State of South Australia v Commonwealth of Australia A18/1994 [1995] HCATrans 304 (8 September 1995)

IN THE HIGH COURT OF AUSTRALIA

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 FRIDAY, 8 SEPTEMBER 1995, AT 10.00 AM

(Continued from 7/9/95)

Copyright in the High Court of Australia

____________________

BRENNAN CJ: Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases. May I briefly clean up outstanding matters from inquiries yesterday and then my learned friend Mr Burmester will shortly address on parental leave and strikes. Firstly, Justice Gaudron requested a copy of an award; that is not yet available. It will be furnished to the Court when it becomes available. Secondly, at the risk of revisiting section 170MA, I would like to make one point there which perhaps was not sufficiently made yesterday.

Our submission is that section 170MA(1) on page 32,154 is directed at solving industrial disputes in the constitutional sense by allowing the parties to reach agreement and have that agreement certified. We submit that the fact that only some of the parties to the dispute may be parties to the certified agreement is entirely consistent with the piecemeal approach to settlement of disputes which has always been permitted, and we refer to the judgment of Justice Gaudron in Wooldumpers 166 CLR 334. Section 170MA(2) is a separate provision dealing with prevention of situations which may develop into industrial disputes, and we have put our submissions as to the prevention power.

Justice McHugh raised the issue of the meaning of "harsh, unjust or unreasonable", or was it Justice Toohey.

McHUGH J: I think it was the Chief Justice.

MR GRIFFITH: I am sorry, the Chief Justice. The Court raised the issue of harsh, unjust or unreasonable. If I may hand to the Court a three-page summary of citations from a Federal Court authority on that issue and also, your Honours, if I could hand up a copy of the decision of the five judge bench of the Federal Court in Byrne and Another v Australian Airlines.

BRENNAN CJ: We have that under reserve.

MR GRIFFITH: I will keep that, your Honour. May I hand up the summary? I have also the Bostik (Australia) v Gorgevski [No 1]

[1992] FCA 209; (1992) 36 FCR 20 which is referred to in this summary but not on the list of authorities. Perhaps I could give that to the Court also. I will let that summary speak for itself, if the Court pleases.

The Court will see the third page is a list of four authorities that we refer to in that regard. If the Court pleases, I hesitate to give too many extracts, but there is quite a long discussion of the issue of what constitutes harsh or unjust, unreasonable dismissal in the CCH series and may I hand that to the Court also.

Your Honour Justice Gummow, in answer to your request for a copy of the Starke article, there does seem to be an updated version published in "International Law in Australia", the chapter in the O'Connell edited publication, chapter 6 and if we could hand that to the Court. It was published in 1965. Your Honour Justice McHugh asked about the issue of deletion of treaties from the external affairs power placitum (xxix) which had appeared in earlier drafts. The best discussion as to that that we can find is an article by Thomson which is published in 1977/1978 13 University of Western Australia Law Review at page 110, especially pages 120 to 127.

If we could hand up a photocopy - I apologise to the Court that the first two pages and the rest of it are not particularly good copies, but it was the best that we could obtain; it is legible. This seems to show that the main reason given was because of the deletion of the phrase from the covering clause 5 which had implied that there could be things such as Commonwealth treaties. If we could hand that article up to the Court.

On the issue of paid rates, your Honour Justice Toohey referred to the Re: Aluminium Industry Award Case (1994) 56 IR 403 and in that decision the nature of paid rates awards are dealt with by the court at page 434 to 437, and we would refer to that, your Honours, but the Commonwealth does maintain its submission that payment of over paid rates level was not a breach of an award. The discussion of the court there makes it clear that it can be contemplated that not all matters are covered by a paid rates award.

TOOHEY J: Is there any authority directly in point one way or another on that particular matter?

MR GRIFFITH: Not that we have found, your Honour. It is fair to say, your Honour, there is an indication of an expectation that the matters covered by a paid rates award will be actually paid, but for the issue of payment over, your Honour, there does not seem to be authority that we found, which is not surprising because one cannot expect enforcement procedures being taken for an over payment.

TOOHEY J: Well no, but you might expect proceedings for a penalty.

MR GRIFFITH: Well, your Honour, I was going to mention that. Our submission on that is that payments over and above paid rate levels could be recovered, we submit, by suing on the agreement - we made that submission yesterday, your Honour - but it does seem that it is not the practice to take proceedings for a penalty, that we can ascertain, your Honour, and the sanction remains the sanctuary referred to yesterday, the risk of cancellation. It is not entirely satisfactory, your Honour, but the discussion in this judgment does summarise the way in which paid rates have developed as part of some awards and then in a way the understanding of what it was in practice has been carried over into the use of the term in the amendments to the Act without any particular definition, but it is clear when one sees the summary of the submissions made by Dr Jessup in that case and the way the court regarded them, that there is somewhat of a loose definition, but in the context, we would admit, that by and large the expectation is that what is prescribed in a paid rates award will be that actually paid.

We accept that that is the expectation. It is just the issue of what happens if you do not do it? Is there a sanction? Is it impermissible to pay over? And we say there is nothing to indicate that there is any impermissibility exposed beyond risk, although one can construct from a close reading of the Act, the argument as your Honour mentions to me, that one would think, on the faceof it, if the award was appropriately worded, that there could be a capacity to take proceedings for a penalty or enforcement. We do have copies of that case, but the Court may already have it, I think.

TOOHEY J: The Aluminium one?

MR GRIFFITH: Yes, your Honour.

TOOHEY J: The copy I had yesterday had come in through the material provided by Western Australia.

MR GRIFFITH: Your Honour, we have complete copies, so perhaps we can distribute them.

BRENNAN CJ: We have copies, I think, Mr Solicitor.

MR GRIFFITH: The last matter we desire to refer to is in answering two questions from members of the Court. Your Honour Justice McHugh at page 188 proposed that once there is agreement, there is nothing to conciliate. Our submission is that it is part of conciliation or incidental to it to enable the agreement to be certified and to have the force of law - something like terms of settlement becoming an order of the court, we would submit. Your Honour Chief Justice Brennan at pages 198 and 199 inquired as to how can an organisation bind dissentient employees in respect of certified agreements. We would refer to the Burwood Cinema Case [1925] HCA 7; (1925) 35 CLR 528 as indicating acceptance that a union can act as a party principal and not just as an agent.

If we could refer also to Reg v Dunlop; Ex parte Federated Miscellaneous Workers' Union [1957] HCA 19; (1957) 97 CLR 71 at pages 80 to 85 and generally as to the status of organisations, of course, to Williams v Hursey [1959] HCA 51; 103 CLR 30, already referred to from the Bench, especially the judgment of Justice Fullagar. We have indicated to the Court that the answers that we propose to the questions are those contained in Part 9 of our submissions. We, of course, have had occasion, although we have dealt with the submissions made against us on the consolidated basis, it is necessary then to apportion the answers to the questions raised by the three plaintiffs, and we do that over the many pages following as Part 9 of our submissions. Subject to the matters being covered by Mr Burmester, they are our submissions.

BRENNAN CJ: Thank you, Mr Solicitor. Mr Burmester.

MR BURMESTER: If it please the Court, there are three issues I wish to deal with briefly and I will start with the question of additional grounds concerning sexual preference, age and physical or mental disability, and there was an attack on the inclusion of these grounds in section 170DF(1)(f) of the Act and Western Australia attacked their inclusion in certain other sections: sections 3(g), 90(a), 150A(2)(b) and 170ND(5). The Commonwealth has already submitted that these provisions are valid under the conciliation and arbitration power and that is dealt with in 2.56 to 2.63 of our written submissions. My concern at present is with the external affairs power.

The Solicitor for the Commonwealth has also indicated that so far as the termination provisions in section 170DF are concerned that Article 4 and Article 5 of the ILO convention on termination is adequate basis for the inclusion of those grounds, that the convention itself does not set out an exhaustive list and the additional grounds are reasonably appropriate and adapted to giving effect to that convention. The other basis which we say supports inclusion of the grounds in both section 170DF and in the provisions referred to by Western Australia is ILO convention 111, which appears as schedule 1 to the Human Rights and Equal Opportunity Commission Act. If I could take your Honours briefly to that provision.

Article 1, 1(b) of the definition of discrimination in that convention does enable additional grounds to be determined unilaterally by a State and Australia did this and its determination is reflected in the Human Rights and Equal Opportunity Commission Regulations which are set out at volume 2 of our materials tab 31.

BRENNAN CJ: What do you say Article 1 does?

MR BURMESTER: Article 1, 1(b), your Honour, enables a State to determine additional grounds of distinction, exclusion or preference in relation to employment or occupation and once a State makes such a determination then that brings those additional grounds within the definition of "discrimination".

BRENNAN CJ: Was there consultation in this case?

MR BURMESTER: In relation to consultation, your Honour, tab 12 of our materials in our report to the International Labour Organisation indicates that the former national committee on discrimination in employment and occupation, which was a tripartite body of employer, employee and government representatives, did consider and recommend the promulgation of a number of additional grounds. That report also indicates that there was consultations with the Human Rights and Equal Opportunity Commission which led to some adjustment in the grounds, but we would submit that there was consultation within the meaning of Article 1, 1(b).

Victoria, in its written reply, in paragraph 17, refers to material provided to Senator Kemp, which they submit showed a lack of consultation, but our reading of that material suggests that it is all about information about ILO convention 158 on termination, and it is not information about consultation or lack of consultation in relation to this particular convention, ILO convention 111. So that in designating the additional grounds, we would submit that we were doing no more than giving effect to Article 2 of the convention which requires a State:

to declare and pursue a national policy designed to promote.....equality of opportunity and treatment.....with a view to eliminating any discrimination in respect thereof.

And, as Article 1 indicates, it is a non-exhaustive definition of discrimination, we have complied with that in the declaration of additional grounds.

I would draw your Honours' attention to Article 1, 2 of that provision, which indicates that distinctions:

in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.

And that is reflected in the Act in section 170DF(2), and reflects, of course, a well accepted understanding that discrimination means unjustifiable distinctions; it is not any distinction. If there is a justification for a particular action then that will not, in the definition of discrimination, be discriminatory. Hence, when Western Australia makes statements about requirements to pay 17 years olds that same as 27 year olds, that overlooks that there are grounds on which different pay rates are appropriate, based on qualifications or experience and so on. In passing, could I refer the Court to section 150A(4), which indicates that the provisions in the Act dealing with age discrimination are, in fact, delayed in their operation until 22 June 1997.

Your Honours, if I could turn then to the question of parental leave, and the Commonwealth's submissions on this issue are at paragraph 3.53 to 3.64 of our written submissions. We would contend that Division 5 of the Act on parental leave, and the accompanying Schedule 14 is, firstly, reasonably appropriate and adapted to giving effect to a convention obligation and, secondly, in any event, the legislation is appropriate and adapted to giving effect to the purpose of the convention, which is reflected in an accompanying recommendation and that this is sufficient for the provisions to be valid under the external affairs power.

I need not take Your Honours to the material on the status of recommendations. That has already been covered in submissions. I would, however, refer your Honours to the Valticos article in volume 2, tab 3 of our materials, pages 55 to 56, where that author identifies three particular uses for recommendations. Firstly, where a subject is not right for a convention, and we would say that is not the situation that arises here. Secondly, to supplement a convention, and the word "supplement" there is used in the sense of including more detailed provisions which might furnish guidelines as to how a convention might be implemented, and then the third use is to provide the technical and detailed character that might need frequent adjustment.

It would be our submission that all the ILO recommendations relied on in the Act fall into these last two categories of supplementary in the sense of providing more detail and fleshing out the bones of some of the conventions. If I could take your Honours then to the parental leave issue and the ILO convention relied on, which is Schedule 12 to the Act at 35,453?

BRENNAN CJ: Before you get to that, so far as the recommendations are concerned, how do they engage, in your submission, the external affairs power?

MR BURMESTER: Your Honour, in two ways: firstly, we say they are simply a spelling out of convention obligation. So that on the basis of the convention obligations alone, a law that is in accord with the recommendations must, by definition, be regarded as reasonably appropriate and adapted. In other words, the recommendations indicate how one gives effect to a particular convention obligation.

BRENNAN CJ: Do you mean they are implied in the convention obligation?

MR BURMESTER: In a sense, they are included in the convention. They are not going beyond the convention obligation.

BRENNAN CJ: But in what sense are they included?

MR BURMESTER: That a reasonable reading of the convention obligation would require a State, or entitle a State to make the judgment that it was required to act in a particular way which is reflected in the accompanying recommendation.

BRENNAN CJ: But do you mean that without the recommendation, the State would still be required to act in that way?

MR BURMESTER: Yes, your Honour. That is not necessarily required but entitled to draw the conclusion that that was a reasonable way in which to implement the convention obligation. In other words, on that submission, the recommendations do not add anything in terms of obligation; the obligation is already there and all that the recommendations do is point to a way in which a State can legitimately be said to carry out that obligation.

BRENNAN CJ: In other words, you say it is relevant to the test of whether it is appropriate and adapted.

MR BURMESTER: That is correct, your Honour.

BRENNAN CJ: But does not expand in any way the obligation itself.

MR BURMESTER: That is correct. Recommendations are not binding, as such and so, what one starts with and we say gives effect to, is the treaty obligation. That is the first limb of the argument, your Honour, and we say in all the cases we are concerned with here that is adequate. Alternatively, we would say that if you look at the particular conventions here and their purpose and object, their spirit and the accompanying recommendation, then, giving effect to that broader purpose and object is also reasonably appropriate and adapted and within the external affairs power.

But, our primary submission is that these recommendations are all closely associated with particular conventions, that they do no more than spell out the particular obligations in those conventions and that, in giving effect to those recommendations, we are not going beyond what is clearly contained in the convention. I was going to use parental leave as an example of that, if I may.

If I could take your Honours to the parental leave convention or, to give it its full title, it deals with many more issues - it is a convention concerning equal opportunities and equal treatment for men and women workers with family responsibilities. If I could take the Court to Article 1 on 35,454, your Honours will see there, there is a broad statement as to who the convention applies to. Then, in Article 3, there is an obligation on States to make it an aim of national policy to enable persons with family responsibilities to exercise their right to engage in employment without discrimination.

Then, in Article 4 one sees a clear commitment that:

With a view to creating effective equality of opportunity and treatment for men and women workers, all measures compatible with national conditions and possibilities shall be taken -

(a) to enable workers with family responsibilities to exercise their right.....and

(b) to take account of their needs -

If one goes further to Article 7, one sees a statement that:

All measures compatible with national conditions and possibilities.....shall be taken to enable workers with family responsibilities to become and remain integrated in the labour force -

and Article 9 indicates how this set of undertakings might be implemented by laws, regulations and so on. Your Honour, as I indicated, our submission is that when one reads those particular articles, one finds a clear obligation to take measures to enable workers with family responsibilities to participate in the workforce, that the accompanying recommendation which is set out at 35,503 sets out practical measures that States could take in relation to that. I would draw your Honours' attention particularly to the section starting at paragraph 17 on terms and conditions of employment and over on paragraph 22, in particular, we see an express reference to parental leave where it says:

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.

So, when one takes the convention obligations, the accompanying recommendation, we say that sustains the particular provisions in the Act which give effect to parental leave. The alternative basis of our submissions, if the Court was not convinced there was a convention obligation as such, would be that, nevertheless, we have here a treaty dealing with a broad subject matter and an accompanying recommendation and that the pursuit of that treaty objective would also come within the external affairs power.

I would refer to what his Honour Justice Deane said in Richardson's Case 164 CLR at 313 point 3 where he talked about giving effect to the spirit, aspirations and objectives of a convention. Your Honour, for those reasons we do not consider it necessary to explore the full extent of the possible power to give effect to international recommendations per se. We are not dealing here with a recommendation that stands alone, that might have emerged from some international gathering, conference of parliamentarians, or a resolution of the United Nations, we are dealing here with a recommendation which is directly attached to a particular convention.

We say that in those circumstances the power to give effect to the recommendation is established without the need to go to the various authorities, a consideration of the broader issues that had been mentioned in some of the High Court cases listed in paragraph 3.61 of our submissions. If one looks at the general survey in tab 19 of volume 2 of our materials, we submit that also shows that the recommendation and, in particular, the provision on parental leave is reflective of standards widely adhered to.

Your Honour, as I understand the attack by the States on this part of the Act, it was rather that there was no basis for the enactment of the provisions, that the recommendation alone was not sufficient but as I have indicated that in itself is, in our view, not correct. Having established that there is such a basis then we would say that there is nothing in the detail set out in the schedule which cannot reasonably be appropriate and adapted to giving effect to it, that the schedule does deal in some detail with how one calculates the leave, the procedures that should be followed, but they are no more than incidental necessary procedural measures to ensure an effective scheme. The one area there was complaint about was the inclusion of adoption leave. Our submissions on that are set out in 3.64 of our written submission.

We would submit, your Honours, that in relation to the other recommendations such as those on equal remuneration that were 3.37 to 3.39 and the recommendation on discrimination, that they are in the same category as the recommendation on workers with family responsibilities; simply fleshing out the detail of what was already there in a convention.

Your Honours, if I could turn then to the final issue I have to deal with, that is the right to strike, and this is dealt with at paragraphs 3.65 to 3.82 of our written submissions. Your Honours, the Commonwealth has already contended that the provisions in Part VIB Division 4 and section 334A are valid in reliance on the conciliation and arbitration power. My particular task is to seek to establish their validity and reliance on the external affairs power. And to do this it seems to me there are three questions that need to be addressed. Firstly, what is the basis for the international obligation concerning the right to strike? Secondly, what does that right to strike mean? And thirdly, are the provisions in question reasonable appropriate and adapted to giving effect to that obligation?

We have already heard in submissions made that the principle of freedom of association was a fundamental component of the work of the International Labour Organisation since its establishment back in 1919 in the Treaty of Versailles, and if one looked at the ILO Constitution from that time, which forms the preamble to Part XIII of the Treaty of Versailles and Article 427, set out in tab 29 of our volumes, one sees reference to freedom of association. One sees that reference again in the 1944 Philadelphia Declaration and in the preamble to the 1947 ILO Constitution, which is set out in tab 30. One sees the ILO commitment to freedom of association in the establishment of a committee on freedom of association.

When one examines what freedom of association in this context means, one can identify three elements: firstly the power to organise; secondly the power to bargain; and thirdly the freedom to strike. One commentator, Ben Israel, refers to a three dimensional aspect of the freedom of association. I would refer your Honours to his work at tab 4 in volume 2 at page 27.

McHUGH J: What do you mean by the right to strike?

MR BURMESTER: Well, your Honour, that is what I am coming to. I was first going to develop the existence of it as a matter of international law, but let me take that second question first if you like and say what the material indicates it might consist of.

We would submit, your Honour, that the various provisions in the ILO, the committees, the work under the international covenant on economic social and cultural rights, show that the right to strike means protection against penal and other sanctions in relation to legitimate industrial action in order to protect workers and their organisations.

McHUGH J: Well, then, it follows from this argument that a right to freedom of association carries with it a right to breach contracts.

MR BURMESTER: Your Honour, what it carries is an obligation to ensure that in limited and appropriate circumstances, workers may have a right to breach their employment contracts and not face the penalties that would otherwise be applicable. That is correct.

McHUGH J: It would seem difficult to conclude from a right, that it is an intrinsic corollary of a right to freedom of association that you could have a right to breach contracts.

MR BURMESTER: Well, your Honour, if the right is to be effective, then there must be certain consequences, and we would submit that when one examines the practice - - -

McHUGH J: This is a circular means of argument, is it not? Is not the basis of this right to strike the right to freedom of association?

MR BURMESTER: That is the basis of it, from where it derives, and it is seen as an essential aspect. If the freedom of association is to be effective, not only must it protect the right to organise and to bargain, it must also protect the right to take effective action to give effect to that right to bargain and right to organise.

TOOHEY J: Well, I suppose in Hohfeldian terms, it would be an immunity, would it not, rather than a right? I mean, it is a protection which is accorded to persons who, as Justice McHugh says, breach their contracts or withhold their services.

MR BURMESTER: That is correct, your Honour. It is an immunity accorded because it is recognised that without that immunity, the other aspects of freedom of association would not have much effect, albeit much value. In other words, one could not speak of a full freedom of association without an accompanying right to strike.

McHUGH J: What do you say about the cases cited against you which seem to draw a contrary conclusion?

MR BURMESTER: Your Honour, the main cases cited against us seem to be Canadian cases dealing with provisions in the Canadian Charter of Rights, and we would submit that considerations of the meaning of a broad guarantee of freedom of association in a charter of individual rights is quite a different task from that which the Court is faced with here, which is to determine whether, as a matter of international law, there is a right to strike in the industrial context based on obligations which Australia has assumed internationally.

So that we would say there is a major difference between interpreting a broad freedom of association provision guaranteeing freedom of association generally for all purposes in a charter of rights, and the question of whether, under an international treaty which Australia has accepted, there is an obligation to protect, to a certain extent, the right to strike, and the material shows the right to strike does not mean an unlimited right to strike at any time in any circumstances. It is a qualified right to strike that is being contended for.

BRENNAN CJ: What are the qualifications?

MR BURMESTER: Your Honour, if one looks at, for instance, the direct requests made to Australia in 1989, 1991 and 1993 in tabs 24, 25 and 26 of our materials and in the decision of the committee on freedom of association concerning the airline pilots in tab 27, one gets a sense of what is acceptable internationally, that the ILO practice does not require that there be, as I said, an unlimited right to strike but that in an industrial situation there has to be some entitlement to take industrial action. As the freedom of association committee said in tab 27, the committee said it could not regard with equanimity legal rules which appear to treat all industrial action as a breach of contract for which damages may be awarded and an injunction could be obtained.

McHUGH J: But the same material, if I recollect correctly, seemed to accept that unions could be penalised for striking if they had voluntarily entered the arbitration system. Now, there seemed to me to be some inconsistency between the two strands of thought in that long discussion of the airlines strike.

MR BURMESTER: Your Honour, as I read that decision, what it is saying is if there is an alternative system which can provide a mechanism for resolving a dispute then that may be a reason for imposing limitations on the right to strike. In a situation under Division 4 that is not the case and so it was felt necessary in that situation, where one is dealing with certified agreements, to provide some protection, but I think the material shows that the more one moves away from a rigid imposed system and gives the parties greater freedom themselves, the greater the need for protection of the right to strike.

In the Airlines Case there was a system there. There were mechanisms whereby the issues could be raised and it was held that the action in that case was, therefore, not justified, but they certainly made clear in that decision that if it was a situation where all industrial action would lead to penalties in all situations, then that clearly would not amount to protection of the freedom of association.

BRENNAN CJ: If the Canadian cases have any validity, is it an implication of your submission that the Canadian charter falls short of Canada's international obligations, assuming it is a State party to this convention?

MR BURMESTER: Your Honour, that would be correct if the only provision one was relying on in Canadian law was the charter. I notice that the one judge in that Public Service Case in Canada who considered the international law position, the Chief Justice who dissented in the result, but he did look at the international law material and he came to the conclusion at page 359 in (1987) SCR that there was a clear consensus amongst the ILO bodies that convention 87 goes beyond protecting the formation of labour unions and provides protection of their essential activities of collective bargaining and the freedom to strike. So, your Honour, yes, if the charter was the only way in which Canada gave effect to this obligation, in light of the interpretation accorded that provision, we would say that it did not meet the international obligation. Now, there may well be provisions in industrial laws and so on which otherwise meet the obligation.

McHUGH J: Was that the Alberta Case?

MR BURMESTER: In the Public Service Employees Case, yes, your Honour[1986] INSC 248; , (1987) SCR 359 - the Alberta Case, yes, your Honour.

Your Honours, in the Australian context, what we are confronted with, as you see in section 170PA, is a number of sources, which we say establish this obligation, and if I could start with Article 8, 1(d) of the international covenant on economic social and cultural rights, which is Schedule 8 to the Act, at 35,252, because, your Honour, here we have an express undertaking, an express obligation, imposed on Australia to respect the right to strike. Article 8 on 35,254, has a number of paragraphs; the first paragraph:

(a) The right of everyone to form trade unions.....

(b)The right of trade unions to establish national federations or confederations.....

(c) The right of trade unions to function freely -

and then -

(d) the right to strike, provided that it is exercised in conformity with the laws of the particular country.

Now, your Honour, Victoria in its submissions, at paragraph 27 of its reply, and the transcript at page 75, in our view, misinterprets the significance of those words:

provided that it is exercised in conformity with the laws of the particular country -

in our submission, those words to not mean Australia is free to impose whatever restrictions it likes on the right to strike and, having done that, to say that the law gives effect to Article 8, 1(d). What Victoria seems to read "provided" as meaning is, as if it said, "subject to" and, in our submission, that would not be correct. It interprets the right as if it was no more than a privilege and, in our view, that was not the intention of the drafters.

BRENNAN CJ: What does it mean?

MR BURMESTER: Well, your Honours, if you look at the rest of the article and other provisions in the covenant itself, you will see what is clearly contemplated is that there will be limitations that could be imposed for purposes of public order, the welfare of a society. Article 4 of the covenant, on the previous page, recognises:

that, in the enjoyment of those rights provided.....with the present Covenant, the State may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society.

As well, more particularly in relation to the right to strike, one has paragraph 8, 3, which says that:

Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948.....to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided for in that Convention.

So, your Honours, we would say that whatever it means, a State is obliged not to restrict the right to strike beyond that which would be compatible with the ILO convention.

Article 5, as well, your Honour, is a limitation on the sorts of laws that could be imposed under the covenant. The history of Article 8 is set out in the extract from Ben-Israel's book, at tab 4, volume 2, at pages 71 to 92, and the discussion of what the limitation might mean is at pages 85 to 88.

Your Honours, what I would like to do is indicate by a hand-up to the Court that, in interpreting this provision in the international covenant to which Australia is bound, the committee under the covenant that has regard to compliance by States does have regard to ILO practice in its reporting requirements. In paragraph 7 of the document one sees reference to this and I also have attached here a report of the committee set up under the economic and social council to consider States reports under the covenant in relation to the report of Korea, which indicates that the committee does consider the right to strike to be significant; was critical of that country, and at paragraphs 18 and 9 and 17 of that report one finds comments about the right to strike.

So, your Honours, Article 8 of the covenant is an express provision and the material shows that in considering that provision, one is required to look at ILO practice, which brings me to the ILO conventions themselves. We would submit that the ILO conventions themselves have independently established an obligation which supports legislation to protect the right to strike and, secondly, as I have said, they are evidence of the minimum requirements of Article 8.

Your Honours, it is acknowledged that the ILO conventions do not contain express provisions on the right to strike. However, it is our submission that such a right is an inherent and necessary component of the freedom of association guaranteed by the conventions. It might be referred to as an implicit obligation which your Honour Justice Gaudron used as a term in the Richardson Case 164 CLR at page 343 point 1.

BRENNAN CJ: It seems extraordinary that amongst the ILO conventions the right to strike does not feature.

MR BURMESTER: Your Honour, I think, as the freedom of association conventions have evolved and there has been acceptance in the various committees of the ILO that the right to strike is contained within them, there has not been seen the need to have a separate treaty on the right to strike.

McHUGH J: It may be that the government and employer delegates to the ILO would not expressly agree to such a right.

MR BURMESTER: Your Honour, I suspect what might happen is that, while they might agree to the right, they might disagree about the fine print as to how and when one puts limitations on it; I acknowledge that. But it may be a quite difficult task to get consensus as to precisely when and where a limitation is reasonable and appropriate. But I would submit that there is no question that there is consensus that the right to strike is a component in these ILO conventions. One only has to look at the reports of the committee of experts themselves in their general surveys in 1983 at tab 20, especially paragraphs 202, 205, the 1994 survey in tab 23 at paragraphs 142, 147 to 151, the committee on freedom of association in its digest in 1985 at tab 21 at paragraphs 360 to 364, to see a whole host of references, acceptance that the right to strike with certain limitations is part of the meaning of the ILO conventions.

BRENNAN CJ: But if it is right to say that the ILO has not itself been able to identify what is meant by "the right to strike", how can it be that there is involved in the freedom of association conventions this right as a matter of international obligation?

MR BURMESTER: Your Honour, we would say that the practice establishes that it is an implicit obligation that all the bodies set up under the ILO constitution to exercise a supervisory role in the interpretation and application of conventions to hear complaints, to make requests to States all indicate that there are - is an acceptance of the right to strike, but that the committees themselves can make judgments and have made judgments in the numerous cases brought before them as to what and is not an acceptable protection of that right.

BRENNAN CJ: May not that all be explicable as an international movement which is designed to heighten international consciousness of the problem to the point where it will be possible to reach an international convention which defines the relevant right, but that stage has not yet been reached?

MR BURMESTER: Your Honour, I do not think that is an accurate portrayal of the international situation. I mean, it is not like we have taken some new area of human rights and decided we will start with a declaration and build up international concern. I think we have, starting back, as I indicated in the Treaty of Versailles, but more particularly since the ILO was re-established in 1947, had this consistent detailed body of practice, discussions and committees and so on, which indicate there is a widespread, if not consensus acceptance, of the right to strike.

Where there seems to be - and I concede this disagreement may be the application of that right in particular areas, in particular in essential services in relation to government employees, that seems to be where there is some debate. But, if one reads, for instance, the material on which Victoria sought to rely, which was reports of debates in one of the conference committees, it is submitted that a fair reading of that material does not suggest there is an attack on the right to strike as such. There rather seems to be some criticism by certain employer representatives that the interpretations being placed on the ILO conventions by the committee of experts goes too far in certain respects.

We would say, however, here we are not at the margins of the right to strike; we are concerned in Division 4 in section 334A, we would say, first, with dismissal which is clearly accepted as an area that needs protection if the right to strike is to mean anything and secondly, with a limited right of protection in a bargaining period in order to enable and facilitate the parties in reaching an agreement.

BRENNAN CJ: That does not sound to me very much like a right in the sense that one uses that term in international law in dealing, for example, with the rights that might be created in respect of discrimination on the grounds of race. There you can see a very clear consensus emerging internationally as to what is involved in the nature of the right. This seems to me from what you have been saying, though I have not read the papers, to be rather along the lines of everybody agrees that there is a right to strike of some sort. We have not yet got to the point of being able to define it.

MR BURMESTER: Your Honour, my answers is that it is unnecessary to define, in this case, the outer limits and the committees themselves do not consider it necessary to define the outer limits. But, what we do have are clear findings by the committee that certain laws of particular countries do infringe that right. So, that there are instances where one can identify, if you like, core elements, particular legislation that would go too far, the fact that Australia itself was criticised or asked to justify certain provisions of its own legislation.

BRENNAN CJ: Why should committees be looked at from the point of view of discovering whether there is an international obligation?

MR BURMESTER: Your Honour, if one looks at the ILO system and the human rights system more generally, the role of committees that receive reports from States, examine a State's compliance with committees, send messages and comments back to States, form an integral part of the development of the practice of States in how a treaty is interpreted and applied. We would submit that, in relation to the ILO conventions, the work of the ILO committees is important. The principal element, if you like, of State practice which shows what States themselves understand the conventions to mean and that while States, in one or two instances when they are criticised, may respond that the committee has gone too far, that does not detract from the fact that the committees are part of the practice of States which cannot be ignored in the interpretation of these human rights treaties.

BRENNAN CJ: Let me put one further question to you and then I will desist. International law is, to a large measure, law which is in the course of development. International obligations which engage the external affairs power are obligations which have become so crystallised that in the event of a failure by Australia to perform them, Australia is in breach of its obligations. Why is it that one should look at the emerging or developing international law and assume from that and the instrumentalities which are used for the purpose of developing that law, to determine whether or not Australia has an international obligation?

MR BURMESTER: Your Honour, because, we would say, this is not looking at the practice to develop where international law is developing or going. We would say the practice is evidence of an existing international obligation, that one can only understand the obligation set out in Article 8 of the covenant or the implicit obligation, we would say, in the ILO conventions, by looking at what States themselves do in their supervisory committees, in their reports, in their reactions to those reports. In other words, it is not looking at United Nations debates on some new topic and seeing where the law might be going. We would say, in this particular area, that the body of practice we are pointing to is concerned with existing entitlements, existing provisions as in Article 8 of the covenant or implicit in the ILO conventions themselves.

DAWSON J: Well, that is a very odd conception of an obligation. One could describe it perhaps as an aspiration or even an expression of principle. Obligation it is not because it simply is not defined.

MR BURMESTER: But, your Honour, we are not talking here of mere aspirations. We are talking about words - - -

DAWSON J: Well, let us use the alternative. Statements of principle.

MR BURMESTER: We are talking about words, in particular treaty obligations Australia has accepted.

DAWSON J: Which do not give rise to obligations in any acceptable sense of that term. They state a principle which is being worked out.

MR BURMESTER: Well, your Honour, I do not think that is correct. If you look at Article 8, it expressly says States have an obligation to ensure the right to strike subject to national laws.

DAWSON J: We do not know what that means.

MR BURMESTER: In interpreting that provision, your Honour, we would say that it is required. If it was an international court, they would look at the ILO practice.

DAWSON J: They may work out the principle further, but when you look at the convention, the treaty, you do not find anything there that amounts to an obligation in any defined way. You do have a statement of principle.

MR BURMESTER: Well, your Honour, we would say it was more than a statement of principle, that if one takes the treaty and interprets it by having regard to the practice of States since its adoption, then one does get more than just a sense of aspiration. One gets a clear recognition that States feel obliged, they consider they have an obligation, they are criticised for failing to live up to that obligation.

DAWSON J: What sort of laws will be inconsistent with the right to strike?

MR BURMESTER: Well, your Honour, in this case we do not have to determine, as I keep stressing, the outer - - -

DAWSON J: But you do have to determine what the obligation is.

MR BURMESTER: We submit the obligation to protect the right to strike requires Australia to ensure, in situations like those dealt with in the laws in question here, to allow controlled industrial action and to protect that industrial action from civil liability, or to protect workers or organisers from dismissal. So, in that sense, we would argue, your Honour, that - - -

DAWSON J: And you restrict the right to strike or prohibit the right to strike in certain industries because of their nature.

MR BURMESTER: I think, your Honour, if one looks at the ILO practice, it is accepted that essential services, for instance, government services, are in a different category from perhaps other services.

DAWSON J: What are essential services?

MR BURMESTER: It is for States to work out through practice - - -

DAWSON J: When you say "through practice", in accordance with the principle is what you are saying.

MR BURMESTER: States, your Honour, have to make a judgment as to what their obligation requires.

DAWSON J: Then it is not much of an obligation if they have to make a judgment as to what their obligation is, is it?

MR BURMESTER: Your Honour, I would submit that in many treaty provisions States have to make a judgment as to what is required, but this is no different from - - -

DAWSON J: Then you do not find the obligation in the treaty; you find it in the judgment.

MR BURMESTER: Your Honour, we would suggest that States have this obligation to work out what they consider is required. If they make a decision that is - - -

DAWSON J: You would find the principle in the treaty and the judgment in accordance with that principle is to be made by the States. That is what you are saying.

MR BURMESTER: And if that judgment is criticised, there are mechanisms for that to be reviewed by the ILO supervisory committees.

DAWSON J: That means someone else has to.....review of the principle.

MR BURMESTER: Your Honour, if I could hand up one last document which is a review of the work of the ILO committees in supervising the interpretation of the ILO treaties. It is from a book edited by Philip Alston called The United Nations and Human Rights. It is a chapter by Virginia Leary, chapter 15. That material is essentially in response to that provided by Victoria which sought to cast doubt on the perhaps objectivity or impartiality and the respect in which the committee of experts is held and which, as I have emphasised, is an important part in interpreting the meaning of the obligation to respect the right to strike.

Briefly, your Honours, the Act also refers to customary international law. It would be our submission that the obligation is already made out in the other express treaties we have referred to and so it should not be necessary for your Honours to deal with the question of customary law. Let me just emphasise that, however - - -

GUMMOW J: I think it is the other way round. If you do not get there already, you do not probably get much further with this, do you?

MR BURMESTER: I think that is right, your Honour. If the right is not established in the express provisions in the ILO conventions themselves, then it is going to be difficult to establish them in customary law. We would submit that it is all that ILO practice which is the body of material that one would look at to establish customary law rule. In response to Victoria's submissions about how one establishes customary international law, can I just balance that with a reference to our material in tab 5 by Professor Schachter which indicates that in this area of human rights one may adopt a slightly different approach to establishing international law. We refer to your Honour Justice Toohey in Polyukhovich 172 CLR at 674.

Your Honours, I think I have attempted to deal adequately with what the right to strike might mean in practice. As I have said, it is - - -

DAWSON J: Can I just detain you a little further, Mr Burmester, with just one question. It is important because, in effect, what you are saying is that the Commonwealth legislative power will expand or contract according to the decision of some international body - not convention - which is set up under the conventions. That is the effect of what you say, is it not?

MR BURMESTER: The treaty obligation itself, your Honour, does not expand or contract. What happens is that the material which we can draw upon, the international practice, helps in interpreting that obligation.

DAWSON J: Well, if an international committee decides what the treaty says, and they decide it narrowly or broadly, and we are bound by that, that means that the Commonwealth legislative power does expand and contract in accordance with determinations of an international body.

MR BURMESTER: Your Honour, we are not bound in any formal sense by the decisions of these committees.

DAWSON J: But I thought you said that their decisions as to what was contained in the treaty obligation indicated the extent of the obligation.

MR BURMESTER: They indicate the extent; they are evidence of States' understandings which States obviously pay considerable regard to. If States wish to disagree with a committee then they can engage in a dialogue with the committee and they are certainly not bound in any formal sense, but if one is looking to find what a treaty - - -

DAWSON J: What does the committee purport to do? Does it purport to determine the extent of the obligation?

MR BURMESTER: No, your Honour. What it does is view the reports of States about their compliance with treaties and if they have concerns or questions they can make requests to the States for - - -

DAWSON J: Well do they determine compliance or non-compliance?

MR BURMESTER: Your Honour will see in the material I handed up that what the committee does is make in diplomatic language comments to States about concerns they might have, but it does - - -

DAWSON J: Well does it, in effect, determine compliance or non-compliance?

MR BURMESTER: It does not determine compliance, your Honour. It is not like the international court making a definitive authority pronouncement.

DAWSON J: No not like a court, but like a committee. Does it proceed on the basis that some actions are compliance and some are not?

MR BURMESTER: It reaches views as to what it considers is and is not in conformity with the treaties and provides those views to the members of the International Labour Organisation and the committee has a reputation for impartiality and objectivity and in general its views are respected and accepted. There have been on occasions, as the material from Victoria shows, some employer representatives who have made comments about particular findings, but it does not detract from the overall status of the committee as part of the material. It is not directly binding, it has no formal role like the international court in definitively passing on the meaning of a treaty.

DAWSON J: Well then, it has an effect upon the proper interpretation of the particular treaty obligation.

MR BURMESTER: Yes, your Honour.

DAWSON J: Well then, it has an effect upon the extent of Commonwealth legislative power.

MR BURMESTER: It is no different in that regard from many other committees set up under treaties to revue practice.

DAWSON J: Maybe not and there may be ones that are worse, that do decide in fact, in the field of civil rights as in other sort of committee, is there not, which does determine compliance or - - -

MR BURMESTER: It is no different from this committee in the sense it is not binding decisions, it is for a State to consider whether it accepts the particular finding of that committee.

DAWSON J: It is not a novel proposition to you, but it is a matter for concern that these international bodies do in one way or another to some extent determine the extent of Commonwealth legislative power. That is a concern which has been expressed in a number of places, has it not?

MR BURMESTER: Yes, your Honour, but I think one needs to realise that they have, as I said, no directly binding status or effect and ultimately it is for this Court, if it is faced with a particular treaty provision, to interpret it and the jurisprudence of this Court indicates that in interpreting it, it interprets it the way the international community would interpret it, but ultimately it is for this Court to reach its own conclusion as to what a particular treaty provision may or may not mean if that is in issue in a particular case.

DAWSON J: Yes.

BRENNAN CJ: Can I just delay you a little further. If that be right and if there be a treaty couched in very general terms so that a particular piece of domestic legislation either will or will not be supported by the external affairs power, depending upon the scope of the international obligation, who bears the onus of demonstrating the scope of the international obligation or is there any onus?

MR BURMESTER: I am not sure whether "onus" is the correct word. It is no different, if you like, from any other provision of legislation which might be attacked for being unconstitutional. It is for the party who seeks to sustain the legislation to come along and produce argument as to why it is valid. If it is a question of treaty obligation, as I said, then it is incumbent on the party to seek to sustain the interpretation which it considers to be correct and that is what the Commonwealth has sought to do in relation to Article 8 of the international covenant and the ILO conventions and in doing that it is inevitable, it is appropriate to have regard to the international jurisprudence, practice and learning on the issue. Your Honour, I am reminded that our written submissions in paragraph 3.69 deal with this issue of determining the construction of a treaty and the various High Court authorities on this point.

There are only, your Honour, two small matters in relation to the particular provisions I wanted to address. Firstly, I think there was some suggestion that lockout action by an employer may not be covered by the right to strike. I would simply refer there to Creighton and Stewart in tab 7 of our materials at page 255 point 5 where it is stated that the lockout is the employer's counterpoint to the right to strike and we would submit that it is an acceptable balance to include provisions on that subject in any provisions dealing with the right to strike.

Finally, your Honour, Victoria in paragraph 28 of its reply dealt with political strikes. That is dealt with in 3.79 of our written submissions and it would be our submission that any reasonable reading of the provisions in question indicate that the industrial action that is being protected in this case does not extend to political strikes, whatever that means. The action that is protected is limited. It relates to bargaining in relation to certified agreements. If it please the Court, that concludes my submissions. I think the Solicitor has something further to say.

MR GRIFFITH: If the Court pleases, we now have a copy of the Smorgon (Steel Mill) Consolidated Award 1993 that was requested as an example of a paid rates awards, and we refer particularly to clause No 3 and also clause No 11 of that document. And may I hand to the Court the article by Staricoff that was referred to by Justice Gummow - sorry about the misnomer this morning, your Honour. That was published in (1985) International Labour Review, if I could hand that to the Court. Whilst it is being distributed if I could note on the last page 609, the author ten years ago noted:

In view of these considerations, it is submitted that the Commonwealth has now full constitutional capacity under pl. xxix to give effect to International Labour Convention.

I could only submit that the Court could take the author's word for that proposition. On the question of the issue of right to strike if I could indicate to the Court that the Commonwealth's principal submissions are made in rather close fashion in our written submissions in the references thereto and to indicate to the Court that it is a Commonwealth submission, it is necessary to follow closely, in our submission, that course of construction to support the propositions we make, if the Court pleases.

BRENNAN CJ: Thank you, Mr Solicitor. Yes, Mr Young.

MR YOUNG: If the Court pleases, the first matter we wish to reply to is the primary basis upon which the Commonwealth has justified the certification provisions. It seems to us the primary basis was that the certification provisions are said to be valid because they have the objective of preventing an industrial dispute. In addition to the difficulties already pointed out by members of the Court, we would point to several other difficulties in the way of the Commonwealth's argument. Can I ask the Court to go to section 170MA at page 32,154. Subsections (1) and (2) would seem to have mutually exclusive fields of operation. That is because if there is a pending probable or likely dispute it is an industrial dispute as defined and so falls within subsection (1).

As the Court pointed out, the consequence is that in the context of subsection (2) there is no identifiable interstate industrial dispute either at the time the situation is identified or prospectively as something that an agreement can guard against. What that means, in our submission, is that the kind of agreement that can be made under subsection (2) is at large. An agreement on one set of industrial topics is just as likely, or unlikely, to prevent an interstate industrial dispute as an agreement on another set of industrial topics.

A second difficulty arises in the context of what is described as further industrial disputes in subsection (1)(b). That provision is tied to section 170MC(1)(c). One of the attributes that an agreement must have to obtain certification is that it provides for procedures for preventing and settling disputes between the parties covered by the agreement about matters arising under the agreement. So the further industrial dispute is of a specialised kind. It is about matters arising under the agreement. That provision then leads to section 170MH at page 32,252. Those procedures which must be set forth in the agreement are then said to:

empower the Commission to do either or both of the following:

(a) to settle disputes over the application of the agreement;

(b) to appoint a board of reference -

to do that. What that means is that the concept of prevention in so far as it relates to further industrial disputes is really a gateway to a process that is entirely distinct from the process of conciliating and arbitrating for the prevention or settlement of interstate industrial disputes. It is a gateway to a process of contractual arbitration about the matters covered by the certified agreement. In that respect, therefore, it is our submission that these provisions are not connected with the relevant head of power.

TOOHEY J: I am not sure, Mr Young, why you link section 170MA(1)(b) and section 170MC(1)(c). I can see a connection between them, but you seem to be putting it as if the matter referred to in paragraph (c) reflected the intention of paragraph (b) of the earlier provision.

MR YOUNG: Well, your Honour, we do that. It would seem that the actual dispute that triggers subsection (1) having been settled, "the prevention of further industrial dispute" seems to be a reference to a new dispute, a prospective dispute. The only aspect of the certified agreement that really addresses that matter would seem to be paragraph (1)(c).

TOOHEY J: Yes, but that is in relation to the procedures that the parties adopt. Is there any reason why you cannot read section 170MA(1)(b) as also embracing some particular matter that the parties agree, whether by way of wages or conditions of employment, in order to prevent a further industrial dispute?

MR YOUNG: Well, in order to prevent a further industrial dispute, one must have some kind of conception about what the future matter of disputation is or may be.

TOOHEY J: That may well be, yes.

MR YOUNG: Your Honour's suggestion would really lead to the conclusion that any aspect on any industrial topic that is covered by the agreement could be regarded as being directed to the prevention of further industrial disputes because, of course, in the future, an industrial dispute might emerge about any aspect of the relationship between the employer and the employee.

TOOHEY J: Well, the suggestion, if it be a suggestion, was not couched in those broad terms. All I was seeking to ask you was whether the submission was that section 170MC(1)(c) exhausted what could fall within paragraph (b) of the earlier provision, and it seemed to me that that did not necessarily follow.

MR YOUNG: Well, your Honour, can I only add this to what I have already said? The words that preface paragraph (b) of section 170MA(1) are these:

agree on terms for:

.....

(b) the prevention of further industrial disputes -

Examining the list in 170MC, it does seem to us that that is intended to be a reference to the kind of procedural provision that the parties must include in the agreement if it is to be certified, namely, that in paragraph (c). Then one is embarked upon a process quite different from that of conciliation and arbitration. Can I add one factor in support of that last proposition? The certified agreement thereafter has a continuing and perhaps indefinite life. It is just like an award. It continues for the period specified in the agreement. It is automatically extended like an award may be, and there are express provisions for extension with the approval of the Commission.

If dispute does arise, it would seem that the Commission is precluded from exercising its arbitral powers in so far as the resolution of the dispute might require a variation of the certified agreement. That is the effect of section 170MK(1)(g) at page 32,254.

BRENNAN CJ: Do you say anything about the provisions of MH, so far as it purports to provide for the empowering of a commission?

MR YOUNG: Yes, your Honour. The next matter we wish to address is the second basis on which this division was sought to be justified, namely that the range of functions conferred upon the Commission are sufficient for it to be treated as a conciliator. There are several brief submissions we would make in addition to those we already have. Reliance was placed upon the provisions of Part VIB, Division 5, namely section 170QH and 170QK. They appear at page 32,602 to 3.

It is our submission that these provisions confer a special power on the Commission to facilitate the making of a certified agreement. It is not to be subsumed within its general power to conciliate for the prevention and settlement of an industrial dispute because the Commission is required to pursue only one particular outcome, namely a certified agreement. This is a specialised power, designed to facilitate that outcome and that outcome alone. Section 170QH(2) makes that clear.

DAWSON J: Why can you not have a limited conciliation? It is nevertheless a conciliation.

MR YOUNG: Well, the question becomes, your Honour, whether it is conciliation for the prevention and settlement of the industrial dispute, rather than powers conferred in order to facilitate a certified agreement as the only possible outcome. It seems to us that there is a distinction between the two.

DAWSON J: Well, there might be, but it might be conciliation for the purposes of effecting a settlement by way of certified agreement.

MR YOUNG: Yes, but, your Honour, the question though is whether this division, in its entirety, can be justified as a law within section 51(xxxv) involving conciliation for the prevention or settlement of an industrial dispute, and it does not satisfy that, in our submission, simply because you can point to a special power conferred for the purpose of facilitating a certified agreement. It may resolve the dispute, but it denies to the Commission the ability to pursue other outcomes that would have the same result, namely a consent award.

The second matter about the Commission's functions is this: in our submission, Division 2 and Division 4 must be seen as part of a single scheme. It is Division 4 that provides for the process involving the bargaining period, the protected action and the associated immunities. That is the process by which a certified agreement is to be achieved in circumstances where you have a situation within section 170MA(1), namely, an industrial dispute. So, again, instead of the ordinary processes of conciliation and arbitration being available, the legislature has established a special process for the achievement of this particular outcome. Again, in our submission, it is an indication that the two divisions cannot be justified by reference to section 51(xxxv) as involving processes of conciliation being used by the Commission to resolve the dispute. Those are the submissions we wish to address to certified agreements.

I next put one submission concerning Division 4. The Commonwealth relied upon authorities establishing that a prohibition of strikes or lockouts is within power as being incidental to conciliation and arbitration. There is nothing, of course, wrong with that proposition. The difficulty is that Division 4, if anything, throws up the converse situation. It is a situation where a process protects rather than prohibits strikes and lockouts as a means of procuring a particular outcome, namely, a certified agreement and, if these provisions are incidental to anything, they are incidental to the achievement of one outcome only, namely, a certified agreement. It is not incidental to the prevention and settlement of the industrial dispute by the ordinarily available means of conciliation and arbitration.

Next, if the Court pleases, we wish to put one submission concerning the external affairs power. The Solicitor for the Commonwealth relied upon the fact that a number of these conventions require the establishment of machinery. There is a second aspect of that matter that he did not draw attention to and we wish to. It arose, incidentally, this morning in the course of Mr Burmester's submissions.

It is our submission that when one looks at the conventions, one finds that the obligation, if any, that is cast by these conventions is a heavily qualified one. It is one that in paraphrase terms is subject to conditions prevailing within the particular nation State and its policies and practices in various respects. Can I illustrate that by asking the Court to go the equal opportunity convention that Mr Burmester went to this morning, Schedule 12. The relevant passages are at page 35,454 and the next page is 35,501. If the Court looks at Article 9 of 35,501, this article illustrates the point we make about the qualified nature of the obligations:

The provisions of this Convention may be applied by laws or regulations, collective agreements, works rules, arbitration awards -

et cetera:

or in any other manner consistent with national practice which may be appropriate, account being taken of national conditions.

It would seem to be a matter of indifference amongst the parties to the convention whether any obligations that the convention imposes are carried into effect by prescriptive laws or by means of an arbitration system. In those circumstances, a question arises where the convention could be discharged in so far as it casts obligations by means of the arbitration power. If that is the case - and my argument assumes that it is - then, in our submission, there is a real question whether the Commonwealth is to be confined within its express power concerning industrial relations, section 51(xxxv), given that what these conventions contemplate is the establishment of machinery consistent with national practice and national conditions so as to implement the treaty.

Given those qualifications that hedge the convention obligation, if any, there is scope for the argument that the Commonwealth can do all that is necessary to discharge its treaty obligations by means of section 51(xxxv).

GAUDRON J: Or by legislation.

DAWSON J: By legislation under section 51(xxxv).

GAUDRON J: Or by legislation under the external affairs power.

MR YOUNG: Justice Gaudron, my point is that where there is that choice and that choice is left to the nation state by virtue of the convention in the way it defines the obligation - - -

GAUDRON J: But that argument really makes the external affairs power subordinate to every other head of legislative power in section 51.

MR YOUNG: No, we would not agree with that, if your Honour pleases, for this reason: section 51(xxxv) is, in the first place, a rather special power in that it provides a process which is the only process specified in the Constitution for addressing industrial relations. If that is an ample power that it would allow full implementation of the convention and if one finds the convention obligation defined so as to recognise that there may be a special procedure within the nation State - - -

GAUDRON J: Yes, but it does not recognise constitutional limitations; it simply recognises procedures.

MR YOUNG: Well, we would say this; there is something of a chicken and egg problem. If the definition of the convention obligation admits of implementation by arbitration awards and that is a sufficient and fully adequate means of implementing the convention, why should it be supposed that the external affairs power is engaged by such a limited convention obligation - - -

GAUDRON J: Because the treaty cannot be fully implemented by awards, unless of course the external affairs power is exercised to compel States to set up arbitral tribunals and to implement the treaty.

MR YOUNG: As I said, your Honour, my argument assumed that there could be an adequate implementation by means of section 51(xxxv).

GAUDRON J: Well, that is a big assumption; that involves you treating the article as the equivalent of a federal clause.

MR YOUNG: No, with respect not. What we say is not simply that the convention imposes an obligation that then the Commonwealth Parliament has a choice as to how it implements it; we do not say that. We say that these conventions define the obligation in the first place in such a limited way that it may not involve any engagement of the external affairs power especially if the treaty obligations can be given full force and effect by the Commonwealth working within its existing heads of power.

DAWSON J: Or to put it another way, the obligation imposed by the convention does not extend beyond that which is possible under section 51(xxxv).

MR YOUNG: Exactly, your Honour, yes. Can I move to another matter by way of reply. We wish to put some brief submissions concerning section 164. The Court will find that at page 31,853 of the CCH print. The justification advanced by the Commonwealth for this provision was that it does no more than ensure that the Commonwealth scheme for the regulation of boycott contraventions is exclusive and therefore fully effective. Now, in our submission, that is not what the provision does. Indeed, we would submit that the Commonwealth's submission loses sight of the constitutional basis for Division 7 regulating boycott contraventions. They advance the proposition, with which everyone agrees, that Division 7 is founded upon the corporations power and that the prescription of certain conduct is within power because it is a means of protecting constitutional corporations.

The conduct is defined and remedies are given to affected persons, including constitutional corporations. The grant of immunity to a trade union, in our submission, has nothing to do with making the remedies fully effective or exclusive, nor does it do anything to protect a constitutional corporation. If anything, the opposite. It denies to a constitutional corporation remedies that it would otherwise have lying outside Division 7.

Now, one further matter concerning that. The field of proscribed conduct is not co-extensive with the field of immunity conferred upon trade unions by section 164(1). What that means is that immunity is granted to a trade union in circumstances where Division 7 affords no protection to a constitutional corporation. To the extent of that disconformity, it is our submission that no support for this provision can be found in the corporations power.

The point can be illustrated by the exception in 162(7); that is at page 31,752. The way Division 7 works is that it focuses upon trading relationships between a third and fourth person, one of whom must be a constitutional corporation. If that is the case and the conduct was in contemplation or furtherance of claims against the fourth person, there is not going to arise a boycott contravention because of the exception in 162(7). Of course, that is not a matter of concern. That is simply defining the area of prescribed conduct.

But the effect of section 164(1) is that if this exception applies and the conduct was in furtherance of claims against a fourth person, the fourth person, who may be an individual and not a corporation, is denied his common law rights as against the trade union and, likewise, the third person who may be a corporation is likewise denied its rights as against the trade union.

They are not treated differentially. Each is denied its rights against the trade union by virtue of the immunity provision in section 164(1). Consequently, the effect of that section is to take away common law rights that individuals or corporations would otherwise have under the general law and, in our submission, when it goes so far, it loses any connection with the corporations power.

Two further very short submissions, if the Court pleases. As to section 152 we make this submission: there is a fundamental distinction between an award and an enterprise flexibility agreement in terms of section 109 of the Constitution. The authorities dealing with awards have held that the reason why an award attracts section 109 is that it is the outcome of a determination made by an arbitrator in the exercise of federal power and it is to be inferred from the Act as a whole that it was intended that that determination resolving the dispute was intended to be exclusive.

An enterprise flexibility agreement is merely an instrument prepared by an employer that then the Commission is required to approve if its constituents satisfy the relevant list. It cannot be said that it is equivalent to an award in the sense of being a determination resolving rights as a result of federal power that was intended to be exclusive. It really amounts, in our submission, when section 152 purports to extend to it as being no more than a law directed at ensuring that section 109 applies to a particular kind of instrument. Finally, if the Court pleases - - -

BRENNAN CJ: That does not take it all that distance, does it? That still leaves the question of whether the instrument can be given the force of law in the same way as an award can be given pursuant to section 51(xxxv).

MR YOUNG: Yes, but the distinction we seek to make is this, your Honour: if it is to be given the force of law, it must be because one finds that the instrument is the outcome of an application of federal power that was intended to be exclusive.

BRENNAN CJ: Intended by the Parliament to be exclusive.

MR YOUNG: Intended by Parliament, yes, your Honour, and we say that an enterprise flexibility agreement that is merely submitted for approval and which must be approved if it has certain constituents cannot be so described.

DAWSON J: Because the rights and obligations flow from the agreement?

MR YOUNG: Yes.

DAWSON J: Not from the Act?

MR YOUNG: In so far as the Act purports to give it overriding force, that is really legislation that seeks to attach to a particular instrument the character of a law of the federal Parliament capable of attracting section 109.

BRENNAN CJ: Why cannot it be construed as an expression of legislative intention to cover the field?

MR YOUNG: Well, in so far as section 152 and the related section do that, your Honour, it really, however, amounts to only an expression of legislative intention that a particular instrument should override State laws and as we would understand the authorities that is not sufficient to attract section 109. It must first satisfy a prior condition, namely, that the instrument in question must be a product of the application of federal power in such a way that without section 152 one can say that that is intended to be the exclusive determinate of the rights of the relevant parties.

BRENNAN CJ: Well, my question to you is why is not 152 construed as indicating that intention and once that construction is placed upon it section 109 without any reference to 152 does its work?

MR YOUNG: Well, your Honour, because section 152 picks up an enterprise flexibility agreement merely because it is added within the definition of an award. That would then seem to be an intention that amounts to no more than this: it is Parliament's intention that a particular kind of instrument, regardless of its origins, should have an overriding effect and that amounts to a law that a particular instrument should be capable of attraction section 109. It is our submission that there is a line between that category which is not a valid law and the case of an award which, although not a law, is treated as attracting section 109 because it is the outcome of an exercise of federal power intended to be exclusive.

Your Honour, one final matter concerns section 7A. The learned Solicitor for the Commonwealth submitted to the Court that is was an appropriate case to read down the various sections that may offend the Melbourne Corporation principle in the D'Emden v Pedder sense and without recourse to section 7A. The attitude of the States is this: in their submission it is not an appropriate case for the Court to embark on such a reading down. There are several reasons. This is a case where there are numerous provisions which, on their face, purport to be of general application. If it is found that one or more of them offend the Melbourne Corporation principle it is quite possible that had Parliament considered the State Employees' Case before enacting the legislation because it had it available, it may have adopted different means of addressing the problem.

One of them is, indeed, submitted by the Commonwealth in its own submissions. In paragraphs 6.22 to 6.23 they submit that one appropriate reading down is to exclude all State employees from the reach of those provisions. Some of the provisions are, moreover, affected by more than one aspect of the State Employees' Case. At all events, the submission made by the States is that it is not an appropriate case to resolve any difficulty by reading down in the D'Emden v Pedder sense. If the Court pleases, those are our submissions in reply.

BRENNAN CJ: Thank you, Mr Young. The Court will consider its decisions in these matters.

AT 11.46 AM THE MATTER WAS ADJOURNED