Queensland Electricity Commission v Commonwealth

159 CLR 192
61 ALR 1

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(Decision by: Brennan J)

Between: Queensland Electricity Commission
And: Commonwealth

Court:

Judges: Gibbs CJ
Mason J
Wilson J

Brennan JDeane J
Dawson J

Subject References:
Constitutional Law (Cth)

Hearing date: 19-20 June 1985
Judgment date: 5 September 1985

Adelaide (heard in Canberra)

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Decision by:
Brennan J

It is now settled that a law which fairly answers the description of a law "with respect to" a subject of legislative power appearing in s 51 of the Constitution and which does not offend any of the prohibitions expressed in the Constitution may yet be invalidated by a prohibition against the making of the law implied in the Constitution (Victoria v. The Commonwealth ("the Payroll Tax Case") (1971) 122 CLR 353 ). None of the express prohibitions is relevant in the present case. In only one case - Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 - has such a law been held invalid as enacted contrary to an implied prohibition. The question is whether the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth) ("the Act") has been enacted contrary to an implied prohibition or is otherwise beyond power.

A prohibition can be implied only from the terms of the Constitution itself, construed in the way prescribed in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers Case") (1920) 28 CLR 129 , at p 152, that is,

"naturally in the light of the circumstances in which it was made, with knowledge of the combined fabric of the common law, and the statute law which preceded it...".

The Constitution, though enacted to give effect to an agreement by the peoples of the Australian colonies to unite in a Federal Commonwealth, is not a contract between the Colonies or between the people of the Colonies. Nor is it a contract between the Commonwealth and the States. No implication can be founded on what was called

"a vague, individual conception of the spirit of the compact, which is not the result of interpreting any specific language"

(the Engineers Case, at p 145).

The Constitution, as Barwick C.J. pointed out in the Payroll Tax Case (at p 371), is a statute which at once created the Federation and distributed powers among the Commonwealth and the States. The Constitution summoned the Federation into existence and maintains it in being. Any implication affecting the specific powers granted by the Constitution must be drawn from the Constitution itself. It is impermissible to construe the terms of the Constitution by importing an implication from extrinsic sources when there is no federation save that created by the express terms of the Constitution itself. In particular there is no room for an implication derived from shadowy political constructs of a federation in which the specific powers granted to the Commonwealth are not permitted to encroach on the residue of powers available for exercise by the States. The principle, established in the Engineers Case (at p 154), is that -

"where the affirmative terms of a stated power would justify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution."

In The Commonwealth v. Tasmania (1983) 57 ALJR 450 , at p 525; 46 ALR 625 , at p 768, I adopted the formulation by Mason J. of the relevant implication (in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 , at p 93):

"the implication that should be made is that the Commonwealth will not in the exercise of its powers discriminate against or 'single out' the States so as to impose some special burden or disability upon them, unless the nature of a specific power otherwise indicates, and will not inhibit or impair the continued existence of the States or their capacity to function."

That formulation is reflected in his Honour's analysis in this case of the leading cases in which implied prohibitions have been considered by this Court since the Engineers Case. A prohibition against the making of laws "which operate to destroy or curtail the continued existence of the States or their capacity to function as a government, that is, their capacity to exercise their powers" is necessarily implied by s 106 of the Constitution if not from the nature of a federation. Not only is the continued existence of the Commonwealth and the States essential to the Federation; their raison d'etre is their capacity to exercise the powers reposed in them by the Constitution. That prohibition is not relevant in this case. The Act neither attacks the existence of a State nor curtails its capacity to exercise any of its powers. The Act makes special provision for the procedures to be followed by the Conciliation and Arbitration Commission ("the Commission") in dealing with interstate industrial disputes involving the electricity authorities of Queensland and their employees. The question is whether the Act is within the scope of the implied prohibition relating to laws which single out the States so as to impose some special burden or disability upon them in the exercise of their powers. The scope of that prohibition is in issue.

The independence of the States is susceptible to erosion by the exercise of Commonwealth legislative power - an inevitable phenomenon in a federation in which powers are distributed specifically to the federal legislature and by way of residue to the States - but the prohibition against the making of discriminatory laws aimed at the States is derived from the necessity of preserving so much of the independence of the States in the exercise of their powers as is consistent with the Commonwealth's exercise of the plenary powers conferred on it. That the prohibition arises from the necessity to provide a measure of protection for the independence of the States appears from Sir Owen Dixon's test of invalidity - the law must be not only discriminatory but be also "a law aimed at the restriction or control of a State in the exercise of its executive authority" (Melbourne Corporation, at p 83) or "a special attempt to control the exercise of the constitutional powers of the States" (The State of Victoria v. The Commonwealth (1957) 99 CLR 575 , at p 609). It seems unduly narrow to regard the implication as existing to protect only "executive authority". The better view is that the implication exists to protect a State's independence in the exercise of any of its constitutional powers. Gibbs J. in the Payroll Tax Case upheld the validity of the legislation despite the imposition of payroll tax upon the States in relation to the employment of teachers and the allowing of an exemption to schools that were not conducted for profit or gain. His Honour said:

"The fact that certain private employers are given an exemption which is denied to the States does not necessarily mean that the statute discriminates against the States in the sense defined by Sir Owen Dixon. The question is, to some extent, one of degree.... If the position of the States is compared with that of private employers generally, it is not possible to say that the States are under such a special burden or disability that the legislation is aimed at the restriction or control of the States."

Although the independence of the States in the exercise of their powers is protected by the implication, discrimination in itself is not an universal touchstone of invalidity. In the Payroll Tax Case, Barwick C.J. said (at p 375) that "the discriminating nature of a legislative provision will not itself be definitive of invalidity". And in The State of Victoria v. The Commonwealth, Williams J. said:

"Discrimination against a State, where it can be seen to be justified, is not a ground for invalidating a Commonwealth law which would otherwise be authorised by a legislative power conferred on the Commonwealth Parliament.... in my opinion (it) could not be contended, that discrimination in itself would be sufficient to invalidate such a law."

It would state the implication too widely to say simply that the Commonwealth is prohibited from making any discriminatory law which involves the placing on the States of special burdens or disabilities affecting the exercise of their powers. It is not consistent with the plenary nature of the powers of the Commonwealth to deny the validity of a discriminatory law enacted under a power which supports the discrimination. Thus the implication formulated by Mason J. in Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation contained the appropriate qualification on the prohibition against discriminatory laws: "unless the nature of a specific power otherwise indicates." Not every law is invalid which requires a State in the performance of its functions to bear a burden or suffer a disability to which others are not subject.

To determine whether a discriminatory law is valid or invalid, it is necessary to identify the particular burden or disability that is placed on the States or State by the law and then to determine whether any legislative power granted to the Commonwealth authorizes the imposition of that discriminatory burden or disability. If a power is available to support the imposition of that discriminatory burden or disability, it is for the Parliament alone to decide whether that burden or disability should be imposed.

In Melbourne Corporation, the discriminatory disability which s 48(1) of the Banking Act 1945 (Cth) imposed on the States and their authorities was the deprivation of banking facilities without the written consent of the Treasurer. The Commonwealth had no power to impose that disability on the States alone although, if a new general system of banking had been created by a valid Commonwealth law with respect to banking, its consequential effect of denying banking facilities to the States in common with others would not have been a ground of invalidity. In Bank of NSW v. The Commonwealth (1948) 76 CLR 1 , at pp 337-338, Dixon J. said:

"Just as when the Federal Government desires to use or take advantage of anything the nature or character of which is determined by an exercise of the exclusive power of the State, it must take it as it finds it, so the States, when they avail themselves of services or facilities regulated or determined by Federal law, must accept it as part of the system enjoyed by the whole community. Such things are a consequence of the distribution of powers and stand apart altogether from some exercise of legislative power which singles out the States or which operates specially to impede them in their functions. Section 48 of the Act of 1945 discriminated against States and in that way singled out the States in order to curtail their freedom in using the general banking system."

What is prohibited is an adverse discriminatory operation of a law, not an adverse operation of a general law. And it is the discriminatory operation which needs to find support in a head of power. It is insufficient to show that a law imposing a discriminatory burden or disability on the States exhibits such a connection with a subject of legislative power as to give it the character of a law with respect to that subject if the power does not authorize the particular discrimination which the law effects. Generally speaking, a legislative power does not support the imposition of a discriminatory burden or disability on the States intended to result and resulting from a law made with respect to the subject matter of the power. Dixon J. explained the particular rule applicable to discriminatory laws in Melbourne Corporation, at pp 79-80:

"Speaking generally, once it appears that a federal law has an actual and immediate operation within a field assigned to the Commonwealth as a subject of legislative power, that is enough. It will be held to fall within the power unless some further reason appears for excluding it. That it discloses another purpose and that the purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law. In the United States much use has been made in this way of the postal power and of the commerce power to legislate in a way calculated to vindicate morality or achieve a social purpose rather than to advance the postal services or promote or regulate inter-state commerce as such.

When this is done the result is that laws confined to an existing head of federal power nevertheless reach as a matter of purpose into fields lying under State legislative authority. But it is one thing to say that a federal law may be valid notwithstanding a purpose of achieving some result which lies directly within the undefined area of power reserved to the States. It is altogether another thing to apply the same doctrine to a use of federal power for a purpose of restricting or burdening the State in the exercise of its constitutional powers. The one involves no more than a distinction between the subject of a power and the policy which causes its exercise. The other brings into question the independence from federal control of the State in the discharge of its functions."

The implication against the imposition of discriminatory burdens or disabilities on the States does not rest on the notion that the States in the exercise of their powers are not liable to have a burden or disability imposed on them by a Commonwealth law but on the notion that the burdens or disabilities imposed on the States must be no more severe than those imposed on others unless the power supporting the law supports the discrimination. To establish the validity of such a discriminatory law, there must appear a connection between the criterion for imposing the discriminatory burden or disability and the power relied on to support it.

In Melbourne Corporation the Court held that s 48(1) of the Banking Act 1945 exhibited such a connection with the banking power (s 51(xiii)) as to give it the character of a law with respect to banking, but the banking power did not support the Banking Act's ulterior purpose and effect: the denial of banking facilities to the States and their authorities without the Treasurer's consent.

The banking power did not authorize the imposition of such a discriminatory disability on the States. It may be that a prohibition against discriminatory laws is implied only when a law seeks to impose a discriminatory burden or disability on the States or on a State in consequence of a law directed to another entity, and that the validity of a discriminatory law directed to the States themselves depends not on an implication but on the proper characterization of the law. At all events, a law's direction to another entity may give it the character of a law with respect to a subject of legislative power although that power does not suffice to support the imposition of the discriminatory burden or disability on the States. In either case, the question is whether a head of legislative power supports the discriminatory imposition of a burden or disability on the States.

The independence of the States in exercising their powers, implicit in s 106 of the Constitution, and the binding effect of Commonwealth law upon them is thus reconciled: no inroad may be made on State independence in the exercise of their powers save what is necessary to give effect to a general Commonwealth law unless the power supporting the law supports the discriminatory imposition of a burden or disability on the States. As the implication arises from the independence of the States implicit in s 106 of the Constitution, the prohibition applies in respect of each State. It would empty the implication of its content if a Commonwealth law could impose discriminatory burdens or disabilities on each of the States in turn although the Constitution prohibited a law imposing the same discriminatory burdens or disabilities on all States. Accordingly, I would hold that the discriminatory imposition of a burden or disability on a particular State is prohibited when the burden or disability affects the independence of that State in the exercise of its powers and no head of Commonwealth power supports a discriminatory imposition of such a burden or disability.

In the light of these general principles, I turn to the provisions of the Act in order to ascertain whether a burden or disability has been imposed discriminatorily on the State of Queensland affecting the exercise of its powers. The Act contains special provisions affecting the Commission's powers and procedures in hearing and determining industrial disputes to which the Act applies. The disputes to which the Act applies are defined by s 6(1) and (2). By s 6(1), the Act applies to the industrial dispute which a Commissioner on 18 April 1985 found to exist between the Electrical Trades Union of Australia ("the ETU") and certain electricity authorities. By s 6(2), the Act also applies to -

"any industrial dispute that has, whether before or after the commencement of this Act, been found by the Commission to exist between -

(a)

any organization of employees that is declared by the regulations to be an organization of employees to which this sub-section applies; and

(b)

one or more electricity authorities, if the industrial dispute could result in the making of an award that would be binding on an electricity authority of Queensland and would establish terms or conditions of employment of employees of that authority."

The Act makes special provision for dealing with an industrial dispute to which it applies. In the first place, s 8(1) of the Act eliminates the Commission's power (or its discretion) -

"in so far as the industrial dispute exists between an organization of employees and one or more electricity authorities of Queensland, to dismiss a matter or part of a matter, or refrain from further hearing or from determining the industrial dispute, by reason that it appears to the Commission -

(a)

that the industrial dispute has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority of Queensland; or

(b)

that further proceedings are not necessary or desirable in the public interest."

(Apart from s 8(1), the Commission has a discretion of the kind referred to which it may exercise on the grounds stated: see s 41(1)(d) of the Conciliation and Arbitration Act 1904 (Cth)). Section 9 of the Act requires that the powers of the Commission (including the power to certify a memorandum or to make an award or order under s 28(1) of the Conciliation and Arbitration Act) should be exercised only by a Full Bench of the Commission (sub-ss.(1) and (4) of s 9). If the Full Bench of the Commission makes a declaration under s 9(6) of the Act, s 9 will apply only to the hearing and determination of so much of the dispute as involves the electricity authorities of Queensland.

By s 4(1)(d)(ii) of the Act a reference to an "electricity authority of Queensland" includes a reference to a person engaged to carry out work (other than as an employee) in or in connection with the electricity industry for or on behalf of an authority engaged in that industry in Queensland. The term includes all the plaintiffs in the first action brought to challenge the validity of the Act. The Queensland Electricity Commission ("the Electricity Commission") is a corporation sole constituted under the State Electricity Commission Acts 1937-1965 (Q.) and continued in existence under the Electricity Act 1976-1984 (Q.). It is one of the plaintiffs in the first action.

The Boards, which are the other plaintiffs in the first action, are bodies corporate constituted for their respective areas of electricity supply under the Electricity Act (ss 101, 102, 103). By s 9(3) of that Act the Electricity Commission represents the Crown "(f)or all the purposes of this Act and of any other Act". The Boards do not represent the Crown (s 102(2)), but the Minister has power to require the Electricity Commission to issue to a Board a direction "as to the manner in which (the Board) shall exercise and perform its powers, functions and duties" (s 129A). The Electricity Commission is charged with a duty of supplying electricity in bulk to Electricity Boards and to any other electricity authority (s 36C(a)). It is the duty of an Electricity Board subject to certain exceptions to supply electricity to consumers within its area (s 129(a)). The supply of electricity to another person is prohibited without a licence (ss 138, 397). On the facts alleged in the amended Statement of Claim, over 97% of the electricity supplied by the plaintiff Boards is generated by the Electricity Commission.

The Electricity Act makes detailed and extensive provision for regulating the generation and supply of electricity throughout Queensland. It brings the generation and distribution of electrical power in Queensland, an essential facility, within the control of the Electricity Commission and the Boards - authorities which either represent the Crown or are ultimately subject to ministerial control. The Electricity Commission and the Boards are statutorily vested with the powers deemed conducive to the function of providing electricity to the bulk of the State's consumers. To the minor extent to which private industry participates in the generation and distribution of electricity, it is controlled by a system of licences. These features combine to identify the Electricity Commission and the Boards not only as electricity authorities of Queensland for the purposes of the Act but as authorities of the State which are protected to the same extent as the State itself from the discriminatory imposition on them of burdens or disabilities affecting the exercise of their powers.

Does the Act impose a burden or disability on the Queensland electricity authorities? Although the Conciliation and Arbitration Act is "designed to aid employers and employees alike, and to secure the continuity of operations" (per Higgins J. in the Engineers Case, at p 167), the compulsory subjection of State authorities to the arbitral procedure prescribed by the Conciliation and Arbitration Act is a burden on the independent exercise of their powers and, if an award binding the State authorities is made under that Act, the award is likewise a burden.

It is the Conciliation and Arbitration Act, and not the Act presently attacked, which subjects State authorities to that burden in the first place. That is a general law to which no objection is taken. What the Act does is to remove two of the grounds on which the Commission is otherwise empowered to refrain from hearing and determining a dispute, and thereby reducing the matters for preliminary consideration by the Commission before it decides whether to settle the issues in dispute by making an award. The purpose and effect of the Act is to hasten the hearing and determination of disputes to which the Act applies and to enhance the prospect of the making of an award binding on the State authorities which, if and when it is made, will burden those authorities in the performance of their functions. That is sufficient to constitute a discriminatory burden on them for which support must be found, if at all, in s 51(xxxv) of the Constitution .

Although it is true to say that "the greater number of powers contemplate legislation of general application", the "meaning and nature of the power cannot be left out of account" (per Dixon J. in Melbourne Corporation, at p 81). The conciliation and arbitration power contemplates laws which may be moulded to deal with industrial disputes of various kinds. The variety of industrial disputes is such that the power to make laws with respect to conciliation and arbitration of such disputes cannot be regarded as a power which requires the procedures prescribed for dealing with them to be uniform. The contrary view might be taken if the power were intended merely to subject private disputes to resolution by a Commonwealth instrumentality. If that were the nature of the power, different procedures could not be supported if they exposed one party to an unequal burden or disability. But the conciliation and arbitration power is intended to serve a public interest, not only the interests of the disputing parties. Isaacs J. pointed out in R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586 , at pp 609-610, that the conciliation and arbitration power is conferred -

"not for the special benefit of either or both of the disputing parties, but primarily, and by means of composing industrial differences, for the 'peace, order and good government of the Commonwealth'- that is, for the whole people of the Commonwealth. It follows from this, that to apply to the solution of this matter, considerations which solely affect either or both of the parties, and to ignore the interests and welfare of the community in relation to the differences which imperil the continuance of the industry in which they are engaged, and therefore to ignore the interest which the community has, to have an industrial dispute settled, however suddenly it arises, and the sooner the better, is to mistake the fundamental nature of sub-sec.xxxv."

The prescription of different procedures for the speedy settling of different disputes is wholly consistent with the promotion of the uninterrupted conduct of industrial activity throughout Australia. If the Parliament perceives that industrial peace is imperilled by delay in settling a particular interstate industrial dispute or a particular kind of interstate industrial dispute or a particular part of such a dispute, the prescription of a special procedure for speedy settlement of that dispute or of that kind of dispute or of that part of a dispute is wholly consistent with a valid exercise of the power.

A law which prescribes a special procedure for speedy settlement of a dispute to which the employing authorities of the States or of a State are parties may be valid although the settlement procedures impose a burden or disability on the State employment authorities that is not imposed on other employers provided the burden or disability is imposed not by reference to the governmental character of the employing authorities but by reference to the character of the dispute to which they are parties. Of course it is fallacious to regard an industrial dispute as completely divorced from the character of the parties to it but equally it is fallacious to assume that special settlement procedures applicable to a particular dispute or part of a dispute invalidly discriminate against a State merely because a discriminatory burden or disability is imposed on the State as an employer who is a party to the dispute. However, the conciliation and arbitration power does not support the prescribing of special settlement procedures involving the imposition on State employment authorities who are parties to a dispute of a burden or disability that is not imposed on other employers if there is nothing to distinguish the disputes to which the special settlement procedures apply save the fact that the State employment authorities are parties.

The validity of the Act therefore depends on whether the disputes to which the Act applies are different from the general mass of disputes to which the general provisions of the Conciliation and Arbitration Act apply, whether the distinguishing features of the s 6 disputes show that those disputes might reasonably be regarded as requiring speedy settlement and whether the special procedure applicable to those disputes might reasonably be regarded as the means of achieving that result. These are questions of fact and degree.

Even when a head of Commonwealth power can support a discriminatory law the validity of such a law cannot be determined by reference to its terms divorced from the subject matter to which the law relates. It is of the essence of discrimination that like things are treated differently or that unlike things are treated in the same way. It is not possible to determine more than the existence of formal discrimination without reference to the subject matter to which the law applies.

Of course, formal discrimination may spell invalidity. If a burden or disability is imposed discriminatorily on a State, the law will be invalid unless the discriminatory provision is calculated to provide for particular circumstances affecting that State alone. But if the law is calculated to provide for such circumstances, there may be no real (as distinct from formal) discrimination and the case may be within the exception stated by Williams J. in The State of Victoria v. The Commonwealth earlier mentioned, that is, a case "where it (i.e., discrimination against a State) can be seen to be justified". Whether circumstances thus justifying the discriminatory law exist must be determined by the Court as best it can: cf. Gerhardy v. Brown (1985) 59 ALJR 311 , at p 343; 57 ALR 472 , at pp 526-527. In so far as these questions involve the making of a political assessment, the approach which I thought appropriate in Gerhardy v. Brown, at pp 341-342; p 524, is no less appropriate here:

"It is the function of a political branch to make the assessment. It is not the function of a municipal court to decide, and there are no legal criteria available to decide, whether the political assessment is correct. The court can go no further than determining whether the political branch acted reasonably in making its assessment: cf. United States v. Sandoval (1913) 231 US 28 at 46; 58 Law.Ed.107 at 114....

... If the political assessment could not have been made reasonably, the measure does not bear the character of a special measure and the court must so hold. As Brennan J. said at 217; Law Ed. at 685, the courts 'will not stand impotent before an obvious instance of a manifestly unauthorized exercise of power'. The court does not have to decide a political question; at most it must decide the limits within which a political assessment might reasonably be made."

The first dispute to which the Act relates is an existing dispute (s 6(1)). The Act contains no description of that dispute which serves to distinguish it as requiring speedy settlement, but the distinguishing feature may appear from the dispute itself. We are familiar with the nature of this dispute for the finding of its existence has been challenged in this Court: In the Matter of an Application for Writs of Prohibition and Certiorari against the Honourable Mr Justice Ludeke & Ors; Ex parte Queensland Electricity Commission & Ors delivered on 5 September 1985 (unreported). We may turn to the material in that case to ascertain the nature of the dispute mentioned in s 6(1) of the Act.

The finding upheld in that case shows that the dispute arose from the employers' rejection of a log of claims served by the ETU on employers in the electricity industry in Queensland, Western Australia, South Australia, Victoria, Tasmania, the Northern Territory and the Australian Capital Territory, including the Snowy Mountains Hydro-Electric Authority. The log includes claims for award provisions which would protect employees from peremptory dismissal even for misconduct and which would entitle employees to a substantial period of notice of intention to dismiss. The log also claims a union preference clause. In these respects the present relationship between the electricity authorities of Queensland and their employees is governed by Queensland law, - specifically, by Acts of the Queensland Parliament passed in 1985.

These Acts, enacted in consequence of severe industrial disruption of the electricity industry in Queensland, provide, inter alia, that an employee who fails to comply with a direction to perform work issued by the Electricity Commissioner may be summarily dismissed and is liable to pay a pecuniary penalty (Electricity (Continuity of Supply) Act 1985 (Q.), ss 3 and 4), that an employee engaging in a strike (defined to include, inter alia, a go slow strike, or the observance of bans or limitations: see Industrial Conciliation and Arbitration Act Amendment Act 1985 (Q.), s 2)) is liable to dismissal without notice or to suspension without pay (Electricity Authorities Industrial Causes Act 1985 (Q.), s 27), that no union preference provision in an Act or award has any effect (Electricity Authorities Industrial Causes Act, s 22) and that contracts of employment must contain a "no strike" clause (Electricity (Continuity of Supply) Act, s 7(3)).

The Queensland Acts excited much controversy. If the Commission were to hear and determine the dispute evidenced by the rejection of the log, the matters now governed by the controversial provisions of the Queensland Acts could be and probably would be canvassed in arbitration proceedings between the parties to the dispute. They could be settled by the terms of an award. If the Parliament took the view that a speedy settlement of the dispute involving these matters was desirable in the interests of "the whole people of the Commonwealth", the elimination by s 8(1) of the Act of the question whether "further proceedings are not necessary or desirable in the public interest" from the preliminary issues to be considered by the Commission can reasonably be regarded as a means of achieving that result. The elimination of the question whether "the industrial dispute has been dealt with, is being dealt with or is proper to be dealt with by a State Industrial Authority of Queensland" is of little moment. The matters governed by the Queensland Acts could not be arbitrated by a State Industrial Authority.

The matters which are presently governed by the Queensland Acts and which are in issue in the dispute mentioned in s 6(1) of the Act may reasonably be thought by the Parliament to have such a potential for interstate industrial disruption as to warrant the prescribing of a special procedure for speedy settlement of the interstate industrial dispute in which those issues fall for determination, especially as the Commission had recently given close and extensive consideration to the general provisions which it thought appropriate to safeguard security of employment: see Termination, Change and Redundancy Case (1984) 8 I.R.34; 9 I.R.115.

There is nothing in s 6(1) to suggest that it is the governmental character of the electricity authorities of Queensland rather than the nature of the dispute mentioned in that sub-section which is the criterion by reference to which the special settlement procedures are made applicable. One cannot infer that such discrimination as the Act effects with respect to this dispute is "aimed at the restriction or control of the State" or its authorities. An inference which can be drawn from the nature of the dispute is that the special settlement procedures are made applicable because of the exigencies of the dispute itself arising from the effect of the Queensland Acts on the issues in dispute. But that does not establish that the criterion of the discrimination is the character of the disputants. If the Parliament was entitled to regard the Queensland Acts as clothing some of the issues in the dispute with the potential to cause interstate industrial disruption - a view which it is not open to this Court to deny - the Act in so far as it prescribes appropriate speedy settlement procedures applicable to that dispute is within the conciliation and arbitration power. The circumstance that the employing authorities who are subject to the Queensland Acts are authorities of the State is not a statutory criterion of the application of the Act to the dispute mentioned in s 6(1).

On the available material, the Parliament was entitled to make a political assessment that there were distinguishing features of the dispute mentioned in s 6(1) which made the dispute one which required speedy settlement. As the special procedures prescribed by the Act were appropriate means of achieving the speedy settlement of that dispute, the Act in its application to that dispute is a valid law with respect to conciliation and arbitration and it is supported by s 51(xxxv) of the Constitution.

The disputes mentioned in s 6(2) are not identified as existing disputes. Disputes answering the description contained in s 6(2) may relate to a great diversity of issues arising in a great diversity of circumstances. A dispute may fall under s 6(2) though it is limited to issues of a most pedestrian kind having little practical industrial significance; the issues in such a dispute may be quite unaffected by the Queensland Acts; the centre of such a dispute may be outside Queensland. If it was Parliament's intention that s 6(2) should bring under the Act only those disputes which raise issues requiring the same speed of settlement as the issues in the dispute mentioned in s 6(1), the sub-section does not say so.

On its face there is only one criterion which attracts to a s 6(2) dispute the special procedures prescribed by ss 8(1) and 9. That criterion is the possibility of the making of an award binding on a Queensland electricity authority. That is a singling out of the electricity authorities of Queensland in order to impose on them a discriminatory burden or disability affecting the exercise of their powers. No purpose of securing industrial peace can be perceived in the application of the procedures prescribed by the Act to disputes described in s 6(2). The imposition of such a discriminatory burden on the electricity authorities of Queensland cannot find support in s 51(xxxv) of the Constitution. Accordingly, the Act is invalid in its application to disputes mentioned in s 6(2).

The Act is expressed to apply distributively to the dispute mentioned in s 6(1) and to the disputes mentioned in s 6(2). The disputes mentioned in those respective provisions are, so to speak, self-contained. At all events, there is no necessary connection between one dispute and others and the severance of s 6(2) does not affect the operation of the Act in its application to the dispute mentioned in s 6(1). The invalidity of s 6(2) does not affect the validity of the Act in its application to the dispute mentioned in s 6(1).

A subsidiary argument against the validity of the Act should be noted. The issues involved in the dispute which have an especial significance to the Queensland part of the dispute are said not to be a dispute extending beyond the limits of Queensland. But the Queensland "location" of the circumstances which might be regarded as distinguishing that dispute from others and as requiring it to be settled speedily does not change the interstate character of the dispute. The dispute involves every issue in the rejected log of claims. It is true that some of those issues have a particular importance in Queensland by reason of the Queensland Acts and it is true that the importance of those issues in Queensland might be thought to require speedy determination of those issues, but the dispute itself is clearly one which involves employers and the ETU in more than one State.

I would overrule the demurrers so far as they assert the validity of s 6(2) of the Act but otherwise I would allow the demurrers.