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Published online by Cambridge University Press: 24 January 2025
Constitutional law—Commonwealth—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Invalidity of law—Commonwealth Constitutions 51(xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).
Industrial law—Commonwealth—Conciliation and arbitration—Legislative power—Implied limitations—Power to bind States—Power to bind State authorities—Discriminatory law—Extent to which discrimination authorised—Commonwealth Constitution s 51 (xxxv)—Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth).
The author expresses his appreciation of the critical review given to this article in draft by Mr G J Lindell and for his detailed and constructive comments.
1 (1985) 61 ALR I; (1985) 59 ALJR 699: High Court of Australia; Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ. All following references are to the ALR report. For commentary see “The metes and bounds of Commonwealth legislative powers” (1986) 60 ALJ 55.
2 Section 48 of the Banking Act (1945) (Cth) was held not to be a valid exercise of Commonwealth power in Melbourne Corporation v The Commonwealth (The State Banking Case) (1947) 74 CLR 3I.
3 Electricity Commission (1985) 61 ALR I, 41 per Deane J.
4 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (The Engineers' Case) (1920) 28 CLR 129.
5 The other was Re Ludeke; ex parte Queensland Electricity Commission (1985) 60 ALR 641 (Re Ludeke) which is discussed briefly below.
6 The events in the dispute up to April I 985 and the Queensland legislation passed as a result of it are discussed in McCarthy, P, “Power without Glory: The Queensland Electricity Dispute” (1985) 27 JIR 364Google Scholar. The industrial relations aspects are discussed in the article which follows in the same issue: Guille, H, “Industrial Relations in Queensland” (1985) 27 JIR 383.Google Scholar
7 Political interest in the Electricity Commission Case derived in no small measure from Premier Bjelke-Petersen's marked antipathy towards both the Hawke Federal Labor Government and any notion of Commonwealth interference in State matters on one hand, and pressure on the Labor administration, particularly from the left wing of the party, to support the unions on the other.
8 McCarthy supra n 6, 371.
9 See the Minister's second reading speech, House of Representatives, Weekly Hansard No 9, 21 May 1985, 2797. He does, however, stress the national implications of the dispute.
10 Electricity Commission (1985) 61 ALR I; 4-9 per Gibbs CJ; 13-15 per Mason J; 23-25 per Wilson J; 33-34 per Rrennan J.
11 Ibid 47. As he says, it adds little to the existing s 39(1) of the Conciliation and Arbitration Act.
12 Approximately three percent of electricity generated for distribution to consumers in Queensland was found to derive from entities other than the plaintiffs. These were various private corporations and NSW Government bodies. However, a submission that they fell within the extended definition of “an electricity authority of Queensland” in sub-s 4(1 )(d) was rejected. See Ibid 6, per Gibbs CJ; 22 per Mason J.
13 Neither the Commonwealth nor the union could have been confident of this outcome in view of previous decisions where generation of a “paper dispute” had not, in the particular circumstances, been capable of attracting federal jurisdiction. See the Collieries Cases, particularly Caledonian Collieries v Australasian Coal and Shale Employees' Federation (No 2) (1930) 42 CLR 558.
14 Electricity Commission (1985) 61 ALR I, 22 where Mason J observes that his initial reaction to it was “less than favourable”.
15 Ibid 10 per Gibbs CJ; 21 per Mason J; 23 per Wilson J; 45 per Deane J; 53 per Dawson J.
16 Ibid 45 per Deane J.
17 Ibid 21 per Mason J. “
18 Ibid 45 per Deane J.
19 Ibid 10 per Gibbs CJ.
20 Ibid 11-12, per Gibbs CJ; 19 per Mason J; 26-27 per Wilson J; 30, 33 per Brennan J; 42 per Deane J; 52 per Dawson J. Dawson J sees the rule against discrimination as but one possible example of a general principle protecting the States from undue interference with their governmental functions. See discussion under the heading “The State of the Law” below.
21 Ibid 12-13 per Gibbs CJ; 21-22 per Mason J; 27-29 per Wilson J; 30, 33 per Brennan J; 46-47 per Deane J; 54 per Dawson J.
22 Ibid 12 per Gibbs CJ; 21 per Mason J; 26 per Wilson J; 31 per Brennan J; 44-45 per Deane
23 Ibid 12 per Gibbs CJ; 20 per Mason J; 25-26 per Wilson J; 35 per Brennan J; 43 per Deane J; 48 per Dawson J.
24 Ibid 9 per Gibbs CJ; 21 per Mason J.
25 Ibid 13 per Gibbs CJ; 21 per Mason J.
26 Ibid 10 per Gibbs CJ.
27 Ibid 21-22.
28 Ibid 13.
29 Ibid 22.
30 Ibid 36 citing Isaacs J in R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586, 609-10.
31 Ibid.
32 Ibid 37-39.
33 Ibid 47.
34 (1904) I CLR 91.
35 See for example West v The Commissioner of Taxation (1937) 56 CLR 657, 681-682.
36 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319, 390; West v The Commissioner of Taxation (1937) 56 CLR 657, 682-683; Essendon Corporation v Criterion Theatres (1947) 74 CLR I, 22-23.
37 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 99-100 per Williams J; 60-62 per Latham CJ but note the apparently inconsistent finding at 50 that “the argument that s 48 is not legislation with respect to banking should not be accepted”.
38 Ibid 78-80 per Dixon J; 66 per Rich J; 74-75 per Starke J.
39 Victoria v The Commonwealth (1971) 122 CLR 353.
40 Ibid 370-374 per Barwick CJ; 385-386 per McTiernan J.
41 Ibid 403 he says that a law with respect to an enumerated head of power “cannot be for the peace, order and good government of the Commonwealth if it be directed to the States to prevent their carrying out their functions as parts of the Commonwealth”. For context of this remark see Ibid 403-404.
42 Ibid 391-392.
43 Ibid 41l-412.
44 Ibid 424.
45 Some of the judges explicitly reject the characterisation approach: Electricity Commission ( 1985) 61 Al.R I, 18 per Gibbs Cl; 44 per Deane .J; 52 per Dawson J. Brennan J (ibid 33) does, however, suggest that a prohibition may only be implied when “a law seeks to impose a discriminatory burden on a State in consequence of a law directed to another entity” and that a discriminatory law directed at the States themselves may not depend for its validity on implications but on the “proper characterisation of the law”.
46 Ibid 50.
47 Ibid 52.
48 Ibid 23 per Wilson J; 42 per Deane J. Interestingly Deane J sees the prohibition on discrimination against a State as, perhaps, but one example of a broader restraint upon Commonwealth power that arises “as an implication of the underlying equality of the people of the Commonwealth under the law of the Constitution”. On this basis laws discriminating against any subject, or group of subjects, would have to be based on legislative power that authorises such discrimination (ibid 42-43). If thiSI is truly the case, it might be asked why it was felt necessary to include in the Constitution specific prohibitions against discrimination such as those in ss 5l(ii), 99 and 117.
49 Ibid 11 per Gibbs CJ; 19 per Mason J; 30 per Brennan J.
50 Ibid 12-13 per Gibbs CJ; 21 per Mason J; 26 per Wilson J; 31-33 per Brennan J; 44-45 per Deane J; 52 per Dawson J.
51 Ibid 45.
52 Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 83.
53 Electricity Commission (1985) 61 ALR I, 11-12 per Gibbs CJ; 21 per Mason J.
54 Ibid 27 per Wilson J.
55 Ibid 43-44.
56 Ibid 22 per Mason J.
57 Ibid 13 per Gibbs CJ; 29 per Wilson J; 53 per Dawson J.
58 Ibid 20.
59 Ibid 12 per Gibbs CJ; 20 per Mason J; 43 per Deane. J
60 Ibid 48.
61 Ibid 25-26 per Wilson J; 35 per Brennan J.
62 Ibid 20. Deane J points out (ibid 43) that this is something which Australian governments have traditionally done. If the ration:Jle in this case is applied to Commonwealth authorities there would appear to be no need for the Commonwealth to pass “protective” legislation such as that considered in Australian Coastal Shipping Commission v O'Reilly (1962) 107 CLR 46.
63 (1971) 122 CLR 353, 426.
64 Electricity Commission (1985) 61 ALR I, 33.
65 Ibid 37-38.
66 Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 216 per Stephen J.
67 (1920) 28 CLR 129, 151-152 per Knox CJ, Isaacs, Rich and Starke JJ, “If it be conceivable that the representatives of the people of Australia as a whole would ever proceed to use their national powers to injure the people of Australia considered sectionally, it is certainly within the power of the people themselves to resent and reverse what may be done”.
68 McCarthy, supra n 6. See also Human Rights Commission, Report No 12, The Queensland Electricity (Continuity of Supply)' Act 1985, March 1985 and Report No 14, Queensland Electricity Supply and Related Industrial Legislation, May 1985, AGPS, Canberra 1985.
69 Hansard, supra n 9, 2802.
70 The Commonwealth v Tasmania (1983) 46 ALR 625, 767 per Brennan J.