- Following strike action across Australia and New Zealand in the 1890s, the Constitution had been drafted to allow the federal government to make laws about the conciliation and arbitration of industrial disputes, but only where such disputes went beyond state boundaries.
- In 1903 there was industrial action in the Victorian coalfields which lasted for about 70 weeks, initially beginning at Outtrim, Victoria before spreading to Jumbunna Coal Mine in Victoria.
- The Victorian Coal Miners’ Association applied to be registered as a union under the Conciliation and Arbitration Act 1904 (“the Act“).
- Jumbunna Coal Mine NL and Outtrim, Howitt and British Consolidated Coal Co NL were the two coal mining employers affected by the strike.
- The Industrial Registrar decided to register the union.
- The two companies applied to have the registration annulled arguing that a union could not be involved in an industrial dispute beyond one state when its membership was only from one State and that the Act’s provisions which allowed the union’s registration were ultra vires.
- Were the Act’s provisions ultra vires?
- The High Court ruled that for a law to be valid pursuant to sub-section 51(xxxix) as incidental to another head of power, such a law depends on its ends to be legitimate and the law must be appropriate and adaptable to that end.
- The provisions of the Act were reasonably appropriate and adaptable hey were therefore incidental to that power and were valid.
- Griffith CJ held that Parliament is “unfettered” in its choice of means, provided that the laws are actually incidental to attaining these ends and not manifestly unconnected with them.
- An industrial dispute (such as the one above) could extend beyond one state by organisations of different States under a “temporary alliance” for a common purpose.
“But we think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high dllties assigned to it, in the manner most beneficial to the people. 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.”
(O’Connor J at page 357 citing McCulloch v Maryland)
The full text is available here: http://www.austlii.edu.au/au/cases/cth/HCA/1908/95.pdf
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