BANK OFFICIALS' ASSOCIATION (SOUTH AUSTRALIAN BRANCH) v SAVINGS BANK OF SOUTH AUSTRALIA
32 CLR 2761923 - 0606A - HCA
(Judgment by: ISAACS J, RICH J)
Between: BANK OFFICIALS' ASSOCIATION (SOUTH AUSTRALIAN BRANCH)
And: SAVINGS BANK OF SOUTH AUSTRALIA
Judges:
Knox CJ
Isaacs JHiggins J
Rich JStarke J
Subject References:
Arbitration
Industrial Court of South Australia
Jurisdiction
Legislative References:
Savings Bank Act 1875 (SA) - the Act
Judgment date: 6 June 1923
MELBOURNE
The rule for prohibition was made absolute by the Supreme Court of South Australia on the ground that the Industrial Court was exceeding its jurisdiction inasmuch as the Industrial Arbitration Act 1912 had no application to the Savings Bank of South Australia. That conclusion was based on the view that, although the Bank came within the language of the Industrial Arbitration Act literally read, it ought to be held to be outside its operation, first, because the Crown was not bound by it, and, next, because of the maxim Generalia specialibus non derogant.
After the discussion had proceeded some distance before this Court, it was accepted that the matter depended, not upon the Industrial Arbitration Act of 1912 but upon the Industrial Code 1920, which became law on 9th December of that year. The industrial proceedings were started by a claim made by the appellant Association on 16th November 1920, and on 1st December 1920 the Bank was served with a summons issued by the Industrial Court. But though the proceedings began before the passing of the Act of 1920, which repealed the earlier Act, s. 3 of the later Act provides by sub-s. 4 that "Any proceeding which at the passing of this Act is depending in any Court ... may be proceeded with, heard, and determined, and the decision or any award, order, or determination may be enforced under this Act." Consequently it is the jurisdiction of the Court under the Act of 1920 which has to be considered.
There is considerable difference between the definitions in the two Acts; and so the first question is whether the respondent Bank primarily comes within the new statutory jurisdiction. By s. 17 it is enacted that "the Court shall have jurisdiction- (a) to deal with all industrial matters pursuant to this Part of this Act." "Industrial matters," within the meaning of that Part of the Act, include-it is not denied-all the matters claimed provided the appellant and the Bank are, within the meaning of the Act, respectively employees and employer in an industry. The matter ultimately turns on whether the Bank is engaged in an "industry" as that term is defined in s. 5. The definition runs thus:
" `Industry'-(a) means craft, occupation, or calling in which persons of either sex are employed for hire or reward-(I.) in any business, trade, manufacture, or calling carried on by way of trade or for purposes of gain (except agriculture)."
"Agriculture" is by the same section extended to many things not usually called agriculture, but banking is not one of those things.
The respondent contended that, laying aside the two grounds on which the Supreme Court acted, the Bank was outside the definition, because, as it was said, it did not on a proper construction of its Act carry on its "business" "for purposes of gain." That was supported by the argument that the scope and purpose of the Savings Bank Act was merely to encourage thrift and saving and to enable the Bank to pay interest to depositors, and not to make gains for the Bank itself. There are two answers to this. The first is that the words in the definition which follow the word "calling" are descriptive of that word, and not of the words "business, trade, manufacture." A "business," a "trade" or a "manufacture," as carried on by employers, is itself and without more an "industry". But there may be many "calling" of employers which have no resemblance industrially to a "business," a "trade" or a "manufacture"; therefore the succeeding words are added to include such callings as are cognate and exclude such as are not. It would be not a little absurd after specifically mentioning "business" and "trade" to stipulate that they must be carried on either by way of "trade" or "for purposes of gain". Therefore, if the Bank carries on a "business" it is engaged in an "industry". But even if it were necessary to attach to it the condition of carrying on its business "for purposes of gain," the authorities are clear that it does so when the powers of the Bank as stated in its Act (No. 22 of 1875) are looked at. Repeatedly, as in ss. 5, 7, 13, 16, 18, the "business" of the Bank is referred to. The business in the main, and broadly stated, is to receive deposits from any person (with specified exceptions) from 1s. up to PD500, to pay the moneys so deposited into some approved bank or banks to the credit of the Savings Bank, to invest the moneys in mortgage or other named securities at interest, to establish a reserve fund, to pay annually out of the remainder of its profits such interest as the trustees determine, and to carry the balance undivided forward to the profit of the following year. One of its main purposes is to make profits by investing its funds; indeed, without that, the purpose of the Act would fail. The depositors are not members. The only corporators are the trustees (s. 3). Therefore, the Bank receives moneys from persons who are strangers, it makes profits by investing its funds with persons who are strangers, and it pays to the depositors such portion of those profits as it determines subject to specific limitations, which are immaterial. The reasoning of Cockburn C.J. in Moore v Rawlins, [F6] concurred in by Willes J., is greatly in point. (See also per Jessel M.R. in In re Arthur Average Association for British, Foreign and Colonial Ships; Ex parte Hargrove & Co, [F7] at pp. 546-547; and in In re Padstow Total Loss and Collision Assurance Association, [F8] at 145, and per Lindley L.J.: [F9] particularly see England v Webb, [F10] at p. 761.)
Prima facie, then, the Bank is within the jurisdiction of the Industrial Court. Is that prima facie construction overcome by either of the considerations referred to ? As to the Crown, it is quite clear the Bank is not a Government Department. It is, as the Act in s. 2 styles it, an "institution" known as "the Savings Bank of South Australia," and the section declares that it shall continue to be so designated. That "institution" had existed before. It was first established in 1847 by Ordinance No. 15, in which occurs the preamble quoted by Poole J. That ordinance enacted in its first section that "an Institution, to be called the Savings Bank of South Australia, shall be established" etc Section 2 enacted that "the Governor of South Australia for the time being shall be President of the said Institution, and that the management of the affairs of the same shall be vested in twelve trustees, to be appointed by the said Governor one of whom shall be styled Vice-President." Clearly from that the Governor (ex officio President) was merely a persona designata, and his position was not as Executive of the Province. Section 14 of that ordinance showed the distinct demarcation between Bank and Crown. So did the amending ordinance No. 13 of 1848. In 1861, when the amending Act No. 8 was passed, the Governor dropped out as President and came in in another way as a confirming authority. In 1875 the present Act was passed, which governs the position. The "institution" still retains its non-governmental character; it is a corporation. For the security of depositors there is a provision introduced in 1912, by s. 19 of Act No. 1083, that "if at any time the funds created by the investment of deposits are insufficient to meet the lawful claims of all depositors, the Treasurer, with the consent of the Governor, may pay the amount of the deficiency out of the general revenue of the State; which revenue is hereby appropriated so far as may be necessary for that purpose." That is only a power which depends for its exercise on an order in Council perfectly optional with the Government of the day. Whatever the moral or political effect of that clause may be, it is not a legal identification of the Bank with the Crown. It is a strong assertion to the contrary. There are provisions in the Act, particularly in s. 7 and s. 13, subjecting the action of the trustees to Government control and inspection, and enabling them to apply for Government assistance; but these do not convert the Bank into a Government agency. The control thus given is in relation to the appointment of officers, the fixation of salaries and emoluments and the general regulation of the transactions and business of the trustees and the government and management of the Bank. The point, however, to be noted in this connection is that the initiative as to officers is entirely vested in the trustees. Nothing as to them is vested in the Government except approval or disapproval; in other words, there is a Governmental check to a great extent on the discretion of the trustees. The situation is not one to which, in our opinion, the rule of interpretation of statutes applies that statutes do not affect the Crown except by express reference or clear implication.
As to the second ground, namely, the maxim Generalia specialibus non derogant, the first requisite is to get a clear understanding of its meaning. In Barker v Edger [F11] it is said:
"The general maxim is, Generalia specialibus non derogant. When the Legislature has given its attention to a separate subject and made provision for it, the presumption is that a subsequent general enactment is not intended to interfere with the special provision unless it manifests that intention very clearly. Each enactment must be construed in that respect according to its own subject matter and its own terms."
Now, the first thing we have to understand is what is the meaning of "separate subject" and "a subsequent general enactment." In Blackpool Corporation v Starr Estate Co [F12] Viscount Haldane, as to that rule of construction, says:
"It is that wherever Parliament in an earlier statute has directed its attention to an individual case and has made provision for it unambiguously, there arises a presumption that if in a subsequent statute the Legislature lays down a general principle, that general principle is not to be taken as meant to rip up what the Legislature had before provided for individually, unless an intention to do so is specially declared. A merely general rule is not enough, even though by its terms it is stated so widely that it would, taken by itself, cover special cases of the kind I have referred to. An intention to deal with them may, of course, be manifested, but the presumption is that language which is in its character only general refers to subject matter appropriate to class as distinguished from individual treatment. Individual rights arising out of individual treatment are presumed not to have been intended to be interfered with unless the contrary is clearly manifest."
Viscount Cave, the present Lord Chancellor, quoted with approval [F13] the rule in Barker v Edger. [F14] Lord Cave also, for himself, said:
"The rule is clear that a general statute will not, in the absence of clear words, be construed as derogating from special provisions in a previous statute."
The language in those two cases-and they are in accordance with previous authorities-shows that the subject matter in the earlier Act must be the same as that in the later Act before the maxim can have any possible application. If, for instance, there were found in the Savings Bank Act a provision specially directed to the settlement of industrial disputes between the Bank and its employees, that would have been an individual case specially provided for and presumably not to be interfered with by mere general words in the latest Act. The presumption even then might be overcome by consideration of the later Act as a whole. The strength of the presumption is very forcibly illustrated by the two cases cited. More especially is this shown by the Blackpool Case. [F15] Even the words "any statute" in the general Act were held by four out of five of the learned Lords to be insufficient to affect the earlier statute (the Blackpool Improvement Act 1917), though Lord Shaw thought otherwise, and gave his concurrence to the conclusion on another ground. On the other hand, in this case the subject matter of the later Act-the Industrial Code-might be entirely different. It might be limited entirely to the settlement of industrial disputes. The subject matter of the two Acts in that case could not be said to be the same. The first would look to the ordinary normal condition of affairs, to the times of industrial peace, when there was no apprehension of the public institution arresting its functions. The second would, in the case supposed, look to an abnormal state of affairs when, the officials having sought improved industrial conditions and having been refused, a possible danger of stoppage existed, and then, and then only, the jurisdiction of a public tribunal would arise to avert a public calamity-industrial war. The Act of 1912 included that jurisdiction, though its words might also have included a jurisdiction independent of industrial disputes. It is unnecessary now to say how that would have affected the present case, which is in fact one of industrial dispute. The supersession of the earlier Act by the later one is therefore important beyond the fact of definitions already adverted to. It is important as to the nature of the jurisdiction of the Court, in other words, of the subject matter of the legislation. Comparison of the two Acts discloses a radical distinction. "Industrial disputes" formed a very distinct and perhaps essential feature in the Act of 1912. That feature is, with one exception (and only one, so far as we can discern), completely eliminated from the scheme of the Act of 1920. The definition of "industrial disputes" is found in s. 5, but its application, so far as we have traced it, is confined to s. 104, which enacts penalties for picketing or inducing others to join in an industrial dispute or injure any party to such a dispute. The Court's jurisdiction under the Act of 1920 is in respect of "industrial matters." By s. 17 (1) "the Court shall have jurisdiction (a) to deal with all industrial matters pursuant to this Part of this Act." Sec. 36 (1) enacts:
"The Court may exercise any of its powers on its own motion or on the application of any party to the industrial matter, or of any association or person bound by the award or order of the Court."
Clause 3 of the definition of "industrial matters" in s. 5 is in these terms:
"In order to remove any doubt as to the meaning of the foregoing definition of the term `industrial matters' it is hereby declared for all the purposes of this Part of this Act, that the jurisdiction of the Court or of the President over an industrial matter does not depend upon the existence of a dispute, or the making of a prior claim or demand in relation to such industrial matter."
Tracing the various sections of the Act, it is clear that there has been a consistent and complete excision of the expression "industrial dispute" as an element of jurisdiction. The Act is no longer an Act for abnormal conditions or for settlement of industrial disputes. It is a general Act for the regulation of "industrial matters." It is in terms extremely wide; but, however wide its operation may be, there is no doubt its subject matter is the fixation of wages, salaries, and other conditions of industry as between employers and employees. In other words, its subject matter, in general terms, is precisely what in the individual case of the Savings Bank the Legislature has provided for "in a special way by the special Act." The Savings Bank Act is sufficiently minute in its provisions to make it perfectly manifest that the Legislature had a positive intention to regulate the way in which salaries and emoluments, as well as appointments of officers (s. 7), their retiring allowances (s. 8), the non-assignability of salaries and retiring allowances (s. 9), leave of absence (ss. 10, 11 and 12), days and hours of business (s. 5), and general conduct of business (s. 13), should be determined for the purpose of carrying on the business of the Bank. As a part of the scheme the intervention of the Crown-for in the Act of 1875 "Governor" means "Governor in Council" (see Acts Shortening Act 1872 (No. 9 of 1872), s. 16)-is prescribed for in specific ways. In the Industrial Code the intervention of the Crown is prescribed for in a totally different way (s. 34).
As a result the case appears to fall plainly within the operation of the maxim Generalia specialibus non derogant, and therefore the rule for prohibition was, in view of s. 52 of the Industrial Code, rightly made absolute, and the appeal should be dismissed.