I refer to your memorandum of 2nd July, 1942 (your 410/3/38) in which you ask for my opinion as to the significance of the judgment recently given by Judge O’Mara on the application under regulation 6 of the National Security (Industrial Peace) Regulations to have the Timber Workers’ Award declared a common rule.⁽¹⁾

Without giving any final decision on the matter, the Judge, on page 3, said:

I am not satisfied that a common rule made pursuant to the National Security (Industrial Peace) Regulations has the same force and effect in respect of those to whom it is applicable as an award of the Court made under the Commonwealth Conciliation and Arbitration Act. The Regulations referred to were made under the National Security Act so that the machinery for their enforcement must be found in that Act with the result that a breach of a common rule made under Regulation 6 would be punishable only in the manner prescribed by the National Security Act itself. As offences against that Act may only be prosecuted with the written consent or authority of the Attorney-General or Minister for Defence it follows that a Union has not the same rights in respect of the enforcement of the common rule as it has under section 44 of the Commonwealth Conciliation and Arbitration Act in the case of an Award made by this Court in the exercise of its ordinary jurisdiction.⁽²⁾

In order, if this were the position, not to make those parties already bound by the award subject to the same doubtful provision as those not bound by the award itself but under the Common Rule Order, the Judge announced his intention of excluding from the Order those bound by the award. He then went on to say, on page 4:

At the best the organisations retain their independent rights to prosecute for breaches of the Award upon which the common rule is founded without having any independent rights to prosecute for any breach of the Regulations involved in non-compliance with the common rule. At the worst they have no independent rights to prosecute either for breach of the Award or of the common rule.⁽³⁾

The intention of the Industrial Peace Regulations, the Coal Mining Industry Employment Regulations, and the Employment of Women Regulations may, in the first place, more conveniently be considered without reference to the provisions of the National Security Act.

Regulations 3 of the National Security (Industrial Peace) Regulations provides that:

Subject to these Regulations, the Act and these Regulations shall, so long as these Regulations continue in force, be construed as if the provisions of these Regulations were incorporated in the Act as amendments thereof.

Regulation 7 of those Regulations provides that:

In addition to the parties, persons and organizations on whom an award is declared by the Act to be binding, an award declared to be a common rule or an industry award, as the case may be, shall also be binding on all organizations and persons on whom the award or industry award is declared by the Court to be binding.

So far as the common rule provision is concerned, the object sought to be achieved by this regulation is beyond doubt–namely, that any breach of an award by any person on whom the award is declared to be binding as a common rule, may have the award enforced against him in accordance with the provisions of the Act in like manner as if he were a party bound by an award of the Court. It necessarily follows that section 44 of the Commonwealth Conciliation and Arbitration Act would therefore apply, and an action under that section could be brought against such a person to enforce the award.

Although there is no provision in the Coal Mining Industry Employment Regulations or the Employment of Women Regulations similar to regulation 3 of the Industrial Peace Regulations, the same conclusion can, in my opinion, be reached as to the enforceability of Orders made under those Regulations by reason of the provisions contained in both Regulations that an award or Order made by the Central Reference Board in the case of the Coal Mining Industry Employment Regulations, or a decision of the Women’s Employment Board, in the case of the Employment of Women Regulations, shall be filed in the Court and shall thereupon have effect in all respects and be enforceable as if it were an award or order of the Court.

I turn now to the National Security Act itself. Although the regulation making power conferred by that Act is very wide indeed, there are certain limitations, one of which is that no power whatever is given to prescribe penalties by National Security Regulations. Very severe penalties are prescribed by the Act itself for breach of the Regulations, and certain procedure is laid down by the Act concerning prosecutions.

As no power is given to prescribe penalties by National Security Regulations, it is indisputable that, were any of the regulations made under the Act specifically to prescribe a penalty for any breach of the Regulations, or for any award or order made thereunder, that regulation would be ultra vires.

While, therefore, there can be no doubt as to the meaning and intention of the Regulations now under consideration, the question does arise as to whether those Regulations can, by providing that orders and decisions thereunder may be enforced as awards of the Court, import penalty provisions prescribed by an Act which the Regulations themselves could not prescribe. If the answer is in the negative, the Regulations would be pro tanto invalid, and either wholly unenforceable or enforceable only in so far as the imposition of penalties are not concerned, leaving it to action under the National Security Act to impose penalties for breaches of awards. Moreover, if this were so, the difficulty could not be overcome other than by an Act of the Parliament.

I am not satisfied that such is the position, however, and, unless and until an authoritative decision to the contrary is given, I am of the opinion that the view should be taken that the Regulations validly authorize orders made thereunder to be enforced as awards of the Court. In my opinion, the Regulations do not, either directly or indirectly, prescribe penalties. What they, in effect, do is to expand the scope of industrial arbitration in the Commonwealth, partly by adding to the jurisdiction of the Court and partly by vesting jurisdiction in other tribunals, thus enabling orders and awards to be made which, when made, become orders and awards for the purposes of the Commonwealth Conciliation and Arbitration Act, and subject, inter alia, to the ordinary provisions of section 44 of that Act which relates to the enforcement of awards.

[Vol. 34, p. 541]

(1) Australian Timber Workers Union v ACA Sawmilling Company Pty Ltd (1942) 47 CAR 484.

(2) (1942) 47 CAR 484 at 486.

(3) (1942) 47 CAR 484 at 487.