The Secretary, Department of Home Affairs, has forwarded the following memorandum asking for advice:

Under an arrangement between the Commonwealth Government and the State Government of Queensland, the latter Government has hitherto carried out works for the Commonwealth through the medium of the State Public Works Department.

In connection with certain Federal works which this Department proposed carrying out it asked the State Public Works Department to have observed the usual Commonwealth condition of 'preference to unionists'. That Department decline to carry out the work under such conditions, being contrary to the policy of the State Government. They point out that there is a Queensland Act-The Industrial Peace Act-which makes it an offence to give such preference to unionists.

This Department now desires to carry out the work by day labour under the direct supervision of its own officer, and I shall be glad if you will advise me whether in the event of its doing so, the Department or its officer will be liable to be dealt with under the Queensland Act before mentioned for giving preference to unionists.

I shall be obliged if you will favour me with your advice at the earliest possible moment, as the matter is one of great urgency.

In the case of D'Emden v. Pedder 1 C.L.R. 91, at p.l 11, the High Court laid it down that:

. . . when a State attempts to give to its legislative or executive authority an operation which, if valid, would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorised by the Constitution, is to that extent invalid and inoperative.

This principle would in my opinion extend to prevent the application to the Commonwealth, or to any officer acting on behalf of the Commonwealth, of the provisions of the Queensland Industrial Peace Act of 1912 so far as those provisions purport to render liable to a penalty any person who refuses employment to, or in any way discriminates against, any person on account of membership or non-membership of an industrial association.

[Vol. 13, p. 307]