned after 19 November 1982
notwithstanding that the dispute had not then been determined, and this, it
was suggested, showed
that the Tribunal eventually acknowledged that the
interim orders were unnecessary. When it is said that an award has a
retrospective
operation, what is meant is that the award imposes a present
obligation to pay increased amounts in respect of a past time (cf. Federated
Engine Drivers' and Firemen's Association of Australasia v. Adelaide Chemical
and Fertilizer Co. Ltd. [1920] HCA 18 ; (1920) 28 CLR
1, at pp 9-11.).
The question whether it
is possible to vary an award so as to oblige an employer to give notice of
dismissal for
an increased period
to persons formerly employed but no longer
in employment was not fully argued and I need not discuss
it. Even
if the
Tribunal was
in error in thinking that the orders that it made were necessary
to protect the position of the employees,
that
does not mean that
the orders
were not related to the matters in dispute. (at p558)

26. The third order, made on 12 November 1982, was objectionable in form. The
Tribunal could order the prosecutor to extend the
period of employment of its
employees, but it could not itself alter notices which had already been given
by the prosecutor. However
the intention of the Tribunal was clear - namely,
to effect a further extention of the period of employment of those affected.
Prohibition
will not go to correct a mere error of form. (at p559)

27. For these reasons I consider that the Tribunal had power to make the
interim orders which it did. It is unnecessary to decide
whether the orders
were necessary, since the wisdom or expediency of making them does not fall
for decision on an application for
prohibition. In the view that I take it
becomes unnecessary to consider the privative provisions of s. 44 of the
Commonwealth Coal
Industry Act or the corresponding provisions of s. 50 of the
State Coal Industry Act. (at p559)

28. I would discharge the orders nisi. (at p559)
MASON J. In my opinion the Coal Industry Tribunal was validly established by
the Coal Industry Act 1946 (Cth), as amended, (the
Commonwealth Act) and the
Coal Industry Act 1946 (N.S.W.), as amended, and by the appointment pursuant
to an arrangement between
the Commonwealth and the State of a person to
constitute the Tribunal. The joint legislation was enacted pursuant to an
agreement
between the Commonwealth and the State, the substance of which is
recited in the preamble to the two statues. The object of the agreement
and of
the joint legislation is adequately summarized in the long title of the
Commonwealth Act:


"An Act to provide means for Securing and Maintaining


adequate Supplies of Coal throughout Australia and for


providing


for the Regulation and Improvement of the Coal Industry


in the State of New South Wales, and for other purposes." (at p559)


2. It is obvious that neither the Commonwealth nor the State could validly
empower the Tribunal to undertake all the functions or
equip it with all the
powers with which the joint legislation seeks to entrust it. By way of
example, the powers conferred by s.
34(1)(b) and (f) of the Commonwealth Act
could not be sustained as an exercise of Commonwealth legislative power alone,
unless the
provisions were drastically read down. It is equally obvious that
the joint legislation is designed to overcome the shortfall in
the respective
legislative powers of the Commonwealth and the State by combining the exercise
of those powers so far as they are
relevant. (at p559)

3. There is nothing in the prosecutor's argument that the executive power of
the Commonwealth does not extend to the making of the
agreement recited in the
preamble or to the making of an arrangement for the appointment of a person to
constitute the Tribunal.
The executive power of the Commonwealth is not, as
the prosecutor would have it, limited to heads of power which correspond with
enumerated heads of Commonwealth legislative power under the Constitution .
Victoria v. The Commonwealth and Hayden (the AAP Case) [1975] HCA 52 ; (1975) 134 CLR 338 did
not decide that the executive power
was so limited,
though Gibbs J. (1975) 134
CLR, at p 379 said "that the
Executive cannot act in respect of a matter which
falls entirely
outside
the legislative competence of the Commonwealth". The
scope
of the executive power is to be ascertained, as I indicated in
the AAP
Case (1975) 134 CLR, at pp 396-397, from the distribution
of the legislative
powers effected by the Constitution and the character and status of the
Commonwealth as a national government. Of necessity the scope of the power is
appropriate to
that of a central executive government in a federation in which
there is a distribution of legislative powers between the Parliaments
of the
constitutent elements in the federation. It is beyond question that it extends
to entry into governmental agreements between
Commonwealth and State on
matters of joint interest, including matters which require for their
implementation joint legislative action,
so long at any rate as the end to be
achieved and the means by which it is to be achieved are consistent with and
do not contravene
the Constitution . A federal constitution which divides
legislative powers between the central legislature and the constitutent
legislatures necessarily
contemplates that there will be joint co-operative
legislative action to deal with matters that lie beyond the powers of any
single
legislature. Accordingly, the agreement recited in the statutes was
within the executive power of the Commonwealth. (at p560)

4. In any event it is the validity of the Commonwealth Act that is in
question, rather than the validity of the agreement. If the
Commonwealth Act
be valid, then it is difficult to perceive any ground for concluding that the
agreement is invalid. And it is equally
difficult to suppose that the
invalidity of the agreement would affect the Commonwealth Act, assuming it to
be otherwise within power
(cf. PJ. Magennis Pty. Ltd. v. The Commonwealth
[1949] HCA 66 ; (1949) 80 CLR 382). (at p560)

5. The substance and effect of Pt V of the Commonwealth Act so far as it
relates to the establishment of the Tribunal is, first,
to authorize the
Governor-General to enter into an arrangement with the Government of a State
for the constitution of the Tribunal
and for the appointment of a person to
constitute it (s. 30(1)) and then, once that arrangement has been made, to arm
the Tribunal
with specified powers and functions (s. 34). It is expressly
declared that these powers and functions are by s. 32(2), but not otherwise,
vested in the Tribunal to the extent to which they are not in excess of the
legislative powers of the Commonwealth. This provision,
read in conjunction
with its associated provisions, indicates that the statutory design was to
create a single office in the form
of the Tribunal which was to exercise
specified powers and functions sustained as far as constitutionally possible
by the Commonwealth's
powers and by State legislative power to the extent to
which Commonwealth legislative power fell short. (at p561)

6. It seems to me that Pt V is quite inconsistent with a notion that two
statutes created two separate tribunals, one a Commonwealth
tribunal, the
other a State tribunal, each exercising powers and functions derived from its
statute. The remarks of Dixon C.J. in
Australian Iron & Steel Ltd. v. Dobb
[1958] HCA 26 ; (1958) 98 CLR 586, at p 596 do not suggest otherwise. They merely raise
the
general question
as it affected the Local Coal Authority,
another tribunal set
up by the Commonwealth and State Acts, established
by the Commonwealth
Act in
the context of s. 38(e) of the Judiciary Act 1903 , as amended. Likewise, the
comments of the Court in
Reg. v. Lydon; Ex parte
Cessnock Collieries Ltd.
[1960] HCA 19 ; (1960) 103 CLR 15, at p 21 related to the jurisdiction of this Court
to grant
"prohibition to a Commonwealth
officer on whom State
power as well as federal
power is conferred when he acts outside all
his powers". However, the Court's
judgment
in Lydon is important
for another reason. It proceeds on the footing
that the joint legislation
validly sets up the Local Coal Authority.
In
discussing
the joint legislation the Court said (1960) 103 CLR, at p 20.


"By this ingenious legislative device the best is done to give


powers expressed almost in identical terms and conferred by the


two respective Parliaments a combined operation so that they


will operate according to the constitutional validity which each


respective Parliament was able to give to them."


And the Court's decision was that the Authority was exercising a power
conferred by the State Parliament. (at p561)

7. There have been other cases in which the Court has assumed that
Commonwealth and State Parliaments have the capacity by joint
legislation to
create and confer powers on an authority or to create a combined legislative
scheme - see Wilcox Mofflin Ltd. v. State
of N.S.W. [1952] HCA 17 ; (1952) 85 CLR 488, at pp
508-511, 526-528; Airlines of N.S.W. Pty. Ltd. v. New South Wales
[1964] HCA 2 ; (1964) 113
CLR 1; Clark King
& Co. Pty. Ltd. v. Australian Wheat Board [1978] HCA 34 ; (1978) 140 CLR
120. (at p562)

8. In Lydon the Court did not direct its attention to an argument based on
ss. 32(1) and 34 (1) which is raised before us. The prosecutor
says that when
these provisions are read together they evince an intention that the
Tribunal
may exercise all its powers, derived
from both sources, Commonwealth and
State, in the determination of any industrial dispute,
industrial matter or
other matter in which
it has jurisdiction. This, so the argument runs, is
beyond the Commonwealth's legislative
power because an award made in the
exercise
of power conferred by the Commonwealth Parliament cannot be
displaced, varied or modified
in the exercise of power conferred by a
State
Parliament. (at p562)

9. Section 34(1A) lends weight to the submission that the Tribunal was
intended to have the capacity to exercise all or any of its
powers,
irrespective
of the source from which they are derived, in the determination
of a dispute which comes before it. On the other
hand, s. 36(1) provides that
an award or order made by the Tribunal by virtue of the powers and functions
vested by s. 36(2) has
effect as if it were an award of the Commission and is
binding on the parties and other persons on whom it is expressed to be
binding
so that the provisions of the Conciliation and Arbitration Act 1904 (Cth), as
amended, in relation to enforcement apply to
it. This
may suggest that powers
conferred on the Tribunal by State legislation were not intended to be
exercised so as to vary an
award made
in the exercise of powers conferred by
s. 36(2), although I am not inclined to think that there is much force in this
argument. (at
p562)

10. It is, I think, unnecessary to decide whether the Commonwealth Act
evinces an intention that the Tribunal may exercise all its
powers, derived
from both sources, in the determination of any industrial dispute, industrial
matter or other matter. Even if this
be the correct construction it
nevertheless does not entail invalidity. First, if it be beyond power to
confer authority on the Tribunal
to exercise powers of State origin in this
way, then the result is that the attempt to confer that authority would fail,
rather than
that the constitution of the Tribunal would fail. (at p562)

11. Secondly, as at present advised, I see no strong reason why the
Commonwealth Parliament in the exercise of the conciliation
and arbitration
power (s. 51(xxxv)) and the trade and commerce power (s. 51(i)) cannot
establish a tribunal with powers and functions
appropriate to the exercise of
those powers and declare that the tribunal has the capacity to exercise such
conciliation and arbitration
powers and functions as may be given to it by a
State Parliament, so that powers derived from both sources may be exercised in
relation
to the one dispute or matter. (at p563)

12. As I indicated in discussing the executive power, the Constitution , when
it divides legislative powers between the Parliaments of the Commonwealth and
the States, necessarily contemplates that there
will be joint co-operative
legislative action to deal with matters that lie beyond the competence of any
single legislature. As with
an exercise of the executive power for a
co-operative purpose, Commonwealth legislative action for such a purpose is
subject to the
limitation that the end to be achieved and the means by which
it is to be achieved are consistent with and do not contravene the
Constitution . It is an integral element in joint legislation for a
co-operative purpose that a legislature, whether Commonwealth or State, can
give its authority or office holder a capacity to receive additional powers
and functions as may be conferred by another legislature.
(at p563)

13. One potential problem which the qualification mentioned calls forth is
that of an inconsistency between Commonwealth and State
laws bringing into
operation s. 109 of the Constitution . This problem can be alleviated, if not
eliminated, by a manifestation of intention in the Commonwealth law that it is
not intended
to occupy the field to the exclusion of State law. Indeed, the
potential for inconsistency and the need to avoid it in co-operative
legislative action is perhaps another reason for saying that the Commonwealth
Parliament can give its authority or the joint authority
(one in whose
creation it has participated) the capacity to receive additional power from a
State, though in the context of inconsistency
it is intention, rather than
capacity, that in important. But if the Commonwealth statute reflects an
intention that the authority
is to have capacity to receive powers conferred
by State legislation, then generally speaking this will be indicative of an
intention
not to cover the field to the exclusion of State law. As the Court
observed in Aberdare Collieries Pty. Ltd. v. The Commonwealth

[1952] HCA 13 ; (1952) 86 CLR
12, at p 30, "in combined legislation of this type . . . the Federal statute
should be interpreted
as not meaning
to
occupy the field to the exclusion of
the State legislation". (at p563)

14. And if the Commonwealth Act evinces an intention that the Tribunal may
exercise all its powers, derived from both sources, in
the determination of
any dispute in which it has jurisdiction, the Tribunal will be entitled, if it
thinks fit, to modify or displace
an award previously made by it in the
exercise of powers conferred by the Commonwealth. Whether the Tribunal's
authority to modify
or displace the award should be ascribed to the State
statute on the footing that the Commonwealth Act has made the operation of
the
award subject to such orders as may be made by the Tribunal in the exercise of
powers conferred by the State Act or whether the
Tribunal's authority stems
from a positive conferment of power by the Commonwealth to modify or displace
the award does not much
matter. (at p564)

15. If for these reasons the problem of inconsistency can be put aside, as I
am inclined to think it can, then the difficulty that
is said to arise in the
exercise of power conferred by the States for the purpose of varying an award
made in the exercise of the
power conferred by the Commonwealth Parliament
seems to disappear. Apart from the doctrine of inconsistency, there is no
principle
of constitutional law which preserves or protects an award made in
the exercise of Commonwealth power from alteration in the exercise
of State
power by a Tribunal which is intended to exercise any or all of its powers,
irrespective of the source of the power. Accordingly,
once the issue of
inconsistency is set to rest, the only serious objection to invalidity is
overcome. (at p564)

16. Nevertheless, because this question was not fully argued I would not base
my decision in this case on the ground that the Tribunal
is authorized to
exercise all or any of its powers irrespective of the source of the power. I
prefer to say that the Commonwealth
Act conferred jurisdiction on the Tribunal
to make the orders made on 29 October and 12 November and to entertain the
application
made on 22 October for a variation of the federal awards by
including in them the "Retrenchment and Redundancy" clause. As the Chief
Justice has pointed out, the first order, that made on 27 October, related to
men covered by a State award so that its validity is
beyond question. (at
p564)

17. I reject the argument that the Commonwealth Act confers no power on the
Tribunal to vary an award which it has made. By s. 34(1A)
the Tribunal is
given all the powers which are given by the Conciliation and Arbitration Act
to the Commission or a member of the
Commission in relation to industrial
disputes before it. By s. 59(1) and (2) of that Act the Commission is
authorized, for any reason
it considers it desirable to do so, to set aside an
award or vary its terms. Plainly, despite the prosecutor's argument, the
Commission's
power to vary the terms of an award is exercisable in relation to
an industrial dispute. Indeed, the existence of an industrial dispute
is
usually the occasion for exercising the power. (at p564)

18. It is well settled that the Commission has power to vary an award, so
long at any rate as the variation is made to prevent or
settle an interstate
industrial dispute, whether the dispute is a fresh dispute or the initial
dispute in settlement of which the
award was made (Reg. v. Isaac; Ex parte
State Electricity Commission (Vict.) [1978] HCA 33 ; (1978) 140 CLR 615, at pp 619, 624).
The
variation will
be a valid exercise of the power, at least when the variation
is within
the ambit of the initial dispute. For
the reasons expressed
by the
Chief Justice in his judgment, except in the case of the log of
claims
delivered by the Electrical Trades
Union there was
ambit in the original logs
of claims delivered by the federal unions to
consider and determine a claim
for three
months' notification
of cessation of employment due to redundancy,
and severance pay. In
the case of the Electrical Trades Union
the Tribunal had
jurisdiction
to vary the relevant award by providing for up to six weeks'
severance pay. (at p565)

19. As the Cheif Justice has pointed out, the Tribunal is given power to make
interim orders by s. 34(1A) of the Commonwealth Act
which picks up s. 41(1)(b)
of the Conciliation and Arbitration Act. For the reasons which the Chief
Justice has stated, the interim
orders made on 29 October and 12 November were
made in relation to the matters in dispute, that is, the issues presented by
the applications
to vary the federal awards. Although the order made on 12
November was objectionable in form, it should be understood as an order
directing the prosecutor to extend the employment of the relevant employees
for a further week. (at p565)

20. I would merely add that the decision in Reg. v. Flight Crew Officers'
Industrial Tribunal; Ex parte Australian Federation of
Air Pilots [1971] HCA 58 ; (1971) 127
CLR 11 has no application. There the definition of "Industrial matters" in s.
88H of the Conciliation
and Arbitration
Act was restricted. Here the
definition of that expression in s. 4 of the Commonwealth Act is relevantly
wider, including
par. (k)
which is in these terms:


"(K) the right to dismiss or to refuse to employ, or the duty to


reinstate in employment, a particular person or class of


persons."


By virtue of the definition the Tribunal had jurisdiction to make an order
extending employment or reinstating in employment. (at
p565)

21. In other respects, and they include the validity of the order made on 27
October, I agree with the reasons of the Chief Justice.
(at p565)

22. In the result I would discharge the orders nisi for prohibition. (at
p565)
MURPHY J. I agree generally with the reasons for judgment given by the Chief
Justice, but will deal briefly with some aspects of
the constitutional
validity of the Coal Industry Tribunal and its powers. (at p566)

2. The Coal Industry Tribunal was validly constituted under the Coal Industry
Act 1946 (Cth), as amended (the Act) and the Coal
Industry Act 1946 (N.S.W.),
as amended (the State Act). The legislation is presumed valid (see The
Commonwealth v. Tasmania (the
Tasmanian Dam Case) Ante, p 161) and the
presumption was not in any way displaced. The Act reveals an intention that an
award made
under its powers can be varied by the Tribunal using powers under
the State Act (see s. 32(1) of the Act and s. 38(1) of the State
Act); no
inconsistency arises. (at p566)

3. Co-operative legislative arrangements such as this are valid (see Wilcox
Mofflin Ltd. v. N.S.W. [1952] HCA 17 ; (1952) 85 CLR
488, at pp 508-511,
526-528; Reg. v.
Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19 ; (1960) 103 CLR 15 at p 20; Airlines
of N.S.W. Pty. Ltd. v. New South Wales
[1964] HCA 2 ; (1964) 113 CLR 1, at pp 40, 42, 48,
51-52; Clark King & Co. Pty. Ltd. v.
Australian Wheat Board [1978] HCA 34 ; (1978) 140 CLR
120, at p 179). However,
the Commonwealth does not have to enter into an
arrangement
with a State or States in order
that power such as those of the
Coal
Industry Tribunal may be vested in such a body. The Commonwealth
Parliament's legislative powers
are sufficient to authorize all
the powers
conferred on the Tribunal. The Act is amply justified
by the commerce power
(s. 51(i)) of the Constitution , the corporations power (s. 51(xx)) and the
conciliation and arbitration power (s. 51(xxxv)). The Commerce Power. (at
p566)

4. Regulation of the coal industry including its industrial relations is
inextricably linked with trade and commerce with other
countries, and among
the States. Australia's export and interstate trade in coal are the most
obvious links, but its foreign and
interstate commerce generally are also
dependent for their prosperity upon the efficient management of the Australian
coal industry.
The commerce power authorizes regulation of whatever affects
interstate or foreign commerce, provided that the effect is not insubstantial.
If the regulation of any particular industry is necessary or desirable for the
advancement of foreign or interstate commerce then
the Parliament may regulate
that industry. The Parliament may thus legislate to encourage or require
efficient technology and procedures
and to set wages and conditions of
employment. Regulation of industrial relations which might affect interstate
or foreign commerce
is within the scope of the power. The authority vested in
the tribunal is justified by the commerce power alone. The Corporations
Power.
(at p567)

5. All the employers are trading corporations and regulation of their
industrial relations, wages and the terms and conditions of
the employment of
their workers is within the Parliament's legislative power with respect to
trading corporations (see Actors and
Announcers Equity Association of
Australia v. Fontana Films Pty. Ltd. [1982] HCA 23 ; (1982) 150 CLR 169, at p 207; Reg. v.
Federal
Court of Australia;
Ex parte W.A. National Football League [1979] HCA 6 ; (1979) 143
CLR 190, at p 240; the Tasmanian Dam Case Ante,
p 1.). The Parliament can
legislate
directly or indirectly to determine
wages and conditions of
employment by trading corporations
as well as wages and conditions of
employees in foreign and interstate
commerce. The Conciliation and Arbitration
Power. (at p567)

6. This power authorizes legislation with respect to conciliation and
arbitration not only for the settlement of industrial disputes
extending
beyond one State but also for the prevention of such disputes (see Reg. v.
Heagney; Ex parte A.C.T. Employers Federation

[1976] HCA 32 ; (1976) 137 CLR 86, at p 105;
Reg. v. Moore; Ex parte Graham [1977] HCA 20 ; (1976) 138 CLR 164, at p 180; Reg. v.
Turbet;
Ex parte Australian Building
Construction Employees and Building Labourers'
Federation
[1980] HCA 47 ; (1980) 144 CLR 335,
at p 354). The power thus extends to authorize
conciliation
and arbitration for the settlement of intrastate
disputes which
might,
unless settled, extend beyond the limits of the State. It
aso extends
to authorize measures for conciliation
or arbitration to deal
with any
situation which otherwise might give rise to an
industrial dispute extending
beyond one State. (at
p567)
WILSON AND DAWSON JJ. We have had the advantage of reading the reasons for
judgment of the Chief Justice. We agree with the conclusions
of his Honour and
substantially with the reasoning which leads to those conclusions. We would,
however, wish to make the following
observations. (at p567)

2. Upon the assumption made by the Chief Justice that the Tribunal needed to
use the powers conferred by the Coal Industry Act 1946
(Cth), as amended, in
making its orders (other than the order affecting only the New South Wales
Colliery Officials' Association,
Illawarra District) it was, as he points out,
necessary for the validity of those orders that they be within the ambit of
the interstate
dispute in settlement of which each of the various awards was
made. (at p568)

3. The ambit of that dispute was, in the case of each union, defined by the
log of claims served by it and each log of claims contained
demands relating
to the rights of employees upon termination of employment or retrenchment
including a special period of notice of
termination of employment. (at p568)

4. Upon the same assumption, the relevant orders were made, if they were
validly made at all, using s. 34(1A) of the Commonwealth
Act which confers
upon the Tribunal the powers which are given by the Conciliation and
Arbitration Act 1904 (Cth), as amended, to
the Conciliation and Arbitration
Commission or a member of that Commission in relation to industrial disputes
before it under that
Act. Those powers include, under s. 41(1)(b) of the
Conciliation and Arbitration Act, the power to "make an award (including a
provisional
or interim award relating to any or all of the matters in dispute)
or give a direction in pursuance of the hearing or determination".
It is clear
that the orders in question were made by way of interim award in exercise of
this power, an order being included in the
definition of an award by s. 4(1)
of the Conciliation and Arbitration Act. They must then, to have been validly
made, have related
to "any or all of the matters in dispute". (at p568)

5. Before turning to the relationship between the relevant orders and the
matters in dispute, it is necessary to determine the true
nature of the
orders. The order made on 29 October 1982 purported to extend the employment
of employees under notice at the relevant
collieries for a period of two
weeks. The order made on 12 November 1982 was that the notices the subject of
the existing interim
award be further extended for a period of one week. (at
p568)

6. Notwithstanding the wording of the earlier of the two orders, we think it
apparent that the Tribunal was intending to increase
the period of notice of
termination of employment to which the employees under notice were already
entitled under the various awards.
Such an intention appears clearly enough
from the second of the two orders, although even there the wording is
inappropriate because
the Tribunal could not itself have extended the period
of the notices whatever its powers might have been to affect the entitlement
of the employees to notice. However, we think that the effect of the orders is
as we have said and, having regard to the type of
relief sought in these
proceedings, it is to substance rather than form that regard should be had.
(at p568)

7. So construed, the orders relate to the period of notice required upon the
termination of employment rather than to entitlement
to employment or to the
continuation of employment. These are different things. Although an employer
may bind himself contractually
not to terminate an employee's employment
without giving a specified period of notice, summary dismissal will
nevertheless be effective
leaving the employee to his remedy in damages for
failure to give the requisite notice. See Vine v. National Dock Labour Board
(1957)
AC 488, esp. at p 507; Automatic Fire Sprinklers Pty. Ltd. v. Watson
[1946] HCA 25 ; (1946) 72 CLR 435, at pp 463-465. Where, however,
there is some
statutory
right to the continuation of employment, the position
at common law may be
displaced so that a purported
dismissal may
be a nullity. See Howes v. Gosford
Shire Council (1961) 78 WN (NSW)
981, at pp 984, 986-987, per Jacobs J.; Vine
v.
National Dock
Labour Board. (at p569)

8. There is nothing in any of the logs of claim in this case which could be
said to seek to affect in any relevant way the common
law right of the
employer to dismiss employees although there are, as we have said, demands for
specified periods of notice to be
given if employment is to be terminated. The
distinction is observed between the right to employment or continuation of
employment
- from the employer's point of view, the right to hire and fire -
and the right to notice of termination of employment. It was the
latter, not
the former, which was in dispute and had the Tribunal ordered that the
prosecutor continue in its employment any of its
employees, then in our view
its order could not have been supported because it would not have related to
any of the matters in dispute
as required by s. 41(1) of the Conciliation and
Arbitration Act. But the orders which the Tribunal made, taking the view of
them
which we do, relate to the right to notice of termination of employment
which is a matter in dispute. Moreover, the orders are within
ambit except in
the case of the Electrical Trades Union of Australia (ETU), because the
relevant logs of claim seek a period of notice
of three months and the extra
notice required by the orders, even when added to the period of notice already
given by the prosecutor,
was well within that period. The log of claims served
by the ETU claimed only one week's notice or two weeks' wages in lieu of
notice
and it is apparent, therefore, that the orders which were made were
beyond ambit in so far as they purported to confer any entitlement
upon
members of the ETU. We shall return to the position of the ETU shortly. (at
p569)

9. It was also submitted that the orders did not relate to any of the matters
in dispute because they were directed to specified
employees, namely, those
who had received notice of termination of employment, whereas the relevant
matter in dispute was a claim
for an increased period of notice as a term or
condition of employment, i.e., for employees generally. In our view this is
also a
matter of form only. If the orders made by the Tribunal had, by way of
interim award, varied the relevant clause in the applicable
awards so as to
increase generally the period of notice required upon termination of
employment, the same result would have been
achieved in relation to those
employees who had in fact received notices. That the orders were limited in
their application does
not in our opinion mean that they were not related to a
matter in dispute, namely, the period of notice required upon termination
of
employment. (at p570)

10. The fact that the orders of the Tribunal, in so far as they sought to
affect members of the ETU, were beyond ambit makes it
necessary to examine
further the assumption that the jurisdiction of the Tribunal to make those
orders involved the exercise of the
powers conferred upon it by the
Commonwealth Coal Industry Act and so was dependent upon the existence of an
interstate dispute.
This was said to be the consequence of the existence of an
award dealing with the same subject-matter, which had been made in settlement
of an interstate dispute. The relevant interstate dispute was that created by
service of the original logs of claims and the ETU's
log of claims did not
provide the necessary ambit in relation to the orders made by the Tribunal so
far as it was concerned. Nevertheless,
the Tribunal found that there was a
fresh interstate dispute, although it is not clear how it arrived at that
conclusion. Assuming
however, in the case of the ETU, that there was no
interstate dispute relating to notice of termination of employment, whether
because
of lack of ambit or otherwise, there was clearly an intrastate dispute
relating to that matter and the Tribunal had ample power to
make the orders
which it did in respect of the ETU under the provisions of the Coal Industry
Act 1946 (N.S.W.), as amended, without
regard to ambit. The objection which
was raised to the Tribunal's exercising its powers under the New South Wales
Act was that in
doing so it would be varying an existing award, even if only
in an interim way, which had been made pursuant to its powers under
the
Commonwealth Act and that this would produce a situation of inconsistency in
which the provisions of the award made under the
Commonwealth legislation must
prevail under s. 109 of the Constitution . We are unable to see the validity of
this objection. (at p570)

11. No doubt the orders which the Tribunal made by way of interim award were
inconsistent with the existing award: they provided
for a different period of
notice of termination of employment. But it has often been pointed out that it
is in the legislation upon
which an award depends for its efficacy and not the
award itself that inconsistency with State laws for the purposes of s. 109
must, if any inconsistency exists, ultimately be found. Section 109 is
concerned with inconsistency between laws, not with what is done pursuant to
laws. (at p571)

12. There is a clear intention which emerges from the Conciliation and
Arbitration Act that awards made pursuant to the powers which
it confers
should have an exclusive operation in relation to the matters for which they
provide. The original awards in this case
were not, however, made pursuant to
provisions of the Conciliation and Arbitration Act. They were, so it is said,
made in exercise
of the power conferred by the Commonwealth Coal Industry Act
upon the Coal Industry Tribunal because they were made in settlement
of
interstate industrial disputes. Although that Act gives to the Tribunal the
powers which are given by the Conciliation and Arbitration
Act to the
Conciliation and Arbitration Commission or a member of the Commission (see s.
34(1A)), it evinces no intention that any
award made in exercise of those
powers should have an operation which would exclude the exercise of any powers
which the Tribunal
might have under the laws of the State. (at p571)

13. It is true that s. 36(1) of the Commonwealth Coal Industry Act declares
that an award or order made by the Tribunal by virtue
of the powers and
functions vested in the Tribunal by s. 32(2) of that Act has effect in all
respects as if it were an award of the
Commission. But when this provision is
construed in the context of the Act it does not, in our opinion, import the
quality of exclusivity
that the Conciliation and Arbitration Act confers upon
awards made under that Act. Indeed, if s. 36(1) were given that wide
construction
it would be a denial of the clear legislative intent which is to
be found in s. 32(1) and s. 34(1) of the Commonwealth Coal Industry
Act. (at
p571)

14. Section 36(1) is concerned with the enforcement of awards and agreements
made in the exercise of the powers and functions vested
in the Tribunal by the
Act. It is not directed to raising any limitation on the exercise by the
Tribunal of those powers and functions
which it derives from the State Act. On
the contrary, in the Coal Industry Tribunal Acts, both Commonwealth and State,
there is a
clear expression of intention that the Tribunal should be able to
exercise the powers which it derives from the Commonwealth legislation
and the
powers which it derives from the State legislation, not so that the exercise
of the one set of powers excludes the exercise
of the other, but so that its
powers from both sources should remain available to it to be exercised from
time to time and notwithstanding
that the exercise of the powers given under
the Commonwealth Act might supersede an earlier exercise of the powers under
the State
Act or vice versa. (at p572)

15. Although s. 32(1) of the Commonwealth Act does not operate to vest powers
in the Tribunal, the declaration which it contains
that the Tribunal is to
have all the powers and functions specified in Pt V of the Act must indicate
an intention that the exercise
of some of those powers should not operate to
the exclusion of others. The powers to which the sub-section refers are
principally
those listed in s. 34(1), some of which clearly extend beyond the
legislative competence of the Commonwealth Parliament. This is
recognized by
s. 32(2) which vests those powers in the Tribunal only to the extent that it
is within the competence of the Parliament
to do so. It is manifest that if
all the powers referred to in s. 34(1) are to be vested in the Tribunal, then
there must be a source
other than the Commonwealth Act and it is plain from
the provisions of that Act, including the preamble, that it is intended that
the Tribunal should have powers derived from State legislation. (at p572)

16. There is nothing in the Act which would indicate that the exercise of
powers from one source should operate to exclude the exercise
of powers
derived from the other. Concurrent or parallel powers derived from
Commonwealth and State legislation do not necessarily
give rise to any
inconsistency provided that the Commonwealth legislation does not deal with
its subject matter to the exclusion
of the State. It may be that the same
thing cannot always be done simultaneously in the exercise of powers given by
both Commonwealth
and State legislation (perhaps only where there are
different persons purporting to act in different capacities). The manner in
which
the powers are exercised may produce a situation of conflict in which
the Commonwealth legislation must be said to prevail. See Victoria
v. The
Commonwealth (the "Kakariki") [1937] HCA 82 ; (1937) 58 CLR 618. In the present context that
would seem to be of theoretical
significance
only, without any practical
conequences.
What at least is apparent from the Commonwealth Act is an
intention that the
powers derived
from both the Commonwealth and State
legislation should be exercisable by the Tribunal in a single hearing or
successively
so as
to produce different results. We can,
therefore, see no
reason why the Tribunal should not, in the exercise of its powers under
the
State Act, vary the terms of an award
previously made in the exercise of its
powers under the Commonwealth Act. (at p572)

17. It is, perhaps, necessary to make the final observation that there is
nothing in s. 65 of the Conciliation and Arbitration Act
which would alter the
conclusion which we have reached. That section provides:


"Where a State law, or an order, award, decision or


determination of a State Industrial Authority, is inconsistent


with, or deals with a matter dealt with in, an award, the latter


prevails and the former, to the extent of the inconsistency or in


relation to the matter dealt with, is invalid."


Doubts have been expressed as to the validity of the section if it is intended
to extend the effect of s. 109 of the Constitution . See Collins v. Charles
Marshall Pty. Ltd. [1955] HCA 44 ; (1955) 92 CLR 529, at p 549. Its operation is probably
confined to confirming
the intention
which is, we think, otherwise apparent
from the provisions of the Conciliation and Arbitration Act, namely, that the
power conferred
upon the Conciliation and Arbitration
Commission to make
awards in settlement of interstate industrial disputes should
be exclusive
of
the operation of State laws. Cf.
Reg. v. Credit Tribunal; Ex parte General
Motors Acceptance Corporation [1977] HCA
34 ; (1977) 137 CLR 545, at
p 562, per Mason J. We
have already pointed out that s. 36(1) of the Commonwealth Coal Industry Act
does
not serve to give to awards
made by the Tribunal the exclusive effect
which awards made under the Conciliation and Arbitration Act
may have. Awards
made under
that Act prevail over State laws, not so much because of the
exercise of any power by the Commission,
but rather because of the provisions
of the Act itself. Section 65 of the Conciliation and Arbitration Act can, we
think, only have
an operation within the context of
the Conciliation and
Arbitration Act and cannot serve to affect the otherwise clear intention
of
the Commonwealth Coal Industry Tribunal
Act. (at p573)

18. For these reasons it is our view that the existence of an award made
pursuant to the provisions of the Commonwealth Coal Industry
Act in settlement
of an interstate industrial dispute placed no inhibition upon the Tribunal in
the exercise of its powers under
the New South Wales Coal Industry Act in
settlement of a subsequent intrastate dispute involving a matter dealt with by
the existing
award. (at p573)

19. It is our view, therefore, that the prosecutor must fail. (at p573)
BRENNAN J. The steel industry has suffered in the present recession and, in
consequence, the coal industry in New South Wales has
suffered too. On 23
September 1982, The Broken Hill Proprietary Co. Ltd. (BHP) announced that the
stage had been reached where significant
reductions had to be made in coal
output from the collieries in the Wollongong area owned by BHP's subsidiary
Australian Iron and
Steel Pty. Ltd. (AIS). There would be loss of employment.
On 30 September it was announced that 384 employees were to be retrenched,
but
preference would be given to retrenched employees in the filling of vacancies
that existed in some other collieries. On 1 October
letters of dismissal were
sent out. Omitting formal parts the letters were in the following terms:


"Owing to the severe downturn in the steel industry and an


inability to secure markets for our coal it has become necessary


to reduce our mining operations. We regret to advise that as a


consequence of the abovementioned factors it is necessary to


terminate your services from Friday, 29th October, 1982."


Each of the employees to whom a letter was sent was a member of an association
of employees registered as an organization pursuant
to the Conciliation and
Arbitration Act 1904 (Cth) or of an industrial union registered under the
Industrial Arbitration Act 1940
(N.S.W.). Six organizations were involved: The
Australian Coal and Shale Employees' Federation (the Miners' Federation), The
Federated
Mining Mechanics' Association of Australasia, Electrical Trades
Union of Australia, the Amalgamated Metal Workers' and Shipwrights
Union, The
Federated Engine Drivers' and Firemen's Association of Australasia and
Australian Collieries' Staff Association (ACSA).
One industrial union was
involved, namely, the New South Wales Colliery Officals' Association,
Illawarra District (the Deputies'
Association). Hereafter I refer collectively
to those organizations and that union as the unions. (at p574)

2. On 1 October the unions other than ACSA applied to the Coal Industry
Tribunal, constituted by Mr. D.A. Duncan, for a variation
of their respective
awards to preserve employment temporarily. The New South Wales branch of ACSA
subsequently joined in that application.
On 22 October, the unions other than
the Deputies' Association made a fresh application for the inclusion in the
appropriate awards
of a new clause relating to retrenchment and redundancy. In
time, the earlier application lapsed. The fresh application was in these
terms:


"APPLICATION IS HEREBY MADE to vary or insert into the


approp(r)iate awards the following clause:


RETRENCHMENT AND REDUNDANCY.


An employee may only be retrenched or deemed redundant


after it has been established by the employer, to the


satisfaction of the employee and of the union, that no other


alternative exists.


Where an employee is retrenched or deemed redundant he or


she shall be entitled to -


(a) Three months' notification of the cessation of his or her


services, and


(b) 12 weeks' pay, at the rate which would have been paid if


at work, for each year of service, and


(c) All Long Service Leave entitlements.


We wish also, to request that if no determination has been


made by Wednesday afternoon, that the Tribunal issue orders


extending the terminating date of those members of all unions


on threat from Australian Iron and Steel until after this


application has been finalised."


The application named "The New South Wales Coal Association, The Queensland
Coal Owners' Association and Cornwall Coal Co., Tasmania
and others" as
parties. The nominated respondents were notified of the application on 25
October. Both matters were listed for hearing
on 27 October, two days before
the date specified by AIS in their letters of dismissal as the day on which
the employees' services
were to be terminated. On 27 October the Deputies'
Association also made an application for the insertion of a similar clause in
its award. On that day, the Tribunal heard submissions from the parties and
made an order and a recommendation. Mr. Duncan, being
satisfied that the
application by the Deputies' Association raised an "industrial matter" ordered
AIS "to extend the notice of or
in the alternative reinstate in its employment
members of the . . . (Deputies' Association) currently under notice . . . for
a period
expiring on Friday, 12 November 1982 and . . . for the purpose only
of completion of proceedings currently before me". He did not
make an order
with respect to members of the federal organizations, but he did make a
recommendation. Objection had been taken to
the Tribunal's jurisdiction to
make an order on the application of those organizations and the objection had
not been finally determined
by the Tribunal on 27 October. Accordingly the
Tribunal made recommendations, inter alia, that the employment of AIS
employees to
whom notices had been given should be extended by a fortnight
expiring on 12 November and that the application for the new retrenchment
and
redundancy clause pending before the Tribunal be proceeded with urgently. The
matter was adjourned to 29 October to enable the
parties to consider the order
and recommendations. (at p575)

3. On 29 October, the AIS advocate informed the Tribunal that the company
would comply "under protest" with the order with respect
to the Deputies'
Association, but not with the recommendations as to other employees whose
notices of dismissal were to expire that
day. AIS contended that the
Tribunal's decision and recommendation were made without jurisdiction. Except
in the case of ACSA, which
had failed to serve its claim, the Tribunal did not
accept that contention. It made an interim order in these terms:


"(1) Cessation of all industrial action by mining unions on the


issue.


(2) The extension of the employment of employees of A.I. &


S. Pty. Limited under notice of Kamira, Cordeaux, Tower


and Nebo collieries for a period of two weeks expiring on


12 November 1982. Such extension is for the purpose only


of consideration by the Tribunal of certain matters relating


to benefits on retrenchment and no other matters."


This interim order enured for the benefit of the members of the unions other
than the Deputies' Association (already covered by the
interim award of 27
October) and ACSA. (at p576)

4. AIS applied to this Court for an order nisi for a writ of prohibition
directed to the unions and to the Tribunal prohibiting
further proceedings on
the decisions and orders of 27 and 29 October and prohibiting them from
proceeding with the further hearing
of the unions' application. On 5 November
Mason J. granted an order nisi, but refused a stay application which would
have precluded
the Tribunal from making further interim orders. However,
further proceedings upon the orders already made and the making of a final
award or order were stayed. (at p576)

5. Pursuant to an application dated 8 November, the advocate for the Miners'
Federation on 9 November sought "further interim orders
concerning the men
employed by Australian Iron and Steel until such time as the case before the
High Court has been determined".
The Tribunal, mistaking the meaning and
operation of the stay ordered by Mason J., then refrained from making any
order on that application.
The mistake was corrected, and on 12 November the
Tribunal ordered that:


"1. The notices, the subject of the existing interim order are


hereby further extended for a period of one week, expiring on


19 November 1982;


2. Leave is reserved to the union to argue for retrospectivity at


the appropriate time of any final order that may, subject to the


High Court proceedings, be issued in this matter."


An order nisi for a writ of prohibition prohibiting the Unions and the
Tribunal from proceeding further upon this order was obtained
on 23 November.
AIS now seeks to make absolute the orders nisi granted on 5 and 23 November.
The fundamental attack upon the validity
of the orders made by the Tribunal is
that the Tribunal itself is not validly constituted, for it is said to be a
hybrid, exercising
both federal and State powers, and of a kind unknown to the
Constitution . (at p576)

6. By the Coal Industry Act 1946 (Cth) (the Commonwealth Act) and the Coal
Industry Act 1946 (N.S.W.) (the State Act) the Governor-General
and the
Governor of New South Wales are respectively authorized to enter into an
arrangement for the constitution of a Coal Industry
Tribunal and for the
appointment of a person to constitute that Tribunal (s. 30(1) of the
Commonwealth Act; s. 36(1) of the State
Act). By definition, "the Tribunal"
means "the Coal Industry Tribunal constituted in pursuance of this Act" (s. 4;
s. 4(1)). The
Acts provide for the creation of a single tribunal although
there is a question, noted by Dixon C.J. in Australian Iron & Steel
Ltd.
v.
Dobb [1958] HCA 26 ; (1958) 98 CLR 586, at p 596, whether a person appointed to an office
pursuant to both Acts (in that
case, the office of a
Local
Coal Authority) "is
endowed legislatively with dual personality". (at p577)

7. As stated in the preambles, the Acts were passed in pursuance of an
agreement between the two governments. Their provisions substantially
correspond. The Acts respectively provide (s. 32(1); s. 38(1)) that, upon the
making of the arrangement and the appointment of a
person to constitute the
Tribunal, the Tribunal is to have all the powers and functions specified in
the relevant parts of the respective
Acts. Those powers are specified in
similar terms by s. 34 of the Commonwealth Act and by s. 40 of the State Act.
The vesting of
powers in the Tribunal is effected by s. 32(2) of the
Commonwealth Act and by s. 38(2) of the State Act. Section 32(2) of the
Commonwealth
Act provides:


"Subject to the Constitution those powers and functions (i.e.,


all the powers and functions specified in that Part of the Act)


are by this sub-section, but not otherwise, vested in the


authority in relation to which they are specified to the extent to


which they are not in excess of the legislative power of the


Commonwealth."


Section 38(2) of the State Act is in similar terms except that it substitutes
"State" for "Commonwealth" where it last appears. "By
this ingenious
legislative device", this Court observed in Reg. v. Lydon; Ex parte Cessnock
Collieries Ltd. [1960] HCA 19 ; (1960)
103 CLR 15, at
p 20, "the best is done to give powers
expressed almost in identical terms and conferred by the two respective
Parliaments
a combined
operation so that they will operate according to the
constitutional validity which each respective Parliament
was able
to give to
them". The Acts make it clear that each Parliament intends the Tribunal to
have and to exercise powers vested
in it by
the Act of
the other Parliament.
(at p577)

8. The powers which both Parliaments intend the Tribunal to have are those
specified by s. 34 of the Commonwealth Act and s. 40
of the State Act. The
material provisions of s. 34(1) of the Commonwealth Act and, subject to an
immaterial variation, of s. 40(1)
of the State Act are as follows:


"(1) Subject to this section, the Tribunal is to have power to


consider and determine -


(a) an industrial dispute extending beyong the limits of any


one State;


(b) an industrial dispute in the State;


(c) an industrial matter arising under an award or order of


the Tribunal relating to the coal mining industry in the


State;


(d) an industrial matter arising under an award, order,


determination or agreement continued in force by


section


3 of the Coal Industry Act 1951 and relating to the


coal mining industry in the State;


(e) an industrial dispute or matter referred to the Tribunal


by a Local Coal Authority; and


(f) any other matter affecting industrial relations in the coal


mining industry in the State which the Board declares to


be, in the public interest, proper to be dealt with under


this Act."


Then, in the Commonwealth Act:


"(1A) For the purpose of the exercise of the power referred to


in sub-section (1), the Tribunal is, subject to this section, to


have (in addition to all other powers conferred on it by this Act


or the State Act) all powers which are given by the Conciliation


and Arbitration Act 1904-1956 to the Commission or to a


member of the Commission in relation to industrial disputes


before it under that Act."


In the State Act, sub-s. (1A) reads as follows:


"For the purpose of the exercise of the power referred to in


subsection (1), the Tribunal is, subject to this section, to have


(in addition to all other powers conferred on it by this Act or


the Commonwealth Act) all powers which are given to the


Court in relation to an industrial dispute of which the Court


has jurisdiction."


The "Court" here refers to the Industrial Commission of New South Wales.
Sub-section (7) of the Commonwealth Act provides:


"The power specified in sub-section (1) to consider and


determine industrial disputes, in so far as that power is vested in


the Tribunal by this Act, is declared to be a power exercisable


by way of conciliation and arbitration for the prevention and


settlement of those disputes."


The State Act does not contain a provision corresponding with subs. (7) of s.
34 of the Commonwealth Act, and thus the powers vested
in the Tribunal by the
State Act do not have to be exercised by way of conciliation and arbitration
for the prevention and settlement
of disputes (see Aberdare Collieries Pty.
Ltd. v. The Commonwealth [1952] HCA 13 ; (1952) 86 CLR 12, at p 31). Each Act defines
"industrial
matters"
to mean "all matters pertaining to the relations of
employers
and employees in the coal mining industry" including "the
right to
dismiss . . . a particular person or class of persons" and certain
other
specified matters. A dispute as to an industrial
matter
is an "industrial
dispute" (s. 4; s. 4(1)). (at p579)

9. AIS submits that it is beyond the powers of the Commonwealth Parliament to
authorize the making of an arrangement for the constitution
of a tribunal and
for the appointment of a person to constitute a tribunal that is to have and
to exercise both federal and State
powers. The objection is not so much to the
mode of creation and appointment of the Tribunal but rather to the hybrid
nature which
the submission attributes to the Tribunal. It is of course beyond
the power of the Commonwealth Parliament to vest the Tribunal with
State
power, but that is not what the Commonwealth Act does. The Act approves the
Tribunal's having and exercising State powers but
it does not purport to vest
them. It vests only federal powers (s. 32(2)). If the Act had merely
constitued or authorized the constitution
of a tribunal and had vested federal
powers of conciliation and arbitration in it without reference to State
powers, an attempt by
a State Act to vest similar State powers in the same
tribunal would fail - not because of a constitutional incapacity in a
Commonwealth
tribunal to have and to exercise State power, but because the
Commonwealth Act would be construed as requiring the tribunal to have
and to
exercise only such powers as the Commonwealth Parliament had chosen to vest in
it. If the Commonwealth Act were construed
as not permitting the tribunal to
be a repository of State power, it would prevail over the State Act by reason
of the inconsistency
between them. But the Commonwealth Act permits the State
Act to repose State powers in the Tribunal. The Commonwealth Parliament,
having power to create the Tribunal and vest federal powers of conciliation
and arbitration in it, is not bound to refuse permission
for the reposing of
similar State powers in the Tribunal. Indeed, the object of preventing and
settling interstate industrial disputes
in the coal industry may be better
achieved by permitting the Tribunal to have and to exercise similar powers
conferred upon it by
a State Act. Section 32(1) permits the Tribunal to have
and to exercise State powers to the extent specified in that part of the
Act;
it does no more. Section 32(2) is the only provision which vests powers in the
Tribunal and it does not purport to vest State
powers. It is within the
competence of the Commonwealth Parliament to permit such a tribunal to have
and to exercise State powers
where the vesting and exercise of State is
conducive to or consistent with the achievement of the object which the
vesting and exercise
of federal powers is intended to achieve. It is no
argument against the validity or efficacy of co-operative legislation that its
object could not be achieved or could not be achieved so fully by the
Commonwealth alone. In Deputy Federal Commissioner of Taxation
(N.S.W.) v.
W.R. Moran Pty. Ltd. [1939] HCA 27 ; (1939) 61 CLR 735, at p 774, Starke J. said:


"Co-operation on the part of the Commonwealth and the States


may well achieve objects that neither alone could achieve; that


is often the end and the advantage of co-operation. The court


can and ought to do no more than inquire whether any thing


has been done that is beyond power or is forbidden by the


Constitution ." (at p580)


10. A provision would be beyond the legislative competence of the
Commonwealth if it purported to confer a federal power either
wider than the
Constitution permits or free from any restriction on its exercise which the
Constitution requires; but the Commonwealth Act does not purport to confer
such a federal power. The federal powers vested in the Tribunal are
not
extended beyond constitutional limits by the vesting of State powers. The
powers vested in the Tribunal by the respective Acts
are not intended to blend
and do not blend one with the other so as to form an undifferentiated mass
without the character and incidents
of federal or State power. The two sets of
powers are clearly differentiated by the respective enforcement provisions.
Section 36(1)
of the Commonwealth Act provides:


"An award or order made by the Tribunal by virtue of the


powers and functions vested in the Tribunal by


sub-section


32(2) -


(a) has effect in all respects as if it were an award of the


Commission; and


(b) is binding on -


(i) the parties; or


(ii)the persons on whom it is expressed to be binding,


including an organization if it is expressed to be


binding on an organization,


and the provisions of the Conciliation and Arbitration Act


1904-1956 under which awards of the Commission may be


enforced apply in relation to such an award or order made by


the Tribunal as if it were an award of the Commission."


This provision imports Pt VI of the Conciliation and Arbitration Act as the
enforcement provision for awards and orders made in exercise
of federal power.
On the other hand, s. 42(1) of the State Act provides:


"Any award or order made by the Tribunal in respect of a


matter which is within the jurisdiction of the Court shall be


binding on the parties, shall be filed in the Court and shall


thereupon have effect in all respects and be enforceable as if it


were an award or order of the Court."


Part IX of the Industrial Arbitration Act 1940 (N.S.W.) provides for the
enforcement of awards and orders of "the Court" (that is,
the Industrial
Commission of New South Wales) and that Part is thus imported as the
enforcement provision for awards and orders made
in exercise of State power.
(at p581)

11. The Acts thus maintain a separation between the federal and the State
powers vested in the Tribunal, each set of powers retaining
its particular
character and incidents. The power under which an award or order is made
determines the mode and forum of its enforcement,
for jursdiction under s.
36(1)(a) of the Commonwealth Act or under s. 42(1) of the State Act depends
upon the making of an award
or order pursuant to power derived from the Act
which creates the jurisdiction. However, jurisdiction to enforce an award or
order
is a question of adjective law, which does not bear upon the substantive
effect that an award or order has upon the rights and obligations
of the
parties bound by it. Those rights and obligations are affected by any valid
award or order made by the Tribunal according
to its tenor, irrespective of
the source of the power to make it. (at p581)

12. It may be thought that s. 36(1)(a) gives to an award or order made by the
Tribunal under federal power the same exhaustive operation
as the Conciliation
and Arbitration Act gives to an award or order made under that Act. If that
were so, an award or order made under
federal power vested by s. 32(2) of the
Commonwealth Act would not only override an award or order made under State
power vested
by s. 38(2) of the State Act, but it would also be incapable of
subsequent modification by an award or order made under State power.
The
theory upon which an award or order validly made under the Conciliation and
Arbitration Act is held to override a State Act or
an award or order made
under a State Act was explained by this Court in T.A. Robinson & Sons Pty.
Ltd. v. Haylor
[1957] HCA 76 ; (1957) 97 CLR 177,
at p 182.


"The theory upon which the operation of State law gives way


in favour of an award providing an inconsistent industrial


regulation imputes to the Conciliation and Arbitration Act an


intention to confer power upon the arbitrator to make on a


subject of dispute an exhaustive determination containing an


industrial regulation that, on the subject with which it deals,


will cover the ground to the exclusion of any different or


further provision."


Had the Commonwealth Parliament intended that an award or order of the
Tribunal made in exercise of federal power should be an exhaustive
determination of the particular industrial matter to which the award or order
relates, an exercise of federal power by way of conciliation
and arbitration
for the prevention or settlement of a dispute would exhaust the Tribunal's
State power with respect to the subject
matter of that dispute, and arid
discussions as to the limits of federal power would be likely to hinder the
performance of the Tribunal's
functions. Such an intention is alien to the
general legislative scheme. In Aberdare Collieries (1952) 86 CLR, at p 30. the
Court
said:


"But in combined legislation of this type we think that the


Federal statute should be interpreted as not meaning to occupy


the field to the exclusion of the State legislation."


In the light of the context of the whole of s. 36 and the manifest intention
of the Parliament that the Tribunal should exercise State
as well as federal
powers, s. 36(1)(a) should not be construed as conferring an exhaustive or
exclusive operation upon awards and
orders made under federal power. Rather it
should be construed as relating to the effect of an award or order upon the
rights and
obligations of the parties who are bound by it and to the
enforcement of the rights and obligations thereby conferred or imposed.
(at
p582)

13. In the absence of an intention that an award or order made by the
Tribunal in exercise of federal power should be an exhaustive
determination of
an industrial matter, there is no inconsistency, for the purposes of s. 109 of
the Constitution , between the Commonwealth Act and its intended operation upon
awards made by the Tribunal under federal power on the one hand and
the State
Act on the other (cf. Ex parte McLean [1930] HCA 12 ; (1930) 43 CLR 472, at p 484, and Reg. v.
Winneke; Ex parte Gallagher
[1982] HCA 77 ; (1982) 152 CLR
211, at pp 215-216). As s. 32(1) of
the Commonwealth Act and s. 38(1) of the State Act express a common
intention
that the Tribunal
should have powers derived from the State as well as from
the Commonwealth and should be at liberty to
exercise
powers derived from
both
sources, there is no inconsistency between the law of the Commonwealth and the
law of the State
upon which
s. 109 may fasten
to destroy or limit the
operation of that co-operative legislative scheme which vests both sets of
powers
in the
Tribunal. The Tribunal
may (subject to s. 34(7) of the
Commonwealth Act) exercise the two sets of powers concurrently to determine
industrial matters, and
the awards and orders of the Tribunal (if made within
either set of powers) have among themselves the priority
and effect that the
Tribunal intends them to have, irrespective of the source of the power to make
particular awards or orders. However,
to permit the
Tribunal to exercise State
powers with respect to a given subject-matter after the exercise of federal
power with respect
to the
same matter, s. 32(2) of the Commonwealth Act must
be taken to confer upon the Tribunal federal power to permit an award or
order
made in exercise of federal power to be superseded though the new provision
which supersedes the old is made in exercise of
State
power. And so, an award
made by the Tribunal in exercise of federal power (or in exercise of both
federal and State powers)
may be
varied in its application to particular
parties in a State by a subsequent award or order made in determination of a
State
industrial
matter. (at p583)

14. It follows that the rights and obligations of the parties bound by a
particular award or order of the Tribunal are affected
by force of such of the
Tribunal's powers as are drawn upon to support that award or order, whatever
be the source of those powers.
Thus an industrial dispute in a State that is
part of an interstate industrial dispute can attract State powers and an award
or order
made by way of conciliation and arbitration for the prevention or
settlement of the dispute will be supported by powers derived from
both
Commonwealth and State or from either of those sources. Although a single
award or order results from a particular exercise
of the Tribunal's powers,
there is a bifurcation in the consequences of that award or order if it be
made in exercise of both federal
and State powers: it takes effect as if it
were an award of the Conciliation and Arbitration Commission (s. 36(1)(a) of
the Commonwealth
Act) and it binds (or it may be made to bind) as if it were
an award or order of the State Industrial Commission (s. 42(1) of the
State
Act). Whether a breach of an award made in concurrent exercise of both powers
may be prosecuted under federal law and under
State law is a question which
need not now detain us. We are here concerned to ascertain whether the attempt
legislatively to vest
federal and State powers to affect the substantive
rights and obligations of parties bound by an award or order is beyond the
powers
of the Commonwealth or is forbidden by the Constitution . Finding no
constitutional impediment to the legislative scheme to vest federal and State
powers in the Tribunal, I would hold that
this ground of attack fails. (at
p583)

15. Next, it is submitted that, upon the facts of the case and upon the true
construction of the respective Acts, the Tribunal had
no power to make the
orders that it did on 27 and 29 October and 12 November. The starting point is
the jurisdiction to determine
the matter of the application for a new award
clause governing retrenchment of employees and the benefits payable to
employees on
retrenchment. That application was or was likely to be in dispute
between the applicant unions and the several respondents in New
South Wales,
Queensland and Tasmania. It may be that there was federal jurisdiction to
determine the application, but it was not
necessary for the Tribunal when it
came to make the interim orders now under attack to inquire into the
foundation for the exercise
of federal power to insert the new clause in the
award. At the times material to the subject proceedings, the dispute focussed
upon
the employees in New South Wales who had been served by AIS with notices
of dismissal. The benefits of the proposed new award clause
were sought to
protect that class of employees, and AIS disputed the claim. If the claim so
made by or on behalf of that class of
employees was an "industrial matter",
the Tribunal was authorized by the State Act to determine it. The Tribunal may
well have had
federal power also to determine the dispute as to that matter by
way of arbitration for the settlement of that dispute. Though there
was a
fissure separating the Tribunal's federal powers from its State powers there
was no crevice between those powers into which
the matter then in dispute
might have fallen. The relevant questions for the Tribunal were whether the
aggregate of its statutory
powers as defined in s. 34(1) of the Commonwealth
Act and s. 40(1) of the State Act authorized it to determine the matter of the
claim for the new award clause to be applied to the employees who had received
notices of dismissal and, if so, whether those powers
authorized the Tribunal
to make the interim orders which it did. (at p584)

16. There can be no doubt that the unions' application for a new award clause
raised an industrial matter. The conditions upon which
an employee may be
dismissed and the benefits to which he is entitled on dismissal are important
aspects of the relationship of employer
and employee; they have relevance to
the continuity of employment as well as to the termination of employment. The
benefits payable
to an employee on dismissal furnish a disincentive to an
employer to dismiss and a disincentive to an employee to resign. The unions'
application for a new award clause clearly pertained to the relations of
employers and employees in the coalmining industry. Whether
or not there was,
or was likely to be, a dispute as to the new award clause between all the
parties to the application susceptible
of prevention or settlement by exercise
of federal power, there was a clear dispute between the applicant unions and
AIS as to whether
the employees to whom the notices of dismissal had been
given should have the benefits sought by the application. The Tribunal had
power to determine the latter dispute in exercise of its State powers, and
perhaps in exercise of its federal powers. (at p585)

17. However, AIS submits that even if the Tribunal had power to determine
that dispute, it had no power to make the impugned interim
orders pending the
making of a final determination. Those orders were made when AIS was insisting
upon its right to dismiss the employees
on 29 October, the date specified in
the letters of dismissal, or later when AIS was contending that the letters of
dismissal had
taken effect according to their tenor. The letters had specified
a period of notice which complied with the relevant awards as they
then stood,
and AIS was relying upon its common law right to dismiss. But the claim made
by the employees or by the unions on their
behalf sought to secure for the
benefit of those employees a modification of the common law right to dismiss
in accordance with the
application for the new award clause. Consequently
there was a dispute as to the right of AIS "to dismiss . . . a particular . .
. class of persons", namely, those to whom notice of dismissal had been given.
The orders of 27 and 29 October and 12 November each
purported to restrict the
right to dismiss the employees to whom notice of dismissal had been given by
extending the time before
dismissal. Whatever may be said as to the form of
each order, its substance is clear beyond mistake: the Tribunal determined
that
the right to dismiss should not be exercised before the times specified
in the respective orders expired. The periods of notice specified
by the
respective orders fell short of the three months sought by the unions'
application, but the orders extended the period of
notice beyond the four
weeks' notice which AIS had given in the letters of dismissal. The orders thus
determined part of the industrial
matter in dispute in so far as it involved
the particular class of employees, and the Tribunal had power so to determine.
The common
law right of dismissal was modified by the respective orders made
in respect of the particular class of employees (cf. Kilminster
v. Sun
Newspapers Ltd. [1931] HCA 37 ; (1931) 46 CLR 284). It is not necessary to consider whether a
purported dismissal by AIS of
employees on 29
October or on a later
date
before the expiry of a period specified in an interim order would have been
effective
though unlawful
or wholly ineffective
in respect of those employees
who were protected by the interim order. A similar question was
discussed,
though
in a different statutory
context, in Automatic Fire Sprinklers Pty.
Ltd. v. Watson [1946] HCA 25 ; (1946) 72 CLR
435. The effect of a valid order
upon a contract
of service is not now in issue. The validity of the impugned interim
orders
does
not turn upon the way in which they
modified the common law right to
dismiss - either by suspending it for a specified
period or
by making its
exercise illegal during
that period. (at p586)

18. The interim orders also susperseded earlier award provisions prescribing
the required period of notice, but there is neither
constitutional nor
statutory impediment to such a supersession. The earlier provisions were
amenable to subsequent supersession or
partial supersession by an order
modifying the right to dismiss a particular class of employees, though the
order be made under State
power. The later and particular orders of the
Tribunal prevailed over the earlier award provisions simply because that was
the Tribunal's
intention. (at p586)

19. For the reasons stated by the Chief Justice, I agree that the grounds
relating to the alleged bias of the Tribunal should be
rejected. (at p586)

20. For these reasons, I concurred in discharging the orders nisi. (at p586)
DEANE J. Section 30(1) of the Coal Industry Act 1946 (Cth) (the Act)
authorizes the Governor-General to enter into an arrangement
with the Governor
of New South Wales for the constitution, subject to the Act, of a Coal
Industry Tribunal and for the appointment
of a person to constitute that
Tribunal. Section 36(1) of the Coal Industry Act 1946 (N.S.W.) (the State Act)
authorizes the Governor
of New South Wales to enter into an arrangement with
the Governor-General of the Commonwealth for the constitution, subject to the
State Act, of a Coal Industry Tribunal and for the appointment of a person to
constitute that Tribunal. Pursuant to the authority
of the respective
Parliaments, the Governor-General and Governor of New South Wales entered into
an arrangement for the constitution
of the Coal Industry Tribunal (the
Tribunal). The respondent David Anthony Duncan has been appointed to
"constitute" the Tribunal.
(at p586)

2. In Reg. v. Lydon; Ex parte Cessnock Collieries Ltd. [1960] HCA 19 ; (1960) 103 CLR 15, at
pp 19-20., This Court explained the
joint operation
of the Act and the State
Act as being that of "concurrent
legislation by the two Parliaments under
agreement". Both
Acts provide
that the contemplated arrangement between
Governor-General
and Governor shall be for the constitution "of a Coal
Industry
Tribunal
and for the appointment of a person to constitute that
Tribunal"
(emphasis added). Both Acts recognize that that single
Tribunal
is
to have powers conferred upon it by both the Act and the State
Act. Thus, each
of s. 34(1A) of the Act and s. 40(1A)
of the State
Act expressly refers to
powers conferred on "the Tribunal" by
either Act. (at p587)

3. Neither Act, in terms or by implication, confers corporate personality
upon the Tribunal. In my view however, both Acts recognize
that the Tribunal,
whether it be described as a tribunal or an office, has an existence that
transcends the tenure of office of any
incumbent. It is competent for the
legislature to constitute or to authorize the constitution of an entity of a
type unknown to the
common law (see Taff Vale Railway v. Amalgamated Society
of Railway Servants [1901] UKHL 1 ; (1901) AC 426, at p 429; Chaff and Hay Acquisition
Committee
v. J.A. Hemphill and Sons Pty. Ltd. [1947] HCA 20 ; (1947) 74 CLR 375, at pp
384-386, 389, 391, 393). This the Acts have, in their
concurrent operation,
done in the case of the Tribunal.
It is unnecessary to attempt to define with
precision the nature of the statutory
entity which
has been established. It
suffices
to say that the Tribunal has a continuing existence and that it is
the Tribunal itself
which is
the recipient of the powers which
both Acts
confer. Those powers will lie dormant if, at any time, there is no individual
appointed
either to constitute the Tribunal
or to act as the person
constituting the Tribunal during the absence, through illness
or otherwise,
of
the person so appointed (see
Act, s. 30(3); State Act, s. 36(3)). (at p587)

4. Section 4 of each Act defines "industrial dispute" as meaning:


"(a) a dispute (including a threatened, impending or probable


dispute) as to industrial matters; and


(b) a situation which is likely to give rise to a dispute as to


industrial matters."


In the same section, each Act defines "industrial matters" as meaning "all
matters pertaining to the relations of employers and employees
in the coal
mining industry, and, without limiting the generality of the foregoing" as
including, in respect of that industry, the
following, amongst other, specific
subjects:


"(b) the privileges, rights and duties of employers and


employees;


. . .


(h) the mode, terms and conditions of employment;


. . .


(k) the right to dismiss or to refuse to employ, or the duty to


reinstate in employment, a particular person or class of


persons."


The definition sections also provide that "industrial matters" include "all
questions of what is right and fair in relation to an
industrial matter having
regard to the interests of the persons immedately concerned and of society as
a whole". (at p588)

5. Section 34 of the Act and s. 40 of the State Act confer on the Tribunal
authority to consider and determine, amongst other things,
"an industrial
dispute extending beyond the limits of any one State", "an industrial dispute
in" New South Wales, and "an industrial
matter arising under an award or order
. . . of the Tribunal relating to the coal mining industry" in New South
Wales. For the purpose
of discharging those functions, the Tribunal is
entrusted with powers enjoyed by the Commonwealth Conciliation and Arbitration
Commission
(Act, s. 34(1A)) and the Industrial Commission of New South Wales
(State Act, s. 40(1A)). The Act and the State Act provide that,
subject to the
Commonwealth Constitution , the powers and functions conferred are vested in
the Tribunal to the extent to which they are not in excess of the legislative
power
of, in the one case, the Commonwealth (Act, s. 32(2)) , and, in the other
case, the State (State Act, s. 38(2)). In Lydon (1960) 103 CLR, at p. 20 ,
this Court expressed the view that
by "this ingenious legislative device the
best is done to give powers expressed almost in identical terms and conferred
by the two
respective Parliaments a combined operation so that they will
operate according to the constitutional validity which each respective
Parliament was able to give to them" (see, also, Australian Iron & Steel Ltd.
v. Dobb [1958] HCA 26 ; (1958) 98 CLR 586, at p
596). I respectfully
agree with that statement
of the effect of the relevant provisions of the two Acts
and accordingly do
not accept
a submission, advanced
on behalf of Australian Iron & Steel Pty.
Ltd. (the prosecutor), that the
provisions of s. 32(2) of the
Act do not apply
to confine
the powers conferred by ss. 32(1) and 34 thereof. (at p588)

6. As a matter of construction, the effect of the operation of the concurrent
legislation is that the Tribunal is invested with
power to consider and
determine any "industrial dispute" within or extending to and beyond New South
Wales and any "industrial matter"
arising under an award of the Tribunal
relating to the coal mining industry in New South Wales to the full extent of
the combined
legislative competence of the two Parliaments. Subsequently in
this judgment, I consider the questions whether the two Acts are within
the
respective legislative competence of the Commonwealth and State Parliaments
and whether there is any lacuna in the combined competence
of the two
Parliaments to confer such powers. Subject to those questions, the powers
conferred upon the Tribunal are full and complete
within their terms. It would
be contrary to the intended operation of the concurrent legislation to import
any requirement that the
powers conferred upon the Tribunal by the Act and by
the State Act must be exercised in isolation, one from the other. The combined
operation of the Acts is to confer composite powers: the powers conferred by
the Act can be exercised concurrently with the powers
conferred by the State
Act and the powers conferred by one Act supplement and complete the powers
conferred by the other. (at p589)

7. The questions whether the relevant provisions of the two Acts are within
the respective legislative competence of the Commonwealth
and the New South
Wales Parliaments and whether there is any relevant lacuna in the combined
legislative competence of the Commonwealth
and State Parliaments can
conveniently be considered together. They can, in the view I take, be resolved
by reference to two related
general propositions which are to be derived from
the terms of the Australian Constitution and from the nature of the federation
which it embodies. The first is that co-operation between the Parliaments of
the Commonwealth
and the States is in no way antithetic to the provisions of
the Constitution : to the contrary, it is a positive objective of the
Constitution . The second is that, in the absence of any express or implied
constitutional prohibition or of any relevant limitations upon State
powers
persisting from colonial times, it is to be presumed that any legislative
power which naturally appertains to self-government
and which is not conferred
upon the Commonwealth Parliament remains in the States. The existence of a
constitutional objective of
Commonwealth/State co-operation may, on occasion,
be obscured by the fact that cases in this Court in relation to the
constitutional
scope of legislative powers are commonly concerned with the
resolution of competing legislative claims of the Commonwealth and of
one or
more of the States. It is, however, unnecessary to do more than refer to the
provisions of s. 51(xxxiii) , (xxxiv), (xxxvii) and (xxxviii) and of Ch. V of
the Constitution to demonstrate the existence of such a constitutional
objective. It would be inconsistent with that objective for there to be any
general constitutional barrier to concurrent legislation by Commonwealth and
State Parliaments. The second proposition requires a
little more elaboration.
(at p589)

8. The Constitution of Australia was established not pursuant to any compact
between the Australian Colonies but, as the preamble of the Constitution
emphatically declares, pursuant to the agreement of "the people" of those
Colonies. Pursuant to that agreement, there were conferred
upon the
Commonwealth Parliament such legislative powers as were considered necessary
and proper for the purposes of the nation that
would be formed by, and would
develop under, the federation. Some of those powers were made exclusive; some
were made merely paramount.
To the extent considered desirable, some specific
prohibitions were imposed upon the legislative powers of Commonwealth and
State
Parliaments. The Constitution did not, however, otherwise modify or
abolish the legislative powers of the Parliaments of the States. Rather, s.
107 of the Constitution expressly declares that the legislative powers of the
Parliaments of the former Colonies, now States, continue except to the extent
that the Constitution otherwise provides. In all these respects, the
Commonwealth Constitution generally corresponded with the Constitution of the
United States of America where it had long been recognized that, except to the
extent of constitutional prohibition, the effect
of federation was to share
legislative powers between Union and States and not to diminish the amplitude
of the totality of legislative
powers (see, e.g., Martin v. Hunter's Lessee
[1816] USSC 34 ; (1816) 1 Wheat. 304, at p 325 (4 Law Ed 97, at p 102); New York v. Miln [1837] USSC 10 ; (1837)
11 Pet.
102, at p 153a (9 Law Ed 648, at p 668). (at p590)

9. In Attorney-General (Ontario) v. Attorney-General (Canada) (1912) AC 571,
at pp 583-584. Lord Loreburn L.C., speaking for the
Privy Council, said of the
Canadian Constitution :


"In the interpretation of a completely self-governing


Constitution


founded upon a written organic instrument, such as the


British North America Act, if the text is explicit the text is


conclusive, alike in what it directs and what it forbids. When


the text is ambiguous, as, for example, when the words


establishing two mutually exclusive jurisdictions are wide


enough to bring a particular power within either, recourse must


be had to the context and scheme of the Act. Again, if the text


says nothing expressly, then it is not to be presumed that the


Constitution withholds the power altogether. On the contrary,


it is to be taken for granted that the power is bestowed in some


quarter unless it be extraneous to the statute itself (as, for


example, a power to make laws for some part of His Majesty's


dominions outside of Canada) or otherwise is clearly repugnant


to its sense. For whatever belongs to self-government in Canada


belongs either to the Dominion or to the provinces, within the


limits of the British North America Act." (at p590)


10. The applicability of these remarks to the Australian Constitution was
immediately recognized (see Colonial Sugar Refining Co. Ltd. v.
Attorney-General (Cth) [1912] HCA 94 ; (1912) 15 CLR 182, at
pp 214-215 ). In
Smith v. Oldham
[1912] HCA 61 ; (1912) 15 CLR 355., both Barton J. and Isaacs J. expressly relied upon the
completeness
of Commonwealth and State
legislative powers
as a step in
concluding that an impugned section of the Commonwealth Electoral Act 1902-
1911 (Cth) was within
the legislative powers
of the Commonwealth Parliament.
In the course of his judgment, Barton J. said (1912)
15 CLR, at pp 360-361.


". . . If then the Parliament of the Commonwealth cannot


legislate upon a matter of this sort there can be no legislation


upon it at all. But that we cannot say, for the Constitution in


the distribution of powers between Commonwealth and States


embraces the whole range of legislative authority within the


territorial limits of Australia. And as it is plain that no State can


deal with the conduct of citizens of the Commonwealth in


respect of federal elections, the power must reside in the


Commonwealth."


Isaacs J. said (1912) 15 CLR, at p. 365:


"It is inconceivable that in Australia there exists no legislative
authority competent to pass such a law. I said once before


of another Statute (R. v. Barger


[1908] HCA 43 ; (1908) 6 CLR 41, at p 101): - "The power to pass


such an Act must reside somewhere." Recently in the Colonial


Sugar Refining Co. v. Attorney-General (Cth)


(1912) 15 CLR, at p 214. I quoted the words of Lord Loreburn L.C. in

Attorney-General (Ontario) v.


Attorney-General (Canada)


(1912) AC, at pp. 583-584,


laying down the same test. I


will not now repeat those words; but in effect the Judicial


Committee held that in a completely self-governing Constitution it is

to be taken for granted a power naturally


appertaining to the self-government conferred is contained


somewhere within it." (at p591)


11. It has not been suggested that either the Commonwealth Constitution or
the New South Wales Constitution contains any express or implied prohibition
upon legislative power which is relevant for the purposes of the present
application
or that there is any applicable limitation upon the powers of the
State Parliament resulting from outmoded doctrines appropriate
to times that
are gone. The power of the Commonwealth Parliament 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 (s. 51(xxxv)) and with respect to
matters incidental to the execution of that power (s. 51(xxxix)) sufficed to
enable the Commonwealth Parliament to legislate to authorize the
Governor-General to enter into the arrangement for the
establishment of a
tribunal which would be capable of receiving and exercising the particular
powers conferred upon it by the Act
and the related powers conferred upon it
by the concurrent State Act. In that regard, it would seem that in present day
circumstances,
where modern communications and the common involvement of
national organizations of employees or employers make escalation of a local
dispute into an interstate dispute far more likely than in the early days of
the Commonwealth, the reference to "prevention" in s.
51(xxxv) has become more
important, as a source of legislative power, than the reference to
"settlement". For its part, the New South
Wales Parliament plainly possessed
legislative powers adequate to enable the enactment of the provisions of the
State Act. Nor, in
the light of the underlying constitutional objective of
co-operation between Parliaments, is there any valid constitutional ground
for
refusing to give to the two Acts their full combined operation and effect. In
the absence of any constitutional prohibition and
of any lacuna in combined
legislative competence, that operation and effect is to confer upon the
Tribunal power to consider and
determine industrial disputes and industrial
matters of the relevant type regardless of whether they be confined to New
South Wales
or extend within and beyond that State. Provided it is acting in
the course of considering and determining a relevant "industrial
dispute" or
"industrial matter" and subject to the under-mentioned qualification, it is
unnecessary for the Tribunal to seek to identify
or isolate the precise source
of the power it is exercising. In particular, if the Tribunal, in exercising a
power which is primarily
to be seen as conferred upon it by the State Act,
makes an order or award which varies an award previously made by the Tribunal
in
the exercise of power conferred upon it either by the Act alone or by the
combined operation of the Act and the State Act, no question
of inconsistency
between a law of the Commonwealth and a law of the State arises. The reason
for that is that the power to vary and
thereby partially repeal such an award
in the exercise, for example, of the authority primarily conferred by the
State Act to consider
and determine a purely intrastate "industrial dispute"
is conferred upon the Tribunal by the Act when it confers, to the extent of
Commonwealth power, authority to consider and determine such an "industrial
dispute". It is not a case merely of the Commonwealth
indicating a negative
intention not to cover the field. It is a case of positive provision having
the effect that the Tribunal is,
in the exercise of powers conferred by the
State Parliament, vested with ancillary powers which the Commonwealth
Parliament could
alone confer. (at p592)

12. The qualification which needs to be made to the general statement that it
is unnecessary for the Tribunal to seek to identify
the source of the powers
which it is exercising results from the differences between the respective
provisions of the two Acts dealing
with the nature and content of the
Tribunal's supplementary powers and the enforcement of the Tribunal's awards
or orders. In exercising
powers which are conferred by the Act, the Tribunal
is vested with the powers which are given by the Conciliation and Arbitration
Act 1904 (Cth) to the Commonwealth Conciliation and Arbitration Commission or
to a member thereof (Act, s. 34(1A)); in exercising
powers which are conferred
by the State Act, the Tribunal is vested with the powers conferred upon the
Industrial Commission of New
South Wales in relation to an industrial dispute
of which that Commission has jurisdiction (State Act, s. 40(1A)). An order or
award
which is made in pursuance of the Act takes effect and may be enforced
as if it were an award of the Commonwealth Conciliation and
Arbitration
Commission (Act, s. 36); an order or award which is made in pursuance of the
State Act shall, when filed in the Industrial
Commission of New South Wales,
"have effect in all respects and be enforceable" as if it were an award or
order of that Commission
(State Act, s. 42(1)). Where the supplementary powers
conferred by the two Acts differ in relevant respects or where enforcement
provisions or proceedings are involved, it may be necessary to identify the
source of the particular powers which the Tribunal is
exercising or has
exercised in making a particular award or order. In a case where the award or
order is not being or was not made
in the exercise of concurrent or composite
powers derived from both Acts with the result that both sets of supplementary
powers and
enforcement procedures are prima facie available and applicable, it
may be necessary to identify the source of jurisdiction in order
to determine
the nature and scope of available supplementary powers or the identity of the
appropriate enforcement procedures In
a case where an award or order is being
made or was made in the exercise of concurrent or composite powers derived
from both Acts,
it may be that, within particular areas such as the
availability of enforcement procedures, questions of inconsistency may arise.
The divergence between the two Acts as regards supplementary powers and
enforcement of awards and orders may be productive of inconvenience
and
difficulty in particular cases. Overall however, the circumstances in which
the Tribunal will itself be concerned to identify
the source of powers will be
rare since the Tribunal will not itself ordinarily be concerned with
enforcement procedures and the
differences between the supplementary powers
conferred by the two Acts are not such as to make it likely that they will
ordinarily
be significant. (at p593)

13. In the present matters, it was clear from the outset that there was a
dispute before the Tribunal between the prosecutor and
each of the industrial
organizations ("the unions") as to the rights of members of that organization
in the event of their retrenchment
by the prosecutor. Notwithstanding the fact
that that dispute was between a particular employer and an organization as to
the entitlements
of particular employees, it was an "industrial dispute" for
the purposes of the two Acts (see Reg. v. Portus; Ex parte Australian
Air
Pilots' Association [1953] HCA 97 ; (1953) 90 CLR 320, at p 330). The Tribunal had power to
consider and determine that industrial
dispute regardless
of whether it
was an
intrastate dispute or an interstate dispute and regardless of whether the
Tribunal's order
would involve a variation
of a
previous award of the
Tribunal. It was unnecessary for the Tribunal to be concerned with whether the
dispute before it came
within
the ambit of previous disputes which had led to
the making of the relevant award. The dispute as to
whether the award should
be varied
was itself an industrial dispute which enlivened the jurisdiction of
the Tribunal. Indeed, from
the time the prosecutor
gave the
retrenchment
notices, an "industrial dispute" plainly existed for the purposes of the Acts
in that
there was a situation
which was
likely to give rise to a dispute as to
"industrial matters" in the defined sense. (at p594)

14. In follows that the prosecutor's attack on the constitution of the
Tribunal and on the jurisdiction of the Tribunal to deal
with the dispute
between the prosecutor and the unions fails. The only error as to jurisdiction
which the Tribunal made was its ruling
on 18 October 1982 that it lacked power
to vary the awards of the unions other than the New South Wales Colliery
Officials' Association
Illawarra District in the perceived absence of an
interstate industrial dispute. It is unnecessary to consider whether the
Tribunal
was in any event in error in its conclusion that no interstate
industrial dispute existed at that stage. If it had been necessary
to consider
that question, it may have been of significance that, possibly as a result of
a slip in drafting, the Act, unlike the
Conciliation and Arbitration Act 1904,
does not include, in the defined area of an interstate industrial dispute, an
intrastate situation
which is likely to give rise to a dispute as to
industrial matters which extends beyond the limits of any one State (see the
Act,
s. 34 and definitions of "industrial matters" and "industrial dispute"
and contrast the definition of "industrial dispute" in the
Conciliation and
Arbitration Act, s. 4(1)). (at p594)

15. There remains for consideration the prosecutor's attack on the actual
orders which the Tribunal made on the ground that those
orders were vitiated
either by the appearance of bias or prejudgment on the part of the Tribunal or
by some other failure of the
Tribunal to observe the requirements of natural
justice and on the further ground that those orders were, because of their
form,
beyond the Tribunal's powers. As regards those matters, I agree with the
judgment of the Chief Justice which I have had the benefit
of reading in draft
form. (at p595)

16. It was for the above reasons that I concurred in the discharge of the
orders nisi. (at p595)
ORDER

Order nisi for writs of prohibition discharged with costs.