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High Court of Australia Transcripts |
Office of the Registry
Melbourne No M46 of 1994
B e t w e e n -
THE STATE OF VICTORIA
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
Office of the Registry
Adelaide No A18 of 1994
B e t w e e n -
THE STATE OF SOUTH AUSTRALIA
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
Office of the Registry
Perth No P16 of 1994
B e t w e e n -
THE STATE OF WESTERN AUSTRALIA
Plaintiff
and
THE COMMONWEALTH OF AUSTRALIA
Defendant
BRENNAN CJ
DAWSON J
TOOHEY J
GAUDRON J
McHUGH J
GUMMOW J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 5 SEPTEMBER 1995, AT 10.20 AM
Copyright in the High Court of Australia
MR D. GRAHAM, QC, Solicitor-General for the State of Victoria: May it please the Court, I appear with my learned friends MR N.J. YOUNG, QC and MS P.M. TATE for the plaintiff in the first action. (instructed by the Victorian Government Solicitor)
MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia: May it please the Court, I have the honour to inform the Court that I have been appointed Solicitor-General for the State of South Australia. I appear with MR G.J. PARKER and MR T.W. COX, for the State of South Australia as plaintiff in action A18 of 1994. (instructed by the Crown Solicitor for South Australia)
BRENNAN CJ: The Court congratulates you, Mr Solicitor, on your appointment as Solicitor-General.
MR SELWAY: I am obliged to the Court.
MR R.E COCK: May it please the Court, I appear with my learned friend, MS J.H. SMITH, for the plaintiff in action P16 of 1994. (instructed by the Crown Solicitor for Western Australia)
MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth: If the Court pleases, I appear with my learned friend, MR H.C. BURMESTER and MR T.J. GINNANE in the first matter; with my learned friend, MR C.R. STAKER in the second matter and my learned friend, MR G.R. KENNETT in the third matter. (instructed by the Australian Government Solicitor)
MR S.J. GAGELER: If the Court pleases, I appear with MR K. MASON, QC, Solicitor-General for the State of New South Wales, for the Attorney-General for the state of New South Wales intervening in each matter, primarily in support of the Commonwealth position, but also to put submissions to the effect that Section VIIA of the Commonwealth Act is invalid. (instructed by the Crown Solicitor for New South Wales)
BRENNAN CJ: Mr Solicitor for Victoria?
MR GRAHAM: May it please the Court. We, together with the other parties, have supplied lengthy written submissions in-chief in relation to our respective cases and we, for our part, have provided an outline of our arguments in reply which I believe the Court would have received last week.
The course which I propose to adopt which appears to us to be most likely to be of assistance to the Court will be to engage in a brief introduction to the salient provisions of the legislation and then to go on to develop the submissions which we make in response to the written submissions on behalf of the Commonwealth and the State of New South Wales intervening in so far as the State of New South Wales is opposed to us and not supporting our position.
If the Court pleases, these three actions instituted by the plaintiff States come before the Court under a case stated by your Honour Justice Dawson on 10 March of this year. By these proceedings the plaintiff States challenge the validity of a large number of the provisions of the Industrial Relations Act 1988 , which I will refer to as the Act, most of which were included in that Act for the first time by the Industrial Relations Reform Act 1993 , which I shall call the 1993 Act. The Act was further amended by the Industrial Relations Act No 2 1994, which I will call the 1994 Act, in a number of respects, only one of which is relevant for the purpose of these proceedings. The 1993 Act came into effect on 30 March 1994 and the 1994 Act came into effect on 30 June 1994.
It may be convenient to indicate to the Court at the outset the course which the plaintiff States propose to adopt in the presentation of their submissions to this Court, being a course designed to avoid repetition. As the written submissions of the parties may indicate, challenges to the Act and to the 1993 and 1994 Acts are based upon the external affairs power, the conciliation and arbitration power, the trading and financial corrporations power, the acquisition on just terms power and implied limitations upon Commonwealth legislative power.
Two further issues arise in relation to section 7A of the Act which was inserted by the 1993 Act, namely, its validity and, secondly, its availability and operation. Although the lines of demarcation between the plaintiffs may not prove to be absolutely precise, as we understand it argument will be presented along the following broad lines. Our submissions on behalf of the State of Victoria will deal with questions relating to section 51(xxix) and section 51(xxxi). South Australia will deal with questions relating to section 51(xxxv) and with section 152 in so far as it applies to enterprise flexibility agreements.
The State of Western Australia will deal with some aspects of the section 51(xxxv) issues and with questions concerning section 51(xx) in particular as those questions arise in the context of section 152 and section 164. As I understand it, each of the plaintiffs will be seeking to make submissions concerning implied limitations upon Commonwealth power. There are also some submissions to be made by Western Australia upon particular provisions of the Act which are challenged only by it. I need not go through those provisions at this stage.
I should say formally that in so far as those provisions of the Act which we challenge but in respect of which we make no submissions, we adopt the submissions of South Australia and Western Australia. I should also say that we would refer to the written submissions of the State of New South Wales intervening in support of the Commonwealth and would say that we would gratefully adopt my learned friend's submissions in relation to section 7A of the Act, the interpretation section.
Before going to the amendments which were introduced by the 1993 Act, we would seek to make some general observations concerning the overall effect of the amendments made by the 1993 Act. In simple terms the 1993 Act introduced two fundamentally new concepts into Commonwealth industrial law. First, a system of prescriptive standards in respect of minimum wages, equal remuneration for work of equal value, termination of employment including redundancy, and parental and adoption leave. Secondly, a collective bargaining regime operating as an alternative to and, to some extent, intention with the traditional award-based system of conciliation and arbitration.
Turning to the first of those areas, prescriptive standards, under Part VIA, Divisions 1, 2 and 3 of the Act as amended by the 1993 Act, the Commission is given power to make orders of the following kinds, putting the matter generally: first, orders fixing minimum wage levels for employees. That is to be found in Division 1, specifically section 170AC. Secondly, orders requiring that employees receive equal remuneration for work of equal value. That is Division 2 of Part IVA, in particular, section 170BC(1). I should add that all of the letters which follow section 170 in these references are capital letters.
Thirdly, orders which have the effect of controlling and, to some extent, precluding termination of the employment of employees. That is Part VIA Division 3 and, in particular, section 170DG, section 170FA and 170GA. Orders of the Industrial Relations Commission under those divisions are given overriding force and effect. They override other orders or awards of the Commission to the extent of any inconsistency. That is provided for by section 170JG.
In addition, they override any State law or any orders, awards, decisions or determinations of State industrial authorities dealing with the same subject matter. That is the effect of section 170JH. Division 3 of Part VIA contains provisions which directly limit the circumstances in which an employer may terminate the employment of his or her employees. Those provisions operate at several different levels.
First, there are minimum notice provisions contained in section 170DB. There are provisions which govern the termination by one employer of 15 or more persons on redundancy grounds. There the relevant provisions are sections 170DD, 170DG, 170FA and 170GA. Thirdly, there are provisions precluding an employer from terminating employment except for a valid reason - an expression which will appear in a moment. Those provisions are to be found in sections 170DE and 170DF.
There are also provisions precluding termination of employment in circumstances where the employee proves that his or her termination was harsh, unjust or unreasonable, notwithstanding that the termination was for a reason which might otherwise have been valid. That is the effect of section 170DE(2) and section 170EDA(1)(b). I would pause to note that section 170EDA was inserted by the 1994 Act.
Fourthly, on this topic, there are provisions casting the onus of proof upon the employer to establish that the termination was for a valid reason - that is section 170EDA(1) and to establish that it was not for any particular invalid reason alleged by the employee. That is the effect of section 170EDA(2).
The final level at which these provisions concerning termination operate are to be found in those providing remedies in relation for wrongful termination. Those provisions are sections 170EE, 170EF, 170FA and 170GA.
Further, as part of what we have prescribed as the prescriptive regime, there is to be found Division 5 of Part VIA which directly enacts a series of provisions governing parental leave. Here we refer to sections 170KA and 170KB and Schedule 14 of the Act. If I can pause to say there that the Act adopts a slightly unusual technique in this context because the detailed provisions are not embodied in the Act itself but from one of the newly introduced schedules to the Act, Schedule 14, which is to be found in amongst a lot of other schedules which set out international conventions and ILO recommendations.
Further, under Division 5 of Part VIA a series of provisions governing adoption leave has been directly imposed. That is done by section 170KC and regulations authorised by that section to be made; the regulations so made being regulations 30E to 30ZD of the Industrial Relations Regulations. If any of your Honours are looking at the CCH print of the industrial legislation those regulations are to be found in that print at page 36,113.
The Commonwealth justifies the foregoing provision as being laws with respect to external affairs within the meaning of section 51(xxix). That reliance by the Commonwealth raises a number of issues which have not been previously considered by this Court. Those issues include the status of convention to the International Labour Organisation and the related question, can federal industrial legislation be enacted in reliance upon such conventions validly in the exercise of the external affairs power?
Secondly, the status of International Labour Organisation recommendations, some of which appear as schedules to the Act, the question being whether federal industrial legislation can be enacted in reliance upon such recommendations? I will come to the way in which recommendations are made and their status briefly in a moment, and third, generally, do International Labour Organisation conventions and recommendations raise matters of international concerns capable of attracting the external affairs power?
So, that is the first new aspect or novel aspect of the new system. The second new aspect is the collective bargaining regime. As the Court is only too well aware, Part VI of the Act establishes the award based system of conciliation and arbitration. This system does not only come into play where an employer or employee or their representatives notify an industrial dispute. Under section 100 the Commission must take action whenever an alleged industrial dispute is notified to it under section 99 or the presidential member otherwise becomes aware of the existence of such a dispute. If the Commission considers that the alleged industrial dispute is an industrial dispute within the meaning of the Act it will make a finding to that effect. Once the Commission's jurisdiction is enlivened it must either refer the dispute to conciliation or deal with it by arbitration. That, in summary, is the effect of sections 100 to 104.
Section 111 gives the Commission wide powers in relation to an industrial dispute. The prime function of the Commission is to settle the industrial dispute.
Notwithstanding the amendments introduced by the 1993 Act, the provisions of Part VI continue to have a general application, but the 1993 Act introduced a parallel system, a system of collective bargaining. This system has three main aspects. Firstly, there is the system of certified agreements. That system is established by Part VIB, Division 2.
TOOHEY J: Mr Solicitor, just before you take us to Part VIB, is it the position that no challenge is made to either Division 4 or Division 6 or Part VIA?
MR GRAHAM: That is correct, your Honour.
TOOHEY J: Thank you.
MR GRAHAM: Division 2 of Part VIB, certified agreements, such agreements may be made by parties to an industrial dispute or by parties to what is called an industrial situation. That is a situation that may give rise to an industrial dispute. Certified agreements prevail over the terms of any award or order of the Commission, that is the effect of section 170 MK(1). They also prevail over State industrial awards and orders. That is the effect of section 152 taken in combination with the expanded meaning or the word "award" in section 4.
A second aspect of the collective bargaining regime is the introduction of the concept of enterprise flexibility agreements. Division 3 of Part VIB deals with those agreements and it provides for the Commission to approve the implementation of enterprise flexibility agreements. The constitutional peg upon which that provision is fixed is the corporations power and, putting it generally, an order that such an agreement may be made, one party thereto must be a constitutional corporation, that convenient compendious term which is used to describe a section 51(xx) corporation.
DAWSON J: What is the distinction between that and a certified agreement? You do not have to have an industrial situation, is that it?
MR GRAHAM: You do not, your Honour, and you do not have to have a union as a party and there a number of other distinctions, including the circumstances in which an agreement may be certified as distinct from those in which it might be approved. Certified agreements must be certified and enterprise flexibility agreements require approval of implementation. By recollection, the criteria for approval are not identical. The circumstances in which they may be brought to an end differ. Enterprise flexibility agreements prevail over the terms of any award or order of the Commission. That is the effect of section 170NL. They also prevail over State industrial awards and orders. That is section 152 coupled with the definition of the word "award".
The third aspect of significance in the collective bargaining regime is the provision of immunities in the context of the making of certified agreements. Division 4 of Part VIB contain provisions which are said, at least, to be designed to promote the achievement of certified agreements. That is done by conferring immunity against legal proceedings in respect of industrial action during a period which is described as the "bargaining period". Here we refer the Court to sections 170PD, 170PG and 170PM.
Now, the Commonwealth supports the first aspect of the system, namely, certified agreements, as a law with respect to conciliation and arbitration within the meaning of section 51(xxxv). The second aspect is justified as a law with respect to constitutional corporations as I have indicated. The third aspect is justified primarily as a law with respect to external affairs under section 51(xxix). That aspect concerning immunity raises further issues which have not previously been considered by the Court, namely, the status of the constitution of the International Labour Organisation, and the question of whether legislation can be enacted in reliance upon it and, secondly, questions concerning what has been referred to in the legislation as customary international law, some of the questions being whether there is a body of such law applicable in what I will call the industrial context and, if so, what is its source and what is its content.
The third aspect, that is to say, immunities in the context of collective bargaining, is perhaps the most extraordinary feature of the collective bargaining regime and we make that observation for a number of reasons. Division 4 of Part VIB is said to be founded upon "Australia's international obligation to provide for a right to strike". That is stated in section 170PA(1), the first section within Division 4. However, we would note at this stage, and this will be developed, the conventions and other international instruments and matters referred to in that section do not expressly impose or even refer to any such obligation. "A right to strike" is not even mentioned, whatever that term may mean.
The second feature is that the division can apply only if the Industrial Relations Commission has found that an industrial dispute exists. That is section 170PC. That finding would normally trigger the Commission's primary jurisdiction to settle the industrial dispute by conciliation or arbitration under Part VI. However, so far as we can see, there is no provision which explicitly ousts that jurisdiction in favour of the regime created by Division 2 of Part VIB. There are, however, indications that the old Part VI is displaced, at least for practical purposes, in favour of Part IVB and particularly Division 2. There we refer to section 170PP(2).
The third point is that section 170PD gives to employers or unions a unilateral right to initiate a bargaining period that is directed towards a proposed certified agreement. The scheme of the Act, as your Honours may have noted, is firstly, industrial dispute; secondly, initiation of a bargaining period; thirdly, following certain formalities, the commencement of a period during which certain industrial action is protected action; and fourthly, if all happens according to the scheme, there is a certified agreement which comes out at the end resolving the industrial dispute.
During the bargaining period the union and its members are entitled, for the purpose of supporting or advancing claims made by the organisation, the subject of the industrial dispute, to organise or engage in industrial action directed against the particular employer who is the object of the initiation of the bargaining period. For its part, the employer on the other side of the negotiating process is entitled to engage in limited industrial action which will also be protected action, but the relevant action is limited to what is described as lockout action and may not be taken unless such lockout action does not affect the continuity of the employment or the accumulated entitlements of employees. That is the effect of sections 170PG(3) to (6) and regulation 30ZE. Regulation 30ZE is to be found at page 36,153 of the CCH print.
The fifth notable feature is that protected action is granted immunity from any law brought in respect of the industrial action under the written or unwritten law in force in a State or Territory unless the industrial action involves or is likely to involve personal injury, damage to property, unlawful taking, retention or use of property or defamation. That is to be found in section 170PM. In addition, a bans clause in an award will not apply to such action nor will an order made by the Commission in respect of Commonwealth employees pursuant to section 127 apply. That is also the effect of section 170PM.
Then the bargaining period may be terminated by the reaching of a certified agreement or at the option of the initiating party or by the Commission. However, the Commission's powers to terminate the bargaining period are limited. We would refer to section 170PN and 170PO. Lastly, if the bargaining period is terminated:
The Commission must immediately begin to exercise its powers under this Act to prevent or settle the industrial dispute.
That is provided for by section 170PP(2). If the Commission does that by making an award, the Commission is required to make a paid rates award. Paid rates award is defined in section 4, although the definition we would say, with respect, to the draftsperson is a little unhelpful. Moreover, the Commission, in making that paid rates award, must base its decision on the merits of the matter under consideration, that is to say, presumably matters arising solely within the confines of the dispute between the particular employer and the employee and need not follow the principles that apply in determining wages and conditions of employment when making awards under Part VI, what seem to be called general wage fixing principles. They are not to be taken into account as the Act indicates by section 170PP(4).
Now, the scheme which underpins Division 2 - perhaps I should go back one step. Division 4 relating to immunity is only linked with the process of reaching a certified agreement. It is not linked with the process of reaching an enterprise flexibility agreement. But there is thus exposed a very clear nexus between Division 2 and Division 4 of Part VIB. Even though an industrial dispute exists, the parties to it can be exposed to industrial action designed to bring pressure upon the opposite party into reaching a certified agreement.
During that period, it would seem that the Commission is expected at least, if not required, to abstain from exercising its arbitration powers. It may only do that once the bargaining period comes to an end. In the meantime, certain types of action which would otherwise give rise to liability under common law are immunised from liability by the operation, particularly of section 170PM. It is perhaps fair to observe that the two systems, that is to say, the old system under Part VI and the new system under Divisions 2 and 4 of Part VIB, sit somewhat uneasily beside each other especially since there is no express ouster of the Commission's conciliation and arbitration jurisdiction.
So those are the introductory observations we make to describe the new system and how it fits into the more familiar system in the Act as it has existed for so long. Could I turn now, just to say a few words concerning the International Labour Organisation. In our original submissions to this Court, we set out in summary way some observations concerning the International Labour Organisation and the process whereby conventions come into existence and recommendations come into existence.
I should apologise to the Court: the form of the submissions which were provided to the Court, I think early this year, are not paginated in a continuous sequence and it is slightly difficult to find one's way through them. However, early on in our previous submissions, there is a short section headed International Labour Organisation Constitution, Conventions and Recommendations. I do not propose to take the Court all the way through that again, but I would refer the Court to it and simply add the following observations to what we there say.
Because conventions and recommendations of the ILO, if I may use that abbreviation, are relied upon by the Commonwealth to support a substantial number of the provisions which were included by the 1993 Act and because the constitution of the ILO and its conventions and recommendations have not previously been the subject of consideration by this Court, we would just make these observations. As we have indicated, under the constitution of the ILO, the principal organs of the ILO include the conference and it is the conference which generates conventions and recommendations. Over the period of its existence, the ILO conference has adopted many conventions over a very wide range of topics.
Perhaps quite recently - and it is worth mentioning this - it adopted the convention concerning indigenous and tribal peoples in independent countries. That was adopted in 1989; it has not been ratified by Australia as yet, but it perhaps gives a flavour to the broad scope of matters into which the conference of the International Labour Organisation interests itself. As indicated some, but by no means all, of the many conventions adopted by the ILO have been ratified by Australia. In the case of some conventions of the ILO, the conference has made a recommendation in association with the convention and in our written submissions we have made a number of observations concerning the status which we submit should be accorded to recommendations of the International Labour Organisation.
We would emphasise these points concerning the ILO conference and its conventions and recommendations. First, the conference comprises four representatives of each member State, the four comprising in each case, two government representatives, one union representative and one employer representative.
BRENNAN CJ: Where do we find that?
MR GRAHAM: Your Honours will find that in Article 3 paragraph 1, I believe.
BRENNAN CJ: Thank you.
MR GRAHAM: In order that a decision be taken, what is required is a two-thirds majority of the votes cast by the delegates present and voting. Your Honours will find that in Article 19 paragraph 2. I may not have expressed that quite correctly - I will read it:
In either case a majority of two-thirds of the votes cast by the delegates present shall be necessary on the final vote for the adoption of the Convention or Recommendation, as the case may be, by the Conference.
It is a two-thirds majority of those present, not those present and voting.
Thirdly, a convention, once adopted by a member State become binding upon it but whatever status may be accorded to a recommendation they become binding simply upon adoption by the conference. That is important because it is not at all inconceivable - - -
DAWSON J: A recommendation becomes binding.
MR GRAHAM: Yes. What the extent of "binding" means, your Honour, is not altogether clear but no step is required by the member State to adopt a recommendation itself. Once adopted by the conference it obtains whatever status it will ever gain.
BRENNAN CJ: What is meant by "a convention"? Is it a resolution which is given by the resolution the status of a convention?
MR GRAHAM: It may sound a somewhat unsatisfactory answer, your Honour; what is adopted by the resolution of the conference is an instrument described as a convention. It does not gain, in effect, so far as a member State is concerned unless that State takes a step to adopt it or ratify it domestically rather than within the conference. So that the vote on the conference floor, as we understand it, would not constitute the - - -
DAWSON J: The answer to some extent lies in Article 19 subarticle 1.
MR GRAHAM: Yes, and paragraph 5, also, your Honour, as my learned friend, the Solicitor for the Commonwealth reminds me.
BRENNAN CJ: It is possible then for an ILO convention to be acceded to and to be binding upon only one State party?
MR GRAHAM: Unless it contained some provision within itself calling for ratifications of a particular number within a particular period, but otherwise, yes. It would be possible for a recommendation to gain whatever effect it had even though all four delegates of Australia had voted against it. Those matters are dealt with rather more fully in our written submissions and I would be anxious not to cover that ground in any greater detail than is necessary to respond to your Honours.
Could I then turn to a brief review of the provisions of the Acts, especially those inserted by the 1993 Act which are the subject of challenge in these proceedings. They are, of course, examined at length in the party's written submissions already. What I seek to do here is simply to draw attention or to highlight those provisions which seem to be of most particular significance for the purposes of oral argument.
Could I take the Court first to Part VIA Division 1 which is concerned with minimum entitlements of employees. That is to be found in the CCH print at 31,901.
It would be useful also if the Court were to go to the convention which is referred to at the beginning of Division 1 of Part VIA, that is, Schedule 5, and that can be found at page 35,153. I propose not to follow this course in relation to each of these sets of provision, but perhaps if I can just show the Court how the Act is put together. Section 170AA provides that:
The object of this Division is to give effect, or further effect, to the Minimum Wages Convention.
One then goes back to section 4 and there finds a definition of "Minimum Wages Convention" and that definition tells one that it is the convention in Schedule 5 and that technique is adopted in a number of these divisions that are under challenge. Now, the reference in section 170AA conveniently indicates that the division is enacted in reliance upon section 51(xxix). That comment is, however, to be qualified in one respect and may I take the Court to section 170AH which is entitled "Additional Effect of Division". Section 170AH(1) provides:
Because of this section, this Division has the effect it would have if section 170AA were repealed. That effect is additional to, and does not prejudice, the effect that this Division has otherwise than because of this section.
It is a slightly unusual drafting technique but - - -
DAWSON J: But that means that they just do not rely only on the external affairs power.
MR GRAHAM: And it means in reality, your Honour, that they wish to support the provision so far as it can be supported under section 51(xxxv), to put the matter in a nutshell. That is apparent from section 170AH(2) and (3). Division 1 of Part VIA operates by means of orders made by the Commission which describe minimum wages upon application being made to it, not in settlement of industrial disputes. That follows from sections 170AC and 170AD. Section 170AE is a slightly complex section providing that:
The Commission must make an order if, and must not make an order unless, it is satisfied:
(a) that the terms of employment of the group of employees to be covered by the order are such that coverage by a system of minimum wages is appropriate -
That terminology reflects quite closely the provisions of Article 1 paragraph 1 of the convention in Schedule 5. The subsection goes on:
(b) at least some of the employees in the group are not ineligible under subsection (3).
In substance, an employee is ineligible if minimum wages for that employee can be set by, what I will put compendiously, State arbitration systems. Not any system under State law by which minimum wages may be fixed, but State arbitration systems; in other words, an award-based system for the resolution of disputes. Provisions of section 170AE(3) need to be read together with section 170AE(6) which contains definitions of expressions used in subsection (3).
McHUGH J: Mr Solicitor, either expressly or by inference, does not the ILO constitution qualify the obligations of federal States in respect of conventions and recommendations and, if it does, does that play any part in your argument as to the constitutionality of Division 1 of Part VIA? There are two questions there.
MR GRAHAM: Yes. Clearly, we would accept that in so far as by valid Commonwealth law provisions of the ILO constitution had gained some effect as part of federal law, then the answer to your Honour's question would have to be yes, but the real question here is, in what way has the constitution of the ILO been invoked by these legislative provisions?
McHUGH J: But am I right in thinking, my recollection is that there is some provision in the ILO constitution which puts the obligations of federal bodies in a different light to that of unitary States.
MR GRAHAM: Your Honour is right in that regard. The relevant provision is Article 19 paragraph 7. Your Honour has the blue print, it is page 15. I do not know if that is of any assistance in answering your Honour's question, but - - -
McHUGH J: Yes. Well, that is probably what I had in mind, but how does that apply? Does it leave it up to the federal State or is there some recognition by inference or expressly that federal States have no greater obligations than their own powers?
MR GRAHAM: Well, we would submit the latter, your Honour.
McHUGH J: If that be so, how does it work in relation to external affairs?
MR GRAHAM: Your Honour, perhaps to take an easy example, clearly in the case of the implied limitations upon federal legislative power, the Commonwealth cannot avoid those limitations by saying that it is discharging an international obligation and is relying upon section 51(xxix), the limitations are going to attend the exercise of any Commonwealth legislative power, in our submission. We would say also that the reach of the Commonwealth power under section 51(xxix) cannot be extended by reference to a provision such as the one to which I just took your Honour, by reference to an expression such as "as the federal State may see as being appropriate". There are still limitations under domestic or municipal law which must be taken into account.
GUMMOW J: But does not it become circular?
MR GRAHAM: I fear whichever way one answers his Honour's question is going to result in a circular response.
GUMMOW J: Yes, you may be right.
MR GRAHAM: I mean that with great respect to your Honour, but one ends up coming around to the point where one began however one seeks to answer the question.
McHUGH J: But are not there interpretations of the obligations of federal States though? It is not an area with which I have a great deal of experience at the bar, but I just have at the back of my mind some recollections that there were interpretations that federal States' obligations were qualified, but perhaps I am wrong.
MR GRAHAM: Your Honour is right. There are such clauses in other conventions, the World Heritage Convention being one.
GAUDRON J: I think there is a learned article by a former secretary-general of the ILO on the affect of that particular article. If the name comes to me I will let you know.
MR GRAHAM: Our resources have not taken us to it, your Honour, but no doubt if the Commonwealth knows of it I do not think it is referred to in their materials either. My learned friend, Mr Young, rightly invites attention to paragraph 8 of the same Article 19, on page 16 of the print:
In no case shall the adoption of any Convention or Recommendation by the Conference, or the ratification of any Convention by any Member, be deemed to affect any law, award, custom or agreement which ensures more favourable conditions to the workers concerned than those provided for in the Convention or Recommendation.
So that as well as the possibly expansive effect of paragraph 7 there is a limiting effect in paragraph 8. I have been taking the Court to section 170AE and I just return there briefly. The Court will have seen the scheme of the provision that takes away the powers of the commission to make minimum wages orders if a particular kind of minimum wage setting machinery exists under State legislation.
If I can then turn to Part VIA Division 2, Equal Remuneration for Work of Equal Value, the first section within the division, section 170BA, nominates a number of sources:
The object of this Division is to give effect, or further effect, to -
firstly:
the Anti-Discrimination Conventions.
In order to ascertain what they are, again one must go to section 4. The relevant part of section 4 is at page 30,502 of the print. There are four such conventions. The first of them is the Equal Remuneration Convention. That is to be found within this legislation as Schedule 6. The second is the convention which is the schedule to the Sex Discrimination Act, the third is the convention which is Schedule 1 to the Human Rights and Equal Opportunity Commission Act, and the fourth is the convention which is to be found in Schedule 8 to this Act.
Section 170BA also indicates that reliance is placed to support the provisions on two recommendations of the ILO, being the recommendations to be found in Schedule 7 which is at page 35,204 and Schedule 9 which is to be found at page 35,303. Again, section 170BA indicates that, subject to a qualification, the Commonwealth supports Division 2 of Part IVA by reference to section 51(xxix). The qualification is to be found in section 170BI which is a provision similar to section 170AH enabling the legislation so far as may be to be supported in reliance upon section 51(xxxv).
BRENNAN CJ: If section 170BI(1) were not there, what difference would it make to the operation of the Act?
MR GRAHAM: Only this, your Honour, that the power of the Commission to make an order which set equal remuneration for work of equal value could only be made in the context of an industrial dispute, a finding of a dispute and the making of an award. It would not be possible for the Commission to make such an order simply by virtue of an application to it in the absence of an industrial dispute.
TOOHEY J: You mean that is the same provision as exists in 170AH(3)?
MR GRAHAM: Yes, your Honour.
TOOHEY J: So that your argument would be that if the external affairs power cannot support the legislation, section 51(xxxv) cannot support it in so far as the Commission may set minimum wages in the absence of an industrial dispute?
MR GRAHAM: With respect, that is right, your Honour.
TOOHEY J: But then that leads you into section 170AH(3). I suppose the Commonwealth's answer there is that if the external affairs power fails, the Commission may make an order under the division but only for the purposes of settling an industrial dispute?
MR GRAHAM: Yes.
TOOHEY J: Is that approach on either side carried through into the equal remuneration division?
MR GRAHAM: Yes, it is, your Honour. In 170BI the same scheme applies.
DAWSON J: But 170BI is really just a severance section, is it not?
MR GRAHAM: The ultimate effect would be that, your Honour, yes.
DAWSON J: Subject to all the limitations which severance sections have.
MR GRAHAM: It is curious that the draftsman may have adopted a different technique when reference was made to the section being repealed as though it were not in the Act at all, so that the Act would then have to carry on shorn of the references to the international instruments.
TOOHEY J: But would it be right to describe it as a severance provision or, rather, it is a provision that operates in a particular set of circumstances, namely where there is an industrial dispute?
MR GRAHAM: Yes.
DAWSON J: Well, it is trying to have your cake and eat it, is it not?
MR GRAHAM: That would be a fair comment, your Honour.
BRENNAN CJ: I must confess I am having difficulties with this in terms of power. If it is a question of a statutory direction as to the mode in which the power of the Commission is to be exercised, I can understand the role which 170BA plays. In terms of the power available to support the legislation I do not understand what part BA or BI play. If there is power, there is power.
MR GRAHAM: Your Honour, with respect, that is right and it has often been held that the Commonwealth does not have to call in aid a particular power in the legislation.
BRENNAN CJ: It cannot legislate itself into or out of power I would have thought.
MR GRAHAM: The way in which, hopwever, the argument in this case seems likely to develop, the focus will be upon particular powers in the Constitution as supporting particular provisions.
BRENNAN CJ: That I understand. It is just I do not understand BA has any operation except by way of direction to the repositories of power under Division 2 as to the manner in which the power thus conferred should be exercised.
MR GRAHAM: With respect, that must be right. In that regard, one could have the Act, if it did not contain either section 170BA or 170BI, be valid or at least valid in respect of circumstances arising under 51(xxxv).
BRENNAN CJ: Yes, it either is or is not valid, and to what extent it depends upon the existence of the power.
MR GRAHAM: Yes. A little later on I will come to another of these provisions which is cast in slightly different terms and may give rise to rather more problems than the solution that seems to have emerged in this part of the discussions. Once again, Division 2 of Part VIA operates by means of orders made by the Commission on application to it. That is the effect of section 170BC and 170BD. Section 170BC(3)(b) is an unusual provision. It may give rise to some problems. Section 170BC says:
However, the Commission may make an order -
that is an order requiring equal remuneration if:
(a) the Commission is satisfied that, for the employees to be covered by the order, there is not equal remuneration for work of equal value; and
(b) The order can reasonably be regarded as appropriate and adapted to giving effect to:
(i) one or more of the Anti-Discrimination Conventions; or
(ii) the provisions of the Recommendation referred to in paragraph 170BA(b) or (c).
One would be pardoned for thinking that the person drafting paragraph B had a copy of one or more of the external affairs decisions of this Court open in front of them. It provides a direction, at least, which might make it difficult to adopt the approach that your Honour the Chief Justice suggested might be adopted by merely disregarding sections 170BA and 170BI because one has an express adoption of the language of some of the judgments of this Court in external affairs cases.
BRENNAN CJ: That might be a limitation on the power which brings it within the power which can be conferred, but that is a different point.
MR GRAHAM: That is a different point, your Honour. I should not make the mistake of saying that the expression, "appropriate and adapted" has only been used in that context which, of course, it has not. It has found its way into the section 51(xxxi) cases as well and elsewhere. If I could then turn to the provisions of Division 3 of Part VIA. I have touched upon those already and I do not wish to cover the same ground, but if I can go first to 170CA it again states an object of the division to give effect to two international instruments: firstly "the Termination of Employment Convention". That is to be found in Schedule 10 at page 35,351 and "the Termination of Employment Recommendation", which is Schedule 11 at page 35,402.
Again that indicates, so far as it matters, reliance upon section 51(xxix). The division confers functions both upon the Industrial Relations Commission and the new Industrial Relations Court which the 1993 Act brought into being. If I can just give the Court these references: functions and powers are conferred upon the Commission under this division by sections 170ED, 170FA and 170GA. The main functions, at least, of the Court are conferred on it by section 170EA, 170EE and 170EF. If I can just refer to a few other of the provisions in this long and quite complex division. Firstly, if I could take the Court to section 170DD, that applies after a particular date:
an employer decides to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons.
If your Honours are puzzled by the references to "26 February 1994" which turn up in various parts of this division, it is the date 12 months after the termination of employment convention received the requisite number of ratifications and thereupon, under the ILO constitution, came into force. As it happened, it simply did not matter because these provisions were not proclaimed until after that date. But there would have been some impediment until that convention had entered into force upon these provisions becoming effective.
Section 170DE is important having regard to the challenges which are made. Subsection (1) provides:
An employer must not terminate an employee's employment unless there is a valid reason, or valid reasons, connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service.
Those words echo the terms of Article 4 of the termination of employment convention. Subsection (2) goes on:
A reason is not valid if, having regard to the employee's capacity and conduct and those operational requirements, the termination is harsh, unjust or unreasonable. This subsection does not limit the cases where a reason may be taken not to be valid.
Now, in brief, there is nothing in the termination of employment convention which is reflected by subsection (2), the harsh, unjust or unreasonable qualification. Section 170DF sets out a series of reasons upon which an employee's employment must not be terminated. These are all taken from the convention. In brief, paragraph (a) comes from Article 6 of the convention. The remainder, subject to certain exceptions, come from Article 5. However, the qualification is that in 170DF(1)(f) the references to, "sexual preference, age, physical or mental disability"
are not to be found in the corresponding article of the convention, and I refer there to Article 5 paragraph (d) of the convention, and likewise, when one goes to section 170DF(1)(g), the reference to "parental leave" is not reflected in the convention, the relevant part of the convention being Article 5(e).
If I can then move on to section 170EDA headed, "Onus of Proof". Putting the matter briefly, the effect of section 170EDA(1)(a) is to reverse the onus of proof as between employer and employee so far as a contravention of 170DE(1) is concerned. The convention makes provision for such a reversed onus of proof by Article 9 paragraph 2. Section 170EDA(2) does not, as we read it, reflect any provision in the convention. What it says is that:
If an application under section 170EA alleges that a termination of employment of an employee contravened subsection 170DF(1) -
and that was the long list taken from Articles 5 and 6 of the convention; it goes on -
on the ground that the termination:
(a) was for a particular reason or reasons referred to in that subsection that were stated in the application; or
(b) was for the reasons stated in the application that included a particular reason or reasons referred to in that subsection;
the termination is taken to have contravened subsection 170DF(1) unless the employer proves that:
and, in substance, unless the employer disproves, that there was a contravention of section 170DF(1).
The onus of proof provisions are taken further, as we read the convention, than the convention itself contemplates.
There are a number of provisions dealing with remedies; I will not take the Court through them in any detail but if I could refer the Court to section 170EE, the court is given, amongst its other powers, a power to require an employer to reinstate an employee. That power is not available where the relevant contravention of the division is a contravention of either section 170DB, which deals with periods of notice, or 170DD which is the provision requiring notification in some circumstances to the Commonwealth Employment Service. If I can then move on to division - - -
McHUGH J: You do not challenge these reinstatement provisions as investing non-judicial power in the court?
MR GRAHAM: No, your Honour, we had in mind what this Court said in Wagner and Dingjan and no such challenge is made in these proceedings. If I may, perhaps with some trepidation, say it is not altogether clear whether it is an exercise of judicial power or not, as the provisions under scrutiny in that case tended to show, although in a somewhat different context.
If I can take the Court then to Division 5 of Part VIA - that is concerned with parental leave. Section 170KA indicates that the object of the division in Schedule 14, which sets out those detailed provisions to which I referred, is to give effect to a convention and a recommendation, in fact, two recommendations. The family responsibilities convention is the convention in Schedule 12 and is to be found at 35,423, and the recommendation is to be found in Schedule 13 at 35,503. It is correct to say that the family responsibilities convention contains no express provision in relation to maternity leave, paternity leave or adoption leave. The only relevant reference to the topic dealt with by Division 5 of Part VIA is to be found in the recommendation in paragraph 22. That is to be found at page 35,552 subparagraph (1):
Either parent should have the possibility, within a period immediately following maternity leave, of obtaining leave of absence (parental leave), without relinquishing employment and with rights resulting from employment being safeguarded.
As far as we can see, that is the only reference to maternity leave or parental leave. The paragraph seems to assume that maternity leave will be a right or privilege in existence and that on top of that there should be a possibility of parental leave. It is on that paragraph, as we understand it, that those detailed provisions in Schedule 14 are to be supported.
TOOHEY J: How does Schedule 14 work, Mr Solicitor? It does not appear to require an order of the Commission.
MR GRAHAM: It operates like a regulation, your Honour. It is an imposed regime.
TOOHEY J: It does not purport to incorporate it in any award provision. It seems to just operate by its own force and effect.
MR GRAHAM: By force of Commonwealth law as a result of being imposed by section 170KB:
The provisions of Schedule 14 have the force of law, in the same way as if they were set out in this Division.
Then 170KC:
The regulations may provide for or in relation to giving effect to the Family Responsibilities Convention, and the Recommendation referred to in paragraph 170KA(1)(b), by providing for the granting by employers to employees of unpaid adoption leave.
It was in that connection that I took the Court to regulations 30E to 30ZD which, as we would follow it, would operate again as an imposed regime, not in settlement of a dispute.
If I can move on to the provisions of Part VIB. Division 1 contains provisions as to objects and interpretation. There are some definitions to which it is perhaps convenient to refer at this moment though their significance will not be apparent for a little time. Section 170LB defines "enterprise" by reference to section 170LC. The word:
"part", in relation to a single business, includes, for example:
(a) a geographically distinct part of the single business; or
(b) a distinct operational or organisational unit within the single business.
The term "single business" is defined to mean, and I will not read it all:
(a) a business that is carried on by a single employer -
and then moving down to (d):
activities carried on by:
(i) the Commonwealth, a State or a Territory; or
(ii) a body, association, office or other entity established for a public purpose by or under a law of the Commonwealth, a State or a Territory; or
(iii) any other body in which the Commonwealth, a State or a Territory has a controlling interest.
Then section 170LC defines "enterprise" and it is defined, if that is the correct word, in 170LC by reference to a number of examples which are exhaustive:
(a) a business that is carried on by a single employer; or
(b) a geographically distinct part of such a business; or
(c) 2 or more geographically distinct parts of the same business carried on by a single employer.
Then there are further provisions in that section to which I need not refer.
"Division 2 - Certified agreements", commences with section 170MA. The division is challenged on the basis that it is not supported under section 51(xxxv) of the Constitution and on the basis that in its purported application to the States it is inconsistent with implied limitations upon Commonwealth legislative power. For my purposes, having regard to those parts of the arguments which the State of Victoria is presenting, I do not propose to go through this division by reference to the section 51(xxxv) arguments because that is the matter that South Australia will deal with. However, I do wish to draw attention to some aspects of Division 2 which are relevant to our challenge based upon implied limitations.
TOOHEY J: Just before you do that, Mr Solicitor, what is the significance or the role of a single business in this part?
MR GRAHAM: Your Honour, I have to confess that I have always had the greatest difficulty in finding what the proper answer to that question is.
TOOHEY J: I certainly have not read the Act in detail, but I have not seen the expression used other than in the definition section.
MR GRAHAM: I am reminded, and we touch upon it later, that at least one important use of the term is to be found in section 170MD. Your Honour will see that we are here looking at the powers of the Commission to refuse to certify an agreement which need to be read against the background of the preceding provisions which oblige the Commission to certify agreements. Section 170MD gives a power to the Commission to refuse certification in certain circumstances where it would be contrary to the public interest, but the power of refusal is itself qualified because it cannot be invoked where the agreement:
applies only to a single business, a part of a single business or a single place of work -
I have not answered your Honour very clearly, but your Honour will see that the public interest - - -
TOOHEY J: But there is no public interest component when the employer is a single business - where there is a single business involved.
MR GRAHAM: Yes, your Honour. So that one could imagine in a simple case where one had a small single business with the certified agreement being put forward which otherwise complied with the criteria and was not in any way disqualified, the Commission does not embark upon a public interest inquiry. But of course, the single business is not always just a small localised enterprise; it may be a very large State operation. There is an associated provision in section 170MM(4) which is, as it were, a corollary of one section, MD. It is directed to the Commission's powers in relation to variation and termination. The Commission's powers in that regard, that is to say to terminate or vary on a public interest ground, are qualified in the case of an agreement that applies only to a single business.
TOOHEY J: Does that mean that if the activities are carried on by the Commonwealth, the State or Territory, having regard to the definition of "single business", that no element of public interest enters into the Commission's inquiry?
MR GRAHAM: Your Honour is right. The question may not be absolutely correctly answered by saying yes, but the Commission is disqualified from undertaking a public interest inquiry as a ground of refusing to certify or refusing to terminate. I believe there is no other point at which public interest considerations would enter into the Commission's examination of the agreement.
BRENNAN CJ: Is there any definition of "single employer"?
MR GRAHAM: I think not, your Honour.
BRENNAN CJ: So it may include Coles Myer?
MR GRAHAM: Yes, or it might include Coles Myer and all its galaxy of subsidiaries.
TOOHEY J: It would seem then that the element of public interest only enters into consideration where there is more than one employer and no association between those employers that could be described as a joint venture or common enterprise.
MR GRAHAM: That is right, with respect, your Honour. My learned friend the solicitor for the Commonwealth may understand these provisions better than we do - he dissents - but we picture a certified agreement as being able to embrace multiplicity of employers and businesses and their respective employees as well as just a single business.
It is perhaps noteworthy that in the case of an enterprise flexibility agreement the question of public interest is dealt with quite differently and perhaps, if your Honour would note sections 170ND(3) and 170ND(4), the Commission is giving an overriding right to refuse approval. The total expression is "approval of implementation on public interest grounds", although even that is qualified by reference to "exceptional circumstances", and one of the matters that is dealt with as not being contrary to the public interest is that the agreement is inconsistent with wage fixing principles under Part VI.
Another significant element of the provisions relating to certified agreements is the requirement that almost always a union or several unions will be included as a party to the certified agreement. That is the effect of section 170MC(1)(g). The division confers a number of powers and functions upon the Commission in relation to the certification of agreements. I referred a moment ago in passing to section 170MC which sets out requirements to be satisfied, and uses this phrase which occurs elsewhere in the Act:
The Commission must certify an agreement if, and must no certify an agreement unless -
and a whole series of criteria are there set out including a need for negotiations and consultation with employees, information being provided to employees, and so forth. The Commission also has the powers to which I referred a moment ago under section 170MD of refusing to certify. I should perhaps add here a reference to a division of the Act not so far referred to , that is Division 5 of Part VIB. Division 5 is headed "Commission's role in facilitating agreements", and establishes something called "The Bargaining Division of the Industrial Relation's Commission" and it gives to the Commission a number of functions concerning conciliation in relation to agreements under Division 2. I refer, in particular, to section 170QH. Those powers in relation to conciliation also apply in relation to enterprise flexibility agreements.
TOOHEY J: But you do not make any attack, do you, on Division 5?
MR GRAHAM: No, we do not, your Honour. Indeed, so far as it refers to enterprise flexibility agreements it is not of concern in these proceedings.
TOOHEY J: No.
MR GRAHAM: It is significant though in relation to Division 2, and I am now perhaps trespassing into my learned friend, the Solicitor for South Australia's area, but the conciliation powers are not in a sense in anyway compulsory. Parties cannot be forced to conciliation and the Commission cannot impose conciliation. There is a facility made available through, what one could almost call, the good officers of the Commission to provide a conciliation service but it is not part of conciliation in the sense as the word has been more commonly understood in the context of Part VI. But for present purposes, conciliation in relation to certified agreements is neither here nor there.
The point that I should, perhaps, emphasise is that the whole process of reaching a certified agreement and obtaining the certification from the Commission is that there need not have been an industrial dispute at all - certainly not one notified to the Commission or the subject of a dispute finding. The agreement need not be the product of any process of conciliation between the parties to it and, most clearly, it is not imposed upon the parties in the sense that one can say that an award is imposed upon the parties under Part VI.
If I can then turn, very briefly, to Division 3 of Part VIB, enterprise flexibility agreements, as indicated, the provisions of that division are not challenged. The reason, obviously enough one would perhaps say, is because of the way in which those provisions are squarely based upon section 51(xx). If I could refer your Honours to section 170NA, it starts out by conferring the capacity upon an employer, that is a constitutional corporation as defined, to, in effect, set about obtaining an enterprise flexibility agreement with its employees.
If I could then take the Court to section 170NJ, that provides that:
An enterprise flexibility agreement comes into force when its implementation is approved and, during the period of the agreement and for 3 months after that period, it remains in force unless:
(a) the Commission terminates it under subsection 170NF(4) -
or various other events supervene. I should also refer the Court to the provision I already touched on, section 170NL(1). It provides:
While an enterprise flexibility agreement is in force:
(a) subject to paragraph (b), the terms of the agreement prevail over the terms of an award or order of the Commission; and
(b) the agreement has no effect in so far as it is inconsistent with a certified agreement that was certified before implementation of the first-mentioned agreement was approved -
There is a complementary provision in relation to certified agreements along the lines of section 170NL(1)(b). However, for the purposes of these proceedings, what is significant is the definition of the word "award" in section 4 as it presently stands and that starts at page 30,502. An award, amongst other things, means:
(b) a certified agreement; or
(c) an enterprise flexibility agreement.
If I could then ask your Honours to go to section 152 which is at page 31,671. It 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.
So that section 152 gives an overriding effect, vis-a-vis, State industrial awards and so forth, to an enterprise flexibility agreement. We will develop the submissions that arise out of that perhaps slightly puzzling provision later on.
Finally, in this survey of the legislation - I am sorry, perhaps there are two more areas to go to. May I take the Court next to Part VIB Division 4, headed, "Immunity from civil liability", starting at page 32,453. Section 170PA(1) indicates that the object of the division:
is to give effect, in particular situations, to Australia's international obligation to provide fora right to strike.
The expression "right to strike" is not defined or explained. The Act informs the reader that the obligation to provide for a right to strike arises from a sort of omnium gatherum of sources set out at section 170PA(1):
Article 8 of the International Covenant on Economic, Social and Cultural Rights -
that is in Schedule 8 -
the Freedom of Association and Protection of the Right to Organise Convention -
which is in Schedule 15 -
the Right to Organise and Collective Bargaining Convention -
which is in Schedule 16, together with -
the Constitution of the International Labour Organisation -
and, finally, the:
customary international law relating to freedom of association and the right to strike.
That much indicates that the division is enacted in reliance upon section 51(xxix).
DAWSON J: It certainly does that, but it is curious. Does it mean that there is an obligation by statute, namely, by virtue of this section? If it does not mean that, what does it mean?
MR GRAHAM: Well, your Honour, that is the circular argument that we have referred to in our submissions. It might be more unkindly called the "bootstraps" argument, but the answer to your Honour's question is yes.
DAWSON J: Yes to what, I am not sure; that it does purport to create an obligation if one does not otherwise exist?
MR GRAHAM: Yes, and then proceeds to discharge it.
DAWSON J: Yes.
MR GRAHAM: Well, Parliamentary Council clearly had in mind section 51(xxxv) in formulating subsection (1), but one has to go on to section 170PA(3) to see what else was in mind in framing these provisions. That subsection says:
In addition to the effect that this Division has under sections (1) and (2), it has such effect as it would have, apart from those subsections, under the powers conferred on the Parliament by paragraph 51(xxxv) of the Constitution.
Now, here the technique of a hypothetical repeal of the earlier provision is not adopted, as was the case in 170AH and 170BI. What is directed is an extended operation by reference to section 51(xxxv). It is not altogether clear how that provision would work if the invocation of the external affairs power proves to be unsuccessful.
We would make this observation at the present time that the presence of such a motley of sources of power in section 170PA(1) and the inclusion of section 170PA(3) as a sort of fall-back provision does, we would say, suggest at least some doubt upon those who framed the section and indeed the division about its validity and about the sufficiency of the sources relied on either separately or in combination.
Division 4 of Part VIB can only be set in motion where the Commission has found that an industrial dispute exists. That is indicated by section 170PC(a). Paragraph (b) indicates that the division only applies if:
the dispute involves a particular employer and a particular organisation or organisations of employees.
The picture that seems to emerge is that this provision will only apply where there is, what might perhaps loosely be called a localised dispute or a dispute which does not extend perhaps through an entire industry nationwide, although, of course, there would need to be an interstate element, if one was invoking section 170PA(3), thought not, I suppose, if one was relying on 170PA(1) only. Then, in 170PC - - -
DAWSON J: Does "industrial dispute" there pick up the definition so that it is required to be an interstate industrial dispute?
MR GRAHAM: As I was saying that the same thought crossed my mind and I had not checked. Yes, is the answer.
DAWSON J: Then (b) would be very strange, would it not?
MR GRAHAM: Your Honour, yes, that is the important qualification.
GAUDRON J: Not necessarily. There are employers whose activities spread interstate - single employers whose activities spread interstate. For example, I think when we had the Alcan Case in this Court, that employer operated in several States.
MR GRAHAM: Yes. I may be wrong in our interpretation but 170PC(a) calls for an interstate dispute but 170PC contemplates, as it were, an aspect of the dispute or a subset of the dispute involving a particular employer or a particular organisation which may not involve an interstate element and the certified agreement and the immunity processes might apply only within respect of that more limited aspect of the interstate dispute which contained within itself no interstate element.
TOOHEY J: I do not know whether you took us to section 170PA(2), did you, Mr Solicitor? It seems to be a statement of intention rather than anything else. I assume it is compatible with section 170PC, but I have not really checked that.
MR GRAHAM: It may become a little clearer if one goes into the division, your Honour. Perhaps I can move to section 170PD because this tends to show how the operation provision can be, to use my word, localised beyond the interstate industrial dispute. It provides in 170PD:
Subject to paragraph 170PP(7)(c), if the employer, or the organisation or one of the organisations of employees, wants to negotiate an agreement under Division 2 in relation to employees (the "relevant employees") that are employed in the single business or the part of the single business, or at the single place of work, as the case may be, referred to in paragraph 170PC(c), the employer or organisation (the "initiating party") may initiate a period (the "bargaining period") for negotiating the proposed agreement.
170PD(2) [Initiating party to provide written notice to other proposed parties] The bargaining period is initiated by the initiating party giving written notice to the other proposed party or the other proposed parties to the agreement, and to the Commission, stating that the initiating party intends to try, or to continue to try:
(a) to reach an agreement under Division 2 with that party or those parties in settlement of the industrial dispute in so far as it involves the relevant employees; and
(b) to have any agreement so reached certified under Division 2.
Then subsection (3) tells us what the expression "negotiating parties" means. I think I can pass over 170PE.
170PF The bargaining period begins at the end of 7 days after:
(a) the day on which the notice was given; or
(b) if the notice was given to different persons on different days - the later or latest of those days.
Section 170PG is very important. I shall read parts of it:
170PG(1) [Identification of] This section identifies certain action ("protected action") to which the provisions set out in section 170PM are to apply.
170PG(2) [Industrial action] During the bargaining period, an organisation of employees that is a negotiating party, a member of such an organisation who is employed by the employer, or an officer or employee of such an organisation acting in that capacity, is entitled -
we emphasise the words "is entitled" -
for the purpose of supporting or advancing claims made by the organisation that are the subject of the industrial dispute, to organise or engage in industrial action directly against that employer and, if the organisation, member, officer or employee does so, the organising of, or engaging in, that industrial action is protected action.
Section 170PG(3) deals with a "lockout":
during the bargaining period, the employer is entitled for the purpose of:
(a) supporting or advancing claims made by the employer that are the subject of the industrial dispute; or
(b) responding to industrial action by any of the relevant employees;
or for both of those purposes, to lock out all or any of the relevant employees from their employment and, if the employer does so, the lockout is protected action.
(4) The reference in subsection (3) to the employer locking out employees from their employment is a reference to the employer preventing employees from performing work under their contracts of employment without terminating those contracts.
(5) If the employer locks out employees from their employment in accordance with subsection (3), the employer is entitled to refuse to pay any remuneration to the employees in respect of the period of the lockout.
And (6); I referred to this earlier:
The employer is not entitled to lock out employees from their employment under subsection (3) unless the continuity of the employees' employment for such purposes as are prescribed by the regulations is not affected by the lockout.
I gave the Court previously a reference to regulation 30ZE which indicates what are the prescribed purposes.
There are further provisions which are perhaps sufficiently explained by their own headings until I move on down to section 170PM, "Immunity Provisions", and this section really needed to be read together with section 170PG which I have already read. It provides that:
An order made by the Commission under section 127 does not apply to protected action.
(2) A bans clause does not apply to protected action.
And centrally:
(3) Subject to subsection (4), an action does not lie under any law (whether written or unwritten) in force in a State or Territory in respect of any industrial action that is protected action unless the industrial action has involved or is likely to involve:
(a) personal injury; or
(b) wilful or reckless destruction of, or damage to, property; or
(c) the unlawful taking, keeping or use of property.
Subsection (4) deals with defamation. Section 170PN is important.
GUMMOW J: Section 127 deals with public sector matters, does it not?
MR GRAHAM: Yes, it does, your Honour. I should have mentioned that. Section 170PN:
The bargaining period ends:
(a) if a written agreement under Division 2 is entered into between the employer and any one or more of the other negotiating parties; or
(b) if the initiating party tells the other negotiating party or each of the other negotiating parties in writing that the initiating party no longer wants to reach an agreement under Division 2 with that other party or those other parties in settlement of the relevant industrial dispute; or
(c) if the Commission terminates the bargaining period;
Otherwise the bargaining period is open-ended with no fixed duration specified by the Act. Section 170PO gives power to the Commission to suspend or terminate the bargaining period in a number of circumstances. One of those circumstances is termination on the application of one of the negotiating parties and it is also possible for the Commonwealth minister to apply for an order terminating the period, but no other outsider is able to apply for the termination of a bargaining period. In other words, although a State may be affected by the bargaining period because one of its important instrumentalities is involved as a negotiating party, the State itself cannot apply and that might be significant, for example, in a case of a privatised power facility.
If I can take the Court then to the remaining provisions which are under challenge in these proceedings. May I begin with section 164 which is to be found at page 31,853. Section 164 provides:
Subject to this section, an action under a law of a State or Territory does not lie against a trade union, or officer, member or employee of a trade union, in relation to conduct of the trade union or of the officer, member or employee acting in that capacity if the conduct is boycott conduct as defined by section 156 or would be boycott conduct as so defined if subsections 162(7) and 163(4) and section 162A had not been enacted.
That can only be understood by reference back to the provisions of the Act dealing with boycott conduct. These are, to put the matter perhaps slightly loosely, the descendants of section 45D of the Trade Practices Act. Section 156 contains a definition of "boycott conduct". The important paragraph in that definition is (a):
a boycott contravention;
"Boycott contravention" is defined to mean:
a contravention of section 162 or 163;
Sections 162 and 163 are provisions which are in substance enacted in reliance upon section 51(xx) as was section 45D and those provisions are not challenged. The point about section 164 will be the scope of the protection that it confers in favour of certain persons having regard in particular to the constitutional justification this Court found in the Actors Equity Case for a provision such as section 45D and the arguments or challenge will be directed also to the concluding words of section 164 which refer to conduct which would be boycott conduct if certain subsections had not been enacted. I simply flag the point at this stage without seeking to develop it.
Section 166 is a provision which was not introduced by the 1993 amendments. It first came in in 1988 so far as our researches have revealed. It was part of the 1988 principal Act. It provided that:
An action under a law of a State or Territory does not lie against an organisation, or an officer, member or employee of an organisation, in relation to conduct of the organisation, or of the officer, member or employee acting in that capacity, that is in breach of a bans clause of an award.
That is challenged as a law not made pursuant to section 51(xxxv), being the only power which the Commonwealth invokes to support it. Section 166A on the same page provides:
Subject to this section, an action in tort under the law of a State or Territory may not be brought by a person against an organisation of employees, or an officer, member or employee of such an organisation, in relation to conduct by the organisation.... in contemplation or furtherance of claims that are the subject of an industrial dispute under the Commission -
has certified either in accordance with paragraph (a) or (b). There are again exceptions to the immunity conferred by 166A(1) to be found in subsection (2) which echoes section 166PM. Those provisions are again supported under section 51(xxxv).
Lastly, on this survey - I am sure the Court will be pleased to know - is section 334A. That section is to found at page 34,301.
BRENNAN CJ: Before you leave166A, is there any challenge arising out of the nature of the power conferred upon the Commission to certify?
MR GRAHAM: No, there is not, your Honour. Your Honour is thinking in terms of a judicial or non-judicial power?
BRENNAN CJ: Yes.
MR GRAHAM: I do not believe such a challenge appears in any of the written submissions. I may be wrong about that.
BRENNAN CJ: Yes.
MR GRAHAM: Section 334A is, in some respects, similar to Division 4 of Part VIB. I will just read the most significant provisions of it:
The object of this section is to give effect, in certain respects, to Australia's international obligation to provide for a right to strike. This obligation arises as mentioned in section 170PA.
Section 334A(2) provides:
An employer must not dismiss an employee, injure an employee in his or her employment, or alter the position of an employee to the employee's prejudice, merely because the employee has engaged, or is proposing to engage, in industrial action in relation to an industrial dispute that has been notified to the Commission or that the Commission has found to exist.
Penalties are provided for. Subsection (3) provides for certain exceptions. If I could then take the Court to subsection (7):
If an employer is convicted of an offence against subsection (2), the Court may order the employer:
(a) if the offence was constituted by dismissing an employee - to reinstate the person dismissed to the position that the person occupied immediately before the dismissal or to a position no less favourable than that position; and
(b) in any case - to pay, to the person dismissed, injured or prejudiced, compensation for loss suffered as a result of the dismissal, injury or prejudice.
Subsection (8) preserves alternative rights.
There are a few provisions which are only the subject of challenge by Western Australia. Unless the Court otherwise requires, I will not list them and I will not go through them. One could just leave them until the occasion arises for my learned friend, Mr Cock, to develop his submissions in relation to them. If the Court pleases, what I propose to do next was to seek to develop, I hope fairly briefly, the submissions which we provided to the Court and our outline of argument in reply, which I hope came to hand in the course of last week.
What we are here doing is to respond in some detail to the written submissions of the Commonwealth which were furnished, I think, some months ago. Could I then turn to what the Commonwealth put at paragraph 3.8 of their submissions first and that is concerned with the topic of the Tasmanian Dam Case. This matter begins, in the Commonwealth's submissions, perhaps under heading (b) on page 32, in particular commencing at paragraph 3.8 where it is submitted that the decision of this Court in the Tasmanian Dam Case should not be revisited, to use a neutral term, in any way.
The Commonwealth submits, in response to our submissions concerning the Tasmanian Dam Case, that that case was not a departure from this Court's earlier decision in Koowarta v Bjelke-Petersen. The Commonwealth submits that the judgment of Mr Justice Stephen in the Koowarta Case was not the ratio decidendi of the case and that it was impermissible for the plaintiffs to treat Mr Justice Stephen's judgment in Koowarta as expressing the ratio by, as it were, aggregating his reasons with those of the members of the minority in Koowarta.
As we indicate in paragraph 1 of our outline, four members of the Court in Koowarta upheld the validity of the Racial Discrimination Act. However, as his Honour Mr Justice Mason, as he then was, said in the Tasmanian Dam Case at page 121, the members of the majority in Koowarta were not united in the reasons by which they supported their conclusion. Three judges in Koowarta, namely Justices Mason and Murphy and your Honour the Chief Justice, held that the external affairs power supported the enactment of legislation in Australia implementing obligations arising from any international treaty genuinely entered into by Australia. That interpretation of the external affairs power did not secure the acceptance of a majority of the Court. Mr Justice Stephen considered that the scope of the external affairs power was limited to the implementation:
by legislation within Australia such treaties on matters international in character and hence, legitimately the subject of agreement between nations -
Those last few words are a quotation from his Honour Mr Justice Stephen's judgment in Koowarta at page 212.
I will seek to restrict my quotations from any of these authorities to the minimum in the interest of brevity, but that is, we say, a significant passage in his Honour's Mr Justice Stephen's judgment. Your Honour the Chief Justice in the Tasmanian Dam Case at page 218 echoed those words as being the way in which his Honour Mr Justice Stephen was to be understood.
In order to arrive at a position which would be acceded to by a majority in Koowarta, we say that it is necessary to view the broader interpretation of section 51(xxix) by Justices Mason and Murphy and your Honour the Chief Justice as qualified by the restriction proposed by Mr Justice Stephen. We would say that that was recognised by Mr Justice Mason in the Tasmanian Dam Case itself. His Honour said this at page 122:
If we take the decision -
in Koowarta -
as turning on Stephen J.'s view of the power, because it reflects the narrowest expression of it by the justices who constituted the majority, the case is authority for the proposition that the power authorizes a law which gives effect to an obligation imposed on Australia by a bona fide international convention or treaty to which Australia is a party, at any rate so long as the subject-matter of the convention or treaty is one of international concern, or of concern to the relationship between Australia and the other party or parties.
And we would also refer to the reasons of his Honour Mr Justice Wilson in the Tasmanian Dam Case at page 187 and to a useful article by Mr D.R. Rothwell entitled, "The High Court and the External Affairs Power: A Consideration of its Outer and Inner Limits" in [1993] AdelLawRw 9; 15 Adel. LR 209. I think that the page reference in the outline may be wrong, but the relevant passage, in any event, is at page 227, and the author described the position of Mr Justice Stephen in Koowarta as pivotal, and we would respectfully adopt that description.
Now, the Commonwealth, in its submissions, at paragraph 3.8, submits that the majority decision in the Tasmanian Dam Case was the culmination of a gradual and consistent development over a number of decades. However, we submit that that proposition is not consistent with what Mr Justice Wilson said in Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261, at 298, where his Honour said, and we would say quite rightly:
The wider interpretation is not one which has the support of any binding authority to be found in any decision of this Court prior to the Tasmanian Dam Case.
Again, we would refer to Mr Rothwell's article at page 219.
The Commonwealth asserts that the decision in The Tasmanian Dam Case has never been called into doubt and that its correctness has been affirmed unanimously by this Court. We would respectfully submit that that is simply not correct. It is true that all of the members of the Court, as constituted from time to time, have accepted the authority of the Tasmanian Dam Case, but the correctness of that decision has been queried by individual members of the Court. Mr Justice Wilson in Richardson v The Forestry Commission at page 298 strongly questions its correctness. Your Honour Justice Dawson, in Richardson, at page 321 to 322, did likewise. However, none of the parties in Richardson sought to reargue the decision in The Tasmanian Dam Case. Again, when the matter fell for consideration in Queensland v The Commonwealth [1989] HCA 36; (1989) 167 CLR 232. The question of the correctness of the decision or the expression of principles which it contained was not sought to be reargued.
Your Honour Justice Dawson in Queensland v The Commonwealth, at page 247, pointed that out. Indeed, your Honour, in Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501, at page 632, made a statement to the same effect. The Commonwealth in its paragraph 3.8 contends that the validity of a number of Commonwealth statutes would be called into doubt if the majority reasoning in the Tasmanian Dam Case were to be rejected. However, we would submit, without descending into detail, that much of the legislation referred to by the Commonwealth would satisfy the test for validity propounded by Mr Justice Stephen in Koowarta: the Sex Discrimination Act 1986 , the Affirmative Action Equal Employment Opportunity for Women Act, the Human Rights and Equal Opportunity Commission Act 1986 , the Disability Discrimination Act 1992 and the Human Rights Sexual Conduct Act 1994 .
We should make it clear that we do not seek to challenge the decision in Koowarta. Accordingly, the validity of none of those statutes which rely upon conventions similar to that considered in Koowarta would be called in question in the stance which we take. The remainder of the legislation referred to by the Commonwealth appears at least to rely upon conventions similar to that relied on in the Tasmanian Dam Case, that is, the Nuclear Non-Proliferation Safeguards Act 1987 , the Ozone Protection Act 1989 and the Endangered Species Act 1992 .
The plaintiff does not need to challenge the correctness of the actual decision in the Tasmanian Dam Case. It may well be that even on a narrower view of the power confirmed by section 51(xxix) than that which the majority appears to have adopted in Tasmanian Dam, the validity of the legislation there would still be upheld. The challenge made by the plaintiff is to the reasoning adopted by the majority in the Tasmanian Dam Case. Accordingly, the validity of none of the statutes which rely upon the conventions similar in topic to that relied on in the Tasmanian Dam Case would be likely to be called in question. However, the suggestion by the Commonwealth that the current legislation is only a "slight extension of previous Commonwealth legislation enacted in reliance upon the external affairs power" cannot be accepted.
The plaintiff accepts that the topic of the convention dealt with in Koowarta was a matter of international concern as was the topic dealt with in the Tasmanian Dam Case, namely, the convention for the protection of the world's natural and cultural heritage. We say that for this reason: that topic dealt with in the Tasmanian Dam Case and the legislation therein question was a matter of international concern because it dealt with the protection and preservation of natural assets and man-made assets of enduring and permanent value to the whole of mankind albeit that the municipal legislation in question concerned particular assets located within the jurisdiction of a particular country or nation State. Nothing like that could be said of the matters dealt with by the conventions here under consideration.
The conventions relied upon in the Industrial Relations Act 1993 are concerned with the domestic regulation of labour matters. We say that such matters are remote from topics about the global preservation of the environment or assets of universal value or international co-ordination of the elimination of racial discrimination. Matters of labour relations are entirely domestic and fall to be considered purely on a State by State basis. The Commonwealth at paragraph 3.9 of its submissions - - -
McHUGH J: It is difficult to contend that industrial relations are purely domestic though, is it not? They affect the economy which in turn affects our trading with other nations, our competitiveness in terms of the export of goods, and it even affects us politically in the sense that other countries may question or refuse to deal with a nation that, for example, exploits workers. Even now there is a debate going on about the use of child labour in certain countries for the production of goods. In this day and age it is very difficult to argue that industrial relations is a purely domestic matter. It may be primarily one but - - -
MR GRAHAM: Perhaps I can respond, your Honour, by saying that the consequences of an industrial system in so far as they may affect international trade could be seen to be a matter of international concern, but it is a further step to say that another country, country X, would have any interest as to whether we had a minimum wage setting system which was appropriate for particular groups of employers, to use the vague language of the convention. That is another thing altogether. They would be interested to know what our wage levels were because it would affect competitiveness and price of products to be bought or sold, but that is not the same thing. That is to move a step away from the topics of the convention.
McHUGH J: But it is easy enough to consider examples where countries might make agreements among themselves for the very purpose of ensuring that there is a level playing field in respect of competitiveness. Why could not the Commonwealth legislate to enforce an obligation entered into such an agreement?
MR GRAHAM: Your Honour, because then one would be looking at the legislation through a totally different pair of spectacles. One would be looking at it as a convention relating to trade, not labour relations. One would be concerned to ensure the level playing field and the trade context and it would be no doubt like some of the things one finds in what was GATT and whatever it is called now to ensure that one did not have things like dumping and other artificial measures being adopted to render the playing field uneven, but that takes the whole matter into a different area.
McHUGH J: But what is your submission about external affairs? The external affairs power as it is currently interpreted certainly has the capacity to distort the balance of power between the States and the Commonwealth, but what is the alternative submission that makes some sense of the legislative expression that is found in section 51?
MR GRAHAM: Perhaps I can answer your Honour with putting three alternative or cumulative propositions. One is that we use the rubric of Justice Stephen to indicate a limiting factor. Another is that we would suggest - - -
McHUGH J: I am not sure that that gets you very far because he talks about a matter of international rather than merely domestic concern.
MR GRAHAM: Your Honour, I may not remember the other two. But the second point we would make is that the Court seems to look for some limitation, having regard to the very sort of concern that your Honour expressed, as the capacity of the distortion. Hence into the judgments come the expressions such as "appropriate and adapted" or "reasonably capable of being regarded as appropriate and adapted" which introduced limiting considerations.
DAWSON J: But that is only adapted to the implementation of the treaty, is it not?. But it does not really help you when you get away from the treaty.
DAWSON J: The trouble is that Justice Stephen appears to have thought that he was introducing a limitation by speaking of matters of international concern whereas, of course, one can look at it a quite different way and he is opening the world up.
MR GRAHAM: Yes.
DAWSON J: And it depends which way you view it. Really, in the end, what one has to do is to consider taking a treaty, the subject matter of the treaty, and say whether it is international in its scope or not.
MR GRAHAM: Your Honour, either one does that, and we thought that was fairly close to what Mr Justice Stephen said, or one takes the other possibility which I was going to come to and adopt some kind of purposive approach to section 51(xxix) and that leads to difficulties of its own as well because it will be unlikely to give rise to very obvious lines of demarcation or limitation.
McHUGH J: If the slate was clean you might say that the Commonwealth could not enact any legislation other than under the express or implied heads of power that are found in section 51 so far as domestic legislation is concerned, but the slate has not been cleaned for 60 years.
MR GRAHAM: That is right, but it is very easy to take something like the Chicago Convention on Air Navigation and see something which is palpably a matter of international concern, palpably a bona fide treaty answering every conceivable test that one could erect.
DAWSON J: It is not only a matter of international concern. Its subject matter is international. It deals with people flying from different countries.
MR GRAHAM: Flying from country to country and the aeroplanes - - -
DAWSON J: But when you are dealing with even, if I might venture to say so, a piece of land in Tasmania, you cannot see anything that is international about it, except perhaps that someone else will take an interest.
MR GRAHAM: Well, we are prepared, your Honour, so much water having flowed down the river, that it is probably impossible to ask for it to be recalled, but we do not have to go that far.
DAWSON J: But, you see, you are relying on international concern, and what I am trying to point out to you, that will not help you, because it can be as wide as it is narrow.
MR GRAHAM: Well, I accept that, your Honour. Perhaps the way your Honour put it - - -
DAWSON J: And in the end - and I will stop after this - you are really saying, taking a treaty: is the subject matter of the treaty international in character?
MR GRAHAM: Yes, and probably "concern" is an unfortunate choice of word and "international in character" does tend to impart some possible limitation which is able to be articulated from one case to the next.
BRENNAN CJ: What gives a treaty the character of being international?
MR GRAHAM: Well, in one sense, your Honour, simply because it is made between nations.
BRENNAN CJ: That is not the proposition you wish to advance.
MR GRAHAM: No, your Honour.
McHUGH J: And that is the difficulty, is it not? If Australia signs or ratifies an international convention, that, in itself, is an international act, is it not?
MR GRAHAM: Yes.
McHUGH J: Therefore it is an external affair. Then the next question is, is this legislation, whatever it might be, a law with respect to that international act, or external act? The logic of the majority in Tasmanian Dam seems to me to be very difficult to subvert irrespective of the results which it leads to, which quite frankly I do not like because of the effect it has on the constitutional framework. I just do not see how - - -
DAWSON J: You may want to answer that, Mr Solicitor.
MR GRAHAM: In the end I think, perhaps, what Justice Dawson says might provide an answer, and that is that the mere fact the treaty is between nations - international does not necessarily give its subject matter the quality of being international in character.
DAWSON J: You can make a law about how you go about making treaties and the form of treaties and so on, and that would be a law with respect to something which is external - external affair. This Court has never had any trouble in distinguishing that sort of thing from the subject matter of the instrument. You can have a contract which is an interstate contract in the sense that it is made between people in different States, but the subject matter of the contract may be entirely intrastate.
MR GRAHAM: Yes.
DAWSON J: We have had to make those distinctions, otherwise the Constitution would not work.
MR GRAHAM: Upon reflection I see the real difficulty that Justice Stephen's formulation presents in terms of its - if I may say with respect, inexactitude - and it perhaps is more satisfactory to contend for a proposition more along your Honour's lines. I was about to move on to another part of the Commonwealth's submissions - I wonder whether this would be a convenient moment - - -
BRENNAN CJ: Yes, it would be a convenient time. We will adjourn now until 2.15 pm.
AT 12.50 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.17 PM:
BRENNAN CJ: Mr Solicitor, members of the Bar, we are honoured this afternoon to have sitting with us Dr Kuhling of the Federal Constitutional Court of Germany. He will leave at whatever time is convenient to him and counsel will not be disturbed in that respect.
MR GRAHAM: May it please the Court. If the Court pleases, could I deal with two matters that arose this morning, one raised by your Honour the Chief Justice concerning the minimum number of ratifications required before an International Labour Organisation convention comes into force. The answer, I think, is best found in the work that is mentioned in our written submissions by Professor Valticos, International Labour Laws. He says at page 230:
Every ILO Convention includes in its final articles provisions concerning its entry into force. The coming into force of the Convention is conditional on the receipt of a minimum number of ratifications, usually two. In the case of some Conventions, particularly maritime Conventions, a larger number of ratifications is required. In the other cases, the model clause current since 1928 provides that the Convention shall come into force 12 months after the registration of the second ratification. For States ratifying after a Convention has initially come into force, the usual period is 12 months after registration of the ratification.
There was another question also concerning the way in which a convention is brought into existence. I think this was your Honour the Chief Justice also. I mentioned the requirement of the two-thirds vote by the conference, that being provided for in Article 19 clause 2. The delegates who are not government delegates are, however, nominated by the member governments. That is provided by Article 3 clause 5. It is interesting to note, however, that in Article 4 clause 1 which provided:
Every delegate shall be entitled to vote individually on all matters which are taken into consideration by the Conference.
So that the position emerges, perhaps in contrast with a body such as the General Assembly of the United Nations, that the delegates vote individually. They do not vote, as it were, as States represented by their delegates at the meeting of the body.
TOOHEY J: I think Article 19 paragraph 2 does require, contrary to what was said earlier this morning, a majority of two-thirds of the votes of those present and voting, Mr Solicitor, is it not? It is cast by the delegates present.
MR GRAHAM: It says "present", your Honour.
TOOHEY J: Yes, but "cast by the delegates present".
MR GRAHAM: Yes. But if a person was present and did not vote, then that person would not be taken into account to establish the quota.
TOOHEY J: I thought there was some debate as to whether it was those present and voting or those present.
MR GRAHAM: Yes and it is merely those present who vote. A person could be present and could abstain.
TOOHEY J: Yes. I do not think that is worth pursuing.
MR GRAHAM: No, I will not pursue it. I should, perhaps, make it clear also that under Article 19 clause 5 only obliges a member to, in effect, consider whether it will ratify a convention. A member is not obliged to ratify a convention. I should also refer to clause 5(e) which indicates quite clearly that if the convention is not ratified, there are no further obligations on the non-ratifying member except a reporting requirement.
If I could now turn to our response to paragraph 3.9 of the Commonwealth's submissions, the Commonwealth appears to accept that legislation enacted in reliance upon the external affairs power - some of its legislation enacted in reliance on the external affairs power may not have been valid under the approach adopted by the minority in the Tasmanian Dam Case, that legislation consisting mainly of legislation for the protection of the environment and human rights. We would simply say that those topics, environment and human rights, and assets of world heritage value, I should perhaps add, are far removed from the terms and conditions of employment of employees within Australia.
Then to move to paragraph 5 of our outline of argument, it is our submission that the expense of interpretation of the external affairs power has the potential for substantially distorting the careful division of powers between the Commonwealth and the States. We have said that previously. The matters dealt with by the conventions adopted by the ILO conference are extensive and go beyond the protection of social and economic rights within an industrial context. We referred this morning to the convention concerning indigenous and tribal peoples in independent countries. That is the subject of an article which is in our extraneous materials at tab PQ, an article by Mr Barsh, "Indigenous Peoples in the 1990s: From Object to Subject of International Law?" in volume 7 of the Harvard Human Rights journal at page 33. It is just indicative that the conference of the International Labour Organisation does not confine itself to matters which might be called purely and directly connected with industrial affairs and indeed, that convention, as the outline indicates:
"acknowledges indigenous peoples to be distinct polities within states, entitled to negotiate with state authorities and sometimes to veto state plans".
As I have indicated, that convention has not yet been ratified, but we have ascertained that it has been classified by a Commonwealth government body known as the ILO Ratifications Task Force as a suitable target for ratification. Of course, once ratified, that convention has considerable potential to support legislation conferring immunities and rights upon indigenous peoples from the operation of federal and State laws in parallel and perhaps beyond section 51(xxvi).
BRENNAN CJ: What is the point that you make of that, Mr Solicitor?
MR GRAHAM: Perhaps two points, your Honour. The first is that the conference of the ILO is not by any of its own practices or, indeed, its own constitution, confined to bringing into existence conventions which deal with matters concerned with what we can loosely say in this context, are industrial, but go into other fields, and that tends to show in turn that the convention-making power of the ILO, coupled with section 51(xxix) shows a considerable scope for the expansion of Commonwealth powers into unexplored fields.
BRENNAN CJ: And so?
MR GRAHAM: It simply invites, your Honour, the sort of discussion we had just before the luncheon adjournment of seeking to see where, if anywhere, are the limits to the powers under section 51(xxix) in the context of the international labour organisation.
BRENNAN CJ: That invites an address to the problem of what kind of conventions are properly, in your submission, to be regarded as within Commonwealth power for implementation and those which are not.
MR GRAHAM: It does, your Honour, and that may require also a consideration of the source of the convention, whether it is the United Nations itself acting in various ways or whether it is one of the United Nations specialised bodies.
BRENNAN CJ: Have you any submission to make that we could apply in the resolution of this case?
MR GRAHAM: One would be reluctant to suggest that the International Labour Organisation's conventions have to be, for the purposes of section 51(xxix), confined within an industrial context but that would be a possible line of limitation, but it is a very imprecise one. It is very difficult to say where the boundaries of such a limitation would be found. One could perhaps find the boundary by reference to some such test as Justice Stephen, or even asking whether as an ILO convention it bears the stamp or it deals with the subject international in character. It may be that a matter may be international in character if the source is UN convention and not if it is an ILO convention. It is, if I may say so, somewhat difficult to provide a logical foundation for that distinction.
BRENNAN CJ: What about subject matter? You distinguished before between human rights and industrial matters; are you able to articulate some criterion of distinction?
MR GRAHAM: Not with any feeling of great confidence, your Honour, and indeed, in preparing our first submissions in relation to this matter we proposed, perhaps with some trepidation, a negative approach to see whether in the case of the particular convention it could be said to lack certain characteristics, and if it did lack those characteristics then it was not the requisite character. So that one would move on, as it were, a case-by-case basis to see whether this particular instrument could fairly be said to be lacking anything which smacked of an international quality or character. If one could not perceive it, then one would say that is not a proper foundation for an exercise of the external affairs power.
DAWSON J: But one can perhaps approach it in a positive way. One can see an easily posited convention which has something international as its subject matter, for example, a treaty between Australia and New Zealand governing the conditions of workers which pass between the two countries. Clearly, that would come within the external affairs power, but why should a treaty which deals only with conditions of workers in a particular country where there is no connection with other countries be said to be international in character - - -
MR GRAHAM: If the answer to that is no, then - - -
DAWSON J: - - -simply because there has been an agreement made?
MR GRAHAM: With respect, it comes back to that always.
DAWSON J: Yes.
MR GRAHAM: And whether one talks about concern or about character - - -
DAWSON J: Or subject matter.
MR GRAHAM: - - -or subject matter, or subject matter coupled with concern or coupled with character, one comes back to the same position. It is not a very precise test but it may perhaps be seen to be more satisfactory if one is only seeking - - -
DAWSON J: What is not a precise test?
MR GRAHAM: Either way of putting it is not perhaps very precise until one looks at a particular convention in which case one can see that the test is either satisfied or not.
DAWSON J: But you have no difficulty in seeing positively where an international element exists; fugitive offenders, diplomatic representation, international boundaries and so on.
MR GRAHAM: Yes.
TOOHEY J: But in the present context of your argument which is inviting reconsideration of the Tasmanian Dam Case, what is the Court being asked to do by way of reconsideration?
MR GRAHAM: Only this, your Honour: we do not say that the decision was wrong in terms of what the majority decided, we do not ask the Court to overrule it. We question the reasoning of the members of the majority or, indeed, we question the articulation of the relevant principles by the members of the majority.
McHUGH J: But what legal principle do you formulate which would allow Tasmanian Dam to stand and yet depart from the reasoning of the majority in that case?
MR GRAHAM: I endeavoured to do that before lunch, your Honour, and if I may I will put it again, perhaps slightly differently. We would accept that a regime created by international convention designed to protect and preserve in perpetuity, so far as possible, assets, natural and man-made, which were regarded as assets of value to the whole of the world, the whole of mankind, could call for and support action by the nation in which those assets were to be found. Their protection and conservation could be seen to be generally of international concern but, more importantly, the law which provided for that protection could be seen to have the stamp international in character, whereas a provision such as the minimum wages convention requiring in Article 1 to undertake a system of minimum wages covering groups of wage earners which are appropriate could not be said to contain any element international in character or, to use the other possible test, anything of international concern.
McHUGH J: I must say I would have thought that people in other countries might have a greater interest in whether or not workers were being exploited in Australia than whether or not some piece of the heritage was maintained in its primeval condition. It does not seem to me a very satisfactory test.
MR GRAHAM: One wrestles with this and tries to find forms of words which provide a satisfactory explanation even in looking at the formulations of the members of the majority in Tasmanian Dam. In the end, they do not seem to be precise and, whatever the test, views might differ about their application, as the difference emerged between your Honour Justice McHugh and me a moment ago. I might see it one way and your Honour might see it another, and yet we are propounding the same test. I do not know that I can take it further than that, your Honour, but if one were to see a minimum wage scheme for some specialised group of workers in Australia who were not involved in the export market and were not competing with imported goods and compare that to a law which protects Ayers Rock, one perhaps might see that one is able to articulate a test which is at least as readily applicable the way I am trying to put it.
McHUGH J: But this international concern or international subject matter seems to me to overlook the words "with respect to". The law has not got to be a matter of international concern; it has got to be "with respect to" an external affair. That allows the Commonwealth as a matter of logic very considerable scope. So, if you want to limit the 51(xxix) power, I think you have got to come up with a very precise test that is readily applicable.
MR GRAHAM: Firstly, obviously, one must always acknowledge the presence of the words, "with respect to", so that the key must be in the words "external affairs". One must be looking for something which is properly to be characterised, if one can still use that word, as an external affair. If the whole subject matter of the convention is internal to Australia bears no element, has no characteristic, giving it something in the nature of externality, then there is no external affair.
McHUGH J: What about Polyukhovich? How would Polyukhovich stand with your argument?
MR GRAHAM: Your Honour, I suppose one goes back to, if one may say with respect, Justice Dawson, the very simple approach that his Honour adopted in that case. It was an external affair because it was concerned with circumstances, events and persons external to Australia at the relevant time. The same would be said of the Seas and Submerged Lands Case. One was concerned with affairs which were distinctly external. We have no difficulty with those two cases.
McHUGH J: You accept that the Commonwealth, if it wanted to, could pass a law making it an offence for somebody to smoke in the streets of Paris?
MR GRAHAM: Yes, your Honour. Polyukhovich was no different from that, just another more serious offence. I think your Honour's choice was very timely.
If I could move on: we were going to turn next to what the Commonwealth had to say in relation to the minimum wage fixing convention in paragraphs 3.17 to 3.26 of their submissions. The point that we would seek to make in our outline is to draw a contrast between the terms of the world heritage convention, Articles 4 and 5 in particular, and the terms of the minimum wage fixing convention, in particular, Article 1. For the convenience of reference, those two articles from the world heritage convention form annexure 1 to our submissions in reply rather than the Court try to find them in the World Heritage Act.
What we would say about those two articles is that they provide, so far as treaties ever provide, a quite precise and comprehensive statement setting out quite precise obligations upon each State party in relation to the preservation of the cultural and natural heritage. By contrast, the minimum wage fixing convention - and it is convenient to use this as an example -imposes no obligation which, in our submission, could be seen to impose a real and direct requirement upon any member State which had ratified it. All that the member is required to do is to undertake to establish a system of minimum wages which covers all groups of wage earners whose terms of employment are such that coverage would be appropriate.
So it is only all groups of wage-earners whose terms of employment are such that coverage could be appropriate. The groups of wage-earners to be covered are determined by the competent authority in each country. A little bit of guidance is provided in Article 3 of the convention as to the elements to be taken into consideration determining the levels of minimum wages and they include the needs of workers and economic factors and provision is made for consultation with representative organisations. As we point out in paragraph 7 of the outline, the convention does not reveal in its terms the purpose of the wage-fixing machinery, what its form of operation should be, what is incumbent upon a party to the convention to do to establish such machinery, what services would need to be established or what forms of training or research would need to be established, and the nature of the duties of members upon ratification is, in effect, left to be determined by each member individually and separately. To put it in a nutshell, the obligations which a member undertakes by ratifying this convention are left to be ascertained by the member itself.
DAWSON J: In a sense that is so with the heritage convention as well because it is up to each member State to decide what it is that forms part of the cultural - - -
MR GRAHAM: In the first instance that is right, your Honour.
DAWSON J: But there is this difference, that once that has been decided - - -
MR GRAHAM: Once it is done then the obligations are imposed. It might be said to be a criticism of that convention that it provides no external machinery for the nomination to the World Heritage List by a country other than the country in which the asset is located, that once nominated and entered then the obligations are relatively clear.
We should also point out that the Commonwealth at paragraph 3.24 in its submissions refers to the explanatory memorandum provided to the Senate when it was considering the Industrial Relations Reform Bill, which became the 1994 Act. What the Commonwealth seems to be trying to do here is to use the explanatory memorandum to establish that the provisions of the 1993 Act, or the Act as amended by that Act, are appropriate and adapted to giving effect to the minimum wages convention.
GAUDRON J: Does it not work like this, Mr Solicitor: were there not always minimum wage provisions in awards or at least for the last many years and this is simply to ensure that there are minimum wage provisions in whatever replaces the awards?
MR GRAHAM: I cannot answer the first part of that question because my experience is not great enough. I believe your Honour is right, although one knows of such things as a paid rates award which may not contain such minima.
GAUDRON J: There used to be a basic wage.
MR GRAHAM: Basic wage, yes.
GAUDRON J: And then in about 1965, 1968, there was introduced into the wage fixing principles the minima wage.
MR GRAHAM: The minimum which found its way into all awards.
GAUDRON J: I think it found its way into all awards, yes. There used to be a minimum wage case every couple of years to determine what was the minimum wage for, initially, adult males, and then for all employees when there was an equal minimum wage introduced.
MR GRAHAM: And that covered the whole of the area in which the Commonwealth writ ran, including not just awards but of course orders binding Commonwealth employees. Your Honour spoke of replacing that system but, of course, the replacement is by means of, as it were, a free-standing order - one might say a common rule - which is binding regardless of whether the employee is otherwise within the Commonwealth coverage. So, it is a more extensive scheme and obviously covers, potentially, 100 per cent of the workforce subject to constitutional limitations.
The point that I was making was that the Commonwealth in referring to the explanatory memorandum seems to be trying to rely upon the opinion of the minister in relation to the question of whether this legislation, that is Division 1 of Part VIA, is reasonably capable of being considered to be appropriate and adapted to achieving the obligations, objects and purposes of the convention. It is our submission that you simply cannot do that. The question here is a question of constitutional validity. It is not a question of construction. Obviously, the Court may use extrinsic materials, including explanatory memoranda, as part of the process of interpretation but it is not proper nor legitimate to use the explanatory memorandum to establish that there is some reasonable proportionality between the object of carrying into effect a treaty by which the legislation adopts to pursue that object. It is our submission that section 15AB of the Acts Interpretation Act 1986 restricts the purposes for which it is permissible to consider extrinsic materials, and obviously this is not a case where extrinsic may be used.
We have given the Court a reference to the judgments of your Honour the Chief Justice and Justice Gaudron in Catlow v Accident Compensation Commission [1989] HCA 43; 167 CLR 543, pages 549 to 550. That contains a convenient exposition, briefly, of the limits to which extrinsic materials may be used.
If I move on to paragraph 9 of the outline, the duties imposed by this convention are expressed in such, we would submit, vague and uncertain terms that there is nothing in the convention which would enable this Court to apply a judicial standard in order to determine the validity of the legislation enacted in reliance on that convention. The Commonwealth, in paragraph 3.25 of its submissions, submits that the monitoring of the convention by the ILO and the potential adjudication of the provisions of the convention by the International Court of Justice, supply the necessary judicial standard to be applied to determine whether domestic legislation complies with the convention. We say that the determination of whether domestic legislation in Australia is capable of being reasonably considered to be appropriate and adapted to the object of giving effect to a convention is a matter which, plainly enough, rests with this Court and this Court alone, and that is not a function which the Court can or would wish to abdicate. In that connection, we would refer to the comment along those lines by Justice Deane in Richardson v The Forestry Commission, at page 312.
If I can turn then to the Commonwealth's submissions at paragraphs 3.27 to 3.36 in dealing with the equal remuneration provisions of the new legislation. Here we would point out that the generality and imprecision of the minimum wage fixing convention is repeated in the terms of the convention concerning equal remuneration for men and women workers for work of equal value. The predominant obligation imposed upon members upon ratification of the latter convention is to be found in Article 2, that is in Schedule 6 to the Act, and the obligation is:
by means appropriate to the methods in operation for determining rates of remuneration, promote and, in so far as is consistent with such methods, ensure the application to all workers of the principle of equal remuneration for men and women workers for work of equal value.
As we say in paragraph 10 of the outline, the duty imposed upon a member is thus to promote and apply a principal which is expressed only in general and vague terms. While the convention contemplates that an appraisal of the comparable value of work being performed will be undertaken, the criteria to be employed in the conduct of such an appraisal is left entirely to the individual members. The Commonwealth at paragraph 3.32 submits that it will fall to the International Labour Organisation and to the International Court of Justice, if necessary, to confer some specificity upon the duties imposed by the convention and to determine whether the particular measures taken give effect to the principle of equal remuneration for work of equal value, or whether the measures can be viewed as capable of being reasonably considered to be appropriate and adapted to the object of giving effect to the terms of the convention.
We would respond by saying that this is tantamount to suggesting that the question of the constitutional validity of legislation enacted in Australia is a matter not for this Court but for an international agency, and perhaps an international adjudicative body. This, in turn, demonstrates the general problems inherent in the use of conventions which are vague and imprecise in their terms. Such conventions, we submit, cannot form a proper constitutional support for the exercise of the power conferred by section 51(xxix).
McHUGH J: Well, is it a question of 51(xxix) or is it the Ex parte Walsh and Johnson argument that it is not really a law of the Parliament?
MR GRAHAM: Yes, I would be reluctant to go so far, your Honour.
McHUGH J: If the Parliament simply said, "Whatever the ILO says should be the condition for workers, will be the law regulating those workers" and so on. Would that be a valid law of the Commonwealth?
MR GRAHAM: Assuming that there was such a body abroad and leaving aside some other matters that I do not want to concede, yes, it would be. But, if one is to judge the validity of the Commonwealth law by reference to what the International Court of Justice would say about that law as a sufficient implementation of a convention, that is another thing. That is what we are saying: you cannot transfer that function or any part of it to an international body. The validity of the law must be adjudged by Australian municipal or domestic standards because it is the Constitution which is determinative. I hope that answer your Honour's question; that is as far as I could take it.
GUMMOW J: Does the looseness that you criticise, the international obligation, does the looseness of the language have any connection with proportionality?
MR GRAHAM: It would have this much, your Honour: if one is concerned to ascertain whether the law is proportionate or reasonably proportionate to something. It would be difficult to make that inquiry if one was taking as the yardstick something which was inherently imprecise so that the measurement of proportion would be difficult, if not impossible, to undertake. We simply would not know, looking at some of these provisions, whether the law was proportionate or not.
DAWSON J: But you have to answer proportionate to what.
MR GRAHAM: I think that is really what I was saying in a rather roundabout way to Justice Gummow.
DAWSON J: Proportionate to the convention. Otherwise, proportionality has no meaning at all in this area of endeavour.
MR GRAHAM: Or to the obligations which it imposes, perhaps to put it at its highest, for the Commonwealth.
GAUDRON J: The obligation is fairly simple, is it not? The obligation is, for example, to take the equal pay convention, to implement a system - it can be any system you like - taking account of the special wage-fixing procedures of the various State's members of the ILO, to give effect to equal pay for work of equal value. There is nothing particularly loose about equal pay for work of equal value.
MR GRAHAM: But with respect, your Honour, one must take the whole of Article 2 and the requirement is by means appropriate to the methods in operation of determining rates of remuneration that is generally - - -
GAUDRON J: Yes, because some States have a system like Australia's where the primary method of determining wage rates is by arbitration. Others have a system that is based on collective bargaining. Other unitary States have laws of general application. It is to take account of the different ways in which the States' parties fix their wages.
MR GRAHAM: Your Honour, we would say that where one has a treaty obligation which has been cast in terms wide enough to embrace all those possibilities and probably others as well, then the task of measurement of proportionality will be impossible because you do not know what the starting point is. You can take any starting point you like and then say - - -
GAUDRON J: Well, the starting point is equal pay for work of equal value I would have thought.
MR GRAHAM: With respect, your Honour, that is the end rather than the starting point. That is what is sought to be achieved by any one of a number of possible selected means without any means being stipulated and it is left to the State party to choose, but if the question is, is the method adopted reasonably proportionate or proportionate to the obligation, I go back to the answer that I gave to Justice Gummow that one does not know.
DAWSON J: Well, it must be reasonably proportionate if it is left open because the proportions are at large.
MR GRAHAM: It is at large, it would be like an equation with an unknown at one end of it.
DAWSON J: That is the nature of the convention.
MR GRAHAM: And that is our complaint.
DAWSON J: It may be a complaint but it does not tell you why it is or is not an external affair.
MR GRAHAM: That is going back, with respect, to a slightly different point. I think that this began with Justice Gummow's question about proportionality.
DAWSON J: But proportionality is only to determine whether the legislation implements the convention which is in turn to determine whether it is legislation with respect to external affairs.
MR GRAHAM: Your Honour, that is plainly correct, but - - -
DAWSON J: But here you could say the legislation is proportionate because proportions are at large, but you are not answering the ultimate question as to why it is or is not legislation with respect to external affairs.
MR GRAHAM: Indeed so, your Honour, but I did not understand Justice Gummow's question to be directed to the ultimate question, simply to the application of one test that has been propounded. I hope I have not misunderstood his Honour but that is how I have taken his question.
If I could move on to paragraph 12 of the outline and make this point. The procedures adopted by the International Labour Organisation for the revision of conventions have had the effect that there are clusters of conventions concerning a particular subject matter which are all still open to ratification but which are incompatible in policy terms. The existence of conflicting ILO conventions tends to undermine the authority, we would say, of such conventions as a source of international obligations. The incompatibility of obligations imposed by conventions has been recognised by the committee of experts, which is a body that is established by the ILO, and that is a matter that is referred to in a work written by one Lammy Betten, International Labour Law, Selected Issues, at pages 244 to 247, under the topic, Discriminatory Effects of the Prohibition of Night Work for Women. That passage from that book is to be found under tab R in the extraneous materials provided by the State of Victoria.
That topic, Night Work for Women, has been the subject of a number of ILO conventions since the ILO was established. What we say flows from this is that the presence of such conflicting conventions gives to Australia the capacity to select whichever set of treaty obligations it wishes to undertake on a particular topic, for instance, whether it wishes to adopt a protectionist approach to women's paid employment or an approach whereby the access women have to paid employment should be unfettered. So that, by adopting one convention, the Commonwealth can legislate down one path; by adopting a different convention, the Commonwealth can introduce a totally different regime on the same subject.
DAWSON J: So what? If you have so-called international obligations which are inconsistent, that is necessarily the result, but why does that mean if you adopt one or the other it is not an external affair? It may be unsatisfactory, but that has nothing to do with it. Why is it not an external affair?
MR GRAHAM: The direct, if I may say, superficial answer to your Honour's question is that it is an external affair. It tends to illustrate, when you are dealing with conventions as vague and as disparate as these , that it gives the Commonwealth the capacity to do what it cannot do in this area, and that is take control of the entire subject matter.
DAWSON J: Why can it not if it is an external affair?
MR GRAHAM: I think it has been said again and again, your Honour, that that is something that the Commonwealth cannot do.
DAWSON J: It has been said in relation to treaties but the opposite has been said in relation to matters of international concern. I have never understood that. It seems to me that if you adopt the reasoning of the majority in the Tasmanian Dam Case, the Commonwealth can legislate upon the subject matter of the treaty.
MR GRAHAM: As if it were a separate head of power?
DAWSON J: Yes. If that is not so, I would like to know why.
McHUGH J: Is not this argument a two-edged sword from your point of view? The more recommendations, the more conventions that are agreed to and the more State practice that is followed in respect of this subject matter, it would seem to indicate that it is a matter of international concern. Just as in Koowarta, Justice Stephen saw a long history of State practices in respect of racial discrimination as indicating that the subject matter was a matter of international concern.
MR GRAHAM: Your Honour, perhaps one is then compelled to ask, "What is the matter of international concern?" Is it that women should not be denied the ability to work at night or that they should be enabled to take employment in any circumstances?
McHUGH J: If you see countries decade after decade entering into agreements about this subject matter, it is some evidence, is it not, that it is a matter of international concern? It is not as though it just comes out of left field and the Commonwealth then passes some legislation on the subject.
MR GRAHAM: The force of what your Honour says is considerable, but one might still say, "Well, the international community through the ILO conference has been concerning itself with this, but concerning itself in different ways at different times". So that one ends up asking, "What is the topic of concern, employment of women?" If that is the matter of international concern, then, harking to what Justice Dawson said, it would appear on the Tasmanian Dam analysis that the Commonwealth may legislate in any way it chooses on the subject of access to employment by women simply because the ILO over 70 years has had a lot to say and write about it.
McHUGH J: This raises another issue as to whether - I think it is touched on in the judgment of Justice Toohey and Justice Brennan in Polyukhovich, that if a matter is a matter of international concern, that itself is sufficient to justify Commonwealth legislation, irrespective of any treaties, recommendations or anything else.
DAWSON J: And that is as I understand what has been said. No one has been prepared to say that you must have a treaty before you can legislate and, therefore, the test, if it be a proper test, is international concern. Perhaps that is what is wrong with it. International concern is the wrong test. The power is not a power to make laws with respect to matters of international concern. It is a power to make laws with respect to external affairs, and whether or not the affair is of international concern is not a matter of relevance. What is of relevance is whether it is external. Now, there is a certain simplicity in that, but that is, after all, what the words say.
MR GRAHAM: Your Honour, we would respectfully adopt that. Indeed, in responding to Justice McHugh some short time ago I endeavoured to say something along those lines, that one is looking for a law with respect to something which can be characterised as an external affair.
DAWSON J: It does not matter then whether you have got inconsistent conventions. What does matter is whether one or other or all of those conventions in fact deal with a subject matter which can be said to be an external affair, whether or not it is of international concern. It just seems to me that you are not grasping the nettle and one has to in the end.
MR GRAHAM: Your Honour, I think in my last answer to your Honour I did and I do because in the end, in our submission, it has to be treated - - -
DAWSON J: If the test is international concern then we can all shut our books up and go home because anything can be a matter of international concern.
MR GRAHAM: I think I would have to say, with respect, and having regard to what I said in response to Justice McHugh that must be right. You can turn anything into a matter of international concern, at least over a period of time.
DAWSON J: Of course you can.
BRENNAN CJ: There is always the question, of course, as to whether something is a matter of international concern and there is also a question as to what way legislative activity on the part of the Commonwealth is appropriate to deal with it in a fashion which allows the Commonwealth to be a member of the international community.
MR GRAHAM: Yes, your Honour, we would respectfully agree with that. It introduces a second layer of inquiry, and that is illustrated by the references to appropriate and adapted and reasonable proportionality as a second step to be undertaken by the Court.
BRENNAN CJ: Can I disturb you for one further moment. The recommendations or, at least, the conventions casting these obligations in general terms upon the States' parties where, obviously, in the unitary system of government lead to the enactment of provisions which created subordinate legislative power to implement them. Is it possible under the external affairs power for the Commonwealth to legislate to create a subordinate legislative instrument, in this case, the Commission, which then would enact, in substance, the laws which implement the convention?
MR GRAHAM: I believe the answer to your Honour's question is yes. It is difficult to see how one could draw valid distinctions between, for example, a law which clothed a minister with power to prescribe minimum wages by regulation and a law which delivered that task to a body like the Commission established by the law.
BRENNAN CJ: It is, indeed, but I wonder how it is that the legislative power which, by the Constitution, is vested in the in the Parliament, is one which can be vested under the external affairs power, as distinct from the conciliation and arbitration power in the Commission.
MR GRAHAM: I wonder if your Honour would allow me to reflect on that question? It had not occurred to us in quite the way that your Honour has put it to me. I had referred to the provisions which referred to the Commission taking action which was appropriate and adapted but for a slightly different reason. For the purpose of your Honour's question, one needs to assume that the Commission is not, as it were, an emanation of the Commonwealth as a minister might be regarded. It would be hard to see that one could quarrel with a delegation to the executive government by a law of the Parliament. Perhaps the position is not the same with a body which is meant to be independent of its government, an independent arbitral body. I wonder, your Honour, if I could reflect on that?
BRENNAN CJ: Yes, certainly.
DAWSON J: And could you direct your mind to elaborating what you just agreed with in answer to his Honour's question that the question may be raised what is a matter of international concern, and I take you to be saying that not every subject matter of a treaty is a matter of international concern. Can you direct your mind to what test, if you are going to employ that standard, you apply in order to determine whether a matter is a matter of international concern?
MR GRAHAM: I would be grateful of that opportunity, your Honour.
DAWSON J: How does this Court go about it.
MR GRAHAM: Yes.
McHUGH J: There is a corollary to that: what is the evidentiary requirement for establishing that it is a matter of international concern?
MR GRAHAM: That would, indeed, be a very important line of inquiry, especially given your Honours' questions to me in terms of conventions over a period of time and over a plethora of subject matters and, I would add, with internal conflicts between what has been done. I would be grateful for that opportunity. My learned friend, the Solicitor for the Commonwealth, suggests I should need a week to do that but I will do it tomorrow, if I can.
McHUGH J: A sleepless night should suffice, Mr Solicitor.
MR GRAHAM: I have two assisting me, your Honour. I had been talking about contradictory conventions. I had given the Court the reference to the work of Lanny Betten. If I can move on then to the next topic, which is paragraph 13 of our outline, equal remuneration and recommendations. We would reject the proposition the Commonwealth puts at paragraphs 3.37 to 3.39 that legislation which gives effect to recommendations that supplement a convention to which they are linked will, by definition, to quote the Commonwealth, give effect to the associated ILO convention.
The plaintiff submits that if the existence of a convention will not, of itself, directly sustain an exercise of the external affairs power then it is not permissible for the Commonwealth to rely upon recommendations indirectly to sustain such an exercise. Recommendations are not part of the treaty and they are quite unlike treaties or conventions as inherently, they do not give rise to binding obligations and do not go through a process of ratification. If the Commonwealth seeks to legislate on a topic which has become the subject of an international treaty, then we would quote what Mr Justice Mason said in the Tasmanian Dam Case pages 131 to 132, where he said:
The law must conform to the treaty and carry its provisions into effect. The fact that the power may extend to the subject-matter of the treaty before it is made or adopted by Australia, because the subject-matter has become a matter of international concern to Australia, does not mean that Parliament may depart from the provisions of the treaty after it has been entered into by Australia and enact legislation which goes beyond the treaty or is inconsistent with it.
DAWSON J: With respect, I simply do not understand that passage. Does it mean that having power before the treaty is enacted to enact legislation because it is a matter of international concern, when the treaty is enacted, it remaining a matter of international concern, suddenly the power of the Commonwealth contracts under the external affairs power. Now, I do not understand that. Or if the treaty goes beyond the matter of international concern, then the power expands.
MR GRAHAM: And could be exercised thereafter.
DAWSON J: Yes. Can you tell me how that is?
MR GRAHAM: No, I cannot, your Honour, but we take the authorities as they stand as best we can and call this passage an aide.
DAWSON J: Well, you call that passage an aide in some manner, so you must be prepared to support it.
MR GRAHAM: Your Honour, one can very clearly see the difficulties that passage creates, especially in the light of the subsequent quote of Polyukhovich. One does not even need a treaty obligation to sustain the exercise of power and there is obvious difficulty in saying that the power is, as it were, exhausted once the treaty has been implemented. It may be, however, that so far as domestic law is concerned, the full extent of the legislative power can be seen to be embodied in the legislation and, so far as this Court is concerned, no matter of international concern remains outstanding, or the matter bears the international character which is to be found in the domestic legislation. But, however one puts it, it is, with respect, not terribly satisfactory.
That is the proposition, and one is dealing here with a very clear instance of a treaty, on the one hand, and something which is not a treaty but which is associated with it on the other, where the treaty does not sustain the exercise of the power and the legislation does not conform to the treaty. So that the Commonwealth must call in aide the recommendation in order to sustain the legislation. No doubt the Commonwealth will say, "Well, the recommendation shows the international character of the matter", or, "It's a matter of international concern", merely because there is a recommendation even if Australia has not assented to the recommendation.
We would say that recommendations cannot be seen as giving rise to matters of international concern in any sense that that phrase has been used, merely supplementary to a convention and go no further than that. So whether Justice Mason was right or wrong in that passage, we would still say that a recommendation does not carry the Commonwealth anywhere. That is probably safer ground from where we would come at the problem rather than that passage. But it does seem to have been said that the conclusion of a - and I think this was something that your Honour Justice Dawson said in Richardson's Case; the conclusion of a limited treaty on a subject - and I think your Honour criticised this very point in Richardson.
DAWSON J: Yes, I did, and I did not understand it then either.
MR GRAHAM: All I can do is to give your Honour the reference. Your Honour dealt with the matter at page 325 and it highlights the problem that your Honour is raising with me now. But what we can say with some confidence is that as the purpose of the supplementary recommendation is to deal with aspects of the subject matter of a treaty not dealt with within the treaty itself, its terms simply fall outside the scope of external affairs power. Its subject matter is not an external affair or not a matter of international concern or does not have an international character.
Now, if I can turn to the termination of employment convention and the associated recommendation. This was the Commonwealth's submissions at paragraphs 3.40 to 3.52. Could I take the Court to section 170DE of the legislation to make the point we wish to elaborate? It is perhaps convenient also to be looking at the termination of employment convention, Schedule 10, which is at page 35,351 of the print. Article 5 of the termination of employment convention begins:
The following, inter alia, shall not constitute valid reasons for termination:
This is actually at the bottom of page 35,352, and there are listed union members:
seeking office.....in the capacity of, a workers' representative -
and there are other matters to which I have already referred.
The presence of the words "inter alia" at the beginning of Article 5 indicate, as we understand the convention, that domestic legislation which includes further specific reasons as reasons which are not valid reasons for termination, will not be in conflict with the convention. In other words, Article 5 enables a member to introduce further reasons which are not valid reasons for termination and there will be no want of compliance with the convention. However, those words "inter alia", we submit, do not justify the enactment of section 170DE(2). That introduces a separate and distinct reason why a termination will not be for a valid reason, namely, that the termination is harsh, unjust or unreasonable.
As I think I said earlier this morning, the effect of section 170DE(1) appears to reflect the terms of Article 4 of the convention. Article 4 imposes a requirement for a:
valid reason for such termination connected with the capacity or conduct of the worker or based on the operational requirements of the undertaking, establishment or service.
However, section 170DE(2) does not reflect any provision in the convention and accordingly section 170DE(2) operates as a Commonwealth law operating of its own force to inhibit the capacity of an employer to terminate employment if:
the termination is harsh, unjust or unreasonable.
And we would submit there is no peg within the convention which will support section 170DE.
TOOHEY J: Mr Solicitor, is this part of the argument an aspect of the external affairs submission or is it an argument that stands on its own as it were and simply says, "Well, look at the particular sections of the Act, look at the convention and see whether one measures up to the other or whether one goes beyond the other"? In this particular case the Act going beyond the convention.
MR GRAHAM: And therefore, we say, since the only power invoked in support of the whole division is the external affairs power and the nominated convention and recommendation, then there is nothing else that will support it. I think the answer to your Honour's question was probably, yes, that it is an attack not wholly confined to the external affairs power because - - -
TOOHEY J: So that if one thought, in a general sort of a way, that the subject matter was one of the amendments with which we are concerned, might attract the external affairs power without descending to details, as it were, and looking at the difference between the particular sections, is there a separate argument from your point of view that in any event the particular sections of the Act are not in conformity with the convention and, therefore, even if the subject matter could properly be described as external affairs, certain sections must in any event fail.
MR GRAHAM: Yes, your Honour. One could put that argument slightly differently, and it may be, perhaps, a point of real difference, that absent support from the external affairs power, there is nothing else that would support section 170DE(2). It does not conform to the convention; it does not implement it; it in no way reflects it. However one frames the test, one cannot discern anything which would support that provision under that head of Commonwealth power or elsewhere.
We make exactly the same point, whilst we are on that subject - I was just about to move to this - about section 170EDA(2), the second of the onus of proof provisions. I said to the Court this morning that section 170EDA(1)(a) reflects Article 9 clause 2 of the termination of employment convention which contemplates legislative provision imposing a burden upon the employer of the existence of a valid reason for termination. That is at page 35,353 and that article and clause in the convention is to be seen reflected in section 170EDA(1)(a). But then, section 170EDA(1) goes on in paragraph (b) to say:
if the employer so proves -
that is to say, that the termination is within 170EDA(1), the applicant has the burden of proving the matter mentioned in 170EDA(2), harshness, unjustness or unreasonableness. Then section 170EDA(2) goes on. It is a complex provision, as the Court may have noticed this morning. It is provided that:
If an application under section 170EA -
that is the section seeking redress against wrongful termination -
alleges that a termination of employment of an employee contravened subsection 170DF(1) on the ground that the termination:
(a) was for a particular reason or reasons referred to in that subsection -
and that is DF(1), the long list taken from Articles 5 and 6. Then:
the termination is taken to have contravened subsection 170DF(1) unless the employer proves -
or disproves that it was not for one of the grounds in 170DF(1). I have not paraphrased that very well. The provisions do not lend themselves to being paraphrased readily, but one has a second reversal of the onus of proof so as to impose the burden of disproof on an employer in relation to the 170DF(1) matters if the matter is merely raised by the terminated employee in an application for redress. If I can just move back a step to paragraph 15 of our outline of argument and deal with a matter that I passed over. I pointed out to the Court this morning that in section 170DF(1)(f) and (g) there were in grounds or reasons for termination included there which are not to be found in the relevant articles of the convention, they being sexual preference, age, physical or mental disability, and parental leave.
GUMMOW J: Does it work the other way around? Are there some in Article 5 which are not in the section? You said there were some in the section, not in the Article.
MR GRAHAM: That is what I meant, your Honour.
GUMMOW J: Yes, but does it work the other way around as well?
MR GRAHAM: I have not checked, your Honour. I do not think so, but I have not checked. Could I come back to your Honour's question after Mr Young - - -
GAUDRON J: Sexual preference, age and physical or mental ability come from another convention, do they not, as well?
MR GRAHAM: Some do, your Honour. I am not sure that all do.
GAUDRON J: Do they not come from the convention that is annexed or scheduled to the Anti-Discrimination Act?
MR GRAHAM: I think in terms of discrimination, your Honour, rather than in terms of a ground of termination of employment.
GAUDRON J: It might well be discrimination.
MR GRAHAM: It might be, your Honour, but it might not and whether one gives a completely limiting effect to section 170CA, which invokes only the termination of employment convention and recommendation, then one would not look beyond those two instruments in order to see what the scope of the international subject matter was, but one could not, with respect, automatically say that a termination on the ground of age involved discrimination. It would depend on the circumstances. The Commonwealth helpfully tells us that those extra words were included by an amendment of the Senate. I do not know whether that makes any difference, but I doubt the amendments were adopted by the House of Representatives and they form part of the legislation.
I think I had dealt with what is in paragraph 15. If I can move to paragraph 16 of the outline. The Commonwealth also refers in support of those provisions to Article 1(b) of the discrimination (employment and occupation) convention and by reference to regulations made under the Human Rights and Equal Opportunity Commission Act. That is I expect what your Honour Justice Gaudron had in mind. Article 1(b) of that convention - my learned friend the Solicitor for the Commonwealth has been good enough to hand me the Human Rights and Equal Opportunity Commission Act 1986 to which that convention is Schedule 1. Article 1 relevantly provides:
For the purpose of this Convention the term "discrimination" includes:-
.....
(b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employer's and worker's organisations, where such exist, and with other appropriate bodies.
It was no doubt in reliance upon the presence of that article that the Commonwealth made the regulation which it did make and to which the Commonwealth refers in its submissions. There is in our material under tab VW an answer provided by the then Minister for Industrial Relations recounting the history of how the regulation was made under the Human Rights and Equal Opportunity Commission Act 1986 and which for our purposes simply makes the point that the consultation contemplated by Article 1(b) of the convention did not take place.
If I can move then to paragraph 18 of the outline dealing with the family responsibilities convention and the family responsibilities recommendation. Here we are directing ourselves to the Commonwealth's submissions at paragraphs 3.53 to 3.64. As we read the Commonwealth's submissions, it seems to be accepted that in support of Division 5 of Part VIA, considerable reliance is placed upon the terms of the family responsibilities recommendation. The Commonwealth acknowledges that the recommendation sets a higher standard than the family responsibilities convention.
In so far as the recommendation does provide for particular concrete measures to be followed by a party which has ratified the associated convention, it shows that the Commonwealth is relying directly upon the recommendation to sustain an exercise of the power conferred by section 51(xxix) but, for the reasons that we have previously given, it is submitted that the recommendation does not suffice to exercise an exercise of the external affairs power.
Further, as I pointed out this morning, Division 5 of Part VIA confers rights which go beyond even those contemplated by the family responsibility recommendation. I took the Court this morning to paragraph 22 of that recommendation and, we would submit, there is nothing in the recommendation even if it otherwise could operate as a source of power which would support Division 5 of Part VIA or Schedule 14 or the adoption leave regulations.
In paragraph 19 of the outline we develop a submission in relation to the Commonwealth's submissions concerning recommendations. We say that there is a flaw in the logic of the Commonwealth in paragraph 3.60 of its submission. The Commonwealth accepts that:
Recommendations give non-binding guidance on appropriate means for implementing the associated Convention.
It is then contended that legislation implementing an ILO convention may be supported even if inconsistent with a linked recommendation. Those contentions of the Commonwealth emphasise that a recommendation does not of itself impose any binding international obligation or provide a separate basis for the exercise of the external affairs power. The Commonwealth then contends that legislation giving:
effect to an ILO Recommendation which is intended to provide non-binding guidelines on the application of the Convention -
will be appropriate and adapted to giving effect to the associated convention and will be valid.
That last proposition, we submit, is inconsistent with the contention that legislation will be valid if based upon a convention and inconsistent with a recommendation. In other words, what the Commonwealth is now submitting is you can have a bit either way. If you can support the legislation under the convention, good enough. If you can support it under the recommendation, that is also good enough, and if one is inconsistent with the other then whichever you opt for the legislation is valid.
We would submit there must be something wrong with that. We submit that it does tend to emphasise the point that recommendations really do not provide a proper or sufficient source for the exercise of the external affairs power. In paragraph 20 of the outline, still on the subject of recommendations, we say that if the Commonwealth is free to depart from the recommendation in its enactment of municipal legislation, the recommendation fails to provide any limits to the content and scope of the legislation which can be enacted on the subject matter with which it deals.
It is, therefore, an unsuitable and inappropriate source of international law even as a reflection of international concern which, to quote your Honour the Chief Justice in Polyukhovic, must clearly state the expectation of the community of nations and be broadly adhered to in international practice.
If I can turn then to a new topic, and that is the right to strike and the committee of experts of the International Labour Organisation, and this is paragraph 21 of our outline. Now, the Commonwealth in its submissions at paragraph 3.65 to 3.82 seems to place considerable reliance upon the interpretation which has been placed by the ILO committee of experts on certain ILO conventions. Now, it should be stressed that no ILO convention invoked by the Commonwealth nor the constitution of the ILO itself confers a right to strike or even refers to a right to strike.
The key to the Commonwealth's submissions in this regard is the concept of freedom of association which is something which does appear in some of the instruments referred to. But the position is that as a matter of interpretation by the committee of experts of the ILO, a view has grown up that the concept of freedom of association carries with it something called a right to strike. Here we refer to a passage in Lammy Betten's book which I have already referred to. It is under tab R of our extraneous materials.
If it is said that the committee of experts and its views have gained some degree of acceptance in the international community so as to found an argument that the existence of a right to strike and the ability to enjoy it has become a matter of international concern, then there are real difficulties because the international community does not speak on this topic with one voice. We demonstrate that with some emphasis in paragraph 22 of our outline of argument together with the statements that are contained in annexure 2 to our written outline indicating that the question of the implementation of a right to strike seems to be a matter of constant disagreement amongst delegates at sessions of the international labour conference.
If the Commonwealth then is seeking to invoke some notion of international concern or even a concept of interpretation of international instruments based upon international opinion, then we would say there is no unanimity of opinion. This Court could not act upon the basis that there was any unanimity which would provide the requisite basis.
If I could move on then to paragraph 23 of our outline we say this, firstly, we quote from the joint judgment in Queensland v The Commonwealth, I have given the citation already, at pages 239 to 240. In determining whether legislation enacted with the support of the power confirmed by section 51(xxix) can reasonably be considered appropriate and adapted to giving effect to a treaty, it is necessary to decide:
whether an international duty.....exists.....The existence of an international duty depends upon the construction which the international community would attribute to the Convention and on the operation which the international community would accord to it in particular circumstances.
That was pages 239 to 240. As we say in the outline, while the Court does not engage in its own jurisprudential analysis of the terms of a treaty it must be clear to the Court that the relevant obligation is to be found within the express or implied terms of the treaty.
Such proof may lie in a determination of an authoritative institution such as the International Court of Justice or any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. That comes from Article 31 of the Vienna Convention on the Interpretation of Treaties and that is quoted and discussed by Professor Brownlie in his book, "Principles of International Law", page 627, under tab M of our extraneous materials.
The Commonwealth, at paragraph 369 of its submissions, goes so far, as we understand it, to contend that the view of this Court concerning the construction of a treaty must yield to the views of the international community. The Commonwealth seems to say that this Court should not undertake its own jurisprudential analysis of whether the international community is correct in its construction. The Commonwealth also puts forward the possibility of a conflict between the views of this Court on the one hand and those of an ILO committee of inquiry or of the International Court of Justice on the other.
What the Commonwealth seems to be saying here is that in determining the question whether, as a matter of municipal law, the Commonwealth Act is constitutional valid, this Court must make its adjudication in conformity with the opinion of a body such as an ILO committee or the International Court of Justice. We would say that cannot be right. This Court has its own function and duty to perform.
In paragraph 24 - we move on - there has been no determination by the International Court of Justice as to whether convention 87, which is one of those invoked by the Commonwealth, implies a right to strike. The interpretations placed upon convention 87 by the committee of experts have been subjected to serious challenge and considerable uncertainty has been expressed as to the nature of the rights which can be validly implied within the terms of the convention. The record of proceedings of the ILO conference indicates there is no universality or near universality of practice by the international community in relation to the alleged right to strike.
In these circumstances, it cannot be concluded that the existence of the relevant obligation in international law has been established by the Commonwealth. The Commonwealth contends that the right to strike is one of the implied guarantees flowing from the constitution of the ILO. That makes reference to the principle of freedom of association. However, given that the constitution is an instrument covering a broader field than freedom of association and espouses only general doctrines and desiderata, the criticisms made, which we have made, apply a fortiori to attempts to interpret the terms of the ILO constitution so as to afford recognition of a right to strike.
The Commonwealth then goes on to argue that the right to strike is part of customary international law independently of any status the right might have from the terms of a convention. Your Honour the Chief Justice in Polyukhovich said this at pages 559 to 560:
In the absence of international conventions, the custom required to evidence "a general practice accepted as law" must be "extensive and virtually uniform" -
And your Honour quote the North Sea Continental Shelf Cases (1969) International Court of Justice Reports 43, and your Honours will find the report of the North Sea Continental Shelf Cases in the volume of non-Australian cases provided by Victoria. Reading on from your Honour's judgment:
and "followed on the basis of a claim of right and, in turn, submitted to as a matter of obligation" -
and your Honour quoted MacGibbon, "Customary International Law and Acquiescence", in the British Year Book of International Law volume XXXIII, page 117. Now, we would say that the record of the proceedings of the international labour conference revealed that there is neither the uniform consensus nor the uniform practice required for the right to strike to be accepted as a principle of customary international law.
The Commonwealth relies, to support Division 4 of Part VIB, upon the international covenant on economic, social and cultural rights. That is to be found in Schedule 8 to the Act commencing at page 35,252. Article 8 of that covenant, United Nations covenant, provides, so far as relevant, thus:
1. The States Parties to the present Covenant undertake to ensure:
.....
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.
What we say is that Article 8 1(d) of that covenant envisages that the legislative limitations introduced upon a right to strike will reflect laws in force in that particular country, but we say any attempt to introduce legislative limitations upon a right to strike and to justify those limitations by reference to Article 8 1(d) as forming part of the laws of the particular country, involves a circular argument which must be rejected. We say that the Commonwealth, in paragraphs 3.74 to 3.78 of its submissions, engages in precisely that form of argument.
The Commonwealth suggests that the limitations to be found in Division 4 of Part VIB as to notice, negotiation and secret ballot and so forth, are appropriate and adapted to give effect to the terms of Article 8 1(d) and the limitations become part of the laws of the particular country as a component of the self-same legislation which is intended to confer the right to strike.
We say that given those considerations and the imprecise nature of the concept of a right to strike and the impossibility of deriving that right from a right to freedom of association tends strongly against the existence of any relevant Commonwealth power from the sources relied on. We would note that the Commonwealth when invoking references to freedom of association in the ILO convention and the international covenant make no reference to the Canadian decisions which we referred to in paragraph 50 of our primary submissions nor to the Privy Council decision to which we there refer, being decisions which are clearly in point and which are directly contrary to the Commonwealth's contentions.
Those decisions establish that according to the Supreme Court of Canada and the Privy Council a right to enjoy freedom of association in a constitutional provision does not include a right to strike. If I could give the Court the references to those cases. They are Alberta Union of Provincial Employees v Attorney-General of Alberta (1987) 1 SCR 313, Public Service Alliance of Canada v Canada (1987) 1 SCR 424 and Government of Saskatchewan v Retail, Wholesale and Department Store Union (1987) 1 SCR 460. Those cases were all concerned with the Canadian Charter of Rights and Freedoms. The fourth case to which we referred was Collymore v Attorney-General (1970) AC 538, which came to the Privy Council from the Court of Appeal of Trinidad and Tobago and was concerned with a provision in the constitution of that country.
So such authority as there is, which the argument has been put that a right of freedom of association implies a right to strike, indicates that no such linkage can be made. The Commonwealth's submissions go a step further because as well as assuming that a right to strike can be derived from a right to freedom of association, the Commonwealth's submissions assume that a right to strike carries with it a right to be granted legislatively an immunity from legal liability of unspecified scope and it would seem a corresponding liability on the part of a State to enact legislation which confers such an immunity.
However, the Commonwealth does not attempt to justify the translation of the right to strike into a right to be granted immunity or to justify the immunity to the extent of that given by Division 4 of Part VIB, which goes beyond employees, who may be those who strike, because the right or the immunity extends to unions and union officials as well as to the striking members and the same vice as I have just mentioned as to the scope of immunity is to be found in section 334A, which again extends beyond employees who may have gone on strike.
Finally on this topic, in paragraph 28 of our outline the Commonwealth has submitted at paragraph 3.79 of its submissions that the right to strike which it alleges is recognised by the covenant and conventions does not extend to what it calls political strikes in its submissions. However, as we read Division 4 of Part VIB, there is no such limitation upon the right to strike and the motives or underlying purposes of those who initiate or accept those provisions in motion are nowhere made a limiting criterion.
If I can then move entirely away from the external affairs power to deal with the provisions of section 7A of the Act as introduced by the 1993 Act. We take up this matter at paragraph 29 of our outline. As indicated already, we adopt the submissions on this topic by the Solicitor-General for New South Wales. We just wish to add a few observations of our own. Section 7A of the Act was, of course, debated before your Honours earlier this year in Dingjan; Ex parte Wagner but your Honours found it unnecessary to pronounce upon its validity. Section 7A proceeds on the basis that a Commonwealth legislative provision may have both a valid application and an invalid application as those terms are defined, if that is the right word, in subsection (5) and that in such a case it is the legislative intention that the provision have all valid applications and no invalid applications.
The Commonwealth in paragraph 8.2 of its written submissions relies on the operation of section 7A to submit that if any of the challenged provisions either exceed the Commonwealth's legislative powers or infringe a constitutional prohibition or limitation on the power, they can be read down. As we indicate in paragraph 30, the Commonwealth relies on section 7A to submit that if Divisions 1, 2, 3 and 5 of Part VIA - minimum wages, equal remuneration, termination, parental leave - contravene the limitation based on the Melbourne Corporation principle to the extent that they apply to certain employees at the higher levels of State government, they may be read down to avoid any such application.
In saying that, the Commonwealth is reflecting what the majority of this Court said in the State Employees' Case, of course. In addition, the Commonwealth relies on section 7A to submit that if Division 3 of Part VIA - that is termination - contravenes the Melbourne Corporation limitation to the extent that it applies generally to State governments as employers, it can be read down so as to apply only to other employers not being the State. The Commonwealth says as much at paragraphs 6.22 to 6.24.
Our broad submission is the Commonwealth's submission must be rejected because they require this Court to adopt a legislative rather than a judicial function. And here we refer to Pidoto v Victoria [1943] HCA 37; 68 CLR 87, especially at pages 108 to 111 of Sir John Latham's judgment, and at pages 131 to 132 in Mr Justice Williams' judgment. We also refer to the Banking Case [1948] HCA 7; 76 CLR 1, in the judgment of Sir Owen Dixon at pages 371 to 372.
Now, this is not a case where the legislature has provided that the relevant divisions apply in specifically enumerated circumstances so that the Court is only asked to eliminate one or more of the enumerated circumstances from the operation of the law if, in those circumstances, the law would exceed the legislative powers of the Commonwealth. I think your Honour Justice Dawson touched upon that sort of provision in the judgment in Dingjan; Ex parte Wagner in the context of applying the blue pencil. It is that sort of provision which clearly is capable of being the subject of the process contemplated by an interpretation provision. But what section 7A does is to provide a direction to the Court without a criterion by reference to which the relevant divisions are to be read down.
To quote Sir John Latham in Pidoto's case, at page 109 to 110, the Court is required to ascertain a criterion for itself:
Where the law itself indicates a standard or test which may be applied for the purpose of limiting, and thereby preserving the validity of, the law, the case is different.....
But in the absence of any indication in the law of the nature of the standard or test to be applied for the purpose of reading down a general expression contained in the law, the court is left to guesswork.....In the absence of any guide to legislative intention, the court would be quite unable to determine, except in an arbitrary manner, whether to apply one possible limitation to the exclusion of the others, or two or three possible limitations, or all possible limitations. Any selection among these possibilities would result in the content of the law depending upon the mere choice of the court, not based upon any principle.
Were the Court to accept the submissions of the Commonwealth, it would find itself applying one possible limitation, that is to avoid application to employees in the higher level of government, in respect of some provisions another possible limitation, restriction to non-governmental employers and perhaps other limitations as well. Alternatively, the submissions of the Commonwealth produce a wilderness of single instances so that the Court, confining itself to the judicial function, would have to decide in every future case whether the relevant divisions apply to a particular employee or employer, as the case may be, without be able to pass on the validity of the section itself.
I think that this was a point your Honour Justice McHugh raised in the argument in Dingjan; Ex parte Wagner. And to quote Sir John Latham again:
It would be left to the Court to discover and prescribe an appropriate limitation as various cases presented themselves.
We would say such a result is obviously most unsatisfactory from the viewpoint of those who must administer the law and even more so from the point of those who must obey it. We say that section 7A is an interpretation section only. It operates only where the relevant provision of the Act shows by its terms that it has a valid application. We would respectfully say it is not for this Court, in seeking to construe a provision in an Act, to speculate or conjure up a valid application in an endeavour to find or sustain some residual validity.
Can I turn next to our submissions relating to section 51(xxxi). If I can take the Court to paragraph 34 of our outline of argument. Firstly, to put one issue at rest, we agree with the Commonwealth - and this is concerned with section 166A - that section 166A does not apply and was not intended to apply to causes of action that arose before its commencement. Our submissions were not intended to suggest that the invalidity of section 166A lies in its rendering unenforceable causes of action which preceded its commencement.
We submit that the invalidity of section 166A lies in its rendering unenforceable causes of action which accrue under the general law of a State or Territory after section 166A commenced. The relevant conduct referred to in section 166A is conduct which occurs after section 166A has come into effect. That conduct serves as the basis upon which a cause of action vests in a person who has suffered damage as a result of that conduct.
The section proceeds on the basis that a vested cause of action is in existence by requiring the person who wishes to bring an action in tort to give notice of that intention to a member of the Commission or a registrar. That is the effect of section 166A(3). A cause of action having vested, section 166A operates so as to deprive the person who has suffered damage from enforcing his or her cause of action.
DAWSON J: But where is the acquisition? What does the Commonwealth acquire?
MR GRAHAM: The Commonwealth acquires nothing, your Honour, but the would-be defendant to the action which is prevented by this section acquires sosmething. It acquires the complement of what it is that the plaintiff sought to obtain from that person.
DAWSON J: Is that so? You can have a deprivation of property without an acquisition of property, can you not?
MR GRAHAM: You certainly can, your Honour.
DAWSON J: And is that not the situation here?
MR GRAHAM: It is the situation here just as much as it was in Georgiadis where the Commission acquired an immunity or acquired the benefit of not having to pay the damages or acquired the right to retain the money otherwise needed to satisfy the claim. I appreciate that this line of argument did not appeal to your Honour in that case.
DAWSON J: It appeals even less here.
GUMMOW J: I am not sure I understand this, Mr Graham. There is a section in the Family Law Act, is there not, abolishing immunity in tort between husband and wife prospectively? Is this not the same, as it were? The section in the Family Law Act is in aid of the matrimonial causes power. It says in this everything else being equal aided by one or other of the heads of 51. It operates prospectively. So where is the acquisition?
MR GRAHAM: Your Honour, I have to concede there is difficulty in drawing a distinction between the type of case that did not appeal to his Honour Justice Dawson in Georgiadis and your Honour Justice Gummow's example. I can only call in aid what the majority held in Georgiadis, that there was an acquisition, in that case by the Commonwealth or an instrumentality, arising merely by virtue of the extinguishment of the cause of action and it may be that upon a proper analysis that the section in the Family Law Act would be vulnerable by parity of reasoning.
TOOHEY J: But there is a more fundamental problem, is there not, with this section? It is a section which does not abolish cause of action, but it makes the pursuit of the cause of action dependent upon a certificate of the Commission.
MR GRAHAM: Which may never issue.
TOOHEY J: No, it may never issue, but whether it may or may not issue, the Commission is given the power, in effect, to authorise or to preclude the bringing of an action in tort. One might ask where is the authority of the Parliament to enact that sort of legislation.
MR GRAHAM: That is not the way we put this part of the argument.
TOOHEY J: I know. That is why I prompted the question. Is that the extent of your attack upon section 166A?
MR GRAHAM: It is the extent of our attack so far as we are presenting part of the submissions only for the plaintiffs. I do not wish to say it is not any part of any of the plaintiffs' submissions. It is an endeavour to avoid overlapping. I had treated that as a matter for other - - -
TOOHEY J: That comes within the umbrella of adopting the submissions of other parties.
MR GRAHAM: That is as I had anticipated, your Honour. I may prove to be disappointed, but I had thought that that was a matter which was to be left to South Australia and Western Australia, and I was confining myself to this - - -
TOOHEY J: Yes, I understand that, Mr Solicitor. I was just seeking to learn to what extent those matters went in support of your client's claim.
MR GRAHAM: Could I make this point in a further response to your Honour Justice Toohey. Perhaps my first response was certainly too short, if not glib. Not only may the certificate never issue, but the absence of a certificate results in at least a temporary deprivation of the right of action and, of course, a temporary deprivation of a proprietary right can attract the operation of section 51(xxxi), and if one takes the situation which might arise when one would otherwise seek an interlocutory injunction to restrain the occurrence of irreparable harm, then the temporary deprivation of the right of action might nevertheless have very significant results to the would-be plaintiff, and we would say that even during the duration of the suspension of the right to sue, there is an acquisition of property which, although temporary, would require the provision of just terms if it was to be legislatively effective.
GUMMOW J: I am still puzzled by all of this. In Georgiadis the rights were vested. I thought you were saying that you did not dispute that in this case the legislation only operated prospectively and it would not affect vested causes in actions in tort?
MR GRAHAM: Yes, but with respect, in Georgiadis it happened that the plaintiff at the time when the Act came into force was a person who had sustained injury and his subsisting rights were taken away.
GUMMOW J: Yes, by express provision and I think you are saying there is no such express provision here.
MR GRAHAM: That is right and rights which hereafter arise or would arise under State law are being taken away as soon as they arise by the operation of the Commonwealth statute.
DAWSON J: And they never arise.
MR GRAHAM: Well, your Honour, they may not.
DAWSON J: Then there is no taking, no acquisition.
MR GRAHAM: But at the moment that they would arise or would otherwise arise, they are taken away.
DAWSON J: No, they just do not arise.
MR GRAHAM: Your Honour, I think that is probably the heart of the point in difference between your Honour and me on the Georgiadis matter.
DAWSON J: No, it was different in Georgiadis, that there was an existing right. It is just that to extinguish a right is not to acquire it, but here it may be that the right never arises, unless I am wrong.
MR GRAHAM: Your Honour is right and I think that certainly given the time of day we can really do no more than adopt as our submissions on this part of the case what we say in paragraphs 34 to 47 of our outline of argument because it is there and either it persuades your Honours or it does not.
BRENNAN CJ: What do you identify as the property?
MR GRAHAM: The chose in action which would arise under State law, being the right to sue for, for example, conspiracy, intimidation, enticement by reason of incitement to breach of contract which would arise by virtue of the industrial action. It has to be put that way as a chose in action being a right to sue. There is just one last point, if I can go on for a minute longer, in relation to this which is not developed in the outline. In Georgiadis, one of the matters which appear to have divided your Honours was the source of the liability which the Commonwealth legislation extinguished.
The argument for the Commonwealth or the Telecommunications Commission was that a right which was brought into existence by a Commonwealth law, and came from no other source, could be extinguished without contravening section 51(xxxi) whereas property which had an existence arising from some other source would attract the operation of section 51(xxxi). I may not have expressed that very well. But your Honour Justice Toohey and your Honour Justice McHugh considered that the source of the right sought to be enforced by Mr Georgiadis was Commonwealth law, particularly the Judiciary Act. The then Chief Justice and Justice Deane and your Honour Justice Gaudron and your Honour the present Chief Justice all took the view that the source of Mr Georgiadis's claim was the common law.
The relevant passages in the judgments are as follows. In the joint judgment, page 306, and your Honour the Chief Justice's judgment at page 312 and your Honour Justice Toohey's judgment, on the other hand, at page 321, and your Honour Justice McHugh's judgment at page 325.
TOOHEY J: I am not sure that I said that the source of the cause of action was to be found in Commonwealth law; rather the right, or capacity to bring a suit against the Commonwealth was to be found in Commonwealth law.
MR GRAHAM: Your Honour, with respect, is quite correct. I expressed that incorrectly, but it seemed to be important, as we read your Honour's reasons, that that was so, and it attracted the consequence that it was open to the Commonwealth without infringing section 51(xxxi).
TOOHEY J: That is a different question.
MR GRAHAM: Yes. I perhaps should add for completeness that your Honour Justice Dawson seemed to be of the same view as the Chief Justice and Justices Deane, Gaudron and the present Chief Justice, but your Honour reached a different conclusion none the less. The only point to be made here, and it is the last point we make under this heading, was that, quite clearly the causes of action that we are here talking about could not possibly be said to owe their source or origin, or their enforceability, to Commonwealth law. They are clearly the products of the common law of the States and Territories.
I wonder if that would be a convenient time?
BRENNAN CJ: Would you give us an indication of how your self-timed estimates are going, Mr Solicitor.
MR GRAHAM: Your Honour, I would expect to be perhaps less than an hour. I have only the matter of the Melbourne Corporation and other questions of implied limitations to deal with, plus some questions from today to be answered.
BRENNAN CJ: Is that in accordance with what counsel expected would be the state of progress with today's hearing?
MR GRAHAM: I think I am running a bit behind, Your Honour.
BRENNAN CJ: The Court will adjourn until 10.15 am tomorrow morning.
AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 6 SEPTEMBER 1995
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