FEDERAL COURT OF AUSTRALIA

Dempster v Comrie [2000] FCA 253

INDUSTRIAL LAW – jurisdiction to entertain claim under Part XA of the Workplace Relations Act 1996 (Cth) – whether provisions apply to transfer of police officers in Victoria – whether state legislative power concerning transfers validly referred to Commonwealth – construction of state referring legislation

PRACTICE AND PROCEDURE – whether permanent stay available where expiry of employment term meant proceedings incapable of benefiting applicant

Commonwealth Powers (Industrial Relations) Act 1996:  ss 1, 3, 4, 5

Commonwealth of Australia Constitution Act:  s 51(xxxvii)

Workplace Relations Act 1996 (Cth):  ss 298A, 298C, 298K, 298L, 298U, 490, 496

Employee Relations Act 1992 (Vic):  s 9

Police Regulation Act 1958:  ss 8, 8AA, 17, 70, 82

Mayne Nickless Limited v Transport Workers Union of Australia [1998] FCA 984, distinguished

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, cited

La Roche v Cormack (1991) 33 FCR 414, referred to

Graham v Paterson (1950) 81 CLR 1, cited

Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123, cited

Mullins v Treasurer of Surrey (1880) 5 QBD 170, cited

NIGEL DEMPSTER v M N (NEIL) COMRIE, CHIEF COMMISSIONER OF POLICE FOR THE STATE OF VICTORIA (IN HIS CAPACITY AS EMPLOYER AS NOMINATED BY THE GOVERNOR IN COUNCIL), NOEL ASHBY AND THE STATE OF VICTORIA

V 596 OF 1999

MOORE, KIEFEL AND LEHANE JJ

15 MARCH 2000

SYDNEY (HEARD IN MELBOURNE)

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The application to stay the appeal be dismissed.

2.      The appeal be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

MOORE J:

1                     I have had the benefit of reading the judgments of Kiefel J and Lehane J in a draft form.  I respectfully agree with the conclusions they have reached and their reasons.  In particular, for the reasons given by Lehane J in paragraphs 24 to 32, s 4 of the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) must be read subject to the operation of s 5 and the limiting effect of s 5 on the subject matter of each matter identified in s 4.

2                     I only wish to add one further observation.  This decision may create the impression that in Victoria, the statutory protection of freedom of association now depends on the scope of the powers referred by that State to the Commonwealth and the scope of Commonwealth legislation enacted as a result of that referral.  In 1914, s 9 was introduced into the Conciliation and Arbitration Act 1904 (Cth) by the Commonwealth Conciliation and Arbitration (No. 2) Act 1914 (Cth).  That section made unlawful certain conduct of an employer which harmed an employee in the workplace because of the employee’s union membership.  That is, membership of an organisation registered under that legislation.  Since then provisions to similar effect have existed in the principal federal industrial legislation and have applied throughout the Commonwealth including Victoria.  One such provision was s 334 of the Industrial Relations Act 1988 (Cth).  However the Workplace Relations and Other Legislation Amendment Act 1996 (Cth) repealed s 334 and enacted Pt XA.  That part deals with various matters concerning membership of an industrial association which, as defined, comprehends various types of associations of employees including an organisation registered under federal industrial legislation.  By operation of s 298D, Pt XA presently applies to conduct relating to a person’s membership of an organisation.  Thus, to the extent that Pt XA proscribes conduct which constitutes victimisation of a union member (see for example s 298K), it does so now in relation to a person’s membership of an organisation.  Its application in this respect is geographically unconstrained and does not, in relation to the state of Victoria, depend on the referral of powers by the Victorian legislature.

3                     I mention these matters because in an affidavit filed in these proceedings, the appellant refers to the Police Federation of Australia which is an organisation registered under federal industrial law: see (1993) 51 IR 122.  His evidence suggests he has been active in the affairs of that organisation.  However, the appellant did not contend that the conduct of which he complained related to membership of that organisation.  Thus the case before the primary judge and before us on appeal focussed entirely on the limits on the protection of freedom of association which arise from the combined operation of ss 4 and 5 of Commonwealth Powers (Industrial Relations) Act 1996 (Vic).  Those limits do not, as I presently apprehend the position, operate to constrain the operation of Pt XA, as it concerns membership of an organisation registered under the Workplace Relations Act 1996 (Cth), either in Victoria or elsewhere.

4                     I would dismiss the application to permanently stay the appeal and dismiss the appeal.

Associate:

Dated:              15 March 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

KIEFEL J:

5                     The appellant appeals from a decision of Marshall J dismissing the appellant’s application for penalties for contraventions of Part XA Workplace Relations Act 1996 (Cth) (“WRA”).  His Honour concluded that the Court had no jurisdiction in the matter since the Commonwealth Parliament had not had referred to it by the Victorian Parliament the power to legislate with respect to transfers of members of the police force.  A cessation of a transfer was the conduct relied upon by the appellant as constituting the offence.

The Referral

6                     In December 1996, the Victorian Parliament enacted the Commonwealth Powers (Industrial Relations) Act (No 59 of 1996).  The expressed purposes of it were specified in s 1 and included:

“(a)     to refer to the Parliament of the Commonwealth certain matters relating to industrial relations;

 (b)      to amend the Employee Relations Act 1992;

            …”.

Section 4(1) provided that a matter referred by a subsection of that section is referred subject to the Commonwealth of Australia Constitution Act and pursuant to s 51(xxxvii) of it.  Subsections (2), (3) and (4) referred, respectively, the matter of conciliation and arbitration for the prevention and settlement of industrial disputes; the matter of agreements about matters pertaining to the relationship between an employer or employers in the State and an employee or employees in the State; and the matter of minimum terms and conditions of employment for employees in the State.  The term “employee” was, for the purposes of the Act, defined to include a law enforcement officer (s 3).  Section 4(5) referred the matter of termination or proposed termination of the employment of an employee “other than a law enforcement officer.”  Subsection (6), which is one of the provisions with which this appeal is concerned, referred:

“The matter of freedom of association, namely the rights of employees, employers and independent contractors in the State to join an industrial association of their choice, or not to join such an association, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth …”.

Subsection (7) of s 4 referred the matter of the setting and adjusting of minimum wages for employees in the State within a work classification, and subsection (8) the matter of attempting to settle, conciliate or arbitrate, or exercising other power in relation to an industrial matter or dispute.  Section 4(2) provided:

“The matter of conciliation and arbitration for the prevention and settlement of industrial disputes within the limits of the State, to the extent to which it is not otherwise included in the legislative powers of the Commonwealth, is referred to the Parliament of the Commonwealth for a period commencing on the day on which this sub‑section commences and ending on the day fixed under or by section 6 as the day on which the reference of that matter under this Act terminates but no longer”.

7                     Section 5 of the Act was entitled “Matters excluded from a reference” and commenced:

“(1)     A matter referred by a sub‑section of section 4 does not include -

(a)        matters pertaining to the number, identity, appointment (other than terms and conditions of appointment) or discipline (other than matters pertaining to the termination of employment) of employees, other than law enforcement officers, in the public sector;

(b)        matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers”.

It is the operation of the limitation expressed in paragraph (b) which is the focus of this appeal.

8                     It is necessary to add that paragraphs (c) to (k) of s 5(1) listed,  as matters excluded from the references in s 4, matters pertaining to certain persons or groups such as Ministers, members of Parliament, persons holding senior executive offices in the service of a Department, persons employed at higher management levels in the public sector, and persons employed as ministerial assistants or advisers or those holding office as Parliamentary officers.

The Workplace Relations Act

9                     Part XA of the WRA then made provision for “Freedom of Association”.  Section 490 (Pt XV, Div 2) which commenced on 19 December 1996 (No 77 of 1996), after the reference, provided that a section of Div 2 (“Extension of existing Commonwealth provisions”) had effect only for so long, and in so far, as the Commonwealth Powers (Industrial Relations) Act 1996 (Vic) referred a matter or matters to the Commonwealth Parliament.  Section 496 of that Division provides that “despite section 298C, Part XA also has effect in relation to conduct in Victoria”.  Section 298C had the effect, otherwise, of limiting the application of Part XA, relevantly, to conduct carried out with a purpose or intent relating to a person’s membership or non-membership of an organisation.  It may have been that The Police Association did not come within the definition of “organisation”.  In any event, it may be concluded that the freedom of association provisions of Part XA might apply to the appellant’s employment, so long as they can be said to come within the terms of the reference made by the Commonwealth Powers (Industrial Relations) Act.  It was also accepted that the reference remained in force at all relevant times.

10                  The objects of Part XA were, by s 298A of the WRA expressed to be, in addition to those specified in s 3:

“(a)     to ensure that employers, employees and independent contractors are free to join industrial associations of their choice or not to join industrial associations; and

(b)       to ensure that employers, employees and independent contractors are not discriminated against or victimised because they are, or are not, members or officers of industrial associations”.

Section 298K provided:

“(1)      An employer must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)       dismiss an employee;

(b)       injure an employee in his or her employment;

(c)        alter the position of an employee to the employee’s prejudice;

(d)       refuse to employ another person;

(e)        discriminate against another person in the terms or conditions on which the employer offers to employ the other person.

(2)        A person must not, for a prohibited reason, or for reasons that include a prohibited reason, do or threaten to do any of the following:

(a)       terminate a contract for services that he or she has entered into with an independent contractor;

(b)       injure the independent contractor in relation to the terms and conditions of the contract for services;

(c)        alter the position of the independent contractor to the independent contractor’s prejudice;

(d)       refuse to engage another person as an independent contractor;

(e)        discriminate against another person in the terms or conditions on which the person offers to engage the other person as an independent contractor”.

The “prohibited reasons” listed in s 298L included membership of an industrial association.  The Police Association was accepted as being such an association.

11                  In 1996 the appellant, being a Senior Sergeant of Police in charge of Prosecutions, was provided with a temporary assignment to the Training Department of the Victorian Police Force.  By letter dated 31 May 1999 the appellant was advised that the transfer was to conclude on 4 June 1999, and that he was then required to recommence duties with the Prosecutions Division.  The appellant brought proceedings for injunctions and the imposition of a penalty pursuant to s 298U of the WRA, and contended that the cessation of his transfer was for a prohibited reason, namely his membership of, and involvement in, The Police Association.  It is only the question of penalty that will remain if the appellant succeeds in his appeal.  Marshall J found that the secondment was a temporary one and due to expire on 30 June 1999.

12                  On the hearing of the application for an interlocutory injunction, his Honour expressed the view, referred to at the commencement of those reasons, that the Court had no jurisdiction with respect to the application.  His Honour was led to that conclusion by statements contained in the Victorian Legislative Council Debates of 5 December 1996 concerning s 5(1)(b) of the proposed Commonwealth Powers (Industrial Relations) Act, which was about to be added to the then Bill, and to statements attributed to the Minister in the press.  His Honour said:

“At pages 1068‑1069 of the Hansard of the Legislative Council Debates on 5 December 1996, the Minister for Industry, Science and Technology, the Honourable M A Birrell, said as follows:

‘My comments will broadly relate to a number of other amendments which involve the issue of law enforcement officers and the police.  As part of this reform we will be transferring the broad industrial relations jurisdiction that covers the Victoria Police Force and other law enforcement officers such as police recruits and police reservists into the federal jurisdiction.  Although one option open to the government was to refer all industrial relations powers other than those applying to Victoria police we did not regard that as desirable because it would have meant having a free‑standing Employee Relations Commission that applied only to the police, and we regard it as important that we have a single jurisdiction.  We should make this transfer with our eyes wide open because there are matters, other than those matters pertaining to the terms of employment, that should remain the prerogative of Victorian Police command.

We make that distinction, rich in the knowledge that one of the great challenges for any government is to have a police force that is free of corruption, whose command can correctly discipline the small number of individuals who fit into the category of ‘crook cops’.

Historically, the Victoria Police Force has been largely free of accusations of corruption or impropriety and has been highly respected.  There is no doubt that the way to achieve that is to have the ability to rigorously discipline individuals who are unfortunately not living up to the high standards of the balance of the force.  This amendment, and the others that relate to it, result from the government’s belief that it is important that matters already covered by, for example, the Police Regulation Act continue to be the domain of state government and that they correctly relate to the powers which should be exercised judiciously and fairly by police command.

The amendment is broadly a restatement of the status quo in Victoria.  The government and police command believe it is important.  In the long term it will be the difference between having an honest police force and allowing the rare ‘crook cop’ to use the legal system to get re‑employed against the wishes of an honest command which has gone through the proper process.  There is no academic issue, and there is no better example of that than the action of the New South Wales Labor government in acting with public support to ensure its police are subject to proper disciplinary mechanisms rather than industrial relations legalisms that let off some of the crooks.

An editorial published in the Sydney Morning Herald of 29 November 1996 – its shows how contemporary this issue is – praises the Carr government:

The police association (of New South Wales) continues to claim, though, that the reforms –

those just introduced by Premier Carr -’

and the Minister is here quoting from the Sydney Morning Herald:

‘mark ‘the darkest day in the history of New South Wales industrial relations’.  This response does not fit the facts.  With the assistance of the opposition (which also deserves credit for standing firm), the reform legislation introduced by the Carr government has abolished a longstanding rort that has allowed corrupt police to exploit a legalism in the NSW industrial relations system.  Since 1985, 75 per cent of police sacked because of criminal conviction have been reinstated by industrial tribunals.  Sacked police will have appeal rights under administrative law, but they will no longer be able to go to the Industrial Relations Commission.’

That is the end of the Sydney Morning Herald quote.  The Minister continues:

‘There are certainly long‑standing legal and legislative precedents for police forces being uniquely different, as in the case with defence forces.  When people join a police or defence force, they do so in the knowledge that they are joining a military‑type organisation that has statutory protection responsibilities.  As Premier Carr in New South Wales has found, that means having a different industrial relations regime for the police.  That industrial relations difference is the status quo in Victoria, and these amendments will retain that status quo as a right.  Police Command will have the capacity to discipline or geographically transfer officers and give directions on other matters such as the colour of the uniform or the style of the dress, and the disgraceful legalisms which have been allowed to exist in other states which have led to crook cops being put back into the police force, will not occur here.  The government says up front that members of the police force are different from other public sector employees.

It is not just that the Victorian government happens to agree with the Carr government on this matter.  The government also draws the attention of the house to recommendations of the New South Wales royal commissioner that a number of measures be introduced into the New South Wales police force on which the Carr government has acted.  Those measures are a clear indication of the type of command required by the chief commissioner.  They include the right of the commissioner to control appointments, transfers and removals, and broad‑ranging disciplinary powers.  It is correct to do this; and the government does so openly and honestly.  It represents the status quo in Victoria, but the government emphasis that in the absence of these provisions the legalisms of the industrial relations system – it is fairly cheap IR law, more politics than law – would be able to prevail’ ”.

13                  At a following directions hearing, the parties concurred in treating that hearing as the trial of the action and the appellant did not seek to put forward further submissions.  His Honour then dismissed the substantive application.  An argument which had been raised before his Honour, which had sought to bring the application within the accrued jurisdiction of the Court, was not pursued on the appeal.  Another argument, which had not been developed before his Honour, but only foreshadowed, was raised in written submissions on the appeal.  It was originally described as one which drew upon provisions of the Constitution but it was conceded in argument that it did not raise a question involving the interpretation of the Constitution.  It seemed to me that it added little to submissions on the construction of ss 4 and 5(1) of the Commonwealth Powers (Industrial Relations) Act.  A preliminary argument as to the notices required to be given was, in any event, made unnecessary. 

Application for stay

14                  On the hearing of the appeal, the respondents sought orders that the appeal be permanently stayed and that costs be paid by the appellant on an indemnity basis, since there was nothing to be gained by the appellant from the appeal.  He could not, and did not, pursue orders affecting the cessation of his transfer.  There was, it was submitted, “virtually nothing” to be gained by the appeal proceeding.  The Court was referred to cases such as Mayne Nickless Limited v Transport Workers Union of Australia [1984] FCA 984, where the primary judge had ordered the appellant company to re‑engage some contractors.  When the appeal came on for hearing, the parties had resolved their differences and the terms of the settlement precluded there being any question of imposition of penalty or compensation.  The appellant had ceased its business, and the contractors were no longer employed by it.  The Court ordered a permanent stay, as there was no utility in the appellant arguing for the orders to be overturned.  The exercise was essentially academic.  (See also La Roche v Cormack (1991) 33 FCR 414).  The submission does not however take account of the penalty here sought to be imposed, and the importance of the question of construction which falls to be determined in connection with it.  The application should be dismissed.

The question of construction

15                  Prior to the reference in question to the Commonwealth, the Employee Relations Act 1992 (Vic) made provision for “Freedom of Association” (in Part 5, Div 5), and made the conduct prohibited by it an offence.  The Act applied to a person appointed under the Police Regulation Act 1958 (Vic).  Prosecutions for offences under the Employee Relations Act were, however, only able to be brought by persons authorised by the Minister and two other officers.  The Act was repealed subsequent to the reference.  The Police Regulation Act made provision for the Chief Commissioner appointing, promoting and transferring police officers (s 8); and for appeals against promotion or transfers, in some circumstances (s 8AA).  The Chief Commissioner had power in relation to instructions and standing orders (s 17); power to commence an investigation into possible breaches of discipline (s 70); and into fitness for duty (s 82).  The position under the last mentioned Act is maintained under the current legislation.  By the Commonwealth Powers (Industrial Relations) Act, substantial amendment was effected to the Employee Relations Act 1992 (Pt 3, s 9 and Sch 1).  Relevantly, the provisions in the State Act relating to freedom of association were repealed (s 9; Schedule 1, par 7(2)).

16                  “Matters” referred under s 51(xxxvii) are best understood as a reference of a subject and not of a legislative power:  Graham v Paterson (1950) 81 CLR 1, 19; Sande v Registrar, Supreme Court of Queensland (1996) 64 FCR 123, 130-131.  Whilst a reference creates an additional power in the Commonwealth Parliament, it does so by adding to the lists of subjects upon which the Commonwealth may legislate (see Graham v Paterson, 19).  The matter referred must necessarily be described by reference to its attributes or qualities: Graham v Paterson, 18.  A reference may be effected either in general terms, leaving its detailed implementation to the Commonwealth Parliament, or make provision for a specific Bill to be converted into Commonwealth law:  Sande, 130-131.

17                  In the present case, the “matter” in question was the subject of “freedom of association” as it was described in s 4 in general terms.  The subjects, or matters, listed in s 4 arise in connexion with the relationship of employer and employee, but it could not be said that a reference of the whole of that topic has been made.  Rather, the scheme of Part 2, s 4, is to refer particular topics and even then subsection (5) excepts from the employees to which the subject of “termination or proposed termination” relates, law enforcement officers.  There seems no reason, in principle, and none was suggested, why such subjects cannot further be confined by the reference.  It may be that when a subject, generally stated, is further defined or delineated by following references, some confusion is created and questions of possible inconsistency might arise if the state parliament later legislates in a similar area, but that is not an issue on this appeal.  This appeal is concerned with the identification of the subject of “freedom of association” which was referred.  The combined effect of the sections of the WRA, as discussed above, is that the extension of the Commonwealth provisions of Part XA WRA to conduct in Victoria is effective only to the extent that the conduct comes within the subject referred.

18                  It is expressly stated, at the commencement of s 5, that “a matter referred by a sub-section of section 4 does not include” the matters which follow.  Whilst not expressed as a proviso, the presumption referrable to the construction of provisos is apposite, namely that but for the proviso (here s 5), the enacting part of the section (s 4) would have included the subject matter of the proviso:  Craies on Statute Law, 7^th edition, 218; Mullins v Treasurer of Surrey (1880) 5 QBD 170, 173.  As discussed earlier, the referring Act leaves the detailed implementation of the laws relating to employees’, and others’, freedom of association to the Commonwealth.  But for s 5(1)(b) the subject of the laws could have, and most likely would have, included a reference to transfers, promotions etc of law enforcement officers in Victoria.  The effect of that paragraph is, however, to excise those actions in relation to employees who are law enforcement officers from the subject of the reference.  That is not to say that all provisions relating to freedom of association are denied operation with respect to those officers, although it seems doubtful that there remains anything of real utility, given that the conduct or actions listed in s 5(1)(b) would seem to encompass much of what would otherwise amount to proscribed conduct under s 298K.  The terms in which the referring Act have been drafted require the provisions of Part XA WRA to be read with the Act.  The result is that ss 298K and following may be read as referrable to conduct by employers in Victoria, save where the conduct has a connexion with the conduct listed in s 5(1)(b) and relates to law enforcement officers.  Whilst the result is that a right or protection afforded to others is withheld from those officers, the clear terms of the referring Act must be given effect to:  Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297, 305.

19                  In the approach I have taken, I have not found it necessary to resort to the history of and changes effected to the legislation, nor to the Minister’s statements about what was sought to be achieved by the reference.  The changes effected to the state legislation show that the topic of freedom of association was not one in respect of which the state wished to legislate after the reference.  The maintenance of the Commissioner’s powers under the Police Regulation Act is consistent with the operation of the exception in s 5 of the referring Act.  The Commissioner’s right of control with respect to appointments, transfers and the like was the subject of mention by the Minister.  I did not, however, consider that the statements were necessarily directed to the operation of ss 4 and 5.  The substantial part of the statements about the referring Act centred upon the need to avoid the re-employment of corrupt officers, which the previous industrial law system had permitted, it was said.  In one passage towards the conclusion of the address the Minister did refer to the need for the Commissioner to retain control over transfers and appointments, but it was not suggested that that required the denial of the freedom of association provisions.

20                  In any event it was not, in my view, necessary to have regard to extraneous matters.  The question on the appeal is resolved by giving effect to the plain words of ss 4 and 5.  It might be thought that to give effect to s 5(1)(b) is to exclude the application of Part XA WRA to only one group of employees. Pars (l) to (k) of s 5(1) also show an intention to exclude categories of persons from any of the subjects of the references in s 4. 

21                  It follows that the conclusion reached by his Honour was correct and that the appeal should be dismissed.

Associate:

Dated:              15 March 2000

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

REASONS FOR JUDGMENT

LEHANE J:

22                  I have had the advantage of reading, in draft, the reasons for judgment of Kiefel J.  I can state briefly why I agree with the orders proposed by her Honour and, substantially, with her reasons.

23                  The appellant was a member of the police force and, accordingly, a law enforcement officer: Commonwealth Powers (Industrial Relations) Act 1996 (Vic) s 3.  He was also the president of The Police Association, an industrial association for the purposes of s 298L of the Workplace Relations Act 1996 (Cth).  The termination of his secondment to the Training Department and his reassignment to the Prosecution Division was treated by the trial judge as a transfer, a characterisation accepted by the parties on the appeal.  The appellant’s claim was that the first respondent had transferred him because of his activities as an officer of the Association and thus, by altering his position to his prejudice for a prohibited reason, had infringed s 298K(1)(c) of the Workplace Relations Act.  A necessary foundation of the appellant’s claim was, of course, that, in relation to his transfer, the first respondent was bound by s 298K.  That was so only if the power to legislate so as to bring about that result was among the matters referred to the Parliament of the Commonwealth by s 4 of the Commonwealth Powers (Industrial Relations) Act.

24                  The structure of Pt 2 of the Commonwealth Powers (Industrial Relations) Act) is important.  The principal provisions are s 4 and s 5.  Section 4 refers to the Parliament of the Commonwealth a series of “matters” “subject to the Commonwealth of Australia Constitution Act and pursuant to s 51(xxxvii) of that Act” (s 4(1)).  Subsections (2) to (8) of s 4 refer particular matters to do with the relationship between employers and employees and to do with certain rights of employees and (in the case of subsection (6)) of independent contractors.  The scope of each matter is limited by reference to a stated connection with the State of Victoria and each reference is for a period ending on a day fixed under or by s 6.  Each matter is expressed to be referred “to the extent to which it is not otherwise included in the legislative powers of the Commonwealth”.

25                  The matters referred are “[t]he matter of conciliation and arbitration for the prevention and settlement of industrial disputes” (subs 2)); “[t]he matter of agreements about matters pertaining to the relationship between an employer or employers … and an employee or employees” (subs (3)); “[t]he matter of minimum terms and conditions for employees” (subs (4)); “[t]he matter of termination, or proposed termination, of the employment of an employee, other than a law enforcement officer” (subs (5)); “[t]he matter of freedom of association, namely the rights of employees, employers and independent contractors … to join an industrial association of their choice, or not to join such an association” (subs (6)); “[t]he matter of the setting and adjusting of minimum wages for employees … within [certain work classifications]” (subs (7)); and “[t]he matter of attempting to settle, conciliate or arbitrate, or exercising any other power in relation to, [certain industrial matters or industrial disputes]” (subs (8)).

26                  Section 5(1) provides that “[a] matter referred by a sub‑section of section 4 does not include” a series of specified “matters”.  Section 5(2) provides:

“Insofar as a matter specified in sub‑section (1) of this section does not fall within the terms of a sub‑section of section 4, sub‑section (1) of this section must be taken to have been enacted for the avoidance of doubt.”

27                  In order to set the scene for a consideration of the construction of s (4) and s (5), it is desirable to set out in full the paragraphs of s 5(1) which describe the particular matters which, in accordance with the section, a matter referred by s (4) does not include:

“(a)     matters pertaining to the number, identity, appointment (other than terms and conditions of appointment) or discipline (other than matters pertaining to the termination of employment) of employees, other than law enforcement officers, in the public sector;

(b)       matters pertaining to the number, identity, appointment (other than matters pertaining to terms and conditions of appointment not referred to in this paragraph), probation, promotion, transfer from place to place or position to position, physical or mental fitness, uniform, equipment, discipline or termination of employment of law enforcement officers;

(c)        matters pertaining to the number or identity of employees in the public sector dismissed or to be dismissed on grounds of redundancy;

(d)       matters pertaining to the following subject matters –

            (i)         workers’ compensation;

            (ii)        superannuation;

            (iii)       occupational health and safety;

            (iv)       apprenticeship;

            (v)        long service leave;

            (vi)       days to be observed as public holidays;

            (vii)      equal opportunity –

            but not so as to prevent the inclusion in awards or agreements made under the Commonwealth Act of provisions in relation to those matters to the extent to which the Commonwealth Act, as enacted as at 30 November 1996 (whether or not in force), allows such awards or agreements to include such provisions;

(e)        the matter of the making of an award or order as, or declaring any term of an award or order to be, a common rule in the State for an industry;

(f)        matters pertaining to Ministers, members of the Parliament, judicial officers or members of administrative tribunals;

(g)       matters pertaining to persons holding office in the public sector to which the right to appoint is vested in the Governor in Council or a Minister;

(h)       matters pertaining to persons holding senior executive offices in the service of a Department within the meaning of the Public Sector Management Act 1992;

(i)        matters pertaining to persons employed at the higher managerial levels in the public sector;

(j)        matters pertaining to persons employed as ministerial assistants or ministerial advisers in the service of Ministers;

(k)       matters pertaining to persons holding office as Parliamentary officers;

(l)        matters pertaining to the transfer or redundancy of employees of a body as a result of a restructure by an Act;

(m)      matters pertaining to the duties of employees if a situation of emergency is declared by or under an Act or an industry or project is, by or under an Act, declared to be a vital industry or vital project and whose work is directly affected by that declaration.”

28                  What in my view is plain is that each of the paragraphs of s 5(1) excises from some or all of the subsections of s 4 some of the subject matter which would otherwise fall within them.  The clearest examples are paragraphs (f), (g), (h), (i), (j) and (k).  Each of those paragraphs has the effect that no power is referred to the Parliament of the Commonwealth by any subsection of s 4 as to a matter pertaining to the class of persons which the paragraph identifies: so that, for example, ss 4(3), 4(4), 4(5) and 4(6) respectively do not refer power to legislate in relation to agreements about matters pertaining to the relationship between persons employed at the higher managerial levels in the public sector and their employer; minimum terms and conditions of employment for those persons; the termination of their employment; or their right to join industrial associations of their choice.

29                  What is true of the paragraphs excising matters pertaining to particular classes of persons must, I think, be equally true of the other paragraphs of s 5(1).  Thus, for example, par (c) excises matters pertaining to the number or identity of employees in the public sector dismissed or to be dismissed on grounds of redundancy.  That paragraph has the effect that power is not referred to the Parliament of the Commonwealth by s 4(3) to legislate with respect to agreements as to that aspect of the relationship between those persons and their employer; even more obviously, par (c) limits the referred power to legislate, under s 4(5), in relation to termination of the employment of such persons; and it is by no means easy to see why s 4(6) is not similarly limited (a law which provides that employees might be selected for dismissal, on the ground of redundancy, on the basis of their membership on non‑membership of an association is a law concerning a matter pertaining to the identity of employees to be dismissed on grounds of redundancy).

30                  It is not easy to see why par (b), the paragraph with which this case is concerned, should be taken to operate differently.  Were it not for that paragraph, the power referred under s 4(6) would, no doubt, include power to enact provisions which would prohibit or limit the right of the Chief Commissioner of Police to transfer a police officer on the ground of the officer’s membership (or non‑membership) of an industrial association.  But such provisions would amount to legislation concerning a matter pertaining to the transfer of law enforcement officers; and the effect of par (b) is that the power referred under s 4(6) does not extend to legislation having that character.

31                  Senior counsel for the appellant submitted that it was unnecessary to read each paragraph of s 5(1) as limiting all subsections of s 4 and that to construe s 4(6) and s 5(1)(b) as I have done is to give undue effect to the exclusion and too little effect to the general referral of power in s 4(6).  A construction should not readily be adopted, it was said, which would deprive the Commonwealth Parliament of power to legislate with respect to conduct of the kind specified in s 5(1)(b) even where that conduct was “victimising and discriminatory”.  Instead, s 5(1)(b) should be construed as limited to laws directly concerned with the kinds of conduct referred to (such as probation, promotion or transfer) and as having nothing to say, by way of limitation or otherwise, about the broad and entirely different subject matter of s 4(6), namely freedom of association.

32                  As a matter of language, however, and as a matter of the structure of s 4 and s 5, I do not think that that submission can be accepted.  It may be that s 4(6) deals with a particular, and broad, subject matter; however, s 4(6) is one of the several subsections of s 4; and the opening words of s 5(1) do not encourage any discrimination between the various subsections of s 4.  To the extent that a matter is one pertaining to a subject matter described in any of the paragraphs of s 5(1), the referral of power in relation to a more general “matter” falling within a subsection (that is, any of the subsections) of s 4 does not extend to it.

33                  Submissions were also based upon an intention said to be apparent in various ministerial speeches during the process resulting in the enactment of the Commonwealth Powers (Industrial Relations) Act,to the effect that the Victorian government wished to preserve the existing balance between the operation of the industrial laws and the powers and discretions of the Chief Commissioner of Police.  But, as Kiefel J demonstrates, the relevant passages in the Ministers’ speeches were really directed to a somewhat different topic; and, in any event, the material before us indicates that on no construction of the provisions would the status quo ante be precisely preserved.

34                  Thus, the extraneous material to which we were referred gives little assistance.  And, in my view, recourse to it is unnecessary since, for the reasons I have given, the language of the provisions itself is clear.  For those reasons I agree that the appeal should be dismissed.

Associate:

Dated:              15 March 2000