HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Murphy and Brennan JJ. The Hon. Mr Justice Aickin died before reasons for judgment were published.

 

 

 

THE QUEEN v. McMAHON; Ex parte DARVALL

(1982) 151 CLR 57

12 October 1982

 

 

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Rules—Eligibility for membership—Persons employed in or in connexion with universities—Association of Australian University Staff—Whether capable of being registered as an organization—The Constitution (63 &64 Vict., c. 12), s. 51(xxxv)—Conciliation and Arbitration Act 1904 (Cth), s. 132(1)(b),(c).

Decisions


October 12.
The following written judgments were delivered: -
Gibbs C.J. The prosecutor, who sues on behalf of himself and all other members of the Association of Australian University Staff ("the Association"), seeks a writ of mandamus directed to the Industrial Registrar, commanding him to hear and determine according to law an application by the Association for registration as an organization of employees under the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"). The Industrial Registrar dismissed the application, for the reason that the Association is not an "association the members of which include not less than one hundred employees in or in connexion with any industry" or an "association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits" within pars. (b) and (c) respectively of s. 132(1) of the Act, and is accordingly not eligible to be registered. (at p59)

2. The Association, according to its eligibility clause, consists of "an unlimited number of persons employed or usually employed in or in connection with Universities" in the various States and Territories of the Commonwealth. The clause goes on, without limiting the generality of the introductory words, to give particulars of various classes of employees who are eligible for membership. These include academic staff of all grades, librarians, administrative staff, specialist staff, physicians and counsellors, archivists, wardens and heads of residences and colleges, and technical staff and laboratory assistants. (at p60)

3. Section 132(1) of the Act is enacted under the power conferred by s. 51(xxxv) of the Constitution, and could not validly extend to an association which consisted of employees who were not capable of being involved in an "industrial dispute" within s. 51(xxxv). The meaning of "industry" and "industrial pursuit or pursuits" in s. 132(1) must therefore depend on the nature and scope of the concept of "industry" to which par. (xxxv) refers. If authority is needed for this proposition, Pitfield v. Franki (1970) 123 CLR 448 provides it: see particularly at p. 470. (at p60)

4. In the present case, counsel for the prosecutor did not ask the Court to reconsider the decisions in which the views of Griffith C.J. and O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 332-333, 365-368 were rejected. I have referred to some of those decisions in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at p 74 . The submission which was made on behalf of the prosecutor was that if the activity of an employer or employee is ancillary or incidental to the organized production, transportation or distribution of commodities or other forms of material wealth - in other words, if it is ancillary or incidental to what may be called "industry" in the strict sense - it will in itself be industrial. That this is so, at least when one is speaking of the activity of the employer, is well established. Recent judgments to that effect, in which the earlier decisions are cited, include Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, at p 608 and Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR, at pp 76-77 . In the latter case I said that the question whether one activity is incidental to or ancillary to another is one of degree. (at p60)

5. Of course, an employee may perform work of an industrial character although his employer is not engaged in industry. Paragraph (b) of s. 132(1) appears to look primarily to the activity of the employer, or, where the employee is said to be engaged "in connexion with" any industry, to the activity in connexion with which he is engaged. Paragraph (c), on the other hand, looks primarily to the nature of the work done by the employee: see Pitfield v. Franki (1970) 123 CLR, at pp 460, 464 . In the present case, the activity relied on was that on the universities. It could not seriously be suggested that if the activities of the universities are not ancillary or incidental to industry the employees generally are engaged in industrial pursuits. (at p61)

6. It was submitted that the activities of universities are ancillary or incidental to industry in two ways. First, universities create skilled labour which is indispensable to industry. In this respect, it was said, the universities do for the labour element of industry what banking, insurance and credit unions do for the capital element, and their activities should be regarded as ancillary or incidental to industry by analogy to such cases as Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 and Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 . Secondly, universities conduct research which creates technology and otherwise stimulates industry, and whose importance to industry is recognized by the fact that funds to assist the research come in part from private industry. There was no evidence which established what proportion of university graduates become employed by industry or what proportion of the research done by universities benefits industry, although my judgment does not depend on that deficiency. (at p61)

7. In advancing these submissions, counsel stressed that it is the effect, rather than the purpose, of the activity of the universities that must be considered. Moreover, it was said that it would be erroneous to attempt to give the activites their character by viewing them as a whole - it would be enough if some of the activities were industrial. Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at p 589 was relied on in support of that submission. Therefore it was said that it would not matter that a university might rightly be described as a community of scholars if, at the same time, some of its activities were ancillary or incidental to industry. (at p61)

8. The decision in Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 is distinguishable. In that case, the question was whether an industrial dispute could exist between a union which consisted of persons employed or usually employed in "the business of insurance", and the Motor Accident Insurance Board of Tasmania which, under Pt III of the Motor Accidents (Liabilities and Compensation) Act 1973 (Tas.) carried on what was held to be a business of insurance, but which, under Pt IV of that Act, also had the function of administering a scheme of statutory compensation which was not a scheme of insurance. This question depended, inter alia, on whether the staff of the Board were eligible to be members of the union. It was held that the question should be answered in the affirmative. Mason J. said (1979) 141 CLR, at p 589 :
". . . it is quite possible, as in the present case, for a person or body to be engaged in several activities, one of which can properly be described as 'the business of insurance'. It is in my opinion, a misconceived approach to attempt to characterize the functions of the Board in their totality, and there is certainly nothing in the present case which warrants such an approach. If, as I have concluded, the Board is indeed engaged in 'the business of insurance' under Pt III of the Act, it is nothing to the point that the Board is not so engaged under Pt IV."
I said (1979) 141 CLR, at p 582 that if some members of the staff of the Board were not employed in the business of insurance, and were therefore not eligible for membership of the respondent union, that would be a matter for the Commission to consider if it came to make an award. In that case the Board carried on a business of the specified kind notwithstanding that it carried out other functions as well; some at least of its employees were eligible to join the union, which could therefore create an industrial dispute with the Board. It does not follow that in deciding whether the activities of a university are ancillary or incidental to industry, so that all members of the staff of the university can be said to be employed "in or in connexion with any industry" within s. 132(1) of the Act, it is permissible to have regard only to selected parts of the total of the activities, not shown to be typical of the whole. If there happen to be particular employees who for some reason or other answer the description in s. 132(1)(b) or s. 132(1)(c) of the Act, they of course can form a registrable association. (at p62)

9. There is not doubt that universities provide a valuable service to industry, as they do to the community as a whole. At a time when all sections of society are increasingly interdependent, it may be said, with truth, that industry depends on the universities for some of its skilled employees and for some of its research and technology. It would be equally true to say that the professions and the Public Service and society at large similarly depend on the universities. Many graduates are not employed by industry, and much research is of no benefit to industry except in so far as industry benefits from existing in a society in which proper standards of scholarship are maintained. It would give a completely distorted picture of the functions of the universities to say that they are ancillary or incidental to industry. (at p62)

10. The decision in Federated State School Teachers' Assocation of Australia v. Victoria (1929) 41 CLR 569 is quite opposed to the argument submitted on behalf of the prosecutor. It was held in that case by Knox C.J., Gavan Duffy, Rich and Starke JJ. (Isaacs J. dissenting) that the educational activities of the States did not consitute an industry. It was there submitted that the teaching profession is part of the industrial mechanism of society, that the State holds technical classes, and that teachers prepare persons for industrial employment (see at p.571). That argument influenced Isaacs J. in his dissent (see particularly at pp. 589-590). However, Knox C.J., Gavan Duffy and Starke JJ. (1929) 41 CLR, at p 575 said that the educational activities of the States "bear no resemblance whatever to an ordinary trade, business or industry". Rich J. (1929) 41 CLR, at p 591 said that "teaching does not, like banking and insurance, play a part 'in the scheme of national industrial activity'". In the case of the universities there is of course the additional factor of research, but much of that has no direct connexion with industry. Research may relate to medicine, any branch of the sciences, law, or the humanities (to name only a few of the fields in which it is carried on). Particular research may have an industrial purpose or effect, but the research generally has neither. (at p63)

11. It seems to me clear that the functions of the universities, although essential to society, are not ancillary or incidental to industry except "in a remote and indirect way", to use words which I used in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR, at p 77 . I find it impossible to hold that the staffs of universities are employed in or in connexion with industry, or engaged in industrial pursuits. The decision of the Industrial Registrar was correct. (at p63)

12. In Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR, at p 74 , I said that the reasons given by O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR, at pp 366-368 appeared to me convincing. Since no attempt was made in the present case to argue that the views of Griffith C.J. and O'Connor J. in that case should be treated as correct, notwithstanding their rejection in later cases, it is unnecessary to consider whether, if their reasons had been adopted, a different result would have been reached in the present case, but I should add that it does not necessarily follow that a different conclusion would have been reached. (at p63)

13. I would dismiss the application for a writ of mandamus. (at p63)

MASON J. The principal question to be resolved in this case is whether university employees are employees in or in connexion with an "industry" in the context of s. 132(1)(b) of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), in association with the definition of "industry" in s. 4(1), and s. 51(XXXV) of the Constitution. The related question is whether the employees are "engaged in an industrial pursuit or pursuits" within the meaning of s. 132(1)(c). (at p64)

2. The prosecutor, who sues on behalf of the members of the Association of Australian University Staff ("the Association"), seeks a writ of mandamus against the Industrial Registrar commanding the Registrar to hear and determine according to law an application by the Association under s. 132 for registration as an organization of employees under the Act. The Registrar in his decision upheld the objection by six objectors that the Association is not an association capable of registration under the Act and dismissed the application. (at p64)

3. The eligibility rule of the Association states that membership -
". . . shall consist of an unlimited number of persons employed or usually employed in or in connection with Universities in the Australian Capital Territory, the Northern Territory and the States of New South Wales, Tasmania, Western Australia, Victoria, South Australia and Queensland and, without limiting the generality of the foregoing shall include:
(a) Professors, Associate Professors, Readers, Senior Lecturers, Principal Lecturers, Lecturers, Senior Tutors, Principal Tutors, Senior Demonstrators, Senior Instructors, Senior Teaching Fellows, Teaching Fellows, Tutors, Demonstrators, Instructors.
(b) Professorial Fellows, Senior Fellows, Fellows, Principal Research Fellows, Senior Research Fellows, Junior Research Fellows, Senior Research Assistants, Research Assistants.
(c) Deans, Chairmen and Heads of Departments.
(d) University Librarians, Associate Librarians, Deputy Librarians, Principal Librarians, Senior Librarians, Librarians, Assistant Librarians, Library Assistants and other qualified library staff.
(e) Vice-Chancellors, Deputy Vice-Chancellors, Pro Vice-Chancellors.
(f) Vice-Principals, Registrars, Deputy Registrars, Assistant Registrars, University Secretaries, Business Managers, Bursars, Deputy Bursars, Comptrollers, Principal Administrative Officers, Senior Administrative Officers, Administrative Officers, Professional Officers and other administrative staff.
(g) Directors, Deputy Directors and graduate staff of institutes, specialist centres and units.
(h) Physicians, Senior Student Counsellors and Counsellors.
(i) University Archivists, Senior Archivists and Archivists.
(j) Wardens and Heads of University Halls, Residences and Colleges.
(k) Architects, Engineers, Surveyors, Draughtsmen, Technical Officers, Technical Assistants, Laboratory Managers and Laboratory Assistants.
together with any such other persons whether or not employed in the industry or industries described above who may be elected General Secretary, or appointed as Industrial Officer, Research Officer or Organiser of the Association." (at p65)


4. It should be said at the outset that, in seeking to show that such employees are within the connotation of the concept of "industry" in the sense in which the term "industrial disputes" is used in s. 51(xxxv) of the Constitution, the prosecutor decided that it would not advance his case to seek to overturn the line of cases which have disapproved of the broad approach of Griffith C.J. and O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 . The prosecutor was content to argue that the members of the Association are engaged in "industry" on the basis of the principles expounded in that later line of cases. I have elsewhere expressed my own view of the scope of the word "industrial" in s. 51(xxxv) as being akin to that of Griffith C.J. and O'Connor J. in Jumbunna - see Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, at pp 608-609 ; see also Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at pp 74, 79 ; cf. the wider view of Murphy J. in Holmes (1977) 140 CLR, at p 90 . (at p65)

5. The prosecutor argued that it had to do no more than to show that the activities carried on by the members of the Association can be accurately described as ancillary or incidental to industry or to the organized production, transportation or distribution of commodities or other forms of material wealth (see Ex parte Professional Engineers' Association (1959) 107 CLR 208, at pp 236, 267 ; Pitfield v. Franki (1970) 123 CLR 448, at p 458 ; Marshall (1975) 132 CLR, at p 608 ; Holmes (1977) 140 CLR, at pp 76-77 ; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577, at p590 ). As the parties were content to argue the case on this basis, I shall consider it on this footing. (at p65)

6. Are the activities of the members sufficiently ancillary or incidental to industry? The question is one of degree (Holmes (1977) 140 CLR, at p 77 , per Gibbs J.). (at p66)

7. The prosecutor in his submissions looked to Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 and to Marshall, saying that universities are to the labour element of industry what banks, insurance companies and credit unions are to the capital element. The production of graduates by the universities for employment in industry is indispensable to industry, so the argument ran, justifying the conclusion that the functions of universities are incidental to industry. (at p66)

8. The second strand of the prosecutor's argument focused on the research functions of universities. The technology which they create was said to be incidental to the capital element of industry. (at p66)

9. The evidence relied upon in support of these contentions is not at all precise. Some statements of university objects give emphasis to courses of study to meet the needs of industry or to the undertaking of research and its application to industry. Such statements appear in the constitutional statutes of the more recently established universities, e.g., Flinders and Monash. They do not appear in the Royal Charter of the University of Sydney, which speaks of the advancement of religion and morality, the pursuit of useful knowledge and the provision of a regular liberal course of education. This change in emphasis is understandable because the principal function of the modern university in providing the benefits of tertiary education in a wide range of disciplines to a large number of undergraduates as an essential qualification for employment is rather different from the traditional conception of the university as a community of scholars and the Victorian ideal of the university as a centre of liberal education. (at p66)

10. Perhaps the most comprehensive statement of the function of the modern university whose principal activity is the provision of graduate as distinct from post-graduate courses is that contained in the Williams Committee's Report of the Committee of Inquiry into Education and Training (1979). The Committee said (vol. 1, p. 149) that a reading of the enabling Acts of the universities "does not provide a clear idea of the functions of universities. This is because the essential nature of a university is taken for granted". According to the Committee (p. 150), the three functions of universities are:
" . . . first, to provide for a sufficient number and variety of graduates to meet the needs of industry, commerce and public administration and in such a manner that students received a full and true education as befitting citizens in a free country; second, to conduct research and to provide suitable conditions for that valuable activity best done in universities, namely, the research of free inquirers who pursue their own ideas and insights devotedly and with great persistence in pursuit of enlightenment for its own sake; third, to provide an independent community of scholars and inquirers which will strive to guard intellectual standards and intellectual integrity in the community . . . " (at p67)


11. However, it is difficult to find any concrete evidence which gives precise content to the general assertion that universities provide graduates for the needs of industry. Our attention was drawn to figures illustrating the percentage distribution of students in the faculties at the University of Sydney. It is not possible from these figures to arrive at specific, or even general, conclusions as to the number of graduates who go into industry. We do not know what number or what percentage of graduates in general, or in particular faculties or disciplines, obtain employment in industry, as distinct from government, teaching, the professions and other occupations. My inclination is to think that a minority of graduates from some, if not all, of the non-science based disciplines in arts would find their way into "industry" in the narrow constitutional sense of that word according to the decided cases. The same comment may be made about graduates in medicine, law and veterinary science. Why the activities of a university in producing graduates in these disciplines should be regarded as incidental or ancillary to industry was not explained. The argument would as readily yield the conclusion that the universities' activities in producing graduates in medicine and law are incidental to the practice or profession of medicine and law respectively. The prosecutor seeks to avoid this more precise approach by making a generalization about the entire functions of universities, although, as we have seen, the generalization is not supported by evidence. Indeed, for all we know, it might be equally appropriate to describe the functions of universities as being incidental to government. (at p67)

12. The role of the modern university is so autonomous, so important in its own right and so multi-faceted that it is impossible to classify its activities as incidental or ancillary to industry. No doubt the universities, mindful that many of their graduates will find employment in industry, are influenced by that knowledge in the planning of courses. But this does not make the universities servants of industry; nor does it make them co-operators with capital and labour in industry. (at p67)

13. Quite apart from this way of looking at the question, even if precise evidence were available to show that a very substantial proportion, say a majority of university graduates, find employment in industry, it would not establish that the members of the Association are employed in or in connexion with industry. The connexion which that evidence would demonstrate would not be of a sufficiently direct or substantial kind. Even on the assumption that a large number of graduates ultimately go to work in industry, universities are incidental to industry only in a remote sense. The most that can be said is that academics impart to students the knowledge and skills which enable them to become graduates. But this does not make the functions of universities incidental to industry. As with firemen who help to prevent fires damaging property in industry (see Pitfield), the relationship between universities and industry is one step removed from a sufficient connexion. (at p68)

14. In Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR569, at p 575 , Knox C.J., Gavan Duffy and Starke JJ. in a joint judgment held that the educational activities of the States and of their teachers "are not connected directly with, or attendant upon, the production or distribution of wealth". For my part I find it impossible to distinguish the connexion of the functions of universities with industry from that of the functions of schools. And it is no easier to reconcile the prosecutor's argument with Pitfield (1970) 123 CLR 448 and Holmes (1977) 140 CLR 63 . (at p68)

15. The point is clearly made in Holmes. The issue in that case was whether clerical and administrative officers of the Department of Motor Transport performed duties which were incidental to industry. A majority of the Court held that they did not, Gibbs J. (1977) 140 CLR, at p 77 saying that their duties "are only incidental to transportation in a remote and indirect way". It was not sufficient that the funds raised by them "are devoted to special purposes relating to transportation". Similarly, it is not sufficient that a proportion of graduates produced by universities are "devoted" to industry. That is a tenuous connexion with industry. (at p68)

16. Marshall (1975) 132 CLR 595 dealt with the provision of finance, not with labour. There the Court held on the evidence that the provision of finance by credit unions was incidental to industry. For the reasons which I have already stated the teaching and instruction of students by universities is not incidental to industry. (at p68)

17. The fact is, as Rich J. said in the State School Teachers' Case (1929) 41 CLR, at p 592 :
"The existence of human beings is no doubt necessary but it is absurd to suggest that everything that goes to make the man forms a part of the community 'industrially organized with a view to the production and distribution of wealth'." (at p69)


18. The argument directed to the research function of the universities does not provide any reason for a different conclusion, though the evidence was somewhat more specific. The Williams Committee reported (vol. 1, p. 165) that, according to surveys, academic staff at universities devote between twenty-five and thirty-five per cent of their overall time to research or to research and writing. Universities are responsible for slightly less than twenty-two per cent of the research and development carried out in Australia, at least in terms of gross expenditure (p. 161). In the universities, seventy per cent of the research was undertaken in the field of natural sciences, twenty per cent in the social sciences and ten per cent in the humanities (p. 163). (at p69)

19. Despite this, research relevant to industry is on no account a sufficiently substantial function of universities to warrant the conclusion that universities are incidental to industry. On the basis of the statistics referred to, and even on the extremely generous assumption that all the research in the field of natural sciences has industrial relevance, whilst excluding the other thirty per cent of research activities, only twenty-four and a half per cent of the functions of universities are related to industry. Where less than one quarter of the functions of the relevant employment are connected with industry, the employment as a whole cannot be said to be incidental to industry. Moreover, the oral evidence of the Registrar of the University of Melbourne, Mr James Potter, confirms the suspicion that the figure of twenty-four and a half per cent is somewhat exaggerated in the sense that much of the research done in the field of natural sciences has little substantial relevance to industry. (at p69)

20. In Cohen it was sufficient that the Motor Accidents Insurance Board was engaged in several activities, one of which could properly be described as "the business of insurance" (1979) 141 CLR, at p 589 . The Court was concerned there to ascertain whether the Board was carrying on "the business of insurance". As it was "the business of insurance" comprised a substantial proportion of the Board's functions. The research function of universities that is "industry oriented" is, on any view, an insubstantial function in terms of their total activities and is by no means a separate and distinct function. (at p70)

21. The eligibility rule covers administrative as well as academic staff. There is an additional problem in classifying the activities of administrative staff as being industrial in character. But it is unnecessary to pursue this matter further because the case was presented on the footing that all employees covered by the eligibility clause perform functions incidental to industry, a conclusion which, for the reasons already given, cannot be supported. (at p70)

22. The grounds for rejecting the prosecutor's case on s. 132(1)(b) have equal application to the case based on s. 132(1)(c). (at p70)

23. In the result I would dismiss the application for a writ of mandamus. (at p70)

MURPHY J. The Industrial Registrar is authorized by the Conciliation and Arbitration Act 1904 (Cth), as amended, ("the Act") s. 132 to register "any association the members of which include not less than one hundred employees in or in connexion with any industry" or "any association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits" as an organization of employees. The Industrial Registrar refused an application for registration by the Association of Australian University Staff ("the Association"). The Association seeks an order that he redetermine the application according to law. The Registrar's refusal turned on the meaning of "industry" and "industrial pursuits" in the light of this Court's pronouncements. (at p70)

2. Industry is defined widely by the Act. Unless otherwise clearly intended "industry" includes: (a) any business, trade, manufacture, undertaking, or calling of employers; (b) any calling, service, employment, handicraft, or industrial occupation or vocation of employees; and (c) a branch of any industry and a group of industries. (s. 4) (at p70)

3. Thus industry extends to the industry of the employee such as clerical industry, as well as to the industry of the employer such as insurance. In R. v. Galvin; Ex parte Metal Trades Employers' Association (1949) 77 CLR 432 , the Court observed that ship painters and dockers who are engaged in their employers' industry of shipbuilding or ship repairing are also engaged in the employees' industry of ship painters and dockers. Even if the employers are not engaged in industry, the employees may be engaged in their own industry, such as clerical or cleaning industry. "Industrial pursuits" also refers to any calling, service etcetera of employees. (at p71)

4. The Association consists of "an unlimited number of persons employed or usually employed in or in connection with Universities" and without limiting the generality of this, includes various specific classes of such persons. It fits the statutory descriptions of associations eligible for registration. University employees, academic and other, are undoubtedly in a calling, service, employment or vocation of employees within the statutory definition of "industry".I leave aside "handicraft" and "industrial occupation". The very broad expression, industrial pursuits, also sufficiently encompasses the occupations of the members of the Association. On this simple basis the Association should have been treated as eligible for registration. (at p71)

5. However, previous cases suggest that s. 51 (xxxv) of the Constitution is so restrictive that it excludes from Parliament the power to authorize registration of such an association. The scope of the constitutional legislative power "... with respect to ... (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" has been unjustifiably narrowed and confused, to the public detriment, by a number of errors. Major errors are: the reading of the word "prevention" out of the Constitution; and the misreading of the expression "industrial disputes" as "disputes in industry". This case concerns the second. (at p71)

6. Industrial Disputes. This expression in s. 51(xxxv) is a composite phrase which briefly means disputes about wages and conditions of work and about related matters such as entry into and termination of work relationships. The earlier cases, notably Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 ("the Jumbunna Coal Mine Case") were correct in not treating the phrase as meaning "disputes in industry". However, a series of later cases, Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569 ("the State School Teachers' Case); R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488 ("the State Public Service Case") and Pitfield v. Franki (1970) 123 CLR 448 , rejected the earlier views, and treated the expression as if it were "disputes in industry", with the result that unless the dispute was in an industry, any law to apply the processes of conciliation or arbitration to its prevention or settlement was (so far as it depended on par. (xxxv)) unconstitutional. This approach had a narrowing effect in that the power was strictly confined to industry. Debates over what was within the concept of industry led to much controversy and a bewildering division of jurisdiction between federal and State industrial tribunals. However as the perception of industry has changed from one of primary and secondary industry to embrace tertiary (transport and recreation) or even quaternary (trade, finance, insurance, real estate) and quinary (health, education, research and government) industries (see Danial Bell, The Coming of the Post-Industrial Society: A Venture in Social Forecasting (1973); Dennis Little, "Post-Industrial Society and What it May Mean", The Futurist, December 1973, p.259), the difficulties of definition have grown; the borderline between what is and what is not industry is not fixed but is now indeterminate. Thus this Court has held that "Local Government Municipal and Statutory Corporations Industry" is "industry" (Melbourne and Metropolitan Tramways Board v. Municipal Officers' Association of Australia (1944) 68 CLR 628 but fire-fighting is not (Pitfield v. Franki). (at p72)

7. As a modification of the strict limitation to industry, this Court has held that the power extends to activities which are adjunct (ancillary or incidental) to industry. (See Australian Insurance Staffs' Federation v. Accident Underwriters' Association (1923) 33 CLR 517 ; Reg. v. Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 .) This latter is an unsatisfactory basis for the exercise of the legislative power. If the expression "disputes in industry" were in the Constitution, then the concept industry would include banking, insurance and similar activities directly and not as adjunctive ancillary or incidental to industry. However, that is not the constitutional requirement, and it only compounds confusion to persist with the error but make it a little less harmful by an elastic approach. Although confining the power to "industry" has an unjustifiably narrowing effect in one direction, in another direction it would have an extraordinarily widening effect. If industrial disputes means disputes in industry, then the disputes to which it refers are not restricted to disputes about work, but disputes of all kinds; the power would authorize laws with respect to conciliation and arbitration of disputes of any kind (contract, property, tort) extending beyond one State in any industry or industries. This error should be corrected. (at p72)

8. In Reg. v. Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, at pp 608-609 , Mason J. favoured the earlier views of Griffith C.J. (1908) 6 CLR, at pp 331-340 and O'Connor J. (1908) 6 CLR, at pp 349-368 in the Jumbunna Coal Mine Case. In Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63 , Gibbs C.J. (1977) 140 CLR, at p 74 with whom Stephen J. agreed, also Jacobs J. (1977) 140 CLR, at p 79 and myself (1977) 140 CLR, at pp 88-90 , favoured the broader view. As I pointed out in that case (1977) 140 CLR, at p90 the earlier view needs to be modified slightly. The work relationship need not be employer-employee, nor are "industrial disputes" confined to those involving large bodies of persons. The Act defines industrial dispute consistently with the correct constitutional concept of industrial dispute as enunciated in the earlier cases, that is broadly as disputes about "industrial matters" which in turn are defined as questions of wages, conditions and other matters affecting the work relationship. The Act in these definitions eschews the error which was introduced by the later decisions of this Court. (at p73)

9. Thus bodies which are not regarded as being in industry such as sporting clubs or courts may have industrial disputes with their employees. Here, the Association's members include not less than 100 employees in or in connexion with the industries which are the callings, services, employments or vocations of the employees; its members also include not less than 100 employees engaged in industrial pursuits (which are those callings, services, employments or vocations). Registration of such an association is within the constitutional power, at least because those persons are capable of entering an industrial dispute (for example, over salaries, wages or conditions of employment) in or in connexion with their callings, services, employments or vocations of university teachers, librarians, administrators or other occupations. Constitutional considerations thus present no barrier to the straightforward application of s. 132 in the light of s. 4 definitions, so that the Association is an eligible association within s. 132. (at p73)

10. However an order was not sought on this basis. The prosecutor did not claim an order on the basis that cases such as the State School Teachers' Case (1929) 41 CLR 569 , the State Public Service Case (1942) 66 CLR 488 and Pitfield v. Franki (1970) 123 CLR 448 were wrongly decided, but claimed only on the ground that the universities were incidental to or ancillary to industry. There is a great deal of literature which suggests that many universities particularly in the United Kingdom and the United States of America have become so much under the domination of large business corporations that they may be regarded as ancillary or incidental to industry, particularly to the military industry. (See for example David F. Noble, "The Selling of the University", The Nation, 6 February 1982, 1, at pp. 143- 148; Charles V. Kidd, "The Implications of Research Funds for Academic Freedom", Law and Contemporary Problems, vol. 28 (1963), p. 613; V. E. Coslett, The Relations Between Scientific Research in the Universities and Industrial Research: A Report on Conditions in Great Britain, prepared for the Association of University Teachers in 1955 in connexion with a general research project initiated by the International Association of University Professors and Lecturers (I.A.U.P.L.), see Lord Chorley, "Academic Freedom in the United Kingdom", Law and Contemporary Problems, vol. 28 (1963), p. 647.) It seems that not as much research has been carried out in Australia, although it is well known that the direction of university research is often influenced by industrial concerns. I am not satisfied that the applicant has made out an entitlement to mandamus on a basis that assumes the correctness of the School Teachers' Case and similar cases and asserts that universities are adjuncts of industry. In any event, I do not regard this "adjunct of industry" as a correct test for "industry" within the meaning of s. 132, and the Industrial Registrar should not be directed to redetermine the application for registration on what is an incorrect basis. (at p74)

11. The application for a writ of mandamus should be dismissed. (at p74)

BRENNAN J. The applicant did not seek to restore the authority of the opinions expressed by Griffith C.J. and O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309 . The argument focused upon the activities of Australian universities and sought to show that those activities were incidental or ancillary to industry, a question of degree (per Gibbs J. in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at p 77 ). I agree, for the reasons stated by Mason J., that that argument fails. The facts do not show universities to be mere industrial schools and I would not have thought them to be so. The purpose of university education is not to mould men and women to the needs of industry even though much of the education provided by universities imparts knowledge and skills which are useful to graduates who gain employment in industry or helpful or even essential to the gaining of that employment. As Rich J. pointed out in Federated State School Teachers' Association of Australia v. Victoria (1929) 41 CLR 569, at pp 591-592 , men and women are not, as capital is, an "instrument of production". To regard university education as ancillary to industry because it equips men and women with the knowledge and skills needed to take their place in industry is to regard industrial activities, rather than the men and women engaged in industry, as the objects served by university education. That view would invert what is ancillary and what is primary in both university education and civilized values. (at p75)

2. I would dismiss the application for a writ of mandamus. (at p75)

Orders


Application for a writ of mandamus dismissed.