R v Hickman; Ex Parte Fox and Clinton
70 CLR 598(Judgment by: DIXON J)
Between: Regina
And: HICKMAN
Ex Parte FOX AND CLINTON
Judges:
Latham CJ
Rich J
Starke J
Dixon JMcTiernan J
Subject References:
Defence
National security
Coal mining industry
Ambit of jurisdiction of Local Reference Board
Legislative References:
Constitution (Cth) - s 75(v)
National Security (Coal Mining Industry Employment) Regulations 1941 SR No 25 - r 2; r 4; r 14(1)(a); r 17
Judgment date: 5 September 1945
SYDNEY
Judgment by:
DIXON J
Ex parte Fox and Another.-Ex parte Clinton and Others.-These are two orders nisi for prerogative writs of prohibition directed to the chairman and members of a Local Reference Board established under the National Security (Coal Mining Industry Employment) Regulations. The writs are sought to prohibit the Local Reference Board from proceeding further upon so-called orders made by the Board on 1st May 1945 and 10th May 1945.
It is not easy to say to which of the precise authorities conferred on the Board by the Regulations these orders are to be referred. They purport, however, to decide the question whether the respective prosecutors are engaged in the coal mining industry and are required to afford to their employees the minimum wages and conditions prescribed by certain awards in that industry.
Under reg. 14, a Local Reference Board has power, among other things, to settle disputes as to any local matters likely to affect the amicable relations of employers and employees in the coal mining industry. I think it is to this power that we should refer the Board's decisions. In the interpretation of the regulation, there are some definitions which must be taken into account. The expression "local matter" is defined by reg. 4 to mean any matter howsoever arising which specially affects employees in the coal mining industry employed in the locality in respect of which a Local Reference Board is established. The word "dispute" by itself is not defined, but "industrial dispute" is defined to include any dispute and any threatened, impending or probable dispute as to industrial matters in relation to the coal mining industry. It will therefore be seen that the power of the Board relates to what is vaguely described as the coal mining industry.
The prosecutors are carrying contractors and their vehicles and employees are engaged in carrying coal from mine heads to various points, including railway stations and sidings. It is not necessary for me to restate the facts; it is sufficient to say that the question has arisen whether awards governing certain employees, including lorry drivers, in the coal mining industry apply to the employees of the prosecutors so engaged. That question depends upon a proper understanding and application of the indefinite description "coal mining industry." The Regulations as a whole purport to deal only with that industry, and for that reason, as well as because of the foregoing definitions, the prima facie authority of the Local Reference Board does not go beyond the settlement of questions arising in that industry.
The question raised is one which, it might be thought, would turn upon the common understanding, among people concerned with the coal industry and particularly with industrial matters, of the manner in which the words "coal mining industry" are ordinarily applied. It may be that no such common understanding of the expression exists. If, however, the application of the words is established by usage, you would expect to find it evidenced by awards, determinations, reports and other papers dealing with the industrial side of coal mining. But we have not been referred to any such documents. On the contrary, we have been left to ascertain as best we may what is the denotation of the very indefinite expression "coal mining industry." It is, I think, unfortunate that it has become necessary to submit such a question to judicial decision. From a practical point of view, the application of the Regulations should be determined according to some industrial principle or policy and not according to the legal rules of construction and the analytical reasoning upon which the decision of a court of law must rest. As it is, however, the question must be decided upon such considerations. Applying them, I am of opinion that the operations of the employers, who are the prosecutors in this application, do not fall within the natural meaning of the expression "coal mining industry."
This conclusion is contrary to that adopted by the Local Reference Board and expressed in the decisions now in question. The decisions were given by the Local Reference Board, assuming to act under its powers, and we are called upon to say whether they are conclusive of the question. In other words, are the decisions under the Regulations valid and effective to bind the parties? If the Regulations give them validity, they cannot be the subject of a writ of prohibition.
The jurisdiction of this Court under s. 75 (v ) of the Constitution is invoked upon the footing that the Board are officers of the Commonwealth and are persons to whom a writ of prohibition lies. Regulation 17 provides that a decision of a Local Reference Board shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever. The presence of this provision in the Regulations makes it necessary to say whether and to what extent it is ineffectual to protect the decision of the Board from invalidation. In the first place, it is clear that such a provision cannot, under the Constitution, affect the jurisdiction of this Court to grant a writ of prohibition against officers of the Commonwealth when the legal situation requires that remedy. But a writ of prohibition is a remedy that lies only to restrain persons acting judicially from exceeding their power or authority. It is therefore necessary to ascertain before issuing a writ whether the persons or body against which it is sought are acting in excess of their powers; and that means whether their determination, when made, would be void. The Board derives its power from Regulations of which reg. 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board, and whether its decision is void.
The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary Constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body.
The matter has been expressed in somewhat different ways. In Baxter v New South Wales Clickers' Association, [F11] O'Connor J. said that such a provision should be construed as freeing the court or authority from the control or supervision of the superior court in all cases where the proceedings of the former show on the face of them that they have relation to the subject matter over which the statute has given it jurisdiction. [F12] Isaacs J. treated the same provision as excluding prohibition in relation to any decision so long as the power of the judicial authority is exercised bona fide for the purpose for which it is conferred. [F13]
In Australian Coal and Shale Employees Federation v Aberfield Coal Mining Co Ltd, [F14] Latham C.J., in speaking of this very regulation said that it did not profess to give validity to an invalid award and proceeded:"Further, if a pretended award were so completely beyond any possible jurisdiction that it could not reasonably be said to be `an award' other questions would come up for consideration-such questions as were considered in Baxter v N.S.W. Clickers' Association [F15] ". [F16] Starke J. said:"In my opinion, reg. 17 excludes any appeal whatever from any award or order of the Conciliation Commissioner in relation to industrial disputes referred to him under s. 16 of the Industrial Peace Regulations. Effect can only be given to reg. 17 by treating the words, award, order or determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it. To confine the meaning of those words to acts done lawfully and within the jurisdiction of the tribunal ignores the clear, distinct and unmistakable intent of the regulation. Prohibition at common law was the appropriate remedy for restraining inferior courts from exceeding their jurisdiction, and yet this remedy is withdrawn by the regulation: See Baxter's Case; [F17] Morgan v Rylands Bros. (Australia) Ltd; [F18] Clancy v Butchers' Shop Employees Union; [F19] Colonial Bank of Australasia v Willan [F20] ". [F21]
It is, of course, quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution. The relevant subject matter in the present case is naval and military defence. It is equally impossible for the legislature to impose limits upon the quasi-judicial authority of a body which it sets up with the intention that any excess of that authority means invalidity, and yet, at the same time, to deprive this Court of authority to restrain the invalid action of the court or body by prohibition. But where the legislature confers authority subject to limitations, and at the same time enacts such a clause as is contained in reg. 17, it becomes a question of interpretation of the whole legislative instrument whether transgression of the limits, so long as done bona fide and bearing on its face every appearance of an attempt to pursue the power, necessarily spells invalidity. In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid.
In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open.
In speaking of s. 31 of the Commonwealth Conciliation and Arbitration Act, Isaacs and Rich JJ., in Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd, [F22] at p. 520, expressed views to the effect that s. 31, although leaving it to the ordinary courts to apply any appropriate remedy to an excess of jurisdiction by the Arbitration Court before it made an order or award, meant that once the order or award was made that instrument then should be regarded as within jurisdiction, provided that it did not exceed the limits of the Constitution or, presumably, deal with matters to which the Arbitration Court was an entire stranger. Possibly this view may go too far, but, having expressed it, their Honours proceeded to say that the jurisdiction given by s. 75 (v ) of the Constitution continues to exist "but it needs a proper case for its exercise. Such a case exists wherever Parliament evinces its intention that curial action shall bind only when certain conditions are satisfied". [F23] They point out that, if in one provision it is said that certain conditions shall be observed, and in a later provision of the same instrument that, notwithstanding they are not observed, what is done is not to be challenged, there then arises a contradiction, and effect must be given to the whole legislative instrument by a process of reconciliation.
In my opinion, these general principles are sound and are not at variance with what was actually decided in the case of Gilchrist, Watt & Sanderson. [F24] Accordingly, I think that under the Coal Mining Industry Employment Regulations the decisions of a Reference Board should not be considered invalid if they do not upon their face exceed the Board's authority and if they do amount to a bona fide attempt to exercise the powers of the Board and relate to the subject matter of the Regulations. This view, however, leaves the question whether the decision now impeached really does bear on its face an appearance of an exercise of the power bestowed, or whether from its very nature it is an attempt to go beyond that power. This question depends upon an examination not merely of the decisions, but of the character of a Local Reference Board.
A Local Reference Board performs functions limited to an assigned locality and defined or specified either by the Commonwealth Coal Commissioner or the Chairman of the Central Reference Board. Within these limitations, Local Boards' powers extend to the matters set out in reg. 14 of the Coal Mining Industry Employment Regulations. These powers are concerned entirely with the settlement of disputes. They do not include any authority to decide either the limits of the local Board's own jurisdiction or the extent of the application or operation of the conception involved in the expression "coal mining industry." Regulation 15 gives to a Local Reference Board the authorities, so far as applicable, conferred upon the Central Reference Board by, among other regulations, reg. 8. Regulation 8 gives to the Central Reference Board, for the purposes of considering industrial disputes or matters of which it has cognizance, the powers which, by the Commonwealth Conciliation and Arbitration Act or the National Security (Industrial Peace) Regulations, or by the Act as applied and construed by those Regulations, are expressed to be given to the Court or the Chief Judge with respect to industrial disputes of which the Court has cognizance. This presumably carries the power of interpretation conferred upon the Court by s. 38 (o) of the Commonwealth Conciliation and Arbitration Act, as well as other ancillary powers given by that section.
What the Local Reference Board appears to me to have done in these matters is to make a declaratory judgment concerning, not merely the meaning expressed by or lying behind the awards, but the extent of their actual operation. Further, the question so decided concerning their actual operation was not dependent upon their meaning or intended meaning, but upon the extent of the operation of the Coal Mining Industry Employment Regulations and the consequent authority of the Central Reference Board. Moreover, as I read them, from the very face of the orders made it appears that this was the question which the Reference Board assumed to decide.
Now, I think that it is plain that the Coal Mining Industry Employment Regulations do not mean to give either to the Central Reference Board or to the Local Reference Board any power whatever to determine the ambit of the expression "coal mining industry" or the extent of their own jurisdiction as governed by that expression. It would be unconstitutional for the Regulations to attempt to give to either Board any judicial power, and, although that is not a decisive consideration, it is a guide to the real meaning of such provisions as reg. 8 and reg. 14. On the face of those regulations it is clear enough that the words "in the coal mining industry" are words of final limitation upon the powers, duties and functions of the Boards.
I therefore think that the orders under consideration undertake to decide a matter the determination or control of which is completely outside the authority of a Local Board. I do not mean to say that the Board may not, for the purpose of determining its own action, "decide" in the sense of forming an opinion upon the meaning and application of the words "coal mining industry." It must make up its mind whether this or that particular function on the borders of the coal mining industry does or does not fall within the conception. But it is not able to make a decision binding on the parties within the meaning of reg. 9, because that is the very matter which governs the extent of the operation of reg. 9, among other regulations. I am therefore of opinion that the orders are not matters which fall within the principles I have attempted to explain-principles which have a protective operation upon the action of Boards acting irregularly or outside their formal authority.
It was contended, however, that the decisions, or declarations, as I prefer to call them, contained in the orders under consideration do not assume to impose any continuing liabilities upon the employers named therein, and that they fall outside the principles upon which this Court acts in deciding whether a writ of prohibition may be issued in respect of a judicial act. Those principles were settled by the judgments of Knox C.J., Duffy J. and Starke J. in the case of R. v Hibble; Ex parte Broken Hill Pty Co Ltd. [F25] The Court in that case was evenly divided. But the Court has since applied those principles in the decision of a number of cases: See R. v Connell; Ex parte Hetton Bellbird Collieries Ltd [F26] and also R. v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria; [F27] R. v Foster; Ex parte Crown Crystal Glass Co Pty Ltd, [F28] though there no formal order had been drawn up and perhaps that remained to be done. These decisions, I think, rest upon the view expressed by Starke J., as follows:"It" (the award) "is, to use the words of Lush J. in Serjeant v Dale, [F29] at p. 568, `still in operation', and if not stayed it may lead to further proceedings, if not before the Special Tribunal, at all events before other tribunals". [F30] It is open to question how far this view is consistent with the statement made by Lord Maugham for the Privy Council in Estate and Trust Agencies (1927) Ltd v Singapore Improvement Trust, [F31] at pp. 917, 918, where his Lordship says:"On the other hand, there must remain something to which prohibition can apply, some act which the respondents if not prohibited may do in excess of their jurisdiction, including any act, not merely ministerial, which may be done by them in carrying into effect any quasi-judicial order which they have wrongly made." But, although this statement was made after a full argument on the very point, including the citation of the chief authorities relied upon in the Hibble Case, [F32] it is in strictness an obiter dictum ; for their Lordships decided in the particular case that prohibition lay.
I think that the Court should, until the matter is authoritatively determined by the Privy Council, continue to apply the principles settled in the Hibble Case. [F33] The orders or declarations made by the Board in the present case appear to me to fall within them. It is true that nothing remains for the Local Reference Board to do, except perhaps rescind them or vary them, which involves separate proceedings, but they do assume to bind the parties, and thus to bring into operation upon the employers awards which would otherwise not affect their liabilities. Those awards have a continuing effect or operation within the meaning of the principle upon which this Court has acted. I, therefore, think that the writs of prohibition should issue.
The orders nisi should be made absolute.