Queensland Electricity Commission v Commonwealth

159 CLR 192
61 ALR 1

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(Judgment by: Mason J)

Between: Queensland Electricity Commission
And: Commonwealth

Court:

Judges: Gibbs CJ

Mason JWilson J
Brennan J
Deane 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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Judgment by:
Mason J

In each action a declaration is sought that the Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth) ("the Act") is beyond the powers of the Commonwealth Parliament and is invalid or alternatively that ss 4, 6, 7, 8 and 9 of the Act are beyond power and invalid. In each action there is a demurrer asserting that the Act is valid.

The first plaintiff in the first action is the Queensland Electricity Commission which is a corporation sole constituted pursuant to s 9 of the Electricity Act 1976 (Q.) and represents the Crown in right of the State of Queensland (s 9(3)). The Commission generates electric power in Queensland which is distributed to consumers in that State through the remaining plaintiffs in the first action. They are bodies corporate constituted pursuant to ss 101-103 of the Electricity Act.

The Act is a response to the industrial conflict that has recently arisen in the electricity industry in Queensland. The Act is designed to accelerate the hearing and determination by the Australian Conciliation and Arbitration Commission ("the Commission") of interstate industrial disputes involving Queensland electricity authorities, in particular the dispute that was found by the Commission to exist on 18 April 1985, a dispute which is the subject of the judgment of this Court in 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.

The Act provides that it is incorporated, and shall be read as one, with the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Principal Act") (s 3). Expressions used in the Act which are also used in the Principal Act have, subject to any contrary intention, the same meanings as they have in the Principal Act (s 4(2)). Section 4(1) provides that in the Act:

"(c)

a reference to an authority includes a reference to the Government of a State or Territory and also includes a reference to any person or body of persons, whether incorporated or not, on whom or on which powers are conferred by a law of the Commonwealth, of a State or of a Territory; and

(d)

a reference to an electricity authority -

(i)

is a reference to an authority that is engaged in the electricity industry; and

(ii)

in the case of a reference to an electricity authority of Queensland - includes a reference to a person who is engaged to carry out work (otherwise 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, whether the person is engaged to carry out that work by that last-mentioned authority or by another person."

Section 6(1) provides that the Act applies to the dispute already mentioned. Subject to other provisions of the section, it is also to apply 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."

(s 6(2)).

However, the Act does not apply to a dispute if there is already an award in operation establishing any terms and conditions of employment of employees who are members of, or are eligible for membership of, an organization of employees the subject of a declaration under s 6(2) (s 6(3)), unless there is in force a Proclamation declaring that the Act applies to the dispute (s 6(4)), in which event it applies only in so far as the dispute relates to work referred to in s 4(1)(d)(ii) (s 6(5)).

The Commission is required to endeavour "to settle the industrial dispute as expeditiously as is appropriate having regard to all the circumstances" (s 7). Section 8 limits the power of the Commission to dismiss or refrain from hearing or determining a dispute to which the Act applies. Section 8(1) provides:

"The Commission does not, in relation to an industrial dispute to which this Act applies, have power, 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."

The effect of the subsection is, in relation to industrial disputes to which the Act applies, to deprive the Commission of the power given to it by s 41(1)(d) of the Principal Act to dismiss a matter or part of a matter or refrain from further hearing or from determining the dispute or part of it if it appears that the dispute or part of it has been dealt with, is being dealt with, or is proper to be dealt with by a State Industrial Authority, or that further proceedings are not necessary or desirable in the public interest.

Proceedings in relation to disputes to which the Act applies shall be exercised by a Full Bench of the Commission (s 9(1)), though the Full Bench is authorized, subject to s 30(4) of the Principal Act, to have regard to any evidence given, and any arguments adduced, in any other proceedings where proceedings before the Commission constituted otherwise than by a Full Bench are required by s 9(1) to be dealt with by a Full Bench (s 9(2)). And the Full Bench may direct any member of the Commission:

(a)

to inquire into any matter involved in the dispute and to report to the Full Bench; or

(b)

to endeavour to settle the dispute or part of it by conciliation and to report to the Full Bench (s 9(3)).

Section 9(6) provides:

"Where proceedings in relation to an industrial dispute are before a Full Bench by reason of sub-section (1) and the Full Bench is satisfied that it would be appropriate, in relation to the industrial dispute, to hear and determine so much of the industrial dispute as involves an electricity authority of Queensland or electricity authorities of Queensland separately from any other part of the industrial dispute, the Full Bench may make a declaration to that effect and, where such a declaration is made -

(a)

this section ceases to apply in relation to the part of the industrial dispute that involves employers other than electricity authorities of Queensland; and

(b)

the Commission as constituted under the Conciliation and Arbitration Act for the purposes of the part of the industrial dispute to which this section has so ceased to apply may, subject to sub-section 30(4) of the Conciliation and Arbitration Act, for the purpose of any proceedings in relation to that part of the industrial dispute, have regard to any evidence given, and any arguments adduced, before the declaration was made, in any proceedings in relation to the industrial dispute before the Commission as constituted under this section."

The plaintiffs attack the validity of the legislation on two grounds:

(1)

that the Parliament's legislative powers are subject to an implied prohibition against discriminating against States (or their agencies) or the residents of States; and

(2)

that the presence of the words "of any one State" in the description "extending beyond the limits of any one State" in s 51(xxxv) of the Constitution is inconsistent with the notion that laws made in exercise of the power may differ depending on the identity of the States in which the interstate dispute arose.

The first ground taken by the plaintiffs invokes the principle which was applied in Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31 to invalidate s 48 of the Banking Act 1945 (Cth). Subsection (1) of s 48 provided:

"Except with the consent in writing of the Treasurer, a bank shall not conduct any banking business for a State or for any authority of a State, including a local governing authority."

The section was held to be invalid (Latham C.J., Rich, Starke, Dixon and Williams JJ. with McTiernan J. dissenting) on the ground that the Commonwealth Parliament could not by an exercise of its legislative powers discriminate against the States or single them out for special restrictions. Because the members of the majority delivered separate and different judgments and because there was debate about the correct formulation of the limitation on the exercise of legislative powers under the Constitution, I should review its history, even if briefly, beginning with the decision in Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ("the Engineers' Case") (1920) 28 CLR 129 .

As we know, that decision rejected the doctrine of implied immunities as well as the doctrine of reserve powers and acknowledged the supremacy of Commonwealth laws over inconsistent State laws arising from s 109 of the Constitution. But the Engineers' Case, as the subsequent decisions of this Court have established, is not hostile to the existence of such implications as are to be necessarily derived from the federal nature of the Constitution and are consistent with its terms. In Australian Railways Union v. Victorian Railways Commissioners (1930) 44 CLR 319 , only ten years after the Engineers' Case, Dixon J. (with whom Rich J. agreed) expressed the rule which it enunciated by saying (at p 390) that, subject to any contrary indication to be gathered from the terms, content or context of a particular power:

"... every grant of legislative power to the Commonwealth should be interpreted as authorizing the Parliament to make laws affecting the operations of the States and their agencies, at any rate if the State is not acting in the exercise of the Crown's prerogative and if the Parliament confines itself to laws which do not discriminate against the States or their agencies."

His Honour reiterated this view in West v. Commissioner of Taxation (NSW) (1937) 56 CLR 657 , at p 682.

The first reservation suggested in the passage just quoted, which relates to the exercise of the prerogative, has been eroded by the later course of judicial decisions - see, for example, the discussion in Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. (1940) 63 CLR 278 , at pp 313-314, 322-323; Victoria v. The Commonwealth ("the Payroll Tax Case") (1971) 122 CLR 353 at pp 379-380, 384; Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 , at pp 78-80, 92-93, 105, 119; The Commonwealth v. Tasmania ("the Franklin Dam Case") (1983) 57 ALJR 450 , at pp 492-493, 525; 46 ALR 625 , at pp 704, 768. And a third reservation, relating to the taxation power, which was suggested by Dixon J. in Essendon Corporation v. Criterion Theatres Ltd. (1947) 74 CLR 1 , at p 23, was rejected in the Payroll Tax Case. But the second reservation has been reinforced by later cases, notably by Melbourne Corporation - the one case in which the limitation has resulted in the invalidity of a Commonwealth law. It is important therefore to state with some precision the view of each member of the majority in Melbourne Corporation.

According to Latham C.J., federal laws expressed in general terms may apply to the States but not federal laws which:

(a)

discriminate against the States in the sense of singling them out "for taxation or some other form of control"; or

(b)

"unduly interfere" with the performance of what are clearly State functions of government (p 60).

Laws falling within (a) and (b) are invalid because, being laws with respect to a State or State governmental functions as such, they are not with respect to a subject of Commonwealth legislative power (pp 61-62). Williams J. adopted a similar approach, though he confined his comments to discriminatory laws in category (a) (p 99). Subsequently in the Payroll Tax Case, Barwick C.J., with whom Owen J. agreed, expressed agreement (at p 373) with the view expressed by Latham C.J., basing the limitation on Commonwealth legislative power on characterization of a law.

Rich J. considered that the Commonwealth could not, either by a general law or by a law which was confined to States, take action "which would prevent a State from continuing to exist and function as such". He offered as an example of such a law one which:

"... singles out the States or agencies to which they have delegated some of the normal and essential functions of government, and imposes on them restrictions which prevent them from performing those functions or impede them in doing so"

According to Starke J.:

"... neither federal nor State governments may destroy the other nor curtail in any substantial manner the exercise of its powers or 'obviously interfere with one another's operations' (see (Graves v. New York; Ex rel. O'Keefe (1939) 306 US 466 (83 Law Ed 927))."

Rejecting as unsafe the distinction between "governmental" and "trading" functions of a State, he thought that a general law, as well as a discriminatory law, could unduly interfere with a State's performance of its functions of government. The question therefore was "whether the legislation or the executive action curtails or interferes in a substantial manner with the exercise of constitutional power" (p 75).

Both principle and authority support Starke J.'s rejection of the distinction favoured by Latham C.J., Williams J. and, it seems, Rich J. between truly governmental (essential) and trading (non-essential) functions of government (see Ex parte Professional Engineers' Association (1959) 107 CLR 208 , at pp 235, 274-276, and the Payroll Tax Case, at pp 382-383, 398, 424). As Windeyer J. observed in Professional Engineers' (at p 275):

"I cannot see any ground for saying that, in law, any one activity which government undertakes is really any more a true function of government than any other. No fixed criteria for the application of the assumed distinction have been formulated."

And history demonstrates that duly elected governments reflecting the will of the people, decide from time to time what services and functions the government will provide in the interests of public welfare. However, Starke J.'s formulation is imprecise and far-reaching. It is imprecise because it rests on curtailment or interference "in any substantial manner". It is far-reaching because it relates to every performance of a State's functions.

Dixon J. considered that there is to be implied from the Constitution a prohibition against:

"... a law which discriminates against States, or a law which places a particular disability or burden upon an operation or activity of a State, and more especially upon the execution of its constitutional powers."

He distilled this implication from the federal nature of the Constitution and its conception of a central government and State governments separately organized, having a continuing existence as independent entities (p 82). It is "the efficacy of the system" that:

"... logically demands that, unless a given legislative power appears from its content, context or subject matter so to intend, it should not be understood as authorizing the Commonwealth to make a law aimed at the restriction or control of a State in the exercise of its executive authority."

His conclusion was that s 48 was "a law directly operating to deny to the States banking facilities open to others, and so to discriminate against the States or to impose a disability upon them." The effect and point of the law was to "deny to the States the use of the banks".

Dixon J. pointed out that when a State avails itself of any part of the established organization of the Australian community it must take that organization as it finds it. It must accept the general legal system as established, except in so far as it has legislative power to alter it. The consequence is that the State must accept a monopoly in banking lawfully established by the Commonwealth. But it is another matter when the Commonwealth attempts "to isolate the State from the general system" and to deprive it of a choice available under that system. To attempt to do this is to place the State under a particular disability (p 84).

Earlier his Honour had rejected the characterization approach adopted by Latham C.J. His Honour said:

"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."

This approach to characterization has since been accepted as correct (Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1 ; Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 , at pp 192-195) and it means that the views of Latham C.J. and Barwick C.J., to which I have already referred, must be rejected (the Franklin Dam Case, at pp.497, 525; pp 712-713, 768 of ALR).

Dixon J. did not regard the prohibition against discrimination as an exhaustive statement of the limitations on Commonwealth legislative power to be derived by implication from the Constitution. In Bank of NSW v. The Commonwealth ("the Bank Nationalization Case") (1948) 76 CLR 1 , he said (at p 338):

"No doubt without discrimination laws applying to States may operate against them in such a way that it must be beyond Federal power to enact them."

Plainly, his Honour was speaking of a law which, though referable to a head of legislative power, is, by reason of its impact on the States and their functions, inconsistent with the fundamental constitutional conception which underlies the prohibition against discrimination.

On Dixon J.'s approach it was inevitable that the attack on the validity of the legislation considered in the Bank Nationalization Case, to the extent that it was based on the implied prohibition, would fail. The legislation did not discriminate against or single out the States; it subjected them to a general rule (the banking monopoly) which applied to all (pp 336-338). In that case McTiernan J. agreed with Dixon J.'s statement of principle in Melbourne Corporation (at p 397). Although Latham C.J. and Starke J. reiterated what they had said in Melbourne Corporation, they regarded the instant legislation as not aimed at the States or subjecting them to a particular direction. Rich and Williams JJ. did not discuss the question. Likewise in Wenn v. Attorney-General (Vict.) (1948) 77 CLR 84 , the legislation was held to be valid because it did not single out the States by any discriminatory provisions. Nor did it curtail or interfere with or burden the governmental operations of the States. It was a valid law of general application.

In the Payroll Tax Case Walsh and Gibbs JJ. (at pp.410-411, 424) agreed with Dixon J.'s view in Melbourne Corporation and Menzies J. was evidently of a similar opinion (pp.391-392). Further, a majority of the Court (Menzies, Windeyer, Walsh and Gibbs JJ.) held that the prohibition extends to a law which operates to interfere with a State carrying out its constitutional functions of government (pp.392, 403, 411, 424). In the Franklin Dam Case three justices (Mason, Brennan and Deane JJ.) proceeded on the footing that the prohibition did so extend (pp.492, 525, 554-555; pp 703, 767-768, 823-824 of ALR); although as Brennan J. and I pointed out, it is against impairment of the capacity of the State to function as a government, rather than against interference with or impairment of any function which a State Government undertakes, that this aspect of the prohibition is directed (see pp.492, 524-525; pp 703, 767-768 of ALR). The minority had no occasion to consider the question. Earlier in Koowarta v Bjelke-Petersen (1982) 153 CLR 168 , Stephen J. (at p 216) acknowledged that there are limitations to be implied from the federal nature of the Constitution "which will serve to protect the structural integrity of the State components of the federal framework, State legislatures and State executives".

This review of the authorities shows that the principle is now well established and that it consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities; and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 , at p 93). The second element of the prohibition is necessarily less precise than the first; it protects the States against laws which, complying with the first element because they have a general application, may nevertheless produce the effect which it is the object of the principle to prevent.

Three comments should be made in relation to the prohibition as it has been expressed. First, the principle prohibits discrimination against a particular State as well as against the States generally. Discrimination against a particular State, at least so long as it involves the imposition of a special burden or disability on that State, by isolating it from the general law applicable to others, including other States, falls squarely within the principle. Secondly, notwithstanding its basis in a constitutional conception of a relationship between a central government and separate State governments and the emphasis given to its application to the exercise of executive power by the States, the principle, as Stephen J. indicated in Koowarta, protects legislatures as well as executive governments. Thirdly, it does not follow that every law which deprives a State of a right, privilege or benefit which it enjoys will amount to discrimination in the sense already discussed. A law which deprives a State of a right, privilege or benefit not enjoyed by others, so as to place the State on an equal footing with others, is not a law which isolates the State from the general law.

So, in Federal Commissioner of Taxation v. Official Liquidator of E.O. Farley Ltd. Dixon J. suggested (at pp 313-314) that a Commonwealth law enacted under s 51(xvii) might regulate the Crown's priority in payment of debts in bankruptcy and insolvency, both in respect of the Commonwealth and the States (see also In re Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation (1947) 74 CLR 508 , at p 529; The State of Victoria v. The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575 , at pp 611-612). And this leads to the more general proposition that the Commonwealth Parliament may by an exercise of its legislative powers abrogate a prerogative of the States without necessarily offending the prohibition against discrimination.

The prohibition against discrimination operates to strike down laws which apply to agencies of a State as well as to a State itself - see, for example, Melbourne Corporation, at pp 78-79. Although there has been no examination of what is meant by "agencies of a State" in this context, there is no reason for thinking that the expression is confined to authorities which represent the Crown in the sense that they are entitled to the shield of the Crown. The foundation for the implication is not the special character and privileges of the Crown in right of the States, but the constitutional conception of the Commonwealth and the States as constituent entities of the federal compact having a continuing existence reflected in a central government and separately organized State governments.

To restrict the prohibition to a State and such of its agencies as represent the Crown in right of that State would significantly limit the protection given to the States which, as governments, are free to choose whether a function should be carried out by a department of government or by an authority brought into existence for that purpose. The object of the implied prohibition is to protect the State in the exercise of its functions from the operation of discriminatory laws whether the functions are discharged by the executive government or by an authority brought into existence by the State to carry out public functions even if the authority acts independently and is not subject to government direction and even if its assets and income are not property of the State. And it is significant that s 48 of the Banking Act, held to be invalid in Melbourne Corporation, was directed not only to a State but also to an "authority of a State, including a local governing authority".

Accordingly, it is of no moment whether the plaintiffs in the first action, other than the Queensland Electricity Commission, represent the Crown in right of the State of Queensland. It is enough that they are agencies of the State, brought into existence for a public purpose. And it is not in question that all the plaintiffs in the first action are "electricity authorities" within the meaning of s 4(1)(d) of the Act, so that the Act applies to the dispute found to exist on 18 April and to any industrial dispute which could result in the making of an award that is binding on one or more of them and would establish the terms and conditions of employment of its or their employees .

There can be no objection to an exercise of the conciliation and arbitration power which establishes a particular tribunal or a particular procedure for the settlement of disputes in one industry, say the electricity industry. In relation to that industry Parliament might, if it saw fit, require that, in the interests of expedition, the jurisdiction of the Commission be exercised by a Full Bench. It might even provide that disputes in that industry be not referred to a State Industrial Authority but be determined by the Commission itself. Such a law would apply to all without differentiation. But when the Parliament singles out disputes in the electricity industry to which agencies of the State of Queensland are parties and subject them to special procedures which differ from those applying under the Principal Act to the prevention and settlement of industrial disputes generally, and of industrial disputes in the electricity industry in particular, it discriminates against the agencies of the State by subjecting them to a special disability in isolating them from the general law contained in the Principal Act.

The limitation on the power of the Commission provided for in s 8(1), the restriction of the exercise of the Commission's jurisdiction to the Full Bench (s 9(1)) and the power given to the Commission by s 9(6) to hear the Queensland element of the dispute separately and then to declare that s 9 does not apply to the remainder of the dispute, are three patent illustrations of the differential treatment for which the Act provides. The limitation in s 8(1) is particularly significant because it prohibits the Commission from taking action which it is authorized to do under the Principal Act, even to the extent of prohibiting the Commission from dismissing a matter or from further hearing or determining the dispute, when the Commission considers that further proceedings are not necessary or desirable in the public interest.

It has been acknowledged that some federal legislative powers are concerned with the States specially or contemplate some measure in particular relation to a State or are of such a nature that they may require to be exercised in relation to a particular State, e.g., defence power (Melbourne Corporation, at p 81). Conciliation and arbitration is not such a power. Indeed, when regard is had to the impact which its exercise might have on the relationship between the States and their employees in the exercise of the functions of governments, it seems that the power should not be read as authorizing legislation which singles out a State for discriminatory treatment.

In some situations it will transpire that a provision, which on its face appears to discriminate against a particular State, ceases to have that character, when attention is given to the nature of the law and the purpose and effect which it has. The deprivation of a right, privilege or benefit, not enjoyed by others, is one illustration. And it may be that action on the part of a State or its agencies may be of such a kind as to call for a special exercise of a particular federal power in circumstances where that exercise involves no real discrimination against the State. Here, however, the provisions are so extreme in their operation that they could not be sustained on this footing.

It is not to the point that parties to the dispute other than the Queensland electricity authorities are subjected to the same procedures. They are subjected to those procedures if, and only if, the dispute could result in an award that would be binding on a Queensland authority and would establish the terms and conditions of employment by that authority. It is this circumstance that attracts the new regime with its attendant special disabilities. This regime is tailored for Queensland authorities, as distinct from the authorities of other States, and, what is more important, from the general run of employers in the industry.

It appears that a small amount (less than three per cent) of electricity generated in Queensland for distribution to consumers in that State is generated by persons other than the plaintiffs in the first action and supplied under agreements pursuant to ss 67 and 171 of the Electricity Act. Examples are Mount Isa Mines Ltd., which supplies electricity to Mount Isa and nearby communities, and a number of sugar mills which generate electricity surplus to their needs during the sugar cane crushing season. The suggestion that such suppliers are electricity authorities of Queensland within the meaning of the Act is not well founded. Although the term "authority" is not comprehensively defined, in the context in which it appears, reinforced by the inclusive definition, it means a body exercising statutory powers for public purposes (cf. Committee of Direction of Fruit Marketing v. Australian Postal Commission (1980) 144 CLR 577 , at p 580).

Even if this were not so, the submission would be no answer to the plaintiffs' case. A law may discriminate against a State even if it subjects some others (e.g. private employers) as well as agencies of the State to a special burden or disability. In such a situation the true effect of the law may be to isolate the State agency and the private employers from the general law. This, on the assumption that I am presently making, is the effect of the Act. It discriminates against the State of Queensland by singling out disputes to which employers in that State are parties, those employers being for the most part authorities brought into existence by the State to carry out public functions, and then subjecting those disputes to a regime of differential treatment. It is significant that the Act applies in the first instance to the dispute found to exist on 18 April to which no private employer in Queensland is a party.

Although it is unnecessary to deal with the plaintiffs' second argument based on the presence of the words "of any one State" in s 51(xxxv), I should indicate that my initial reaction to it was less than favourable.

What I have already said leads to the conclusion that ss 8 and 9 of the Act are invalid. As these sections are the principal operative provisions, in each action I would overrule the demurrer and declare that the entire Act is invalid as being beyond power.