Opinion No. 1685
CONCILIATION AND ARBITRATION
EXTENSION OF THE JURISDICTION OF THE COMMONWEALTH COURT OF CONCILIATION AND ARBITRATION TO ENABLE AWARDS TO BE MADE COVERING MEMBERS OF ORGANISATIONS EMPLOYED IN THE EXTERNAL TERRITORIES: EXTENSION OF LEGISLATION TO EXTERNAL TERRITORIES: EXTENSION BY NATIONAL SECURITY REGULATION
NORTHERN TERRITORY (ADMINISTRATION) ACT 1910 s 6: COMMONWEALTH CONCILIATION AND ARBITRATION ACT 1904 s 4
04 August 1941
The Minister of Labour and National Service
I refer to your letter of 15th July, 1941 asking for an expression of my views as to the practicability of taking some action along the lines suggested by Dr. Evatt for the extension of the jurisdiction of the Commonwealth Court of Conciliation and Arbitration to enable awards to be made covering members of organizations employed in the external Territories.
I am not aware of any legal reason why an external Territory should not be brought within the jurisdiction of the Court in the same manner as the Northern Territory has been.
The Court’s jurisdiction in the Northern Territory is two-fold. Firstly, persons in that Territory may be bound by what I may describe as a Federal Award. Secondly, section 6 of the Northern Territory (Administration ) Act applies the Conciliation and Arbitration Act to industrial disputes in the Territory ‘as if from the definition of “industrial disputes” in section 4 of that Act the words “extending beyond the limits of any one State” were omitted.’ Consequently, the Court also has jurisdiction over purely local disputes.
During the war either or both of these types of jurisdiction could, in my opinion, be extended to any external Territory by National Security Regulations. Thereafter, an amendment of the Commonwealth Conciliation and Arbitration Act would be needed to extend the Federal jurisdiction, while the local jurisdiction could be applied either by an amendment of the Act providing for the administration of any Territory or by the promulgation of an Ordinance made under that Act.
Dr. Evatt’s request would not, at first sight, appear to indicate that it is desired that the jurisdiction to be extended to the external Territories should be as full as that which now extends to the Northern Territory. In effect, however, I feel that any limitation on the jurisdiction would be more apparent than real. Dr. Evatt merely asks that the Court’s jurisdiction should be extended so that applications for awards can be made by the unions concerned to cover areas in the Territories where members of those unions are employed. It appears obvious that employees in the Territories would hasten to become members of an organization registered under the Act, or even to form a new organization and apply for registration under the Act. If so, the extension of jurisdiction would result in the Court having a jurisdiction similar to that which it now has in the Northern Territory.
You will appreciate, of course, that the foregoing views are expressed from a purely legal point of view. As to the policy involved in the question, I think that the Minister administering external Territories should be consulted.
As you are aware, in both Papua and New Guinea, Legislative Councils have been established. In view of the fact that these Councils are entrusted with enacting the ordinary domestic laws of the Territories, careful consideration should be given as to whether the extension of Commonwealth legislation of the nature suggested to these Territories, without consulting those Councils, in any way conflicts with the theory behind the establishment of the local legislatures.
[Vol. 34, p. 402]