R v Hickman; Ex Parte Fox and Clinton
70 CLR 598(Judgment by: RICH J)
Between: Regina
And: HICKMAN
Ex Parte FOX AND CLINTON
Judges:
Latham CJ
Rich JStarke J
Dixon J
McTiernan 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:
RICH J
Ex parte Fox and Another.-This is an application to make absolute a rule nisi for a writ of prohibition to prohibit a Local Reference Board constituted under Part III. of the National Security (Coal Mining Industry Employment) Regulations from proceeding further upon an order made on 1st May last. The Board decided that the employer firm and the employees concerned were engaged in the coal mining industry and accordingly were bound by the awards known as the Mechanics' (Coal Mining Industry) Awards.
The jurisdiction of this Court derives from s. 75 (v ) of the Constitution-the members of the Board being officers of the Commonwealth. The exercise of this jurisdiction is not affected by the provisions of reg. 17 of the Regulations-provisions similar to those contained in s. 31 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1934. And an order will be made if it appears that the Board is acting in excess of jurisdiction (R. v Legislative Committee of the Church Assembly; Ex parte Haynes-Smith, [F4] at p. 414). The same principle has hitherto been applied in this Court when orders or awards have been made in excess of jurisdiction purporting to bind the parties and to impose continuous liabilities. It remains, therefore, to consider whether the Board's decision is beyond power. Regulation 14 (1) (a) empowers a Local Reference Board "to settle disputes as to any local matters likely to affect the amicable relations of employers and employees in the Coal Mining Industry." And "dispute" and "local matter" are also associated with the "Coal Mining Industry" (reg. 4). This industry is well known, but no evidence was forthcoming to designate the aggregate of objects that may be included under this industry. And in the absence of such evidence the facts, which have been stated in the judgment of the Chief Justice, do not show that the employers and their employee lorry drivers are persons engaged in the coal mining industry. The employers were carrying on the business of carriers and the drivers were not employed as carriers of coal in such industry, but in their general capacity of lorry drivers. It follows that the decision of the Board was made without jurisdiction and is void.
The order nisi should be made absolute with costs against the Federated Mining Mechanics' Association.
Ex parte Clinton and Others.-The facts in this case do not differ in any material respect from those in R. v Hickman; Ex parte Fox. Accordingly, I think that the decision of the Board that the employer firm and its employee drivers were engaged in the coal mining industry was not justified. The decision or order of the Board was made without jurisdiction and is void.
The order nisi should be made absolute with costs to be paid by the Federated Mining Association.