The Industrial Peace Act of 1912 of the State of Queensland provides inter alia as follows:

34. No person shall be refused employment or in any way discriminated against on account of membership or non-membership of any industrial association.

No person who is an employer or employee shall be discriminated against or injured or interfered with in any way whatsoever on account of membership or non-membership of any industrial association.

Any person who acts or incites any other person to act in contravention of this section shall be liable to a penalty not exceeding fifty pounds, and any industrial association which acts or incites any person to act or is in any way a party to any person acting in contravention of this section shall be liable to a penalty not exceeding five hundred pounds.

The Commonwealth Works Officer in Brisbane has let a contract for joinery to a firm in Brisbane, and one of the terms of the contract provides for preference being given to unionists, other things being equal.

The contractor has executed the work provided for in the contract, but has not observed the term of the contract providing for preference to unionists.

The Secretary, Department of Home Affairs, desires advice as to whether a contractor who manufactures and supplies goods for a Federal work is exempt from the operation of the Industrial Peace Act above referred to, and if the Department can void the contract in question for non-fulfilment of the term of the contract providing for preference to unionists, or whether that term of the contract is illegal and so not enforceable.

In an opinion dated 9 March 1915⁽¹⁾ I advised that the principle laid down by the High Court in the case of D'Emden v. Pedder 1 C.L.R. 91, at p.l 11, 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 Act in question. The question now submitted is whether the principle would extend to a contractor of the Commonwealth Government.

In my opinion the principle would so extend, so far as the contractor was carrying on work for the Commonwealth Government.

The term in question is in my opinion a condition of the contract, and the non-observance of it gives the other party the right to avoid the contract.

[Vol. 13, p. 486]

(1) Opinion No. 609.

(2) This Opinion is unsigned in the Opinion Book, but it is attributed to Mr Garran.