HIGH COURT OF AUSTRALIA

                               Federated Saw Mill & Co.Emp.Asso.Australasia

                                                           Vs.

                                  James Moore and Sons Proprietary Limited

                               (Griffith C.J., O'Connor, Isaacs and Higgins JJ.)

                                                   25th June 1909

Griffith C.J.

This case, which occupied the Court for nine days, comes before us as a case stated by the President
of the Commonwealth Court of Conciliation and Arbitration for the opinion of the Court, under sec.
31 of the Commonwealth Conciliation and Arbitration Act, which provides that the President may
state a case for the opinion of the High Court upon any question arising in any proceeding which, in
his opinion, is a question of law.

The applicants are an organization registered under the Act. The respondents are thirteen companies
and firms engaged in what I will for convenience call the timber trade in five of the States of the
Commonwealth--in which we are told that there are some hundreds of similar firms and companies.
Some of the respondents have timber yards, in which, as I understand, they carry on the business of
dealing with log timber, whether Australian or imported, cutting it up into planks and boards, and
sometimes manufacturing it into doors and window sashes, which may or may not be also fitted
with glass. Others of the respondents are engaged in what is called in America the lumber trade, i.e.,
felling timber in the forests, cutting it into logs or railway sleepers or ties, and sending the logs or
sleepers to market in Australia or abroad. Some of them are engaged in both trades. The
complainants are an organization representing operatives engaged in both trades, and they ask that a
common "log" or schedule of wages with other conditions of labour may be adopted with respect to
both these trades throughout the five States, but that in Western Australia the rates of wages paid
should be higher by 15 per cent. than elsewhere.

The questions submitted in the case are to a great extent of an abstract character. In my judgment the
provisions of sec. 31 were not intended to allow the submission of hypothetical or abstract questions
of law which may never arise for actual decision. Any opinions expressed by the Court on such
questions can only be obiter dicta of more or less weight, but having no binding authority. And I
regret to have to say that in my judgment most, if not all, of the questions which have been so
laboriously and exhaustively discussed before us are of that character. I was reminded during the
course of the argument of M'Naghten's Case[1], in which the Judges, much against their will, were
asked to express an opinion upon questions of law not necessary for the decision of an actual case.

I will read the introductory words of the opinion of Tindal L.C.J. (speaking for all the Judges except
Maule J.[2]):--"My Lords, her Majesty's Judges (with the exception of Mr. Justice Maule, who has
stated his opinion to your Lordships), in answering the questions proposed to them by your
Lordships' House, think it right, in the first place, to state that they have forborne entering into any
particular discussion upon these questions, from the extreme and almost insuperable difficulty of
applying those answers to cases in which the facts are not brought judicially before them. The facts
of each particular case must of necessity present themselves with endless variety, and with every
shade of difference in each case; and as it is their duty to declare the law upon each particular case,
on facts proved before them, and after hearing argument of counsel thereon, they deem it at once
impracticable, and at the same time dangerous to the administration of justice, if it were practicable,
to attempt to make minute applications of the principles involved in the answers given by them to
your Lordships' questions." The precedent has never been followed.

It appears necessary, however, if only to show why I feel bound to refuse to give a categorical
answer to some of the questions submitted, to express my opinion on some of the points argued,
even though it may be only obiter, and to state some propositions which appear to me to be
elementary, and indeed little more than truisms, although nearly all of them have been explicitly or
implicitly controverted in the arguments for the claimants.

The main questions discussed depended upon the proper construction of sec. 51 (pl. xxxv.) of the
Constitution, which confers upon the Parliament power 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. The Constitution,
as this Court has often pointed out, is to be construed by the application of the same rules that are
applicable to the construction of other laws. The rule laid down in Heydon's Case[3], is especially
applicable. "Four things are to be discerned and considered:--(1) What was the common law before
the making of the Act. (2) What was the mischief and defect for which the common law did not
provide. (3) What remedy the Parliament hath resolved and appointed to cure the disease of the
Commonwealth, and (4) The true reason of the remedy; and then the office of all the Judges is
always to make such construction as shall suppress the mischief, and advance the remedy, and to
suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo,
and to add force and life to the cure and remedy, according to the true intent of the makers of the
Act, pro bono publico." Before the establishment of the Commonwealth "industrial disputes" (as to
the meaning of which term I shall have more to say) had occasionally arisen in the different
Colonies, and in two of them (New South Wales and South Australia) tentative legislation had been
passed for the purpose of dealing with them by conciliation and arbitration. A similar law had been
passed in the neighbouring Colony of New Zealand. Tentative efforts had been also made in the
United Kingdom to deal with the same subject. Each Colony had absolute power to deal with the
matter within its own limits, but in the event of a single dispute covering an area not within the
bounds of any one Colony, there was no legislative authority (except the Parliament of the United
Kingdom) which could have dealt with it. This was the state of the law, and this was the defect. The
remedy was to authorize the Commonwealth Parliament to make laws for dealing with such
disputes, not in any way they might think desirable, but by conciliation and arbitration for their
prevention and settlement.

It is necessary at the outset to consider the meaning which the term "industrial dispute" conveyed in
1900 to the minds of persons conversant with the English language. It may be that the words have
since been used in a larger sense, or that an artificial sense has been attributed to them by Statute
(e.g., the English Act of 1906), but this is not relevant to the present inquiry. In the Jumbunna
Case[4], the meaning of the term was discussed as far as was necessary for the decision of the
questions then before the Court. I used the following language[5]:--"An industrial dispute exists
where a considerable number of employés engaged in some branch of industry make common cause
in demanding from or refusing to their employers (whether one or more) some change in the
conditions of employment which is denied to them or asked of them. The form of combination is
immaterial, though it most commonly arises where there are organized associations of employés or
employers. The degree of permanency of the combination is also immaterial, but there must be
some continuity of action." This definition was not, of course, and was not intended to be,
exhaustive, but was limited to pointing out the difference between an ordinary dispute between
individuals and disputes between employers and employés acting collectively.

The word "industrial" as used in sec. 51 (xxxv.) points, I think, to the nature or quality of the
disputes, and denotes two qualities which distinguish them from ordinary private disputes between
individuals, namely (1) that the dispute relates to industrial matters, and (2) that on one side at least
of the dispute the disputants are a body of men acting collectively and not individually.

(1)

First, then, I say the term "dispute" itself connotes the existence of disputants taking opposite sides.
It also connotes that the difference between the parties to it is one that is capable of settlement by
mutual agreement. If the desires of either party cannot be satisfied by reason of the existence of a
law which forbids such satisfaction, the existence of that law does not constitute a dispute. If the
dispute is widespread there may be a political agitation, but it is not a dispute.

(2)

The term "industrial dispute" connotes a real and substantial difference having some element of
persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be
a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal
demand and formal refusal without more. We have not to deal with technicalities, such as the
meaning of the term "conversion" in the old action of trover, in which a demand and refusal were
sufficient evidence of conversion. In considering industrial disputes we are concerned with real
facts, not words or wordspinning.

No doubt, the term "industrial dispute" might be used, and had been used, in a wider sense, but the
words "extending, etc.," show that it is not so used in the Constitution. If it had been so intended,
the power in question might have been expressed as a power to facilitate the creation of industrial
disputes, and to promote the extension of such disputes beyond the limits of any one State with a
view to their settlement by federal authority. If, therefore, there is in fact no real discontent existing,
a mere claim or request made by an employer or on behalf of a body of employés, without any
intention of pressing it, but for the mere purpose of making a case to be brought before the federal
arbitration authority, does not constitute a real industrial dispute. It is, rather, an attempt to promote
strife and a fraud upon the tribunal.

(3)

A dispute between A. and B. as to their respective obligations under an admitted agreement is not an
industrial dispute within the meaning of the Constitution. The term "industrial dispute" may be, and
has been, used in that sense in Statutes which so defined it, but that fact is quite irrelevant. Such a
dispute can be settled by the ordinary State tribunals.

(4)

A refusal by A. or B. to perform an admitted agreement, the interpretation of which is not in
question, is not an industrial dispute.
(5)

For the reasons given in (1) a general refusal to obey a law relating to industrial matters is not and
cannot be an element of an industrial dispute. Nor can discontent with such a law and a desire to be
freed from its obligations be an element of an industrial dispute. If the term is capable of having
such an extended meaning (which has never yet been given to it), it is inconceivable that, if the
framers of the Constitution intended to authorize the Parliament to abrogate a State law or absolve
persons discontented with the law from their statutory obligations, they should have done so by the
words now under discussion.

I pass now to the words "extending beyond the limits of any State."

(6)

An industrial dispute "extending &c." must be a single dispute, and must relate to matters in which
all the disputants are interested as affecting themselves, in the sense in which persons are said to be
interested in a litigation, not in the sense that they regard it with interest. It follows that mere
discontent with an existing State law cannot, even if it were otherwise an industrial dispute, be said
to extend beyond the limits of the State in which the law is in force.

(7)

The dispute must be single in the sense that there must be a substantial community of interest
amongst the demandants and amongst those who refuse the demand.

(8)

There must be a substantial identity of subject-matter. For instance, a demand for a set of conditions
in State A. relating to one matter and another set of conditions in State B. relating to another matter,
although made by bodies of employés or employers in both States associated for the purpose of
making the demand, constitutes not one dispute but two disputes.

(9)

Mere identity of branch of industry is not sufficient of itself to prove substantial identity of subject-
matter. The difference in one State may be as to hours of labour, in the other as to terms of
remuneration, in the same industry. In this case there would not be a single dispute.

(10)

On the other hand, there might be substantial identity of subject-matter although the branches of
industry in connection with which it is made are not the same: For example, a demand for a
reduction in the hours of labour in several distinct trades in which the employés are associated
together for the purpose of enforcing that demand might be a single dispute.

Again: The identity as regards demands made as to different States may be partial only. In that case
there may be a single dispute as to part of the subject-matter, and several disputes as to other parts.

(11)
Mere verbal coincidence in demands made as regards two States does not prove identity of subject-
matter. The varying conditions of climate and other physical conditions found in the
Commonwealth may make a demand couched in particular language in respect of one State quite
different in its essence from a demand couched in the same words in respect of another.

(12)

The term "industrial dispute" connotes something in the nature of industrial war, existing or
threatened. Sporadic differences confined to small localities in two or more States, even if they
possess all the other elements of substantial identity of subject-matter, cannot be said to extend
beyond the limits of one State merely because the parties to the differences in the several States
combine in making a request in identical terms to their respective employers.

(13)

There must be real community of action on the part of the demandants, and some community of
action on the part of the parties on whom the demand is made. Such community need not be
formulated in any written document, nor need the parties who are acting together be bound by any
formal agreement. If it is found that large bodies of men in two or more States are in fact acting
with one accord, then, if the other elements of an industrial dispute are present, an occasion arises
for the exercise of the federal power in question.

(14)

The dispute must be actually existing and actually extending beyond the limits of one State before
such an occasion can arise. Mere mischief-makers cannot, therefore, by the expenditure of a few
shillings in paper, ink, and postage stamps create such an occasion.

It is almost--I should think quite--impossible that such a state of industrial war as amounts to a real
industrial dispute extending beyond the limits of a State can exist without its existence being known
to the persons engaged in the branch of industry affected. In such a case it is immaterial whether the
parties on whom the demand is made do or do not combine for the purpose of resisting the attack.
But in the case of a mere paper demand, where industrial operations go on as usual, evidence of
some combination or preconcert in resisting it may be necessary. It would be a singular thing if a
joint demand made by associated bodies of men employed, say, at Perth and Brisbane respectively
on each of two employers who are engaged in the same branch of industry in those cities, but are
unknown to one another and have nothing else in common, could be regarded as an industrial
dispute extending beyond the State of Western Australia to Queensland or beyond Queensland to
Western Australia.

As I said at the outset, these propositions seem to me mere truisms. They do not profess to contain
an exhaustive statement of what may or may not constitute an industrial dispute, or such a dispute
extending, &c., but they express some of the elements of such a dispute, as I understand the plain
English words under consideration.

Having thus arrived at some notion of the meaning of the words standing alone, I turn to the
consideration of the extent of the power which is conferred upon the Parliament with respect to such
disputes. For this purpose, pl. xxxv. is to be construed having regard to the rest of the Constitution,
and particularly with reference to the doctrine repeatedly laid down by this Court that any invasion
by the Commonwealth of the sphere of the domestic concerns of the States appertaining to trade and
commerce is forbidden except so far as the invasion is authorized by some power conferred in
express terms or by necessary implication.

The cases to which I refer, and which I need not mention by name, also establish that the regulation
of the conditions of employment is within that sphere. The question, then, is, to what extent does the
power under discussion authorize such an invasion? The answer is--so far as necessary for its
effective exercise. What then is the power? We are not concerned with the political question, now
hotly debated, whether it is desirable that the Federal Parliament should have paramount authority to
determine all conditions of employment in the Commonwealth. Our duty is to interpret the
Constitution as it stands, not according to any preconceived notions as to what it ought to be. Now,
as already pointed out, the power is not a general power to make laws for the settlement of
industrial disputes. A power conferred in such terms would primâ facie authorize an invasion of the
whole field of the conditions of employment so far as might be necessary for their settlement. The
power is limited to making laws for their settlement by arbitration. The term "arbitration" connotes
a judicial tribunal, by whatever name it is called and however constituted, and, although the
functions of the tribunal differ from those of ordinary tribunals in that they are not limited to
determining existing causes of action, but extend to prescribing conditions to be observed in future
contracts of employment, the tribunal is no less a tribunal. To my mind the obligation to decide in
accordance with law is implied in the notion of the creation of a tribunal. Otherwise the members of
the tribunal would not be judicial persons at all, but dictators exercising the power of legislation, not
of adjudication.

It is gravely maintained, however, that the tribunal which the Parliament may establish for the
settlement of industrial disputes is not bound by any State laws relating to domestic trade, and that,
although the Parliament itself could not make a law inconsistent with the State law, it can under the
language of pl. xxxv. authorize its creature, the tribunal of arbitration, to disregard the State law, to
free persons from any obligation to obey it, and even impose penalties upon persons who do obey it,
because such power is necessary for the effective settlement of industrial disputes. I have already
pointed out that discontent with a State law cannot be described as a dispute in any sense in which
that word has hitherto been used, so that a power to authorize the settlement of disputes cannot be
read as a power to set aside or suspend or abrogate an obnoxious law. But, even if it could, it seems
to me that, applying the rules of construction of the Constitution so often laid down, at best the
language would be ambiguous, and that, even if the words are capable of the meaning asserted, it is
so inconsistent with the reservation to the States of the power to regulate their domestic trade that it
should be rejected. For, if conceded, it practically annuls that reservation, and permits the federal
tribunal to substitute its uncontrolled volition for the will of the Parliaments of the States, so soon as
a political agitation for the repeal of an obnoxious law in any State is taken up by sympathizers in
another State.

I find it difficult to treat such an argument with due gravity. It may be necessary, in order to allay
political agitation, for the legislature to repeal or alter an existing law, but it cannot be said to be
necessary that a tribunal appointed to settle disputes by arbitration should have a dispensing power
authorizing it to supersede or abrogate a law or excuse obedience to it, unless, indeed, it is assumed
that a dispute cannot be settled unless one (and of course only one) of the parties to the dispute gets
all that he asks. This would be an entirely novel meaning of the word, and would put the tribunal
above the law. Sic volo, sic jubeo, mea sit pro lege voluntas.
I now pass to the questions formally submitted to the Court, premising that, as this Court decided in
the Broken Hill Case[6], the questions whether an industrial dispute actually exists and whether it
extends beyond the limits of one State are questions of fact, which can only be finally decided by a
Court before which the validity of an award is brought in controversy.

I.

The Case first sets out that the claimants are a registered organization of employés, and that "the
dispute" is with employers carrying on business in the several States employing members of the
organisation, that the respondents in each State have no business or other connection with the
respondents in other States and have refused the demand of the organization (which is for the
adoption of a complete log or schedule of rates of wages and conditions of employment to be
observed in all the States) independently and without preconcert with the employers in the other
States, and submits the following question:--Does the dispute extend beyond the limits of any one
State

(a)

Within the meaning of sec. 51 (xxxv.) of the Constitution>?

(b)

Within the meaning of sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904?

On the part of the claimants it was contended that the fact of a single demand having been made by
a single organization upon employers in several States was sufficient, and indeed conclusive,
evidence of the existence of an industrial dispute extending beyond the limits of one State. It is true
that this contention was from time to time disclaimed by Mr. Arthur, but it was as often revived in
slightly different language, and its discussion occupied a considerable part of our time. On the other
side it was contended that the absence of preconcert between employers in different States was
conclusive to negative the existence of such a dispute. For the reasons already given I am unable to
accede to either view. In order to ascertain whether such a dispute exists regard must be had to all
the facts. The facts relied on as conclusive are, both of them, very relevant facts, but neither of them
is in my opinion necessarily conclusive. I am, therefore, unable to give a categorical answer to the
first branch of this question. All I can say is that upon the facts as stated there may or may not be an
industrial dispute, and that the dispute (if any), may or may not extend beyond the limits of any one
State. The actual fact, as I have already said, can only be determined in some proceeding taken to
challenge the validity of the award, if and when made.

The second branch of the question relates to the meaning of sec. 4 of the Act, which, so far as
material, defines the term "industrial dispute" as meaning "a dispute in relation to industrial matters
arising between an employer or an organization of employers on the one part and an organization of
employés on the other part, and extending" &c. Sec. 19 provides that the Court shall have
cognizance inter alia of all industrial disputes which are submitted to the Court by an organisation
by plaint in the prescribed manner. The other provisions of the section are not material. It was
contended by Mr. Blacket, who argued the case for the State of New South Wales, that under the Act
as framed, and having regard to the definition, the only industrial disputes of which the Court has
cognizance are disputes in which the party on the employers' side is a single employer or an
organization of employers, so that a dispute between an organization of employes and several
distinct employers not associated in an organization cannot be dealt with. I was at first impressed
with this argument, and if the words of the definition had been inserted in sec. 19 I am disposed to
think that they should have been read as words of limitation. But I think that in an interpretation
clause they are not to be taken as words of limitation, but are used altogether alio intuitu. The object
of the definition is, I think, to show what is the essential quality of disputes which are to be
considered industrial disputes, that is, that they are disputes between employers and organizations of
employés. Regarded in this light, the singular "an employer" may well be read as including the
plural, although in a different context it should perhaps be read otherwise.

If therefore all the other elements of a genuine dispute exist, I think that it is a dispute within sec. 4.

II.

The Case next sets out that in the schedule of wages demanded by the claimant organization a claim
is made for an additional 15 per cent. in Western Australia "to be added on above rates for extra cost
of living," and the question is asked whether the Court has power to make any enforceable award so
far as regards the Western Australian employés. The answer to this question depends upon the actual
facts. If there is a dispute within the cognizance of the Court to which the Western Australian
employers are parties, it can, of course, make an award with respect to them. If not, it cannot. I am
unable, without affecting an ignorance of Australian geography and Australian conditions which I
do not enjoy, to pretend to think that the employés, say, in Queensland can have any such
community of interest with the employés in Western Australia as to make the demand for an extra
15 per cent. of wages in the latter State an identical subject-matter of dispute in both States. But if
there is otherwise a dispute extending beyond a State, I do not think that the attachment to it of a
special claim or claimant affecting only one State would necessarily deprive the Court of
jurisdiction to deal with the dispute as far as it relates to matters in which the disputants have a real
community of interest. The award cannot go beyond the limits of the dispute of which the Court has
cognizance, but if there is really a dispute it can go as far as the dispute goes. Other weighty
arguments were urged, based upon sec. 99 of the Constitution, which provides that "The
Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference
to one State or any part thereof over another State or any part thereof," and it was contended that an
award in terms of the claim would amount to a regulation of trade and commerce giving preference
to the other States as against Western Australia. But this would be an objection to the award, and
does not determine the question of the jurisdiction of the Court to entertain the claim.

The only answer that I can give to the question is that, if all the other elements of a "dispute
extending &c." exist, the fact of this claim having been made in connection with it does not prevent
the Court from making a valid award as to the Western Australian employes.

III.

The facts relevant to the third question submitted may be summarized by saying that several of the
trades and occupations referred to in the log or schedule demanded are, and some are not, carried on
both in the lumber trade, described as the bush mills, and in the timber yards. No member of the
claimant organization is employed in the timber yards in Western Australia or in bush mills in South
Australia. One New South Wales respondent has a bush mill as well as a timber yard, and two
Queensland respondents have both. The question asked is whether the Court had power to make a
valid award with respect to wages and conditions of labour in Western Australia as to trades and
occupations in which no member of the claimant organization is employed, and in South Australia
as to trades and occupations which are not carried on by any South Australian respondent.

My answer is: It depends on the whole facts of the case. If the two branches of the timber trade are
in fact so connected together throughout Australia, from the operation of felling of trees in, say,
Queensland and Western Australia, and the hauling of the timber, to the making of doors and
window sashes, that a question which affects one branch affects the other in every State concerned,
so that the industrial dispute is really a single dispute, then the fact that a particular employer has
not in his present employment any persons engaged in a particular occupation, such as glaziers, does
not affect the jurisdiction of the Court to make an award operating over the sphere of the actual
dispute. If the facts are not so, there would in re verâ be not one dispute but several disputes.

IV.

The fourth question raises a similar but not identical point. One of the respondents, Millar's Karri
and Jarrah Company, carry on both businesses in Western Australia, and the business of timber
yards only in Victoria. They have members of the claimant organization employed in their timber
yards in Victoria but not in Western Australia. Some of the products of their mills in Western
Australia are sent to their yards in Victoria for sale. They also had, but have not now, members of
the organization employed in timber yards in Queensland. Under these circumstances the question
put is whether in the case of this company the assumed dispute extends beyond the limits of any one
State within the meaning of the Constitution or within the meaning of sec. 4 of the Act, and whether
the Court has power to make an award applicable to them and to what extent.

Again I say, it depends on the facts. If the business carried on by the company in Western Australia
at its bush mills is in re verâ the same business as that carried on in Victoria at its timber yards, as
on the facts this Court held to be the case with regard to the business of the Broken Hill Proprietary
Company carried on at Broken Hill in New South Wales, and Port Pirie in South Australia, there
may (if the other necessary facts exist) be an industrial dispute between the claimant organization
and the company extending to Western Australia and Victoria both within the Constitution and the
Act. Whether it extends to Queensland also must depend on the considerations applicable to
question III.

V.

The fifth question relates to the effect of an industrial award made in New South Wales by the
Arbitration Court of that State between the New South Wales branch of the claimant organization
and some of the respondents, which took effect from 16th June 1908 and operates for three years
from that date. This award had been made a common rule governing all the New South Wales
respondents, except one company who carry on their business at the Richmond River. We are asked
to say whether the Court has power to make any enforceable award inconsistent with that award,
either to operate immediately or at the expiration of the New South Wales award.

This question, in my opinion, raises two entirely different points, (1) whether as between the
claimants and their employers bound by the award there is a genuine industrial dispute at all, and (2)
how far the Court is bound by the terms of the award or adjudication of the State Arbitration Court.
As to the first point, it was contended that parties who are discontented with a State award, can, at
once, by associating themselves with employés in the same branch of industry in another State, and
making claims inconsistent with the State award, bring into existence a new industrial dispute
extending beyond the limits of the State, that is, that they can, in effect, appeal from the State
industrial Court to the federal arbitration tribunal. In such a state of things, and if that is all, I say
without hesitation that there is no genuine industrial dispute as between the parties in the State who
are bound by the award. I do not think that the Constitution intended to give any such appeal, which
would, indeed, be quite inconsistent with the whole scheme of the Constitution as regards State
Courts.

But, with regard to the second point, I think that an award of a State Court of Arbitration, whether
made a common rule or not, should be regarded as a judgment inter partes, standing on the same
footing as a solemn agreement of the most binding nature, but not on the footing of a State law. If in
the case of a genuine dispute which the federal Court has jurisdiction to decide, the existing
obligations of the parties come incidentally in question, and it is impracticable to settle the dispute
without departing in some degree from the terms of the agreement or judgment, I think that the
jurisdiction of the Court to do so is not excluded. But it is hard to imagine a case in which any
tribunal would allow parties, who have invoked and obtained a judgment of a competent Court, to
tear up the judgment merely because they are dissatisfied with it. With this qualification I answer
the question in the affirmative.

Va.

The Factories and Shops Acts of Victoria provide for the determination of the minimum rates of
remuneration and maximum hours of work to be permitted in that State in certain branches of
industry. This function is entrusted to elected Boards, and the determination when made has the
force of law. There is in existence a determination of a Board, called the Woodworkers' Board,
which determines for part of Victoria certain conditions of employment with respect to some of the
occupations followed by members of the claimant organization within that part. We are asked to say
whether the Court has power to make an enforceable award inconsistent with that determination.

In my opinion the Wages Boards are subordinate legislative bodies duly constituted by the law of
Victoria, and for reasons already given, I think that the Court cannot supersede ordinances made by
them. That is to say, the Court cannot fix a lower minimum of pay or a higher maximum of hours of
labour than those prescribed by the determination, or make any other order inconsistent with the
particular ordinance of the Board as to a matter within its jurisdiction. The test of inconsistency is,
of course, whether a proposed act is consistent with obedience to both directions.

With these qualifications I answer this question in the negative.

VI.

There is in existence an industrial agreement registered under the Western Australian Industrial
Conciliation and Arbitration Act made between the Western Australian branch of the claimant
organization and Miller's Karri and Jarrah Co. We are asked to say whether the Court can make an
enforceable award inconsistent with this agreement. What I have said with regard to question V. is
equally applicable to this question.

VII.

This question relates to an industrial or collective agreement between a Victorian trade union, of
which some members of the claimant organization are members, and one of the Victorian
respondents. Such an agreement is not legally enforceable against any one, and the only effect that
could be given to it until repudiated is as an obligation of honour. When repudiated it cannot stand
in the way of an award.

VIII.

Since the commencement of the proceedings Millar's Karri and Jarrah Co., which carried on
operations in Queensland in both bush mills and timber yards, has sold its business to the
Queensland Pine Company, and the Court has ordered that that company shall be joined as a party.
We are asked whether it had power to do so. In one sense the Court has power to join as party any
person or company alleged to be a party to the dispute before the Court. Whether an effective award
could be made against a party so joined depends upon whether the person or company was in fact a
party to the dispute. On this I have nothing to add to what I have already said.

I am conscious that this opinion partakes more of the character of an essay or treatise than of a
judicial pronouncement, and I entertain some doubts whether I am performing a judicial duty in
delivering it. I should not like it to be regarded as a precedent, but on the whole I think I should let
it go forth for what it is worth.

O'Connor J.

The jurisdiction of the learned President to determine the matters in issue between these parties can
arise only on the establishment of the fact that there exists between them "an industrial dispute
extending beyond the limits of any one State." On the inquiry into that fact several important
questions of law have arisen. Others relating more immediately to the scope of the Court's powers in
the settlement of the dispute must obviously arise. As yet no fact has been determined, nor is the
inquiry as to the nature of the dispute closed. Under these circumstances it has been difficult to state
in concrete form the matters of law upon which the learned President seeks the opinion of this
Court. In the course of the argument it has become apparent that some of the questions cannot, in
the absence of further knowledge of the facts, be answered at all, that others cannot be answered
categorically, and that as to the latter the opinion of the Court to be of any value as a guide must be
more or less in the nature of an exposition of the principles involved in the determination of the
question. I propose, therefore, before answering the questions separately, to consider generally some
of the requirements of an industrial dispute essential under the Constitution to found jurisdiction and
the extent of the powers which will necessarily be called into operation in the settlement of this
particular dispute if jurisdiction is established.

Sub-sec. xxxv. of sec. 51 of the Constitution confers the power which Parliament has purported to
exercise in enacting the Commonwealth Conciliation and Arbitration Act 1904. It is a power 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." This Court has laid down on many occasions that the meaning
of a provision of the Constitution is to be ascertained in precisely the same way as the meaning of a
provision in any other Parliamentary enactment. My learned brother the Chief Justice, delivering
judgment in the case of the State of Tasmania v. The Commonwealth of Australia,[7] in enunciating
that rule quoted the following passage from the judgment of Lord Chief Justice Tindal in the Sussex
Peerage Case[8]:--"My Lords, the only rule for the construction of Acts of Parliament is, that they
should be construed according to the intent of the Parliament which passed the Act. If the words of
the Statute are in themselves precise and unambiguous, then no more can be necessary than to
expound those words in their natural and ordinary sense. The words themselves alone do in such a
case best declare the intention of the law-giver." The words to be construed in this instance are in
themselves precise and unambiguous. "Conciliation" and "arbitration" may be regarded as legal
expressions, but the rest of the sub-section consists of words in common use in the English
language, and as to these latter it must be taken that the legislature has used them in their natural
and ordinary sense. For many years before the passing of the Constitution the expression "industrial
dispute" was in common use in Australia and New Zealand as describing a dispute between bodies
of workmen and their employers as to terms of employment. In the same sense the term was applied
in England by well known writers on industrial matters, by public men, and by journalists.
Sometimes, as in the English Conciliation Act 1896 and earlier Statutes, the expression used was
"trade dispute." But whether called "industrial dispute" or "trade dispute" the characteristics of the
thing so described were always the same, namely, a dispute between a considerable body of
employés and their employer or employers as to wages, hours of labour, or other conditions of
employment, the employés being combined for the purpose not necessarily in a union or other
permanent form of organization. Whether the dispute were initiated by employer or by employés,
whether at the stage of initiation, negotiation, or of conference, and whether likely, or not, to end in
a strike, or lockout, it was invariably designated as an industrial, or trade dispute. It had one
characteristic distinguishing it from controversies of individuals respecting civil rights. It could not
be settled by the ordinary tribunals. It was not within their cognizance, the questions at issue being,
not as to the breach or observance of existing contracts, but as to the removal of grievances which
had grown up under them, and as to the best means of securing by new agreement or understanding
other and better conditions for the future.

Such being the nature and characteristics of the controversies between employers and employés
recognized and described in England and Australia as "wages disputes" or "industrial disputes," it
may be of advantage to the clearer understanding of the view I am discussing if I advert briefly to
the terms "conciliation" and "arbitration" as used in connection with them. For many years the
majority of people in England and Australia had realized that the settlement of industrial disputes in
some more humane and reasonable way than by strike or lockout, with the disturbance of industrial
conditions, the bitterness, the cruel consequences to the weak and helpless, the dislocation of trade,
the monetary loss to the community which those crude methods involved, was more a matter of
national than of private concern. The view steadily gained ground that public tribunals should be
created for the settlement of these differences as they arose. In England cautious attempts in this
direction were made as early as the year 1867. The Parliament of New South Wales in 1892 passed
a Statute creating tribunals of conciliation and arbitration for the settlement of industrial disputes,
which, however, by reason of defects in its method of dealing with the question, became
inoperative. New Zealand in 1894 initiated a system for settling industrial disputes by conciliation
and arbitration--a system which has been in active operation ever since. South Australia followed
in the same year with similar legislation, and, in 1896 the British Parliament enacted a Conciliation
Act bringing into operation a method of dealing with the subject, which differed in many respects
from the Australian and New Zealand systems but aimed at the same object, described in its title as
"The prevention and settlement of trade disputes." Most important, also, as throwing light on what
must have been in the mind of the legislature, is the fact that some years before the Constitution was
framed the people of Australia had seen an industrial dispute, originating in one State, grow into a
serious industrial disturbance, spreading over many States, and had thus learned, from bitter
experience the need of a tribunal with jurisdiction wide enough to settle industrial disputes
extending throughout Australia.
Under these circumstances I can find no reason to doubt that the plain words used in sub-sec.
XXXV. describe literally and exactly the power which the Federal Convention and the British
legislature intended to confer on the Commonwealth Parliament, that is, the power to create
tribunals invested with jurisdiction to prevent and settle by conciliation and arbitration industrial
disputes of the kind to which the British, the New Zealand, the New South Wales, and the South
Australian legislatures had applied the same remedy, limiting, for obvious reasons, the
Commonwealth power to those disputes which, by reason of their extending beyond the State
boundaries, could not be effectually settled by any State industrial tribunal. In the Jumbunna
Case[9] it became necessary to consider what would constitute an industrial dispute extending
beyond the limits of any one State. The particular aspects of the question which have become
important here did not there arise. In delivering judgment in that case I stated generally, though I did
not attempt to state exhaustively, the nature of an industrial dispute within the meaning of the
Constitution. I quote the following passage as bearing on the question now under
consideration[10]:--"In examining this contention it becomes necessary to inquire into what
amounts to an industrial dispute extending beyond the limits of any one State within the meaning of
the Constitution. That the parties on either side should be organized in any permanent form of
combination is not essential. If all the workmen of an employer in a particular trade take concerted
action in demanding and endeavouring to enforce from him some alteration in their conditions of
employment, there is an industrial dispute. If all the workers throughout the State in the same trade
unite in the making and endeavouring to enforce the same demand from their respective employers,
there is an industrial dispute involving the whole trade throughout the State. If the workers so united
obtain the co-operation of their fellow-workers in the same trade in another State in such a way that
the combined workers in the trade in both States take concerted action against their respective
employers in both States for the making and enforcing of the same demands, there is an industrial
dispute extending beyond the limits of one State." The other members of the Court expressed views
substantially similar, and I gather from the arguments of counsel on both sides in this case that no
question has been raised as to the accuracy of that general statement.

It is contended, however, that the facts now under consideration present an industrial dispute from
quite another point of view, and that the proper construction of sub-sec. xxxv. necessitates an
addition of further essentials to constitute an industrial dispute extending beyond the limits of any
one State within the meaning of the Constitution. These additional essentials are referred to
separately in the several questions submitted by the learned President, but in discussing the
interpretation of the subsection they may be taken together. In considering what is necessary to
constitute an industrial dispute within the meaning of the Constitution it must always be
remembered that the Convention and the British Parliament were dealing with the subject
practically, that they had in mind actual differences between employers and employés, differences of
the kind which the public interests demanded should be submitted to a federal tribunal. They were
thinking of real industrial disputes, not of industrial disputes that existed only on paper, or were got
up for the attainment of some other and ulterior object than the settlement of differences between
employers and employés. They were thinking too of "industrial dispute" in its broad outlines as the
public knew and recognized it, not of some carefully thought out legal conception which the
expression, by the exercise of professional ingenuity, might be made to fit. Having regard to all
these circumstances it is to my mind beyond question that the Federal Convention and the British
legislature have used plain and apt words to describe an industrial dispute having a real existence. I
therefore agree that the Commonwealth Arbitration Court can have no jurisdiction unless the
dispute is real in the sense that I have explained. We are not called upon to express any opinion as to
whether the dispute in this case is or is not real, nor indeed have we before us the material on which
we could arrive at a conclusion on that issue. If it were to be assumed that a demand by the
complainant organization on each employer and a refusal by each employer to comply with the
demand were all the learned President would have before him, I should not hesitate to express the
opinion that no tribunal would be justified in finding on such evidence the existence of a real
industrial dispute. But as I understand the matter that is not the only evidence before the learned
President, nor has he as yet closed his inquiry. It is for him to determine, after full inquiry into all
the circumstances, whether the dispute is or is not a real dispute in the sense which I have described.

The respondents however contend that it is not enough that there should be a real and actually
existing industrial dispute, in the ordinary sense of the word, extending beyond the limits of one
State, and fulfilling all the requirements laid down in the passage quoted from my judgment in the
Jumbunna Case[11], but that it is further essential that both parties to the dispute should be
combined; that, in this case, it being assumed for the purposes of the questions submitted that the
employers acted independently, and without preconcert of any kind, in refusing to comply with the
demands of the claimant organization, there cannot be an industrial dispute within the meaning of
the subsection. The plain answer to that contention is that the words of the Constitution authorize no
such limitation of the meaning of the term "industrial dispute." If an industrial dispute, such as I
have described, has come into existence, the jurisdiction cannot fail because the employers, for
reasons of their own, choose to act independently instead of in concert.

Again: it is said that the claim of the organization which is the foundation of the dispute must be for
uniform rates of wages or conditions of employment throughout the whole area covered by the
dispute, that the claim of the complainant organization for an additional 15 per cent. to its members
in Western Australia will prevent the Court from having jurisdiction to entertain it. It is obvious that
the Federal Convention and the British legislature must have been well aware that Australia was a
country of varying climates and conditions of life; that the cost of living, for instance, would give
the same amount of wages different effective values in different parts of the Commonwealth. It is
difficult to imagine any industrial dispute extending beyond the limits of one State in which the
relations of employer and employé could be fairly adjusted without some regard to the differing
economic and climatic conditions prevailing in different States. If, for example, the respondents'
contention is right, the Federal Arbitration Court would have had no jurisdiction to settle the dispute
between the shearers and the pastoralists--a dispute upon which it recently adjudicated. That
dispute extended over four States and different rates were claimed for New South Wales, Victoria
and South Australia and certain parts of Queensland. The award recognized and gave effect to these
differences of rates, and no settlement could be workable which failed to give effect to them. It is
obvious that a construction of the sub-section which would shut out an industrial dispute so clearly
within the words and the intention of the Constitution demonstrates the impracticability of the
contention.

An attempt was made to show that the power of awarding in settlement of the dispute different rates
of wages or other differing conditions of employment would be in violation of sec. 99 of the
Constitution. But the argument did not seem to me to be seriously pressed. It is plain that a direction
as to such wages or conditions in an award is not a "law or regulation of trade" or "commerce"
giving "preference to one State or any part thereof over another State or any part thereof," and
cannot therefore be within the prohibition of that section.

There is yet another ground upon which the respondents urge that the jurisdiction of the
Commonwealth Industrial Court in this case must be ousted. In New South Wales and Western
Australia there are now in force awards of the State Industrial Courts binding the members of the
complainant organization and their employers in those States in respect to the very matters which
are the subject of the present dispute. In Victoria there is a determination of the Woodworkers'
Board, duly authorized under the Victorian Factories and Shops Acts, which determines the
conditions to be observed and the minimum rates of wages and prices to be paid by employers to
employes in respect to the same kind of work as that performed by Victorian members of the
organization in the employ of the Victorian respondents. The persons who are bound by these
awards, or who come within the determination of the Victorian Wages Board, cannot, it is said,
dispute with their employers the binding effect of the award of the State Court, or the determination
of the State Wages Board, they are therefore, it is urged, incompetent to become parties to an
industrial dispute in which the conditions so awarded and determined are brought into question, and
it is argued that in such a case an industrial dispute within the meaning of sub-section xxxv. cannot
come into existence. The Constitution, as I have pointed out, concerns itself with a real dispute
actually existing. The contention of the complainants in any dispute may, when it is inquired into, be
found to be absolutely untenable in a Court of law, their demands may even be inconsistent with the
law, but it cannot be denied that the dispute exists in fact. It may be in such a case that on
investigation the President would find himself powerless to settle it in the manner claimed without
infringing laws which bind the Court as well as the parties. That does not render the existence of the
dispute less a reality. The untenable nature of the complainants' reasons cannot deprive the tribunal
of the jurisdiction which attaches whenever a real industrial dispute such as I have already described
comes into existence. It may be that the awards themselves, or the provisions of State laws, which
both parties are bound to obey, will make it plainly impossible that the Court can award the relief
asked. That in itself may afford in some instances cogent evidence that the dispute is not real, that,
though an industrial dispute in form, it is, in truth, nothing more than an agitation to get rid of the
obligations of a State law. Those are circumstances for the President to consider in determining
whether there is in the dispute the basic quality of reality. But if that is once determined in the
complainants' favour the jurisdiction of the Court to hear the dispute is complete.

I shall next assume that the facts have established the existence of a dispute which will give
jurisdiction, and I now proceed to consider the questions raised as to the power of the Federal
Arbitration Court to make an award inconsistent with State industrial awards or with State Statutes.
It is a fundamental principle of our jurisprudence that every tribunal must act within the law. In a
unitary form of government the principle is easy of application; every tribunal must obey and give
effect to the law of the land. In the case of a federal tribunal the statement must be to a certain
extent varied. A federal tribunal may be bound to administer the law of the State or the law of the
Commonwealth according as it is subject to one law or the other in respect of the particular matter
in hand. But it must administer one law or the other, it cannot be a law unto itself. The
Commonwealth Conciliation and Arbitration Act constituting the Court has endowed it with
authority to hear and determine industrial disputes as defined by the Act, and to make any award it
deems fit in pursuance of its determination. Sec. 30 enacts that "when a State law or an award order
or determination of a State Industrial Authority is inconsistent with an award or order lawfully made
by the Court, the latter shall prevail, and the former shall, to the extent of the inconsistency, be
invalid." It will be noted that an award or order of the Court invalidates State awards or laws
inconsistent with it only when it is lawfully made. If the award is in excess of the powers conferred
on the Court it is not lawfully made. As far as the present question is concerned the power conferred
may be summed up in these words--"to determine the industrial dispute by conciliation and
arbitration." Every provision of the Act is ancillary to that. Such, indeed, is the full extent of the
power which Parliament is by sub-sec. xxxv. of the Constitution authorized to confer, and the Act
will be interpretated, if possible, as conferring no larger powers than the Constitution authorizes.
The extent and limit of the Court's power is therefore to be found in the words of sub-sec. xxxv. In
considering the question from this point of view several principles of interpretation frequently acted
upon by this Court must be borne in mind. It will be taken that there is involved in the grant of
power every thing necessary to make it effective: D'Emden v. Pedder[12]. Again: effect must be
given to the principle enunciated by Chief Justice Marshall in McCulloch v. The State of
Maryland[13], and followed by this Court in the Jumbunna Case[14] and other cases, namely, that,
when the object aimed at is within the limits of the power, the legislature cannot be interfered with
or controlled as to the mode in which it may deem fit to exercise the power, provided that it chooses
means which are appropriate and fairly adapted to the object. Chief Justice Marshall says, in the
passage referred to[15]: "Let the end be legitimate, let it be within the scope of the Constitution, and
all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but
consist with the letter and spirit of the Constitution, are constitutional." On the other hand it must be
remembered that the Constitution leaves to each State the exclusive control over all phases of
industry operating solely within State limits. The State may make laws imposing any rights, duties,
or obligations it deems fit on employers and employés engaged in its industries. That power is as
definitely vested in the State as the power conferred by sub-sec. xxxv. is vested in the
Commonwealth. It is in accordance with the principles laid down by this Court on many occasions
that these two powers, that of the State to control its own industrial affairs, and that of the
Commonwealth to empower its Courts to settle by arbitration industrial disputes extending beyond
the limits of any one State, must be so construed as to be as little as possible inconsistent with each
other.

The meaning, scope and purpose of arbitration are well known. An ordinary arbitrator's duty
extends only to determining and giving effect to the rights of the parties, in accordance with his
view of the facts and the laws. The duty of arbitrator in an industrial dispute is also confined to the
judicial determination of the matters in dispute. But the scope of his jurisdiction is necessarily larger
in one respect. Industrial arbitration may involve the abrogation of the existing contractual rights of
either of the parties where the abrogation is necessary for the effective settlement of the industrial
dispute. That proposition was questioned in the course of the argument. But it is to my mind one of
the fundamental conditions on which the jurisdiction of Industrial Courts is exercised. The federal
tribunal must therefore necessarily have authority when it deems fit to make an award in disregard
of contract between employers and employés and of the State law which makes them binding.
Again: it may happen that the award of a State Industrial Court settling a State dispute stands in the
way of fair and effective adjudication by the federal industrial tribunal. In such a case, where the
industrial relations of the same parties become the subject of inquiry in the wider area of the Inter-
State dispute, the federal tribunal must, if its settlement is to be effective, have the power to
disregard, as far as those parties are concerned, the award of the State tribunal, which has
determined their future relations for a certain period. And although the State law makes the award
binding on the parties, and makes its directions enforceable by penalties, that law must yield, as the
State law as to contracts must yield, to the supremacy of the federal award, and for the same
reason--necessity. For, as the federal power cannot be effectually exercised unless in these respects,
State control over State industries is invaded, the power of the Commonwealth Parliament to clothe
its tribunal with authority for that invasion is, therefore, necessarily included in the terms of sub-sec.
xxxv.

When, however, we turn to the second branch of the same question, namely, to what extent, if at all,
the federal Court may make an award inconsistent with State laws, entirely different considerations
arise. The authority to settle the dispute by arbitration does not authorize the federal tribunal to
disregard a State law merely because it may stand in the way of the method of settlement which the
President may think most effectual. He may, for instance, deem it necessary for a satisfactory
settlement that the weekly half-holiday in a certain trade throughout Australia should be Saturday,
and that the men should work on Wednesday. But he would not, on that account, have power to
disregard a State Statute forbidding work in that trade on Wednesday. In such a case the State
Statute would prevail over the federal award. If it were not so, there is no State law relating to the
industries of a State which might not, in that way, by the terms of a federal award be made
inoperative. But there is nothing in sub-sec. xxxv. to justify the contention that the federal tribunal
can be empowered to disregard State laws whenever they are inconsistent with the terms of its
award, whatever those terms may be. Its authority is to act judicially in the settlement of the
industrial dispute. It is empowered to do everything within the law necessary to accomplish that end
effectually. But outside that it is, in respect of any matter beyond the ambit of federal power, as
much bound by State laws as the tribunals of the State are bound. It is unnecessary to go more into
detail on this question, because there is one set of Statutes only which it would appear to be
necessary to consider in this connection, that is, the Victorian Factories and Shops Acts, from which
the Victorian Wages Board derive their authority to determine the wages of operatives in particular
trades. The determination of these Boards seem to me to stand in a different position from the award
of a State tribunal made in settlement of a trade dispute. The fixing of the scale of wages is not the
settlement of an industrial dispute, its operation extends far beyond the settlement of the rights inter
se of parties to an industrial dispute; it is rather the making of a general law by a law-making
authority constituted by Statute for that purpose; a law binding, not only on certain parties, but on
the public generally. The scale of wages, when determined, is legally in the same position as if it
had been embodied in a Statute, and made binding on every individual in the State. It could hardly
be denied that a State Statute, fixing a scale of wages for employés in a particular trade, would be
binding on the federal tribunal, and that any direction in an award inconsistent with its provisions
would be invalid. Coming however to the facts of this case, it is difficult to see how any conflict can
arise between the scale of minimum wages determined by the Board under the Acts and the award
of the federal tribunal. If a conflict does arise the provisions of a Statute must in my opinion prevail.

I shall now give my answers seriatim to such of the questions propounded by the learned President
as I am able to answer at the present stage of the case.

1.

Assuming all the other conditions necessary to constitute an industrial dispute within the meaning of
sub-sec. xxxv. to be existent, the want of preconcert or combination between individual employers
under the circumstances stated would not deprive the Court of jurisdiction under the Constitution.
Nor would it under the Act. Giving every possible weight to Mr. Blacket's ingenious argument, it is
impossible, in view of the terms of sec. 24 of the Acts Interpretation Act 1901, to read the word
"employer" in sec. 4 of the Commonwealth Conciliation and Arbitration Act 1904 as not including
the plural as well as the singular.

2.

With regard to an industrial dispute of which the federal tribunal has cognizance, all State
boundaries disappear and the President may adjust wages or other conditions of employment to fit
special and local circumstances in any way he thinks fit. Such a power is, for the reason I have
already given, necessarily vested in the tribunal.

As to 3 and 4 the Court, in my opinion, has not before it sufficient material to enable it to answer
the questions.

5.

Yes, as I have fully explained the Federal Arbitration Court has the power to make an award
inconsistent with a State award to operate from any time the President chooses to fix.

5a.

No, for the reasons I have stated.

6.

Yes, same answer as to 5.

7.

A registered industrial agreement may be disregarded by the Federal Court for the same reasons as
the award of a State Industrial Arbitration Court may be disregarded. A fortiori the agreement
mentioned in the question could not stand in the way of the award of a Federal Court inconsistent
with its provisions.

8.

There is not, in my opinion, sufficient material before the Court to enable me to answer this
question, but I concur in the learned Chief Justice's observations in regard to it.

Isaacs J.

I wish to observe at the outset that the decision of the Court appears to me to be a regular judicial
determination.

The first question submitted is really whether in this case--assuming the existence of all other
necessary circumstances--it is, either under the Constitution or the Act, legally essential to there
being an industrial dispute extending beyond the limits of one State that there should be proved
some combination or preconcert on the part of the various employers to refuse the demands of the
employés.

The expression "industrial dispute" is not technical; it is the plain description of a thing, a state of
affairs well known at the time the Constitution was framed, and in that sense for many years before.
In the Jumbunna Case[16] I stated my views as to the meaning of the term "industrial dispute" and
of the whole expression "industrial dispute extending beyond the limits of one State," and I see no
reason to modify that statement.

No exhaustive enumeration of circumstances which form the criteria of an industrial dispute can
possibly be made; nor would it stand good as a complete statement for any length of time, so
multitudinous are the facts which may constitute a dispute. Any attempt to frame a series of
identification marks can only be obiter; there is no practical difficulty in recognizing the thing itself
when it arises because its main and substantial features are thoroughly well known. It must of
course be a real dispute. A demand and a refusal may be made in terms and in circumstances which
indicate that they are merely tentative or that they are an ultimatum. In the one case they would
probably not constitute a dispute: in the second the President might think they did.

Three broad characteristics connected with trade disputes are involved in several if not all the
questions, and for convenience sake may be mentioned now. They are what a trade dispute is; who
may be disputants; and what are the subjects of such a dispute.

No statement can, as already observed, be taken as exhaustive, but there are three answers to those
queries which come from sources of considerable authority in industrial matters, and materially
assist to clear the ground in this case.

With respect to the first Mr. Geoffrey Drage M.P., who had been the Secretary to the English
Commission, defined Trade Disputes in his book "The Labour Problem" published in 1896. He says
(at p. 303):--"A trade dispute may be defined as an actual or prospective interruption of work due
to the voluntary action of the employers, the employed, or both; such action being induced by a
conflict between the interests or the opinions of the two parties to the dispute."

The disputants he described in the following way:--"Such disputes may arise (1) between one or
more individual and unorganized employers and his or their individual and unorganized workmen;
(2) between one or more individual and unorganized employers and an organized combination of
workmen; (3) between an organized combination of employers and an organized combination of
workmen; and (4) between two organized combinations of workmen."

As to the causes of disputes--and it is all important to remember the distinction between the cause
of a dispute, which may be lawful or unlawful, and the dispute itself, which is a matter of fact--the
majority report of the English Royal Commission on labour in paragraph 100 (Fifth and Final
Report), Commons Papers 1894, vol. 35, p. 38, says:--"The essence of most of the disputes
between employers and employed is, of course, the shares in which the receipts of their common
undertaking shall be divided. By far the largest proportion of disputes, strikes, and lockouts, have
direct reference to the increase or diminution of the standard of wages, or the introduction of fixed
price lists. Many other disputes relate to the standard of hours, a question which in many cases
forms part of a conflict with regard to wages. Other conflicts are undertaken by trade societies with
a view to compel employers to recognize them, to strengthen and enlarge their organization, to limit
the number of youths entering the trade, to prevent the employment of non-unionists, or sometimes
that of women and children, to defend unionist colleagues, or assert unionist rules and customs, and,
generally speaking, to protect the monopoly of workmen already in the organization. As has already
been indicated, the ultimate object of all this policy is by increasing their strength and securing as
far as possible a monopoly of employment to obtain as large a share as possible of the receipts of
the industry, and to exercise a voice as to the general conditions under which it is carried on. Many
disputes are connected with special customs or circumstances in particular works, with attempts to
alter or prevent the alteration of various working arrangements, with questions of piece-work,
overtime, holidays, meal times, and the introduction or abolition of systems of fines, deductions,
and so forth. Some are of a merely personal nature, being connected, for instance, with the
unpopularity of particular officials. Sympathy or on principle strikes, of which much has lately been
heard in connection with less skilled industries, are those in which men engaged in one occupation
strike, without alleging any special grievance of their own, expressly in order to support men
engaged in some other occupation who are involved in a conflict with their employers. A common
instance of this kind of strike, in recent times, has been the refusal of dock labourers to discharge or
to coal ships manned by non-unionist crews. There are also instances of a number of employers
closing their works for a time in order to support a particular employer against whom a strike is
being directed. Finally, there are the demarcation disputes in which organized bodies of workmen
employed in some complex trade like shipbuilding, as, for instance, shipwrights and joiners, are at
issue with regard to the province of work belonging to each section. In this last case employers,
although not directly concerned in the disputes, yet have to bear the inconvenience and expense of
the strikes and stoppages of work to which they lead."

Paragraph 101 adds:--"Industrial disputes vary infinitely in the manner of magnitude and duration,
from stoppages of work in a particular mine or factory, only lasting for a day or two, up to disputes
involving great districts and masses of workpeople, lasting sometimes for several weeks, or even
months, and costing in wages, and in loss to the accumulated funds of trade unions and to capital,
large sums of money, besides causing widespread disorganization among the allied and dependent
trades."

The object of the federal grant of power being to preserve or restore industrial peace for the general
welfare of the whole people, whether directly concerned as actual disputants or indirectly interested
in other trades or as members of the general community, where the State laws for any reason are
unable to secure it or limit the interruption to one State, it manifestly cannot affect the matter
whether the disputants on either side do or do not agree beforehand to embark upon the struggle, or
whether they fight singly or in combination. The industrial dispute is equally there, its effects are
the same, its inconveniences and its dangers are identical.

It was, however, contended that Parliament had limited its enactment to cases where employers had
in some way combined. This contention was rested on the fact that the word "employer" in
paragraph (a) of the definition of in the fourth section, was couched in the singular. But the force of
sec. 23 of the Acts Interpretation Act 1901 has not been displaced. No contrary intention has been
indicated, and it would need to be a very clear indication to induce a Court to believe the whole
machinery of the Statute was erected to provide only for the cases where the employer carried on
business in two States, and where the employers chose to organize. Sec. 19 was pointed to, as
enacting that no dispute is cognizable by the Court except it is submitted by an organization, unless
upon either the Registrar's certificate or a request of State authority. That undoubtedly gives an
advantage to an organization. But its purpose is clear when the history of industrial disputes is
examined.

One of the problems of industrial arbitration has always been enforcement of awards. Even when
there is a legal sanction, as well as where the whole arrangement is voluntary, there are practical
difficulties in securing obedience to an award unless there is fairly perfect organization. The
advantages of organization in this connection are often adverted to by writers, and it is sufficient
here to make reference to paragraphs 142 and 145 of the fifth and final Report of the English Royal
Commission on Labour 1894 (Commons Papers, vol. 35, pp. 52 and 53).

But offering inducements to employers organizing for the better administration of the Act, by not
allowing them to be claimants unless organized, apart from special instances, is not only perfectly
consistent with subjecting unassociated employers as respondents to the jurisdiction of the Court
where an industrial dispute occurs, but is in reality opposed to the idea of leaving so serious a gap in
the Statute, as would arise if jurisdiction depended upon the voluntary submission of either party.
There are other sections, such as sec. 27, where reference is made to "all the parties," indicative of
more than an employer or a union of employers as the only disputants on the one side, and an
organization of employés as the only disputing party on the other, but whatever their force may be,
they are rather in support of upholding the general rule of the Acts Interpretation Act 1901, and
nowhere can I see any evidence of intention of contrary intention.

The second question involves to a great extent the principle of the first. State lines are disregarded
except for the purpose of ascertaining whether the dispute extends beyond the limits of one State. If
it does, then, in order to see whether any particular item is part of the dispute, it must be regarded as
if it occurred in a country with a single Government, as, for instance, wholly in a State, or in
England. If, for instance, an additional percentage were asked in a Queensland or Western
Australian dispute for those employés who were situated in the less accessible and more expensive
localities, no one would say the additional percentage was not part of the one dispute. For this
reason I would answer the second question in the affirmative.

The third question turns entirely upon a question of fact. If bush mills and timber yards are really
not distinct industries, but only different and well recognized branches or departments of the same
industry, I cannot see why the award should not include both bush mills and timber yards,
notwithstanding that in the particular timber yards in West Australia no member of the claimant
organization was actually employed at the moment of the dispute, because some of them might at
any time be employed there.

Nor is it material that at the moment of the dispute the South Australian employers have as yet
erected no bush mills, or that a Victorian employer has so far no timber yard. If in fact these are
mere adjuncts of the same trade--mere alternative or additional methods of carrying on the same
industry to which any employer may resort at any instant without changing his vocation, the absence
of a bush mill in a particular business or the non-employment of a member of the union in a bush
mill or a timber yard is a mere temporary incident, and does not prevent unity of dispute as to the
general terms of the employment in the industry taken as a whole and as understood by those
engaged in it.

The third question I also answer in the affirmative.

The fourth question should a fortiori receive the same answer as the third.

The fifth question is whether the Court of Conciliation and Arbitration has power to make an
enforceable award inconsistent with the New South Wales award. The respondents assert there is no
such power--and for two reasons. They contend in the first place that the words "industrial
disputes" in the Constitution do not mean disputes in fact, but such as would be disputes if the State
laws permitted them to be so considered. If, say the respondents, a State law says that workmen in
that State must work 12 hours a day, then though all the workmen in the State in defiance of its law
strike work, and join other workmen in other States similarly circumstanced in demanding better
hours refused by the employers, there is in the eye of the Federal Constitution, no dispute whatever.

According to this contention factories may be stopped, trade and commerce interrupted, men may
be idle, women and children suffering, allied and dependent industries brought to a standstill, the
public in want of ordinary supplies, animosity manifested between masters and men in every
direction, in short, there may exist all the usual unfortunate appearances and all the disastrous
effects of bitter industrial war, all of which the State law has been unable to prevent or cure, and yet,
upon the true construction of sub-sec. xxxv. of sec. 51 of the Constitution, the Federal Arbitration
Court is bound to declare, by virtue of a piece of paper called a State award or an industrial
agreement, which has proved ineffectual to avert the conflict, that there is no conflict, that there is
no industrial dispute; but there subsists a most perfect industrial peace, good will and harmony; that
the national tribunal can discern nothing but the wheels of industry revolving with their accustomed
steadiness and speed; and that all the business dislocation, all the public and private loss are in the
eye of the law mere figments of the imagination. I cannot accept this argument on the part of the
respondents.

Justice is proverbially said to be blind, but this contention carries the virtue to an excess that I
cannot find warranted by the language of the Constitution. The words are "industrial dispute"
without qualification, and I accept the observation of Jervis C.J. in York and North Midland Railway
Co. v. The Queen[17], that "Courts of justice ought not to depart from the plain meaning of words
used in Acts of Parliament: when they do so they make, but do not construe, the laws."

I heartily agree with the learned Chief Justice when he says in considering industrial disputes we are
considering real facts and not technicalities. The Constitution was framed to meet the great facts of
our national life, to deal with circumstances apparently beyond the control of the States, or their
competency to regulate with advantage to the people of Australia. Domestic commerce as such was
left to the States exclusively. Inter-State commerce, or, in other words, commerce that overflows the
State, was taken from them, and handed to the central power for unlimited legislation. The only
difference between the two species of commerce is the fact of the one passing beyond the limits of
some one State. Domestic disputes, so long as they retain their purely internal character, are in like
manner contained in the exclusive ambit of State authority: simply because, like internal commerce,
they are not granted to the federal power. But, as in the case of commerce, the moment an industrial
dispute passes the bounds of a State, and enters those of another, or, what is the same thing, the
moment an industrial dispute arises in more States than one, a dispute comes into existence which
may be treated as national. It comes within the terms of sub-sec. (xxxv.), and as a complete entity
may be dealt with wholly and exclusively under the authority of the federal legislature, though, of
course, only in manner directed by the sub-section. Once grasped by federal jurisdiction, once the
Commonwealth arbitral authority is exerted over it, the dispute is indivisible; it is no longer to be
regarded as a mere aggregation of two State disputes, each to be dealt with exclusively by the State
authority, or in accordance with State law; for that gives no meaning to the clause in the
Constitution from the federal standpoint.

Once the federal tribunal is seised of the dispute, no single portion of it is provincial, the whole
entity of the subject matter, national because it answers to the Constitutional test of embracing in its
area territory of at least two States, then comes, like Inter-State commerce always is, within the sole
and supreme cognizance of the Commonwealth, to be settled by the Commonwealth tribunal
according to federal law and constitutional direction, but, on the principles laid down in D'Emden v.
Pedder[18], unhampered and unimpeded by State interference, whether legislative, judicial, or
executive.

Therefore it is the patent fact of an actual dispute extending over more than one State which attracts
the Commonwealth jurisdiction, and if it does, what is there which cuts down the necessity of the
same tribunal settling it, and, if settling it, then effectively upon terms not necessarily dictated by
the terms of any State award?

To this it was answered with perfect accuracy by learned counsel for the respondents, that the
Commonwealth power of legislation in respect of these disputes is not a general power to regulate
the whole subject of disputes as in the case of bills of exchange or trade marks, but only a limited
power to enact laws with respect to conciliation and arbitration for the prevention and settlement of
such disputes. And they contend that the word "arbitration" applies naturally to so much only of the
ground in controversy as is not already occupied by existing obligations whether by award or
agreement. But that was not the signification the word "arbitration" bore in 1900 when used with
reference to the settlement of trade disputes, with respect to the terms upon which future industrial
operations should be conducted. As far back as 1882 Professor Jevons in his book "The State in
Relation to Labour" (at p. 150), in distinguishing this class of arbitration from arbitration relating to
past contracts, which he says are proper subjects for compulsory process, states:--"It is a totally
different question how far agreements relating to the future conduct of trade and industry can or
ought to be decided by the judgment of a third party. Here the freedom of industry is at stake, for
the arbitrator will now have to decide, not what agreement was made, but what is to be made. The
voluntary nature of the arrangement cannot be affected by inquiries directed merely to ascertain
what the arrangement was; but in regard to the future an arbitrator in assigning the terms on which
the disputants are to agree necessarily restricts their liberty."

Now it is plain from these observations, as well as from the exigencies of the subject, that the future
terms of employment do not mean the terms of agreements to be made in the indefinite future after
all existing agreements have expired by effluxion of time. These disputes and their summary
methods and enforcement by strike and lockout are to satisfy immediate needs and present desires,
and to correct existing injustice, not as to what is to happen in the indefinite future, when
agreements or awards already made have expired by effluxion of time--say years hence--when
conditions may have altered, and present disputants have, by stress of the very conditions they
complain of, disappeared altogether.

No arbitrator could make an intelligent award on such a basis--he must act on present conditions.

All the instances of arbitration available in English sources evidence the fact that it is resorted to for
the instant correction of unfair terms; and it would be a novel procedure for one disputant to go to
arbitration with the decision already registered against him for perhaps years ahead in the form of an
agreement or award, which on the very issue raised is alleged to lay down stipulations rendering
tolerable existence an impossibility.

I think the chapter on arbitration read by Mr. Arthur from Webb's Industrial Democracy strongly
supports the same view.

Australia gets the term "arbitration" from Great Britain where it was and still is voluntary, and there
can be no inherent presumption that in arbitration of this nature existing arrangements must
continue. Whether they should stand or not must be part of the issue of actual future remuneration
and conditions. In the New South Wales Report of the Commission on Strikes 1891 (p. 34, par. 28)
it is said:--"It should be remembered that a Court of Arbitration is not like an ordinary Court of
law. There is no fixed code of law which it interprets, and its decision is only a declaratory
statement as to what it thinks just and expedient." Now starting with that, which is a most important
and authoritative recognition in Australia of the meaning of arbitration, it has long been debated in
England whether the arbitration, that is the same class of arbitration, should or should not be
compulsory by law. The English Report (p. 51) bears evidence to the desire in some industries for
some form of State arbitration. That necessarily means that the State by some tribunal would
discharge the same functions in the same unfettered way as arbitrators voluntarily chosen had
always done, but would supply a legal sanction to the determination. Just as the industrial disputes
contemplated by sub-sec. (xxxv.) are themselves hard matters of fact, not dependent on or
susceptible of legislative creation, and not capable either of concealment behind a State award or an
industrial agreement, so the arbitration which is to settle them, if there is to be any reality in the
decision, must deal with existing and actual facts of life, irrespective of any artificial situation which
the parties by agreement, or some other tribunal in a vain attempt to solve the difficulty, may have
created.

Speaking of 1865, Webb's History of Trade Unionism (1894) at pp. 239, 240, says:--"The industrial
dislocation which the lockouts, far more than the strikes, produced, occasioned wide spread loss and
public inconvenience. The quarrels of employer and employed came to be vaguely regarded as
matters of more than private concern." In June 1866 at a trade union conference at Sheffield it
appears that there were resolutions for the establishment of Councils of Conciliation, and the
general resort to arbitration in industrial disputes.

English legislation took form in 1867 by the Council of Conciliation Act 1867 (30 & 31 Vict. c.
105) whereby what were called equitable councils of conciliation or arbitration might be established
on mutual petition, but without jurisdiction as to wages or remuneration for labour. In 1872 a further
Act, the Arbitration (Masters and Workmen) Act 1872 (35 & 36 Vict. c. 46), was passed enabling
parties who so agreed to arbitrate as to wages and hours, quantities, conditions, and regulations of
work, and they then became bound by the award. But although trade disputes continued, and grew
in magnitude and importance, both the Royal Commission of 1867 and that of 1894 reported against
compulsory arbitration. In 1896 an Imperial Act was passed, the Conciliation Act 1896 (59 & 60
Vict. c. 30), the title of which is "An Act to make better provision for the prevention and settlement
of trade disputes." By that Act the Board of Trade may mediate and on application appoint a board
of conciliation or an arbitrator. No sanction is afforded to the decision; and no limitation is placed
on the nature or cause of the difference or dispute. Dissatisfaction with an existing agreement or a
prior award was as much within the Act as if there had not been any agreement or award. No legal
consideration stood in the way--no standard existed but the sense of justice and fairness entertained
by the arbitrator. Indeed this very fact is and always has been the main deterring consideration
against the general adoption by the employés of compulsory arbitration in England. So stood the
matter so far as England is concerned down to 1900 when the Constitution was adopted; the result
being that "dispute" was a dispute in fact, and "arbitration" left the arbitrator at large. Whatever had
taken place in the past was regarded as past, and he dealt with the future unfettered, though
doubtless influenced, by the past.

In Australia the course of legislation was erratic and markedly diverse as well as ineffective. In
1891 the Victorian Parliament passed an Act to establish Councils of Conciliation, but only on the
joint request of employers and workmen. Conciliation might be followed by arbitration. No limits
were placed on the arbitrator's discretion, and as no lawyers were allowed to be present without
consent of both parties, strictly legal considerations were clearly not to be the basis of the award.
The Act has been a dead letter.

In 1892 New South Wales passed an Act (55 Vict. No. 29) for conciliation and arbitration for the
settlement of industrial disputes, which is chiefly valuable as a legislative recognition of what,
according to Mr. and Mrs. Webb, was in England in 1865 a mere vague regard. The Act recites:--
"Whereas it is believed that the establishment of Councils of Conciliation and of Arbitration for the
settlement of disputes between employers and employés would conduce to the cultivation and
maintenance of better relations, and more active sympathies, between employers and their
employés, and would be of great benefit, in the public interest, by providing simple methods for the
prevention of strikes, and other disputes, from the effects of which industrial operations may suffer
a serious and lasting injury, and the welfare and peaceful government of the country be imperilled."

Now, although the Act itself was apparently not successful, the parliamentary recognition of the
general public interest is highly important, because it indicates that the law began to look beyond
the interests and the mere personal rights and wrongs of the parties immediately concerned, and to
take into consideration the injuries sustained by those not engaged in the quarrels, but who suffered
by them, and ought not in any sense, moral or legal, to be bound by any estoppel, agreement or
award, or any other personal considerations generally affecting litigants themselves in the ordinary
Courts of law. If the quarrel existed in fact, it ought on public grounds to be stopped; if it
threatened, it ought to be averted--that was the principle of the Act as far as it went. I need not
dwell upon the details of the measure because in the Governor's speech to Parliament on 28th
August 1894 it was pointed out that the Act had failed; and these words occur:--"In view of the
wide spread inconvenience, pecuniary loss and lamentable strife too often caused by industrial
disputes, it is thought that the time has arrived for a fuller recognition of the public interest in such
matters." But there the matter rested in New South Wales for some years.

In August 1894, a few months after the appearance of the English Report, New Zealand passed an
Act on the subject "to facilitate the settlement of industrial disputes by conciliation and arbitration."
The Court of Arbitration consisted of three persons (sec. 48), one representative of employers, one
of employés, and a Supreme Court Judge, and a majority decided. Sec. 61 directs the Court to
determine any matters referred to them "in such manner as they shall find to stand with equity and
good conscience." That absolved them from any consideration of estoppel or prior agreement as a
bar to jurisdiction, though, of course, these would naturally be powerful factors in determining the
merits. (And see Moses v. Parker; Ex parte Moses[19]).

The Act with its subsequent amendments has been an active and potent instrument with regard to
industrial disputes.

In December 1894 South Australia also passed "an Act to facilitate the settlement of industrial
disputes," and in sec. 28 referred also to prevention. After conciliation failed, the Boards were
directed to determine the question "by an award, ... according to the merits and substantial justice of
the case" (sec. 43). The Local Board consists of persons elected by those engaged in the industry,
and the State Board of appointed persons, but representative of the industry. By sec. 53 the award,
unless otherwise expressed, is binding on all employers and employés in the particular locality and
industry for which the Local Board is constituted, and whose names are entered as voters--which
was on voluntary application. But the Act looks altogether against any reservation so far as
jurisdiction is concerned in favour of preceding agreements or awards--I except, of course, the
registered industrial agreements expressly provided for by the Act itself.

In 1899 New South Wales passed yet another Act "To make provision for the prevention and
settlement of Trade Disputes." It was very much on the lines of the English Act of 1896 referring to
differences existing or apprehended, but substantially substituting the Minister for the Board of
Trade--adding some further procedure provisions which are not material now. I understand there
have been three cases under the Act.

Now this was the condition of State legislation in Australia when the Constitution was framed.
Some States were without any legislation whatever on the subject; no two States were uniform; all
of the Acts were inadequate to cope with admitted evils, even domestic; and with the advent of
intercolonial free trade and the enlargement of intercourse the mischief manifestly might be more
extensive and more destructive in the Commonwealth about to be created. And although
conciliation and arbitration--dealing with facts as they were, influencing and deciding issues on no
ground whatever but moral and economic fair play and justice--had in many cases achieved
considerable success, it was recognized that the want of efficient legal sanction was sometimes an
element of failure. When therefore there was entrusted to the Commonwealth Parliament the
plenary power of legislating upon the familiar subjects of conciliation and arbitration for the
settlement of industrial disputes extending beyond the limits of any one State, it appears to me an
irresistible inference that the grant with respect to such disputes was as full and unrestricted as a
State already possessed over disputes confined to its own borders. It also appears to me not to be a
sound position, in view of the facts I have narrated, that the word "arbitration" in connection with
industrial disputes is to be taken in any strict legal sense as in the case of mercantile matters which
concern individual interests only, and are to ascertain existing rights. The two things when applied
to such vastly differing subject matter, are essentially distinct in their operation, and for the reasons
given, as well as on the principles of constitutional construction laid down, by Lord Selborne in The
Queen v. Burah[20], I am clearly of opinion that the federal power of legislation is not made subject
to State awards or industrial or other agreements, and that the Federal Court of Conciliation and
Arbitration may make an award inconsistent with any of these, and at once operative. I would add
that as this is a question of legislative power it would in any case be extraordinary to apply, to so
typical a trustee for the public welfare as the Australian Parliament, the doctrine of estoppel which
really is a matter of evidence or at most a rule of law, and therefore commonly alterable by a
legislature.

I come now to the question 5a which asks whether an award may be made inconsistent with a
determination of a Victorian Wages Board. The Victorian Factories and Shops Act 1905 (No. 1975)
by sec. 75 provides for the appointment of special Boards "in order to determine the lowest prices or
rates which may be paid to any person," etc., employed in certain occupations. The question
therefore includes this: whether the Federal Court can by its award fix a still lower price. It is
obvious that to fix a higher price as the federal minimum would not be inconsistent, and that
nothing but a reduction of the Victorian minimum would be, that is, nothing else would be contrary
to or contradictory of the Wages Board determination. But still it might be thought fair and just in a
dispute extending over other States beside Victoria to reduce that minimum; or the Victorian or any
other State legislature might provide a maximum of pay or a minimum of hours, and then the matter
might assume a wider practical import. The principle however is whether the Federal Court can be
limited in its power by what the Victorian Wages Board does. I may observe that the Wages Board
merely fixes a minimum wage for a maximum number of hours (sec. 90) and for overtime, but
nothing more. It does not enact the wage; it creates no obligation to observe the prices and rates it
arrives at, and it in no way enforces payment. The sanction is found in sec. 119 directly enacted in
the Statute. The Wages Board does no more than the Governor-General in Council did in the Opium
Cases when he proclaimed certain opium to be prohibited, and his proclamation was held not to be
legislation. The Customs Act really contained the legislation, and on the authority of the Opium
Cases, and Powell v. Apollo Candle Co.[21], the Victorian Wages Board exercises no legislative
power. In substance its determinations are only one form of "compulsory arbitration" as pointed out
in Webb's Industrial Democracy at p. 245; and whatever is sound law as to compulsory arbitration
under the preceding question is equally sound as to Wages Board determinations under this. If the
arbitrator can act contrary to a State law which says a personal agreement of employment shall bind
the parties, or a State law which makes equally binding an industrial agreement or a compulsory
award, it demonstrates the position that in those instances at least his determination is lawful even
where it is in open opposition to a State enactment.

In effect and in strictness, an award and a Wages Board determination rest on the same foundation,
namely, voluntary agreement where no compulsive law exists, or the Statute itself where there is
one. There is no distinction between them, as to the source of their binding character. The difference
between the two methods consists only in preliminaries, that is to say, in the case of arbitration some
dispute precedes the award, in the case of a Wages Board determination no dispute is necessary.
Wages Boards were and are one of the many well recognized English voluntary methods of
preventing industrial disputes. The English Commission's report (paragraphs 112 and following,
Commons Papers, vol. 35, p. 43), contains a clear exposition of their functions. It is there said:--
"The object of a true Wages Board is to prevent conflicts by means of periodical and organized
meetings of representatives of employers and employed for the purpose of discussing and revising
general wage rates in accordance with the changing circumstances of the time."

The adoption of this particular method by the Victorian Parliament is analogous to the adoption by
the Parliament of South Australia of the alternative mode of arbitration and award. There is really
no difference in principle or legal effect. Each is sustained by the State Statute which authorizes it,
and by that only. A simple repeal of the Statute would neutralize both alike. I therefore cannot
appreciate the distinction drawn by my learned brothers the Chief Justice and O'Connor J. in
arriving at conclusions which differ with regard to awards and Wages Board determinations
respectively. The question is therefore reduced to this: How far can a State Statute nullify a Federal
Statute which would have full operation if the State Statute did not exist? The argument for the
respondents did not deny that, if there were no State Statute, the Commonwealth Court acting under
the Federal Act could prescribe wages and hours; the question assumes it could, and if the Federal
Act has any force or vigor in it at all that must be so. That involves the clear position that the power
under sub-sec. (xxxv.) admittedly extends so far unless the State legislature in fact occupies part of
the ground covered by the Federal Act. If that be so, the contention necessarily refines itself to this:
that a State Act validly passed under an admitted State power, can and does pro tanto oust a Federal
Act, also validly passed under a federal legislative power. To my mind, such a contention is an
absolute and hopeless contradiction to the plainest words of the Imperial Parliament, and, if it be
correct, then there is practically no Federal Constitution at all. The Commonwealth in that case
would only legislate upon sufferance. A few exclusive powers would remain, but even then only so
far as the enactments did not cross State Statutes. Sect. V. of the Commonwealth of Australia
Constitution Act 1900, a covering clause inalterable, declares that that Act and all Commonwealth
laws under the Constitution shall be binding on the Courts, Judges and people of every State, and of
every part of the Commonwealth notwithstanding anything in the laws of any State. Therefore if we
went no further, once concede, as the question does and as the argument did, that in the absence of a
contrary State law, a given award might be made by virtue of a federal law, then sec. V. declares that
the federal law shall continue to authorize such an award "notwithstanding anything in the laws of
any State."

But again sec. 109 of the Constitution itself is explicit. It is in these terms:--"When a law of a State
is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the
extent of the inconsistency, be invalid."

The true way to test the argument in the present case is to ask whether the Federal Act would be
valid supposing the State Act were non-existent. If it would, then in case of inconsistency the State
law, whatever it may be, under whatsoever power it is enacted, on whatsoever subject, must to the
extent of the inconsistency be invalid. This constitutional provision is essential to the very life of the
Commonwealth: a decision in favour of the respondents on this point destroys the supremacy of
federal law, which alone has held the American Union intact, has preserved the character of the
Canadian Dominion, and can uphold the Australian Constitution. The supremacy of federal law in
such a case has been steadily maintained by the American Courts from the time of Marshall C.J., in
Gibbons v. Ogden[22], to the present day. That great Judge said in words which it is necessary to
repeat now:--"Since, however, in exercising the power of regulating their own purely internal
affairs, whether of trading or police, the States may sometimes enact laws, the validity of which
depends on their interfering with, and being contrary to, an Act of Congress passed in pursuance of
the Constitution, the Court will enter upon the inquiry, whether the laws of" (the State) "have, in
their application to this case, come into collision with an Act of Congress, and deprived a citizen of
a right to which that Act entitles him. Should this collision exist, it will be immaterial whether those
laws were passed in virtue of a concurrent power to regulate commerce with foreign nations and
among the several States, or in virtue of a power to regulate their domestic trade and police. In one
case and the other the Acts of" (the State)

must yield to the law of Congress; and the decision sustaining the privilege they confer, against a
right given by a law union, must be erroneous.

This opinion has been frequently expressed in this Court, and is founded, as well on the nature of
the government as on the words of the Constitution. In argument, however, it has been contended,
that if the law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict
with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each
other, like equal opposing powers.

But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the
supremacy not only of itself, but of the laws made in pursuance of it. The nullity of any Act,
inconsistent with the Constitution, is produced by the declaration, that the Constitution is the
supreme law. The appropriate application of that part of the clause which confers the same
supremacy on laws and treaties, is to such Acts of the State legislatures as do not transcend their
powers, but, though enacted in the execution of acknowledged State powers, interfere with, or are
contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under
the authority of the United States. In every such case, the Act of Congress, or the treaty, is supreme;
and the law of the State, though enacted in the exercise of powers not controverted, must yield to it.

This view has been sustained in various cases, among which may be mentioned Western Union
Telegraph Co. v. Pendleton[23], where Field J. stated the same principle in equally distinct
language; Asbell v. Kansas[24].

But there is for us even more authoritative opinion than that I have just quoted; and there are
instances that appear to me to be almost on all fours with the present case. Under the Canadian
Constitution, sec. 92, sub-sec. 13, the Provinces have exclusive power to make laws in relation to
property and civil rights in the Province. On the other hand, the Dominion Parliament,
notwithstanding anything in the Act, has exclusive power to legislate inter alia as to banking. The
Privy Council has substantially given to the words "notwithstanding anything in this Act" the force
of sec. V. of the Commonwealth of Australia Constitution Act 1900, and, in accordance with that,
has held that where there was a Dominion Statute on banking which enacted provisions inconsistent
with a Provincial Statute on ordinary mercantile law, the Dominion Act prevailed, although it
modified the civil rights within the Province. The provincial power was there express, which is
certainly not less potent than sec. 107 of our own Constitution, however that may be construed:
Tennant v. Union Bank of Canada[25].

In Grand Trunk Railway Co. of Canada v. Attorney-General of Canada[26] the Privy Council had
again to consider the question. The Dominion has, by reason of the exception in sub-sec. 10 of sec.
92, and the general residuary powers, exclusive authority to legislate in relation to "Railways,
extending beyond the limits of a Province," just as the Commonwealth Parliament has exclusive
power in respect of arbitration in disputes extending beyond the limits of one State. It enacted a
prohibition against "contracting out" on the part of such railway companies. This was objected to on
the ground that it affected "civil rights," which was exclusive to the Provinces, just as a purely
domestic State dispute, or purely domestic State wages, are exclusive to the State. But the Privy
Council laid down two propositions[27]:--"First, that there can be a domain in which Provincial
and Dominion legislation may overlap, in which case neither legislation will be ultra vires, if the
field is clear; and, secondly, that if the field is not clear, and in such a domain the two legislations
meet, then the Dominion legislation must prevail."

And accordingly the Privy Council merely inquired if the Dominion provision was ancillary to
railway legislation, and having found it was, it necessarily prevailed over State law, whatever that
law was.

The latest case is La Compagnie Hydraulique de St. Francois v. Continental Heat and Light
Co.[28], where a Dominion Act and a Provincial Act both validly passed under the respective
powers of the several legislatures came into conflict. The Dominion Parliament empowered the
respondent company for Dominion objects to manufacture and sell gass and electricity. The Quebec
Parliament then under its exclusive powers incorporated the appellant company and granted it the
exclusive privilege of selling electricity within a certain radius in Quebec. The decisions previously
quoted applied, and the Dominion Act was held to prevail.

Now, it is to be distinctly borne in mind that in each case the Dominion powers and legislature were
in respect of things entirely distinct from those over which the Province legislated; but as to a
portion of the two enactments, and a portion only, the Acts crossed--that is to the extent of the field
on which they met--and with respect to the portion crossed the Dominion Act prevailed.

It cannot be, as I have said, and it was not in fact disputed, that apart from the presence of the State
Act, the unqualified fixation of wages and hours is within the legitimate and necessary power of the
arbitration tribunal acting under the authority of the Commonwealth Act. Therefore, if on that field
it meets an inconsistent State law, otherwise valid, the Federal Act must dominate the field.

The contrary contention, as Marshall C.J. said in Cohens v. Virginia[29] "would prostrate ... the
Government and its laws at the feet of every State in the Union."

For instance, if, as postulated by the learned Chief Justice, there can be no dispute where by the
laws of the State it is not lawful for the person on whom the demand is made to agree to it, then
nothing could be simpler than the destruction of all federal power of arbitration. The State may pass
a law declaring that it shall not be lawful for any workman to demand higher wages or shorter hours
than those specified by Act or a Wages Board, or for any employer to pay lower wages or require
longer hours than those similarly specified, except after they have been allowed by a local Wages
Board. This would satisfy the test laid down by my learned brother, and would leave the federal
power in a condition of utter destitution. Is such a construction possible? And taking the second
position that assuming there is a dispute the Federal Court can determine it only so far as is
consistent with State laws on the same subject, it needs, as I conceive, but a moment's reflection to
see how obviously impracticable and futile the power so interpreted must prove. For this purpose
we must assume the dispute is one which exists not only in fact but in law; and if we suppose it to
extend over six States, the position may easily be this:--Queensland fixes no wage limit but sets a
maximum of seven hours; New South Wales fixes a minimum of 9s. a day and a maximum of nine
hours; Victoria 7s. 6d. a day and eight hours; South Australia 8s. 6d. a day and seven hours; Western
Australia 9s. a day and eight hours; Tasmania 6s. a day and no time limit. What is the Federal Court
to do? Suppose the President comes to the conclusion that 8s. 6d. a day and eight hours all round is
justice and necessary to settle the dispute.

If he can, as I have already said, consistently fix a higher minimum wage or a lower maximum
number of hours, he can effect in regard to wages Queensland, Victoria and Tasmania, and bind
South Australia, but employers in New South Wales and Western Australia are still bound to pay
higher wages than those in the other four States, and the President must so declare; and in regard to
hours he can affect New South Wales and Tasmania, and bind Victoria and Western Australia, but
not Queensland or South Australia, in which States employés are bound to cease operations sooner
than in the other four States. This patchwork result, departing from the lines of justice as found by
the President, is bad enough, but if the States either fix a wage which is to be minimum and
maximum until altered by a Wages Board, he would be bound simply to announce that he awarded
what the State law declared, and any other award would be illegal. This reduces the Federal Court to
a mere State functionary to say again what they have said already. And, similarly, after a valid
award was made, if the State passed a law inconsistent with it, then if the argument of the
respondents has any virtue at all, the subsequent State law must prevail. It cannot be that the
governing maxim is to be prior in tempore potior in jure.

Suppose, again, the President were properly seised of an undoubted dispute extending over the
whole of two States, evidence taken, arguments delivered, judgment reserved; before award made
the State Wages Board of one of the States concerned then under some power in a State Act fixes
wages or hours at or approaching the scale which one of the parties insisted on; the jurisdiction of
the Federal Court is to be wholly or pro tanto ousted, and if wholly ousted, the whole proceedings
are rendered abortive, and the dispute must continue because the State Statute is supreme over the
national law.

The moment we depart from the clear terms of sec. 109 of the Constitution, there is nothing but
chaos. That clause and covering clause V. form the keystone of the federal structure, and if they are
once loosened, Australian union is but a name, and will reside chiefly in the pious aspirations for
unity contained in the preamble to the Constitution.

Sec. 109 is not found in the American Constitution--where there exists only a provision analogous
to covering clause V., and upon which alone the exposition quoted from the judgment of Marshall
C.J. is founded. But its additional insertion emphasizes the supremacy of Commonwealth laws, and
it is a counterpart of portion of sec. 2 of the Colonial Laws Validity Act 1865 (28 & 29 Vict. c. 63),
and that induces the following query. If the Federal Act were an Imperial Statute would the State
Act fall within the purview of sec. 2 of the Imperial Act or would it prevail? The question of
paramountcy of the Imperial Parliament does not arise; because the prior assumption is that the
Federal Act is a valid exercise of power but for the existence of the State Act, and the whole
question is reduced to competition between the two valid Acts. If the Imperial Act under the section
quoted would prevail, so must the Federal Act prevail under clause V. and sec. 109.

It is needless to say that to bring sec. 109 into operation the two competing laws must meet on the
same field. Of course they must. If they are not on the same field they cannot collide; they cannot be
inconsistent. They may be on the same field and yet not inconsistent, and in that case both are valid
and operative; but if inconsistent, they must necessarily meet on the same field though enacted
under widely differing powers, as shown by Marshall C.J. in Gibbons v. Ogden[30], and one must
necessarily prevail, the only question being which. For answer there is only one source of direct
authority, the Constitution clause V. and sec. 109, supported by the opinion of the Privy Council in
Canadian cases and the Supreme Court of the United States in American cases.

Question 5a assumes inconsistency and consequently pro tanto assumes identity of field--the
constitutional result therefore follows.

It was urged however that this is equivalent to enabling the federal Judge to repeal a State Act. But
that is an error; he has nothing to say to the State Act. It is the Constitution which, by clause V. and
sec. 109 to a certain extent and in certain circumstances, invalidates the State Act. Those provisions
are self executing when the requisite events arise. The Constitution gives certain powers to the
Parliament which, being validly exercised, may or may not in their operation call into activity those
provisions of the Constitution with the effect of invalidating to the extent of repugnancy any
existing State Act which may be for the Court to determine. The distinction between repealing and
overriding an enactment is clearly and fully indicated by the Privy Council in Attorney-General for
Ontario v. Attorney-General for the Dominion[31], in a passage I read during the argument, and in
the face of that decision and of the express words of our own Constitution, I do not see how it is
possible to argue the two things are legally identical.

It was urged for the respondents that it could not have been the intention of the framers of the
Constitution to include in the word "arbitration" a power to decide contrary to a State Act or a State
award or an agreement, and apparently because that seemed to learned counsel an extraordinary or
an unfair thing to do. Such an argument, in my opinion, is properly answered as it was in Salomon v.
Salomon & Co.[32]. Lord Halsbury L.C., there said[33]:--"It is obvious to inquire where is that
intention of the legislature manifested in the Statute." Lord Watson said[34]:--"Intention of the
legislature is a common but very slippery phrase, which, popularly understood, may signify
anything from intention embodied in positive enactment to speculative opinion as to what the
legislature probably would have meant, although there has been an omission to enact it. In a Court
of Law or Equity, what the legislature intended to be done or not to be done can only be legitimately
ascertained from that which it has chosen to enact, either in express words or by reasonable and
necessary implication." But where are the words in our Constitution which expressly or by
necessary implication exclude from the Federal Statutes, which it has authorized in express terms,
any interference with the rules of conduct enacted by State Acts? Then learned counsel called in aid,
rather faintly I confess, the doctrine of implied prohibition based on United States v. Dewitt[35].
Without repeating my recently expressed views on that point, and whatever be the accuracy of the
doctrine as so far applied, I do not think the two simple words of Chase C.J., which seem to me to
be used rather metaphorically by him, can reasonably bear the further strain which this new
argument would place upon them--a strain to which they have never been subjected in their
American home. It would amount to this: that federal powers can be defeated not only by State
powers but also by State Acts. If this were accepted there would be, so far as I yet perceive, only
one further possible stage to which the doctrine need be carried, and that is that all federal powers
are subject in their exercise to the possibility of State Acts. Personally I reject the argument, and
hold that the Commonwealth Parliament could validly empower industrial arbitration which in the
opinion of the arbitrator would effect a settlement on just and equitable terms even though all the
States together chose to pass Statutes to the contrary. The Constitution requires the opinion of the
arbitrator and not of the Parliament, and that is the effect of the word "arbitration."

I refer to what I have already said about the nature of arbitration as known to the common law, and
as practised without legislative authority or sanction, as I refer also to the wide terms of the
Australasian Acts as to the duty of the arbitration tribunals to determine upon the merits and
according to justice as they find it. Turning to the federal Court we find no express limitation which
excepts from the alteration the conditions as to hours or wages as existing because required under
State laws, and we do find sec. 25 in these terms:--"In the hearing and determination of every
industrial dispute the Court shall act according to equity, good conscience, and the substantial merits
of the case, without regard to technicalities or legal forms, and shall not be bound by any rules of
evidence, but may inform its mind on any matter in such manner as it thinks just." That is closely
followed by sec. 30 which does not affirmatively empower an award to be made inconsistent with a
State law or award, and determination of a State authority, but clearly recognizes that it may be so
made, and so gives the interpretation of Parliament itself with respect to sec. 25. In so far as it
purports to invalidate State laws or awards, it is inoperative for the reasons given by the Privy
Council in the case of Attorney-General for Ontario v. Attorney-General for the Dominion[36].

Therefore if there is legislative power to authorize the Arbitration Court to make an award
inconsistent with a State law, that authority has been given.

For these reasons I am also of opinion that question 5a should be answered in the affirmative, but
that the award should operate immediately.

Questions 6 and 7 must follow the result of the views I have expressed with regard to questions 5
and 5A, and I answer them in the same way.

As to question 8 I think "parties" in sec. 38 (p) means parties to the plaint--because a party may be
struck out as well as joined--and, if only those who were in fact parties to the dispute could be
struck out, that course could not be taken where it was obvious a party to the plaint was not a party
to the dispute. But it is clear that no party would be joined who was not alleged to be a party to the
dispute, and so practically it is the same as if for the purpose of joinder "parties," meant "parties to
the dispute"--the allegations of those desiring the joinder would in the meantime be accepted, and
the issue of fact afterwards determined. With regard to this particular case, I can only say--it is all I
have power to say or means of saying--that it is not impossible, in the circumstances set out in the
question, that the Queensland Pine Co. Ltd. is now party to the dispute. The facts may show that it
entered into the business and has since carried it on with full knowledge of the dispute, and so as to
take part in it, by adopting the same attitude as its predecessor relative to the demand already made,
and by acting in the same way and with like intentions.

Whether that is so depends entirely on the facts, and it is for the determination of the learned
President.

I should not omit to notice one further contention based on sec. 99 of the Constitution, viz. that the
Act was a regulation of trade and commerce which gives preference to one State over another. In
my opinion it is not a regulation of trade and commerce, see United States v. E. C. Knight Co.[37]. I
also adhere to my opinion in The King v. Barger[38], that the Act does not give such preference.
Higgins J.

These constitutional controversies resolve themselves ultimately into questions of mere statutory
construction; and many of the difficulties would vanish if we keep steadily in view our function--
merely to interpret and apply the will of the legislatures--British and federal. It is not for this Court
to twist the expressions of the Parliaments to suit our own notions of economic or social expediency.
The legislatures, not this Court, are responsible for the wisdom of the legislation. Our attitude
should not be that of either approval or disapproval. Great social experiments are being tried; and
they should get a fair trial--whatever we may think of their merits. It is just as bad to be influenced
in our decisions by fear of the powers given to the Federal Parliament, or by fear of the power given
to the Federal Court of Conciliation, as it is to be influenced by a desire to see these powers
magnified. There is no doubt that a rash, extreme, or unwise exercise of these powers may lead to
great public disaster; but this danger does not justify us in curtailing the powers. "I utterly
repudiate," said Willes J., "the notion that it is competent to a Judge to modify the language of an
Act of Parliament in order to bring it in accordance with his views as to what is right or reasonable."
(Abel v. Lee[39]). "We must take the law as we find it; and, if it be unjust or inconvenient, we must
leave it to the constitutional authority to amend it." (Garland v. Carlisle[40]).

Now, the first question is, in substance, what my brother O'Connor has stated: Does the fact that the
employers in the different States are not combined, have no business or other connection with one
another, have acted independently in refusing the demands of the combined employés and without
preconcert of any kind--does this fact in itself prevent the dispute from being a dispute "extending
beyond the limits of any one State"? Is combination on both sides of the dispute essential for a two-
State dispute?

This question was referred to, and left undecided, so far as the Chief Justice is concerned, in the
Jumbunna Case[41]. The question, as stated by me, assumes that there is a dispute, an industrial
dispute. A dispute may be one dispute, in the sense that it involves one claimant organization, and
the same claim on several employers; but it may not follow that the dispute "extends" from one
employer to another, or from one State to another State, within the meaning of the Constitution. At
the same page of the Jumbunna Case, the Chief Justice said:--"An industrial dispute exists where a
considerable number of employés engaged in some branch of industry make common cause in
demanding from or refusing to their employers (whether one or more) some change in the
conditions of employment, which is denied to them or asked of them. The form of combination is
immaterial, though it most commonly arises where there are organized associations of employés or
employers. The degree of permanency of the combination is also immaterial, but there must be
some continuity of action." But the question, is there a dispute, will, it appears now, be more
complex than these words would indicate. It is a question of fact, to be decided on all the
circumstances of the case; and I should not have been justified in submitting the vast mass of
evidence to this Court and asking "is there a dispute?" Nor should I have been justified in asking
this Court the abstract question, "What is a dispute?" or "What is a dispute extending, &c?" I quite
concur with the expressions of the learned Chief Justice to the effect that any opinion expressed by
this Court on hypothetical or abstract questions of law, which may never arise for actual decision,
would have no binding effect. But I cannot concur in the view that the questions submitted are
either abstract or hypothetical. They actually arose in the course of the case, and they--and many
other questions which arise--have to be determined by me if not by this Full Court. Counsel for the
respondents desired that I should bring these, and several other questions, before the Full Court. I
refused to submit the others, as I could not ask the Court to decide them without the perusal of
bulky evidence; and, as I feared, some even of the few which I have submitted cannot be
categorically answered, as they involve a consideration of the facts as well as the law. The difficulty
is not that the questions are either abstract or hypothetical, but that they involve facts as well as law.
I have not, in this my judgment, investigated the meaning of "industrial dispute." I refrained from
including it, for the reasons which I have stated. But my silence must not be taken as consent to the
doctrine that the short and every-day phrase "industrial disputes extending" connotes all the
elaborate qualities which the Chief Justice has suggested in his judgment. I cannot find in the
Constitution any evidence of intention on the part of the British Parliament to restrict the grant of
the power to the Federal Parliament within so narrow an area as that judgment indicates.

In my opinion, combination on both sides is not essential; and it does not matter whether each of the
independent employers knew, or knew not, that similar demands were being made on others than
himself. From the form of the demand which is set out in the case, it is clear that they must have
known; but I do not rely on knowledge. The test is, does the dispute extend in fact beyond one
State--not does each employer know that it so extends. In my judgment in the Jumbunna Case[42] I
said that sub-sec. xxxv. of sec. 51 of the Constitution treats an industrial dispute as if it were an
epidemic disease or a fire. "Of course, each of the victims has a separate disease; and each blade of
grass has its separate blaze. But there is such a connection between the various sufferers, or the
various blades of grass, that it is not unusual or incorrect to speak of the disease, or of the fire, as
extending or as spreading." To pursue the simile, it seems to me that the fact of the bush fire being
on both sides of the State boundary fence is enough. The fact of the epidemic being found on both
sides is enough. No one State can deal with the whole evil; and so the federal power is allowed to
step in. The object of all the powers granted to make laws, including the power 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," is to secure "the peace, order, and good government
of the Commonwealth," and the danger to these ideals is fully as formidable when there is
widespread discontent and unrest in some industry, and the employers do not know the extent of the
discontent and unrest, as when they do know it. The machinery of the Act is directed to arresting the
disease--as it were, to deal with the effervescence, the commotion, before the water has boiled
over--before the unrest and commotion have taken the usual deplorable form of a strike or a
lockout, with all the attendant miseries. We have, in my opinion, no right to look for more than a
real dispute in which many employés make common cause in at least two States, and relating to
some industrial matter.

I have now given what, in my opinion, is the plain, ordinary, meaning of the words in sub-sec. xxxv.
for the purpose of question 1. It is true that Mr. Blacket has urged on us that on the true construction
of the Act the Court can deal with no dispute unless there be but one employer (or one organization
of employers); and has argued that under sec. 4 the words "arising between an employer etc." cannot
be read as "arising between employers etc." Assuming that this argument is open, sec. 23 of the Acts
Interpretation Act 1901 seems to be a sufficient answer: "Unless the contrary intention appears ...
words in the singular shall include the plural"; and the burden of showing the contrary intention lies
on Mr. Blacket. Where is the contrary intention shown? It is not enough to show that possibly the
plural might not have been intended; and such sections as secs. 29, 32, 35 (2), 38 passim tend rather
in the contrary direction. It is, moreover, reassuring to find that under the New South Wales Act of
1901, which contains a similar definition of "industrial dispute," the words "an employer" have been
treated as applying to "employers" in the plural[43].

Then it is said that to construe the power as I have construed it may lead to abuses. Employés in
some State, dissatisfied with their conditions, may induce employés in some other State, otherwise
contented, to make common cause with them, and to dispute with their employers; thus turning
machinery for settling disputes into a means for extending disputes. There is certainly danger of
such an abuse; but there is at least an equal danger on the other side if employers, by avoiding
combination among themselves, can prevent the application of the federal power in promoting
peace. But it is for the Commonwealth Parliament to provide safeguards against such abuses as
suggested; and sec. 38 (h) already confers on the Court of Conciliation a valuable safeguard. For
that Court can refuse to determine the dispute if it is being dealt with or is proper to be dealt with by
a State industrial authority, or if it think "that further proceedings by the Court are not necessary or
desirable in the public interest." (See also Southern Realty Investment Co. v. Walker,[44] and cases
cited.)

Question 2. The workers' organization makes substantially the same claim for all its members in the
several States; but it adds this:--"West Australia--15 per cent. to be added on above rates for extra
cost of living." In my opinion, the mere fact that the demand, as expressed in money, is higher for
Western Australia than for the other States does not prevent the Court from making its award apply
to wages in Western Australia. Difference in the money payments does not at all show that the
dispute is not the same dispute, substantially. Inequality in money payments may be the best means
of producing equality in living conditions; and inequality in living conditions, as between workers
doing the same kind of work, is one of the most fertile sources of industrial discontent and unrest. If
the claim is for a wage of 8s. 4d. per day in the Eastern States, and for 9s. 7d. in the West, and if it
should be found that 8s. 4d. in the East purchases the same commodities, produces the same
standard of living as 9s. 7d. in the West, it is evident that the employés, East and West, are
struggling for the same thing. As a rule, if the cost of living is greater, the returns of the product are
also greater to the employer. But if timber merchants in the West should be handicapped in
competition by the grant of the greater money wage, that fact could be shown to the Court of
Conciliation, and it would be carefully weighed. As for the arguments founded on sec. 99 of the
Constitution, there are two answers which, to my mind, are conclusive. An award under this Act is
not a regulation of trade or commerce (as distinguished from industry); and if it fix varying rates it
does not give preference to one State or any part thereof over another State or any part thereof (see
my judgment in R. v. Barger[45].

Questions 3 and 4. I concur in the answers which have been formulated by my brother Isaacs as to
these questions. I cannot look for anything more definite under the circumstances. But the long
discussion to which I have listened has not been wasted; it has enabled me to learn on many subjects
the trend of the minds of the members of this Court.

Question 5 asks, in substance, what is to happen if there is an existing State award fixing the
conditions of labour as to the same worker? Can the Federal Court of Conciliation, for instance,
prescribe a different rate of wages? Can it make an award inconsistent with the State award?

There are two kinds of inconsistencies to be considered: (1) The State award fixes a minimum wage
for "saw doctors" at 1/3 per hour; and the Federal Court is asked to fix their minimum wage at 1/6
per hour. It does not necessarily follow that both awards cannot stand together. Both can be obeyed
by payment of a higher wage. (2) The State award, however, might, conceivably, fix a maximum
wage, say at 1/3 per hour. Can the federal award fix a higher maximum, or make the minimum 1/4
per hour? It is to this latter class of inconsistencies that I propose to apply my remarks--the case of
the State prescribing one thing, and of the Commonwealth prescribing the contrary--the case of its
being impossible to obey both commands.

Now this question throws us back on the fundamental principles of the Constitution; and in
particular on the often quoted words of sub-sec. xxxv. of sec. 51, on secs. 108, 109, and on covering
clause V. "This Act, and all laws made by the Parliament of the Commonwealth under the
Constitution, shall be binding on the Courts, Judges, and people of every State, and of every part of
the Commonwealth, notwithstanding anything in the laws of any State." The State laws continue in
force; but always "subject to this Constitution" (sec. 108); and when a law of the State is
inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the
extent of the inconsistency, be invalid (sec. 109). Looking now to the power under which the federal
award is made--power "to make laws for the peace, order, and good government of the
Commonwealth with respect to:--(xxxv.) Conciliation and arbitration for the prevention and
settlement of industrial disputes extending beyond the limits of any one State"--it is clear that any
Act is valid which comes within the meaning of these words, and any award is valid which comes
within the meaning of the Act; and both Act and award have supremacy over any State Act to the
extent of any inconsistency.

"But," it is urged, "there is no dispute if the State law has settled it. It does not lie in the mouth of
the employés in New South Wales to say that there is any longer a dispute." This argument leaves
the door open to some humorous comment and illustrations--for it asks us to treat men as being at
peace who are in fact fighting. But there are three fallacies, at the least, in the argument. In the first
place, what the State has settled is not the dispute in question--the two-State dispute--as to which
the Federal Parliament and Court have exclusive power. The two-State dispute is as distinct from the
one-State dispute, as Inter-State commerce is distinct from the internal commerce of a State. In the
second place, sub-sec. xxxv. refers to disputes de facto, not disputes de jure--not to controversies
about any law, but to controversies about conditions of labour and of life. We have no right to cut
down the meaning of the words of sub-sec. xxxv., or to read them as if they were "prevention and
settlement of industrial disputes extending &c. so far as they have not been settled by State laws," or
as if the words were inserted "subject to State laws" or as if the words were "disputes recognized by
State law." As soon as a dispute in fact extends to two States, it passes beyond the control of any
State law; the federal power applies, and is absolute, plenary, unlimited--that is to say, unlimited
except by the words of sub-sec. xxxv.; and that power has no reference to the legality or illegality of
the demands, no reference to the provision of any State law. As Marshall C.J. said in Gibbons v.
Ogden[46]:--"This power, like all others vested in Congress, is complete in itself, may be exercised
to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution
... the sovereignty of Congress, though limited to certain specified objects, is plenary as to those
objects." In the third place, it is a mistake to treat an industrial dispute as if it were an ordinary
litigation as to private rights between private persons, or to treat the award as if it were a judgment
as to existing rights. For the claim and the award are not based on any right known to the law. They
are based on an assertion that such and such terms ought to be the law, and are not; and the
foundation of the relief is not the mere interest of the workers, but the public interest in peace, order
and good government. Even if the New South Wales Court has settled a dispute between A. and X.,
from the point of view of New South Wales, the dispute between A. B. and C. on one side and X. Y.
and Z. on the other has never been settled from the point of view of the Australian public. There is
no res judicata or estoppel as against the public of Australia. The federal power is conferred "for the
peace, order, and good government of the Commonwealth," of the Commonwealth public, who
suffer materially while the disputants are in fact contending, and who suffer as much if some of the
combatants are acting in defiance of a State award as if they were not. The interest of the greater
public is treated as the dominant consideration, and the law of the greater public as the dominant
law. The federal law applies and is paramount, as soon as it is shown that there is an industrial
dispute in fact, and that it really extends to two States at least. Given these conditions, there is
nothing to be found elsewhere in the Constitution to modify or whittle down the absolute power of
the Federal Parliament to make any provision that it thinks fit for conciliation or arbitration for the
prevention or settlement of the dispute; given the power, the federal law may be made, and must be
interpreted as if there were no State law touching the subject; and given the federal law, any State
law inconsistent therewith becomes invalid to the extent of the inconsistency. On this subject, and
on the inference drawn from United States v. Dewitt[47], I agree with what has been fully stated by
my brother Isaacs.

As for sec. 30 of the Act, I take it as showing, beyond cavil, that the Federal Parliament intended to
confer on the awards of the Court of Conciliation that paramountcy which the Constitution enabled
the Parliament to confer. It might otherwise have been urged, possibly, that whatever powers the
Federal Parliament might have given to the Court, it has not given to it as yet any power to issue
commands contrary to State awards. The language of sec. 30 is obviously copied from sec. 109 of
the Constitution, and is meant to have a like effect, but in favour of federal awards instead of federal
acts. I take it that secs. 23, 25 and 30 are complementary of one another. The Court of Arbitration is
to investigate "all matters affecting the merits of the dispute" (including, no doubt, any State
awards); is to "act according to equity, good conscience, and the substantial merits of the case"; is
not to be "bound by any rules of evidence"; and, under sec. 30 is not to be bound by State law or
State award or Wages Board determination. I see no reason for doubting that the Federal Parliament
was as competent to enact sec. 30 as secs. 23 and 25.

I am, therefore, of opinion that question 5 should be answered in the affirmative, whether the award
is to operate immediately or at some future time. But it is my duty to add that I cannot treat a State
award as standing on the same footing as an agreement--solemn or not. It is not the New South
Wales award that imposes the obligation to pay certain wages, or to observe certain conditions. It is
the State law that imposes the obligations, in accordance with the findings of the Court. Nor is the
award in any sense an agreement. The obligation is created from above by a superior authority--not
by consent of the parties inter se. It is created by the State Act, which allows the award to be made.
The award is made by a tribunal like the Inter-State Commerce Commission in the United States,
which finds what ought to be done, and Congress gives effect to the finding as law. I base my
opinion on the ground that, when a Federal Act within the scope of the federal power comes into
collision with a State Act within the scope of the State power, the Federal Act prevails to the extent
of the inconsistency.

Question 5a. For the reasons given under question 5, I am also of opinion that question 5a, as to the
determination of Victorian Wages Boards, must be answered in the affirmative in the same way as
question 5. I have not omitted to consider the distinction between Wages Boards which settle wages
(minimum wages)--make a common rule as to wages--and Arbitration Courts which settle
disputes. The Wages Board determinations may be treated as if they were contained in a Schedule to
an Act, and as having all the binding force of a State Act regulating wages. But they have no greater
force; and if a State Act, or any regulation made thereunder, conflict with a Federal Act or with the
award of a Federal Court created by the Federal Parliament, it becomes invalid so far as it is
inconsistent. If two railways cross, and if the trains on each--having different points of departure
and of destination--come to the point of junction at the same moment, one must give precedence to
the other. So it it is with federal and State powers. If, for instance, a State determination prescribes
that the day of State elections should be a close holiday, whereas the federal award says that the day
should be a day for work, it would be the duty of the employés to work on that day. On this
subject--that of collision between a State law under State power A., and a federal law under the
federal power B., both laws being validly made under their appropriate powers--we have
fortunately plenty of guidance in the rich experience of the Courts of the United States. The very
recent case of Asbell v. Kansas[48] shows that an inspection law as to cattle entering a State, a law
made under a State's undoubted powers--its "police powers" as they are termed--is invalid so far as
it is inconsistent with a federal law made under the federal powers as to Inter-State commerce. The
State has no power to regulate Inter-State commerce; the federal Congress has no power to legislate
for the health of the cattle of a State; and if and so far as laws made by the appropriate legislatures,
under their distinct power, collide in any way, the federal law prevails. In that case the State law was
held valid as it allowed cattle to enter on the certificate of the federal officers as to health. The
federal "bureau of animal industry," constituted under the Inter-State powers, may be fairly regarded
as analogous to the Federal Court of Conciliation, constituted under the power as to two-State
disputes. See also Camfield v. United States[49]; Employers' Liability Cases[50]; Gulf, Colorado
and Santa Fé Co. v. Hefley[51]; Morgan's Steamship Co. v. Louisiana Board of Health[52].

The Judicial Committee of the Privy Council have frequently applied the same principle to the
Canadian Constitution, although there is no section so express in the Canadian Constitution as our
sec. 109. The Dominion Parliament has power to make laws for "through" railways; and under that
power it passed a law affecting the labour conditions of the railway servants--it prohibited railway
companies having "through" railways from "contracting out" of the liability to pay damages for
personal injury to their servants. The Provinces of Canada have exclusive power to enact laws as to
"civil rights"; and it was urged that the Dominion Act was invalid, as trenching upon the Provincial
powers. The Privy Council said that two propositions had been established: "First, that there can be
a domain in which Provincial and Dominion legislation may overlap, in which case neither
legislation will be ultra vires, if the field is clear; and, secondly, that if the field is not clear, and in
such a domain the two legislations meet, then the Dominion legislation must prevail." It was
conceded that the law dealt with a civil right; but, as it was truly ancillary to railway legislation, the
law was valid: Grand Trunk Railway Co. of Canada v. Attorney-General of Canada[53]. This case
has been followed up recently by a case in which both Parliaments had actually legislated; and the
same principle was applied. A Dominion Act incorporated A. company for the purpose inter alia of
manufacturing and supplying electricity. A subsequent Provincial Act of Quebec incorporated B.
company; and granted to it the exclusive right of producing and selling electricity within 30 miles
from a certain village. Company A. began to establish works within the 30 miles; and company B.
applied for an injunction. It was urged that the legality of company A.'s action in any Province must
be subject to the law of that Province. But the Privy Council held that "where, as here, a given field
of legislation is within the competence both of the Parliament of Canada and of the Provincial
legislature, and both have legislated, the enactment of the Dominion Parliament must prevail over
that of the Province if the two are in conflict": La Compagnie Hydraulique de St. Fran¸cois v.
Continental Heat and Light Co.[54].

No one is more fully sensible than I am of the gravity of this power of the Federal Court of
Conciliation to impose labour conditions inconsistent with the labour conditions imposed by the
State, or under a State's authority. But again I say that the gravity of the power is no ground for
saying that it does not exist; and if it can be exercised as against a State award, as is held by all the
members of this Court, there is no ground for denying the power as against a State Wages Board
determination. The determination is made binding by the State Act alone, as the State award is made
binding. Both award and determination have as high authority as a State law can give them, but no
higher; and the supremacy of the federal law, made under a federal power, is beyond doubt. I admit
that there is danger of abuse--danger, e.g., that an organization beaten before a State tribunal may
try what seems virtually an appeal to the federal tribunal. It is not in truth an appeal; because there
must be new parties disputing, and these parties must consent to concur in the dispute. But if we
may look at the consequences of denying the power to the federal Court, the position is still graver.
Deny the power, and if there be a shipping dispute, a bitter quarrel raging in fact in all the parts of
the Commonwealth and throwing into confusion all industries, the federal Court would be powerless
if each State has its separate laws as to wages, &c., of seamen, there would be no power which
could settle the shipping dispute as a whole on one consistent scheme. Or if New South Wales had
such laws, and the other States had not, the New South Wales laws, even if ineffective and
unworkable, would prevent the effective application of the federal powers. For nothing is more
prolific of industrial disturbance than inequalities among men doing the same work, even when the
inequalities are found as between different cities. To say the least, the dangers of one interpretation
may be set off against the dangers of the other interpretation; and, honours being easy, we may fitly
recur to our humbler function of finding the meaning of the words of the Constitution.

Question 6. I have been rather puzzled with regard to State industrial agreements. I have not been
troubled as to the power of the Federal Parliament to endow the Court of Conciliation with power to
make an award inconsistent with such an agreement. My difficulty lay in sec. 30 of the Act (and cf.
sec. 80). Parliament said, in sec. 30, that when a State law, or an award, order or determination of a
State industrial authority is inconsistent with an award or order made by the Court, the latter shall
prevail; but it has said nothing about State industrial agreements; and an argument may be based on
the lines of expressio unius exclusio alterius. But the reason for the omission is probably that it was
not thought necessary to assert the Court's powers as against mere agreements. Compulsory
arbitration--and it is admitted that Parliament could make arbitration compulsory, enforceable as to
its findings--necessarily interferes with agreements, interferes with what is called "freedom of
contract." For instance, it compels an employer to pay more to a man whom he hires than he would
agree to pay if he were free to make the best bargain that he can. You cannot have compulsory
arbitration without invading agreements, or without dictating the terms of the agreements to be
made. An agreement, whether industrial or not, is between parties; it is not a command of the State,
or of those acting under the State's authority; whereas State laws, State awards, State Wages Boards'
determinations are commands of the State, and might perhaps--but for sec. 30--have been treated
as outside the power conferred by the Federal Parliament on the Court of Conciliation. I am
therefore of opinion that this question also should be answered in the affirmative--in the same
manner as question 5.

Question 7. Assuming this agreement--unregistered--to be enforceable (and I understand that it has
been actually the subject of an action), I answer this question also in the affirmative, in the same
manner as question 5.

Question 8. The difficult aspects of this question have not been presented to us by counsel for the
Queensland Pine Co. so strenuously as before me in the Court below. The arguments have not been
presented which I anticipated. But although I think that the matter may hereafter have to be more
fully considered, I am not prepared to dissent from my learned colleagues, and I concur, doubtingly,
in the affirmative answer.

Questions answered accordingly.

Solicitor, for the claimants, Frank Brennan.

Solicitors, for the respondents, Derham & Derham; Blake & Riggall; C. Powers, Crown Solicitor
for the Commonwealth; J. V. Tillett, Crown Solicitor for New South Wales.
[1] 10 Cl. & F., 200.
[2] 10 Cl. & F., 200, at p. 208.
[3] 3 Rep. 7, at p. 7b.
[4] 6 C.L.R., 309.

[5] 6 C.L.R., 309, at p. 332.
[6] [1909] HCA 20; 8 C.L.R., 419.
[7] [1904] HCA 11; 1 C.L.R., 329, at p. 339.
[8] 11 Cl. & F., 85, at p. 143.
[9] 6 C.L.R., 309.
[10] 6 C.L.R., 309, at p. 352.
[11] 6 C.L.R., 309.
[12] [1904] HCA 1; 1 C.L.R., 91.
[13] 4 Wheat., 316, at p. 421.
[14] 6 C.L.R., 309.
[15] 4 Wheat., 316, at p. 421.
[16] 6 C.L.R., 309, at pp. 372 to 375.
[17] 1 El. & Bl., 858, at p. 864.
[18] [1904] HCA 1; 1 C.L.R., 91.
[19] (1896) A.C., 245.
[20] 3 App. Cas., 889.
[21] 10 App. Cas., 282.
[22] [1824] USSC 18; 9 Wheat., 1, at p. 209.
[23] [1887] USSC 221; 122 U.S., 347, at p. 359.
[24] [1908] USSC 74; 209 U.S., 251, at p. 257.
[25] (1894) A.C., 31.
[26] (1907) A.C., 65,
[27] (1907) A.C., 65, at p. 68.
[28] (1909) A.C., 194.
[29] [1821] USSC 18; 6 Wheat., 264, at p. 385.
[30] [1824] USSC 18; 9 Wheat., 1.
[31] (1896) A.C., 348, at p. 366.
[32] (1897) A.C., 22.
[33] (1897) A.C., 22, at p. 31.
[34] (1897) A.C., 22, at p. 38.
[35] [1869] USSC 154; 9 Wall., 41, at p. 52.
[36] (1896) A.C., 348, at p. 366.
[37] [1895] USSC 25; 156 U.S., 1.
[38] [1908] HCA 43; 6 C.L.R., 41, at p. 107 et seq.
[39] L.R. 6 C.P., 365, at p. 371.
[40] 4 Cl. & F., 693, at p. 706.
[41] 6 C.L.R., 309, at p. 332.
[42] 6 C.L.R., 309, at pp. 313-4.
[43] 2 Ind. Arb. Rep. N.S.W., 450; 3 ib., 82; 5 ib., 44.
[44] [1909] USSC 18; 211 U.S., 603.
[45] [1908] HCA 43; 6 C.L.R., 41.
[46] [1824] USSC 18; 9 Wheat., 1, at pp. 196-7.
[47] [1869] USSC 154; 9 Wall., 41.
[48] [1908] USSC 74; 209 U.S., 251.
[49] [1897] USSC 142; 167 U.S., 518.
[50] [1908] USSC 6; 207 U.S., 463.
[51] [1895] USSC 133; 158 U.S., 98.
[52] [1886] USSC 182; 118 U.S., 455, at p. 464.
[53] (1907) A.C. 65, at p. 68.
[54] (1909) A.C., 194, at p. 198.
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