Opinion Number. 1541

Subject

northern territory northern territory: wages of half-caste aboriginal apprentices: effect of declaration of common rule by Commonwealth court of Conciliation and Arbitration

Key Legislation

Aboriginals Ordinance 1918 (NT): Commonwealth Conciliation and Arbitration Act 1904

Date
Client
The Secretary, Department of the Interior

The Secretary, Department of the Interior has forwarded the following memorandum to me for advice:

Cabinet recently decided that the wages to be paid to half-caste apprentices under the Apprentices (Half-castes) Regulations of the Northern Territory should be 10/- per week. Formerly, these apprentices were paid similar rates of wages to those payable to white youths under the Award of the Commonwealth Court of Conciliation and Arbitration in respect of the cattle station industry in the Northern Territory.

On the 20th February, 1933, His Honour Chief Judge Dethridge ordered and declared that the Award in question shall be a common rule of the cattle station industry in the Northern Territory binding upon all employers in the said industry in respect of the employment by them of employees members of the North Australian Workers’ Union of the classes for whom provision is made in the Award.

The Chief Protector of Aboriginals in the Northern Territory has reported that some of the half-caste youths apprenticed to the cattle station industry under the Apprentices (Half-castes) Regulations have become members of the North Australian Workers’ Union. He contends that, in view of the Award made by the Court on the 20th February, 1933, these half-castes should be paid award rates of wages.

Clause 23 of the Award provides that the Award shall not apply to aboriginals and the word ‘aboriginal’ is defined to mean an aboriginal within the meaning of the Northern Territory Aboriginals Ordinance, No. 9 of 1918. The definition of ‘aboriginal’ in the Ordinance includes a half-caste male child whose age does not apparently exceed twenty-one years.

In the opinion of this Department, the half-caste apprentices under the Apprentices (Half-caste) Regulations, who are all under the age of 21 years, and are, therefore, aboriginals within the meaning of the Aboriginals Ordinance, cannot demand payment of award rates even though they are members of the North Australian Workers’ Union. I should be glad to be furnished with advice as to whether this view is correct.

It would be appreciated if this matter could be regarded as urgent.

The effect of the declaration of a common rule in respect of an award is not to vary the terms of the award but to make the award binding on persons not parties to the award.

The position in regard to the application to aboriginals of the award under consideration is, therefore, precisely the same as before the declaration of the common rule of the 20th February, 1933.

Clause 23 of the award provides:

23. This award shall not apply to … aboriginals …

Clause 1 of the award defines ‘aboriginal’ to mean an aboriginal within the meaning of the Northern Territory Aboriginal Ordinance, No. 9 of 1918.

The definition of aboriginal in that Ordinance is as follows:

Aboriginal means any person who is–

  1. an aboriginal native of Australia or of any of the islands adjacent or belonging thereto
  2. a half-caste who lives with an aboriginal native as wife or husband; or
  3. a half-caste, who, otherwise than as the wife or husband of such an aboriginal native, habitually lives or associates with such aboriginal natives; or
  4. a half-caste male child whose age does not apparently exceed eighteen years; or
  5. a female half-caste not legally married to a person who is substantially of European origin or descent and living with her husband.

All such persons are aboriginals for the purposes of the award and clause 23 therefore applies in respect of them.

In my opinion, therefore, the award does not require an employer to pay award rates to such persons.

Half-castes, other than those specified in the definition of aboriginal quoted above are, in my opinion, entitled to the award rate of wages.

The High Court has held that the provisions of the Commonwealth Conciliation and Arbitration Act which purport to authorise the Commonwealth Court of Conciliation and Arbitration to declare a common rule in any particular industry, and direct that the common rule so declared shall be binding upon the persons engaged in that industry, are ultra vires the Parliament of the Commonwealth and invalid.

I note that in the award under discussion the Chief Judge stated that he was of opinion that the Court has jurisdiction to declare that the award shall be a common rule of the cattle station industry in the Northern Territory. In consequence of the stated opinion of the Chief Judge I do not express any view as to the power of the Court to declare a common rule in respect of an industry in the Northern Territory.

[Vol. 26, p. 316]