Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employes Association [1906] HCA 94; (1906) 4 CLR 488 (17 December 1906)

HIGH COURT OF AUSTRALIA

The Federated Amalgamated Government Railway and Tramway Service Association Appellants ; and The New South Wales Railway Traffic Employes Association Respondents .

H C of A

Griffith C.J., Barton and O'Connor JJ.

13 August 1906, 20 August 1906, 29 August 1906, 30 August 1906, 31 August 1906, 4 September 1906, 5 September 1906, 7 September 1906, 10 September 1906, 11 September 1906, 12 September 1906, 13 September 1906, 14 September 1906, 17 December 1906

The following judgments on the preliminary question were read, and the argument on the main point was allowed to stand over.

This matter came before the Court as a case stated by the President of the Commonwealth Court of Conciliation and Arbitration under sec. 31 of the Commonwealth Conciliation and Arbitration Act 1904 . The New South Wales Railway Traffic Employés Association are an association within the literal meaning of that term as defined in sec. 4 of the Act, which defines "Association" as meaning "any trade or other union, or branch of any union, or any association or body composed of or representative of employers or employés, or for furthering or protecting the interests of employers or employés." They made application in due course to the registrar of the Arbitration Court for registration, and their application was opposed by the Federated Amalgamated Government Railway and Tramway Service Association on various grounds, but the registrar intimated that he would grant the application. The opponents then appealed to the President against his decision. Upon the hearing of the appeal it was objected, amongst other objections, that the applicants, being an association of State railway servants, could not be registered under the Act, and that the Act, in so far as it purported to include State railway servants within its provisions, was ultra vires and void. The President, treating the objection as a question of law arising in a proceeding in the Arbitration Court, stated a case for the opinion of this Court. The point so stated arises under paragraph xxxv. of sec. 51 of the Constitution under which the Commonwealth Parliament has powers to make laws with respect to "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," and sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904 , which defines an industrial dispute for the purposes of that Act as "including disputes in relation to employment upon State railways."

There can be no doubt that this is a question of law, nor that it is a question of great importance. But it is objected that it is not a question arising in a proceeding before the Court, and that the President has therefore no power to state a case with respect to it, and that this Court has no jurisdiction to hear such a case. It is contended that the President, in hearing an appeal from the registrar, is not acting as the Court, but in the exercise of a personal authority conferred on him as President of the Court, and that, so acting, he constitutes a different and separate tribunal, to which the power to state a case for the opinion of the High Court does not attach. Sec. 11 of the Act provides that there shall be a Commonwealth Court of Conciliation and Arbitration which shall be a Court of record and shall "consist of a President." Division II. of Part III. of the Act, headed "The Jurisdiction of the President and of the Court," comprises three sections, the first of which (sec. 16) charges the President with certain extra-judicial duties by way of mediation, to which it is not necessary to refer. Sec. 17 provides that:—"The President may review annul rescind or vary any act or decision of the registrar in any manner which he thinks fit;" and sec. 18 provides that:—"The Court shall have jurisdiction to prevent and settle, pursuant to this Act, all industrial disputes." In my opinion, notwithstanding the difference in language between secs. 17 and 18, the duty of the President under sec. 17 is judicial and not ministerial. It is a duty cast upon him as the President and sole member of the Court constituted by the Act. I cannot accept the suggestion that in the discharge of this duty he is exercising a jurisdiction conferred upon him personally as distinguished from the Court.

The only question that remains is whether an appeal from a decision of the registrar is a "proceeding before the Court" within the meaning of sec. 31, sub-sec. (2). Sec. 54 provides that the registrar shall keep a register of all organizations registered under the Act. Sec. 55 provides that certain specified associations may, on compliance with the prescribed conditions, be registered as organizations. Sec. 60 requires the registrar, if it appears to him that certain conditions exist in the case of any registered organization, to make application to the Court for the cancellation of the registration. One of them is that the organization has been registered erroneously or by mistake. If the registrar on application to him refuses to apply to the Court for the cancellation of the registration of an organization, the Court may, on the application of any person interested, order the registration to be cancelled. There can be no doubt that an application to the Court under this section is a "proceeding before the Court" within the meaning of sec. 31, sub-sec. (2). If the objection now under consideration is a good one, the only result would be that the President, if he desired to obtain the opinion of the High Court, would formally affirm the decision of the registrar granting registration, whereupon the objector or appellant (whom I assume to be a person interested) would apply to the registrar to make application for cancellation of the registration, and then, whether the registrar made that application or not, the Court would deal with the matter, and obtain the opinion of the High Court on a case stated. The point raised, therefore, is purely one of form, and involves no question of substance. If necessary I think that the present case should be regarded as an appeal from a refusal of the registrar to apply for cancellation of the registration of the applicant association. But I do not think it necessary to have recourse to this fiction. The term "proceeding" is a term of very wide application. In my opinion the term "proceeding before the Court" includes every matter brought before the President in the exercise of the judicial functions conferred upon him by the Act.

I think also that the objectors, who were an association of persons in the railway service of New South Wales, were persons interested, since the registration of the applicants might under sec. 59 have deprived them of a right of registration, which possibly they might have had. I think, further, that the objection, being one to the status of the applicants, was, in effect, one to the jurisdiction of the Court itself, and that such an objection may with the sanction of the Court be made by any person, if only as amicus curiae. (See Corporation of London v. Cox [1].

It was further objected by the applicants that the question sought to be raised is as to the validity of an Act passed by the Commonwealth Parliament, and that the Court will not in its discretion decide such a question, or even allow it to be raised, except in a litigation between parties in which the point is necessarily and distinctly raised. Without disputing the general proposition, I do not think that it applies to a case in which the Court is asked to exercise a jurisdiction the existence of which depends upon the constitutional validity of the Statute in question. A point of jurisdiction, when it is seriously raised, or if it suggests itself to the Court without being taken by a party, cannot properly be disregarded. Nor is a Court justified in making an order which it has no jurisdiction to make by the mere fact that no objection is offered.

For these reasons I am of opinion that the objections taken by Mr. Shand to the hearing of the case were untenable.

I concur.

There is nothing in the preliminary objection. The Act no doubt distinguishes between the cases in which the President acts ministerially, as in mediating between industrial disputants not judicially before him under sec. 16, or in annulling some act of the registrar under sec. 17, and the cases in which he acts judicially. But Mr. Shand's objection is founded on the view that the President has two separate judicial capacities, one as President constituting "The Court" as described in the Act, the other as President acting judicially in those matters which the Act expressly empowers the President to deal with. It must be admitted that in the latter case equally as in the former the President constitutes a judicial tribunal—but it is contended that in the former case that tribunal is "The Court" and in the latter it is not "The Court" but another tribunal which is described as "The President." There is only one judicial tribunal constituted by the Act. Sec. 4 defines "The Court" as "The Commonwealth Court of Conciliation and Arbitration constituted pursuant to this Act." The Court is constituted by sec. 11 in the following words:—"There shall be a Commonwealth Court of Conciliation and Arbitration, which shall be a Court of Record, and shall consist of a President." Whenever the President sits judicially he constitutes "The Court," and he cannot sit judicially without constituting "The Court." There is no warrant in the Act for the contention that the President sitting as a tribunal hearing one class of judicial proceedings is "The Court," but when sitting as a tribunal hearing another class of judicial proceedings he is not "The Court." Reference was made to sec. 32 which enables certain matters to be decided by the "President sitting in Chambers." A Court ordinarily speaking conducts its business in public—but it has always been the practice in the several jurisdictions of the Supreme Court for Judges, when they so deem it advisable, to deal with the class of proceedings mentioned in sec. 32 in Chambers either in public or in private. It is to make it quite clear that this method can be followed in the Federal Arbitration Court that similar power has been expressly conferred on the President by that section. But whether the President sits in Court in the ordinary sense of the word or in his own Chambers under that section, he constitutes the Court under the Act. In other words, whenever the President sits judicially he constitutes the Court, and as he sits judicially in reviewing under sec. 17 a decision of the registrar, the proceeding on that review is a "proceeding before the Court" within the meaning of sec. 31, and he may state a case for the opinion of the High Court on any question of law arising in that proceeding. As to the other matters mentioned by my learned brother the Chief Justice, I entirely agree with his observations.

The judgment of the Court was read by Griffith C.J.

The Act under which the question now before the Court for decision is raised is entitled "An Act relating to Conciliation and Arbitration for the Prevention and Settlement of Industrial Disputes extending beyond the Limits of any one State." The objects of the Act are defined in sec. 2, and among them are:—"II. To constitute a Commonwealth Court of Conciliation and Arbitration having jurisdiction for the prevention and settlement of industrial disputes; III. To provide for the exercise of the jurisdiction of the Court by conciliation with a view to amicable agreement between the parties; IV. In default of amicable agreement between the parties, to provide for the exercise of the jurisdiction of the Court by equitable award; V. To enable States to refer industrial disputes to the Court ... ; VI. To facilitate and encourage the organization of representative bodies of employers and of employés and the submission of industrial disputes to the Court by organizations, and to permit representative bodies of employers and of employés to be declared organizations for the purposes of this Act." Sec. 4 is an interpretation clause. The term "employer" is defined to mean "any employer in any industry." The term "industrial dispute" means

The term "industrial matters" includes "all matters relating to work, pay, wages, reward, hours, privileges, rights, or duties of employers or employés, or the mode, terms, and conditions of employment or non-employment; and in particular, but without limiting the general scope of this definition, includes all matters pertaining to the relations of employers and employés, and the employment, preferential employment, dismissal, or non-employment of any particular persons, or of persons of any particular sex or age, or being or not being members of any organization, association, or body, and any claim arising under an industrial agreement."

The term "industry" means "business, trade, manufacture, undertaking, calling, service, or employment, on land or water, in which persons are employed for pay, hire, advantage, or reward, excepting only persons engaged in domestic service, and persons engaged in agricultural, viticultural, horticultural, or dairying pursuits."

The term "organization" means "any organization registered pursuant to this Act, and so far as applicable it also includes any proclaimed organization to which the Governor-General declares the Act to apply."

It is plain that the term "employer" is intended to include the Railway Commissioners of the several States, who under State Statutes control the State Railways.

Section 6 provides that "no person or organization shall, on account of any industrial dispute, do anything in the nature of a lock-out or strike." This section in its terms probably applies to the State Railway Authorities, it being, of course, always understood that the industrial dispute is one extending beyond the limits of the State.

Sec. 18 provides that the Court "shall have jurisdiction to prevent and settle "pursuant to this Act" all industrial disputes," i.e. all industrial disputes extending beyond the limits of a State.

Sec. 19 defines the disputes of which the Court is to have cognizance, of which it is sufficient to mention the first two, namely—

Secs. 23 and 24 are as follows:—

Sec. 40 provides that

Secs. 28, 29, and 30, are as follows:—

Sec. 48 provides that "The Court may, on the application of any party to an award, make an order in the nature of a mandamus or injunction to compel compliance with the award or to restrain its breach under pain of fine or imprisonment."

Sec. 65 (a) provides that every organization shall be entitled to submit to the Court any industrial dispute in which it is interested.

It is abundantly clear from the provisions which I have read that the jurisdiction of the Court is coercive, that if the State railway authorities are subject to its jurisdiction the effective control of the State railways may to a great extent be taken out of their hands, and, further, that the applicant association, if registered as an organization, will be able to bring the New South Wales Railway Commissioners into Court as litigants for the settlement of any industrial dispute arising between themselves and the Commissioners and extending beyond the limit of the State of New South Wales, whatever that expression may mean. Under the constitution of the applicant association its members cannot, as such, have any other employers than the Commissioners.

The original appellants have not taken any part in the argument of the appeal, but the States of New South Wales and Victoria, who were allowed by the Court to intervene, have maintained that the provisions of the Act, so far as they would operate, if effectual, to interfere with the free State control of State railways, are not authorized by the provisions of sec. 51 (xxxv.) of the Constitution , which empowers the Parliament of the Commonwealth to make laws for the peace, order, and good government of the Commonwealth with respect to "Conciliation and Arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State," because, they say, those general words ought not to be construed so as to import a coercive control of State instrumentalities, and also because, having regard to the conditions under which the State railway authorities carry on their functions, a dispute between them and their employés cannot in law be regarded as extending beyond the limits of the particular State. The counsel for the applicants on the other hand, and the counsel for the Commonwealth, which was also allowed to intervene, denied the validity of these objections, and further contended that, irrespective of par. xxxv., the enactment of which the validity is now in question is within the powers of the Commonwealth Parliament to make laws with respect to trade and commerce among the States (sec. 51 (I.)), which power is by sec. 98 of the Constitution expressly declared to extend to railways the property of any State. The matter has been very fully and ably argued by the counsel for all the parties, and we are much indebted to them for the assistance which they have given the Court in forming a conclusion on a question which must be regarded as of very great importance to the mutual relations of the Government of the Commonwealth and the Governments of the States.

The question to be determined is primarily one of construction of a written document. If the power which the Commonwealth Parliament have asserted their right to exercise is conferred by the Constitution as properly construed, the duty of the Court is to say so. If, on the contrary, that instrument does not confer the power, we are bound to refuse to give any effect to the attempted legislation.

The Constitution Act is not only an Act of the Imperial legislature, but it embodies a compact entered into between the six Australian Colonies which formed the Commonwealth. This is recited in the preamble to the Act itself. The rules, therefore, that in construing a Statute regard must be had to the existing laws which are modified by it, and that in construing a contract regard must be had to the facts and circumstances existing at the date of the contract, are applicable in an especial degree to the construction of such a Constitution. At the same time it must be remembered that the Constitution was intended to regulate the future relations of the Federal and State Governments, not only with regard to then existing circumstances, but also with regard to such changed conditions as the progress of events might bring about. (See Pensacola Telegraph Co. v. Western Union Telegraph Co. ) [2]. Another circumstance which, in our opinion, is to be regarded is that the Constitution as framed was to be, and was, submitted to the votes of the electors of the States. It ought, therefore, we think to be held, primâ facie, that, when a particular subject matter relating to the respective powers of the States and the Commonwealth was specifically dealt with, it was intended to invite the attention of the electors specifically to that subject matter and to the proposed manner of dealing with it. It follows, we think, from this consideration that the rules of construction expressed in the maxims expressum facit cessare tacitum and expressio unius est exclusio alterius are applicable in a greater, rather than in a less degree, than in the construction of ordinary contracts or ordinary Statutes.

With regard to State railways it is a matter of history that before 1890 all the six Colonies had established State railways, the control of which formed a very large and important part of State administration, and that very large financial obligations, amounting to a sum far exceeding £100,000,000, had been incurred by the Colonies for their construction, as is expressly recognized in sec. 102 of the Constitution . In each case the actual administration of the railways was entrusted to a body specially constituted under State law for the purpose, but the revenue from the railways was State revenue, and the obligations incurred by their managers were State obligations. It is a fact also that the ability of the Colonies to meet their financial obligations in respect of loans was largely dependent upon the successful and profitable employment of the railways. It cannot, in our opinion, be disputed that the State railways were in their inception instrumentalities of the Colonial Governments, and we do not know of any authority for saying that this position was affected by the incorporation of the Railway Commissioners, which, in our opinion, was a matter of purely domestic legislation for the convenience as well of management as of the assertion and enforcement of contractual rights in respect of the commercial transactions involved in the transport of goods and passengers: R. v. McCann [3]. These, then, were material facts existing at the time of the establishment of the Commonwealth, and which must be taken into consideration in construing the provisions of the Constitution now in question.

Sec. 51 enumerates amongst the specific powers with respect to which the legislative authority of the Commonwealth may be exercised—

Sec. 98, as already pointed out, extends the power of the Parliament as to interstate trade and commerce to State railways.

Sec. 101 provides that "There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder."

Sec. 102 provides that "The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connection with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be undue and unreasonable, or unjust to any State, unless so adjudged by the Inter-State Commission."

Section 104 provides that "Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States."

It is contended for the objectors that these sections declare and define the extent of the powers of the Commonwealth Parliament so far as regards interference with State railways, and that the generality of the words of (xxxv.) must be cut down accordingly. They also contend that the authority of the Commonwealth Parliament to interfere with State instrumentalities extends only so far as it is conferred in express words or by necessary implication, that the alleged power is not in the present case conferred by express words, and that any implication that might otherwise arise is excluded by the counter-implication that it was not intended by the framers of the Constitution to authorize any such interference except for the specific purposes and within the specific limits expressed or necessarily implied from the nature of the special power in question, such as, for instance, the power to regulate currency, weights and measures, and bankruptcy.

In D'Emden v. Pedder [4] this Court said:—"In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either expressed or necessarily implied"; and again [5]:—"It follows that when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative. And this appears to be the true test to be applied in determining the validity of State laws and their applicability to federal transactions."

In that case the question was as to an attempted invasion of the ambit of Commonwealth authority by a State authority. The present case is the converse, but the doctrine is equally applicable. Whether the alleged invasion is really one or not is an entirely different question. In Collector v. Day [6], in which the matter in controversy was the power of Congress to tax the salary of a judicial officer of a State, the doctrine was thus forcibly stated by Nelson J., delivering the judgment of the Supreme Court of the United States [7]:—

In this respect, that is, in respect of the reserved powers, the State is as sovereign and independent as the general government. And if the means and instrumentalities employed by that government to carry into operation the powers granted to it are, necessarily, and, for the sake of self preservation, exempt from taxation by the States, why are not those of the States depending upon their reserved powers, for like reasons, equally exempt from Federal taxation? Their unimpaired existence in the one case is as essential as in the other. It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the States, nor is there any prohibiting the States from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-preservation; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct government, can exist only at the mercy of that government.

The argument is to our minds incontrovertible. It was answered that the doctrine only applies to taxation. But taxation is only an instance of interference and control. The foundation of the argument is the necessity for freedom from control, and taxation is only forbidden because it is an interference. In our opinion any authority which can lawfully say to another "Thou shalt" or "Thou shalt not" exercises control over that other in the sense in which that term is used in this argument. It is nothing to the purpose to say that the exercise of the power would be, or was intended to be, beneficial or remedial. Such an intention may, and perhaps ought to, be attributed to all legislative action.

Is it then an interference with the control of State railways to undertake to regulate the terms and conditions of the engagement, employment and remuneration of the State railway servants? Surely the question answers itself.

But it is said that a State railway is not a State instrumentality within the meaning of the rule, and the case of South Carolina v. United States [8] was referred to, in which the Supreme Court of the United States, by a majority of five to four (the minority consisting of most eminent lawyers) held that the State of South Carolina, which had made the liquor trade a State monopoly, could not invoke the doctrine so as to claim exemption from excise duty upon the liquor of which it made use. Whether the majority judgment would or would not commend itself to this Court in a similar case, we are of opinion that it has no application to the present case. The argument as presented to us is that State instrumentalities for the purposes of the doctrine in question are limited to those which are, strictly speaking, of what was called in argument a "governmental" character, and that the business of common carriers is not a part of any of the recognized branches of government, legislative, judicial and executive. We apprehend, however, that the execution or administration of the laws of the State is in the strictest sense a governmental function, and that no rule can be formulated, because there is no authority competent to formulate it, which shall prescribe what functions the State shall undertake in the supposed exercise of its duty to promote the well being of its people. There is high authority, both ancient and modern, for holding that the construction and maintenance of roads and means of communication is one of the most important, as it is necessarily one of the first, of the functions of government. It cannot be denied in this twentieth century that railways are a most important means of communication, or that they are in substance highways, however their use may be restricted or controlled by the conditions of the particular franchises granted in respect of them. Apart, however, from this general consideration, we are of opinion that in the year 1900, when the Constitution was adopted, the construction and maintenance of railways was in fact generally regarded as a governmental function in all the Australian Colonies, and that they are expressly recognized as such in the sections of the Constitution above quoted. We think, therefore, that the doctrine of mutual freedom from interference as between the Commonwealth and State Governments would be sufficient to exclude any implication that sec. 51 (xxxv.) was intended to extend to State railways. And, having regard to the careful enumeration of specific matters in respect of which express powers were conferred upon the Commonwealth Parliament to interfere with or control these railways, we think that the notion of such an implied extension is absolutely negatived.

It is therefore unnecessary to express any opinion on the question whether a dispute between the applicants and the Railways Commissioners could in point of law be held to extend beyond the limits of the State.

For these reasons we are of opinion that the provision now in question cannot be supported as a valid exercise of the powers conferred by sec. 51 (xxxv).

We pass to the contention that it is a valid exercise of the power, expressed in sec. 51 (I.), "to make laws for the peace, order, and good government of the Commonwealth with respect to trade and commerce with other countries and among the States," which is declared by sec. 98 to extend to railways the property of any State. A great number of decisions of the Federal Courts of the United States were cited to us, in which the similar power conferred by the American Constitution on Congress had been interpreted and applied. This Court is not, of course, bound by the American decisions, although so far as they had gone before the adoption of the Australian Constitution in 1900 , the interpretation put upon analogous provisions in the United States Constitution is of very great weight. In the view which we take of this part of the case, so far from expressing disagreement with any of the decisions cited, we should be content to accept them. It was strongly urged that the power to regulate interstate trade and commerce, which is involved in the language of sec. 51 (I.) is plenary as to its objects, and includes a power to prescribe in every respect the rules by which such commerce is to be governed. Subject to the question how far the general rules of sec. 51 (i.) and sec. 98 are qualified by the special provisions as to State railways to which reference has already been made, we assent to this proposition. There is no doubt that it extends to the making of laws for the prevention and punishment of all active obstructions to the freedom of interstate commerce: In re Debs [9]; United States v. Workingmen's Amalgamated Council of New Orleans [10]. There is no doubt, also, that commerce includes the transportation of goods and persons on railroads used for inter-communication. It is nevertheless conceded that the general words must of necessity be subject to some limitation, not as to the manner in which the power may be exercised, but as to the legitimate objects of the power. For instance, the source of a particular branch of interstate commerce might be dried up by the refusal of persons to supply any subject matter for it. Or the effective carrying on of a branch of interstate commerce might be prevented or impeded by the refusal of some person not directly concerned in it to afford facilities without which it could not be effectively carried on. It does not follow, however, that the power would extend to such matters. In our judgment the power is limited to trade and commerce in being, and does not extend to matters which are matters precedent to its coming into being, whether necessary conditions precedent or not. In the case of Addyston Pipe and Steel Co. v. United States [11], decided in 1889, Peckham J., delivering the unanimous judgment of the Supreme Court of the United States, said [12]:—"Under this grant of power to Congress, that body, in our judgment, may enact such legislation as shall declare void and prohibit the performance of any contract between individuals or corporations, where the natural and direct effect of such a contract will be, when carried out, to directly, and not as a mere incident to other and innocent purposes, regulate to any substantial extent interstate commerce"; and again [13]:—

In the earlier case of Hopkins v. United States [14], decided in October 1898, the same learned Judge delivering the judgment of the Court (from which Harlan J. dissented) said [15]:—

We entirely concur in the views expressed in the passage just cited. It is true, as pointed out in the argument before us, that the immediate subject of consideration in that case was the construction of the Sherman Act , but we think that the observations are equally relevant in construing the power itself. There is no doubt that in all the instances enumerated it would be within the competence of a State legislature, in the exercise of its plenary power to deal with internal affairs, to make any laws it might think fit to restrain or regulate such agreements, but it does not follow that such laws could properly be described as laws to regulate interstate trade and commerce. If they could, the American State legislatures might be trespassing upon the domain of Congress.

In this connection the following passage from the judgment of the Supreme Court of the United States in the case of Robbins v. Shelby County Taxing District [17] is instructive, as showing the view accepted in the United States as to the powers of the State legislatures with regard to such matters:—"It is also an established principle, as already indicated, that the only way in which commerce between the States can be legitimately affected by State laws, is when, by virtue of its police power, and its jurisdiction over persons and property within its limits, a State provides for the security of the lives, limbs, health, and comfort of persons and the protection of property; or when it does those things which may otherwise incidentally affect commerce, such as the establishment and regulation of highways, canals, railroads, wharves, ferries, and other commercial facilities."

In the execution of their power Congress has passed several laws, some, but not all, of which have been the subject of judicial decision. Amongst others, laws have been passed for preventing and punishing obstruction of interstate commerce, for securing the safety of men employed upon railways engaged in interstate traffic, for imposing tests of capacity upon engine drivers engaged in that traffic, and for the enforcement of awards as to terms of employment made upon voluntary submission to arbitration by the employers and the men. Congress has not, however, up to the present, undertaken to regulate by law the terms of engagement or employment of men so engaged. There can be no doubt that if the plenary power of Congress or of the Commonwealth Parliament extends to such regulation they may exercise that power through tribunals or special authorities set up for the purpose, but the right to set up such tribunals or authorities does not extend beyond the power authorized to be delegated to them.

As at present advised, we are of opinion that the legislative authority of the Commonwealth Parliament under the power in question, so far as regards wages and terms of engagement, does not extend further—if it extends so far, as to which we reserve our opinion—than to prohibit for causes affecting interstate traffic specific persons from being employed in such traffic. It cannot, as already said, be disputed that the plenary powers of the State legislatures with respect to matters within their competence extend to everything done within the State which may, directly or indirectly, affect trade and commerce. But we think that the power of the Commonwealth Parliament to regulate interstate trade and commerce, although unlimited within its ambit, cannot as a mere matter of construction, be held to have so wide an ambit as to embrace matters the effect of which upon that commerce is not direct, substantial and proximate. And, in our opinion, the general conditions of employment are not of this character. We arrive at this conclusion upon the mere language of sec. 51 (I.). But it is much fortified by the language of (xxxii.), which expressly empowers the Commonwealth Parliament to make laws for the control of State railways with respect to transport for the naval and military purposes of the Commonwealth. Having regard to the rules of construction adverted to in the earlier part of this opinion, we think it is hard to reconcile the conferring of this express power with the implied existence under sec. 51 (I.) of a power which would undoubtedly, if the larger construction contended for is adopted, not only include that conferred by (i.), but go far beyond it. The word "control" as used in (xxvii.) cannot, we think, be limited to manual or physical control. It is the widest possible term, and is at least co-extensive with the asserted general power to "regulate."

Assuming, however, that the power in question does extend to the regulation by law of the terms of employment upon State railways, it is clear that it extends to them only so far as regards interstate traffic and only as far as regards men engaged in that traffic. And this consideration affords a fatal objection to the validity of the provision now in question, so far as it depends for support on the trade and commerce power.

It was laid down by the Supreme Court of the United States in the case of United States v. Reese [18], decided in 1875, and the rule has ever since been followed, (see the Trade Mark Cases [19]; United States v. Ju Toy [20]) that, when in the attempted exercise of a power of limited extent an Act is passed which in its terms extends beyond the prescribed limits, the whole Act is invalid unless the invalid part is plainly severable from the valid. In the Trade Mark Cases , Miller J., delivering the unanimous judgment of the Court, said [21]:—"When, therefore, Congress undertakes to enact a law, which can only be valid as a regulation of commerce, it is reasonable to expect to find on the face of the law, or from its essential nature, that it is a regulation of commerce with foreign nations, or among the several States, or with the Indian tribes. If not so limited, it is in excess of the power of Congress. If its main purpose be to establish a regulation applicable to all trade, to commerce at all points, especially if it be apparent that it is designed to govern the commerce wholly between citizens of the same State, it is obviously the exercise of a power not confided to Congress." And again, referring to United States v. Reese he said [22]:—

It was urged, however, that the general description of the offence included the more limited one, and that the section was valid where such was in fact the cause of denial. But the Court said, through the Chief Justice: "We are not able to reject a part which is unconstitutional and retain the remainder, because it is not possible to separate that which is constitutional, if there be any such, from that which is not. The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not there now. Each of the sections must stand as a whole, or fall altogether. The language is plain. There is no room for construction, unless it be as to the effect of the Constitution. The question, then, to be determined is, whether we can introduce words of limitation into a penal Statute so as to make it specific, when, as expressed, it is general only ... To limit this Statute in the manner now asked for would be to make a new law, not to enforce an old one. This is no part of our duty." If we should, in the case before us, undertake to make by judicial construction a law which Congress did not make, it is quite probable we should do what, if the matter were now before that body, it would be unwilling to do; namely, make a trade-mark law which is only partial in its operation, and which would complicate the rights which parties would hold, in some instances under the Act of Congress, and in others under State law.

This reasoning appears to us conclusive. Now the Conciliation and Arbitration Act is not only not limited, so far as regards its attempted application to State railways, to matters having a direct and proximate relation to interstate traffic, but is not limited at all to that traffic or to persons engaged in it. Even, therefore, if the Commonwealth Parliament has the implied power contended for, this provision is not a valid exercise of the power.

It was suggested that the provisions of the Act as to conciliation were severable from the compulsory provisions as to arbitration. The objection which we have last considered is, however, a complete answer to this argument, so far as any coercive action could follow on the conciliation. Finally, it was suggested that the power conferred upon the President of the Court to endeavour to compose disputes was severable from the rest of the Act, and was not invalid. In the case, however, of a Federal Statute, it is not sufficient to say that it cannot do any harm. It is necessary to show affirmatively, if a Court is called upon to give effect to it, and if its validity is called in question, that it is within some power conferred by the Constitution either expressly or by necessary implication.

For these reasons we are of opinion that the provisions in question are ultra vires of the Commonwealth Parliament, and that the applicant Association cannot be registered.

There will be no order as to costs.

Question answered accordingly.

Solicitors, for respondents, Brown & Beeby , Sydney.

Solicitors, for interveners, Crown Solicitors for the Commonwealth, the State of New South Wales, and the State of Victoria .

Endnote