Australian Law Journal
80th Anniversary Conference
The Constitution and the National Industrial Relations System
President of the Australian Industrial Relations Commission
15 March 2007
 Pursuant to s.51(xxxv) of the Australian Constitution the Commonwealth Parliament has power to make laws with respect to:
“Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State”.
 It is well known that those who proposed that the Commonwealth Parliament have such power were influenced by the economic costs and social disruption resulting from severe strikes in the pastoral, maritime and mining industries in the early 1890s. As it was recently put:
“The early advocates of a Commonwealth power of conciliation and arbitration included liberals who sympathised with the labour movement, such as Charles Cameron Kingston and Henry Bournes Higgins, and others who were not so partisan with the working class, horrified at the ‘barbarism’ emerging in their ostensibly ‘civilised’ society. These were the terms in which Australian leaders made sense of a decade that was both blighted, by the social divisions exacerbated by economic depression and by massive strikes in the early 1890s, and blessed, by the popular movement towards a national federation of six colonies.” 1
 The inclusion of paragraph (xxxv) in s.51 of the Constitution was the result of a resolution passed at the Melbourne session of the Australasian Convention in January 1898. It followed earlier unsuccessful attempts by Charles Kingston and Henry Higgins at the National Federation Convention in 1891, the Convention’s Constitutional Committee meeting in Adelaide in 1897 and the Sydney session of the Convention later that year. 2
 A recurring issue in the debates was whether, and if so to what extent, the federating States ought be subject to Commonwealth law in relation to industrial disputes. In the circumstances it was no surprise that when eventually passed, the resolution took a form which confined the power of the Commonwealth Parliament to legislation with respect to industrial disputes “extending beyond the limits of any one State”. The contest between the Commonwealth and States in relation to industrial and workplace relations laws has continued since Federation and has provided the context for many of the decisions which have shed light on the scope of paragraph (xxxv), the relationship between paragraph (xxxv) and powers found in other paragraphs of s.51 and elsewhere in the Constitution, and upon principles of Constitutional interpretation. The contest remains a political issue today.
 A Conciliation and Arbitration Bill was introduced into the first Parliament in 1903. The purpose of the Bill, as later explained, was to protect the public from the effects of strikes and lockouts by requiring that industrial disputes be subject to compulsory conciliation and arbitration in a specialist Commonwealth Court. From the start the Bill was controversial. Whether the proposed Court ought to have power to deal with industrial disputes between the States and their employees was the first, and predictable, major issue. The Prime Minister, Sir Alfred Deakin, was opposed to the idea that the new Court should have jurisdiction over State employees, in particular employees of State rail authorities. On two occasions, the first in 1903 and the second in 1904, he was defeated in the Parliament on that question. On the first occasion Deakin simply withdrew the Bill. On the second occasion he resigned the Prime Ministership. The Watson Labor Government which followed also attempted to get the Bill through. When that attempt failed, this time on the question of union preference, Watson also resigned. The Bill was eventually passed late in 1904 and became the Conciliation and Arbitration Act of that year.
 The legislation, amended many times as it would be over the next century or more, has played an influential role in the development of the Commonwealth politically, economically and socially. But this paper, being about law, will focus primarily on the constitutional basis for the national industrial relations system. The cases are arranged in five broad areas or themes. Four of the themes are concerned with the interpretation and operation of the industrial dispute power in s.51(xxxv). The first theme involves the application of federal industrial laws in relation to the employees of State governments. The second theme deals with the cases that have given life to the constitutional concept of an industrial dispute. The third is concerned with the development of paper disputes and the so-called doctrine of ambit. The fourth deals with the nature of the arbitration power. The final theme deals with the use of heads of power other than s.51(xxxv) as foundations for the federal industrial relations system.
Section 51(xxxv) and the States
 In view of the political controversy surrounding the issue in the Constitution debates and in the new Commonwealth Parliament, it is not surprising that before long the High Court was required to consider the extent to which the federal industrial system was capable of application to employees of a State. In 1905 in Federated Amalgamated Government Railway & Tramway Service Association v New South Wales Railway Traffic Employees Association 3 (Railway Servants’ Case) the question before the Court was whether a union of employees of the New South Wales railways could become registered as an organisation under the Conciliation and Arbitration Act 1904. The Court found that it could not. The finding was based on the application of a principle of constitutional interpretation said to arise from the federal nature of the Constitution – the doctrine of implied immunity of instrumentalities. According to this doctrine the governments of each of the States and of the Commonwealth were sovereign in relation to each other and the laws of the one could not affect the other. It was held that “the doctrine of mutual freedom from interference as between the Commonwealth and State Governments would be sufficient to exclude any implication that sec. 51(xxxv.) was intended to extend to State railways.”4
 Of course the doctrine of implied immunity of instrumentalities would be rejected in Amalgamated Society of Engineers v Adelaide Steamship Company Ltd (Engineers’ Case) 15 years later in 1920. 5 Nevertheless it is interesting to reflect upon this early view of the division of powers between the Commonwealth and the States according to which the exercise of federal jurisdiction could not extend to employees of a State. It might be said that the current legislative scheme, recently upheld by the High Court in New South Wales v Commonwealth6 (Corporations Power Case), effectuates such a division because the new federal industrial system, speaking generally, does not extend to State employees.
 Cases decided after the Railway Servants’ Case but before the Engineers’ Case are to be regarded with some circumspection because of the pervasive influence of the doctrine of implied immunity of instrumentalities. One such case is R v Barger 7 (Barger). Barger concerned a challenge to legislation which exempted employers from duties otherwise payable if they afforded employees fair and reasonable wages as decided by the Arbitration Court. The Court found by majority that relevant sections of the Excise Tariff Act were invalid. While ostensibly an exercise of the power of the Commonwealth to make laws with respect to taxation, the Court characterised the provisions as an attempt to regulate the working conditions of persons employed in the manufacture of agricultural implements – a matter said to be reserved to State legislatures and not within the Constitutional competence of the Commonwealth.8 The decision was influenced by assumptions about the operation of the Constitution similar to those which underlay the doctrine of implied immunity of instrumentalities. But Barger is of particular interest because it reminds us of the Harvester decision,9 100 years old this year. Although Harvester did not survive scrutiny in the Court – for jurisdictional reasons rather than ones related to the intrinsic merit of the decision – it has resonated in the processes for the fixation of wage rates for a century and longer. In the Harvester decision Justice Higgins set out the test by which he would ascertain whether a labourer’s wages were “fair and reasonable.” He declared that the wage should be sufficient to provide water, food, shelter, clothing and “a condition of frugal comfort estimated by current human standards.”10 He continued:
“I cannot think that an employer and a workman contract on an equal footing, or make a ‘fair’ agreement as to wages, when the workman submits to work for a low wage to avoid starvation or pauperism (or something like it) for himself and his family; or that the agreement is ‘reasonable’ if it does not carry a wage sufficient to ensure the workman food, shelter, clothing, frugal comfort, provision for evil days, &c., as well as reward for the special skill of an artisan if he is one.” 11
 Returning to the theme, the effect of s.51(xxxv) in relation to employees of the States arose again in Federated Municipal & Shire Council Employees’ Union of Australia v City of Melbourne (Municipalities Case) in 1919. 12 On this occasion the majority took a more expansive view of the Commonwealth power and showed a disinclination to extend the instrumentalities doctrine. It was decided, with Griffith CJ and Barton J dissenting, that municipal corporations established under State laws were not, with regard to the making, maintenance, control or lighting of public streets, instrumentalities of State Government and were not beyond the reach of paragraph (xxxv). In his judgment Higgins J doubted whether, as a general proposition, State Governments were beyond the reach of the Commonwealth’s industrial dispute power – an indication of what was to come the following year.
 Following the retirement of Chief Justice Griffith, the death of Justice Barton and the appointment of Sir Adrian Knox as Chief Justice and Justice Starke to replace them, there occurred in 1920 a significant milestone not only in the development of industrial law but in the interpretation of the Constitution generally. That was the Court’s decision in the Engineers’ Case. 13 The immediate effect of the decision was to reverse the principle adopted in the Railway Servants’ Case that States and those representing them were immune from the Commonwealth’s exercise of s.51(xxxv) powers, the Court rejecting the notion that there was an implied prohibition on a law made under s.51(xxxv) affecting the governmental functions of a State. The second result was the abolition of the doctrine of implied immunity of instrumentalities – in its application to governmental functions of the Commonwealth so far as State law was concerned, and to the governmental functions of the States so far as Commonwealth law was concerned.14
 The Court set down a new principle of constitutional construction which had the potential to, and in time did, significantly enlarge the legislative power of the Commonwealth. According to that principle:
“[W]here the affirmative terms of a stated power would justify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution.” 15
 This principle of interpretation has survived without judicial challenge, although there is still ample room for debate about its operation. 16 Referring to the constitutional parties the majority said:
“But, once the parties have by the terms they employ defined the permitted limits, no Court has any right to narrow those limits by reason of any fear that the powers as actually circumscribed by the language naturally understood may be abused. This has been pointed out by the Privy Council on several occasions, including the case of the Bank of Toronto v. Lambe. [12 App. Cas., 575 at pp. 586–587.] The ordinary meaning of the terms employed in one place may be restricted by terms used elsewhere: that is pure legal construction. But, once their true meaning is so ascertained, they cannot be further limited by the fear of abuse. The non-granting of powers, the expressed qualifications of powers granted, the expressed retention of powers, are all to be taken into account by a Court. But the extravagant use of the granted powers in the actual working of the Constitution is a matter to be guarded against by the constituencies and not by the Courts.” 17
 The next major change in the law relating to the operation of s.51(xxxv) on State Government employees was some 40 years after the Engineers’ Case in R v Conciliation & Arbitration Commission; Ex parte Association of Professional Engineers, Australia (Professional Engineers’ Case) in 1959. 18 The Association of Professional Engineers served a log of claims on a number of employers, including State Governments, agencies of State Governments and some municipal councils. The Association sought an award to cover employees engaged by those employers in professional engineering duties. The State of New South Wales raised objection to the Commission’s jurisdiction to make an award binding the State or any of its departments or agencies. As appears from the judgment of the Chief Justice, Sir Owen Dixon, there was no attempt to rely upon a limitation in the operation of s.51(xxxv) in relation to State employment. The argument was that employment of professional engineers by a State or its agencies could not give rise to a dispute which was industrial in character.19 The Chief Justice noted that the argument required a distinction to be drawn between “governmental” and “industrial” functions and that it relied on notions of governmental immunity discarded in the Engineers’ Case.20 The Court declared that a dispute which has an industrial character does not lose that character because it occurs in government and went on to find that the nature of the duties usually performed by a professional engineer appear to be industrial although there may be cases in which it is not.
 A very important question was left unresolved in the Professional Engineers’ Case. That question was whether, in relation to State employment, the operation of s.51(xxxv) was subject to any limitation arising from the federal nature of the Constitution. While the case was decided by reference to the content of the adjective “industrial” in its application to the duties of the employees sought to be brought within the Commission’s jurisdiction, the question remained whether any, and if so what, limits might apply to the Commonwealth’s power to legislate in relation to industrial disputes concerning State employees. While the Court expressed the view that the industrial dispute power might not extend to the administrative services of a State, the meaning of that expression was not elaborated upon. The issue was again identified by the Court in 1983 in R v Coldham; Ex parte Australian Social Welfare Union (CYSS Case). 21 While that case is better known for its effect on the law concerning the constitutional concept of an industrial dispute, a context in which it will be mentioned again later, the Court reserved the administrative services exception for further consideration. The Court said:
“It is also unnecessary to consider whether or not disputes between a State or a State authority and employees engaged in the administrative services of the State are capable of falling within the constitutional conception. It has been generally accepted, notwithstanding the Engineers’ Case, that the power conferred by s. 51(xxxv) is inapplicable to the administrative services of the States (see the Professional Engineers’ Case [(1959) 107 CLR, at p. 233.]. If the reasons hitherto given for reaching that conclusion are no longer fully acceptable, it may be that the conclusion itself finds support in the prefatory words of s. 51 where the power is made ‘subject to this Constitution’ (cf. Holmes [(1977) 140 CLR, at p. 90.]). The implications which are necessarily drawn from the federal structure of the Constitution itself impose certain limitations on the legislative power of the Commonwealth to enact laws which affect the States (and vice versa).” 22
 It had been held in Federated State School Teachers’ Association of Australia v Victoria 23 (State School Teachers’ Case), a case which will also be mentioned in connection with the constitutional concept of an industrial dispute, that carrying on a system of public education was not an industrial activity. The CYSS Case overruled the State School Teachers’ Case, and therefore it was no surprise that the content of the administrative services exception should come up again in connection with attempts, ultimately successful, by unions of school teachers to enter the federal system. In Re Lee; Ex parte Harper24 the High Court considered, relevantly, whether a union constituted by state school teachers was capable of being a party to an industrial dispute within the meaning of s.51(xxxv). The Court answered that question in the affirmative. The principle argument against the proposition was that teachers, or at least some of them, are engaged in the administrative services of the State by which they are engaged, and for that reason come within the exception referred to in CYSS and the earlier cases. The Court rejected that proposition, giving full weight to the decision in CYSS and reserving once again for later consideration the content of the administrative services exception.
 The issue was resolved, one hesitates to say finally, in Re Australian Education Union; Ex parte Victoria (Re Australian Education Union). 25 That case occurred as a result of an upheaval in the Victorian industrial relations system. The State of Victoria abolished its system of compulsory conciliation and arbitration of industrial disputes in 1993. A number of unions served logs of claims on, inter alia, the State Government and sought awards from the federal Commission. The Commission made interim awards which purported to restrain the State of Victoria from terminating the services of its employees by offering voluntary redundancies. In a joint judgment six justices found that there is a limitation to be implied from the Constitution as a whole. The limitation applies generally to the grant of power to the Commonwealth and is therefore capable of affecting the operation of various paragraphs in s.51, including paragraph (xxxv), and other sections of the Constitution. The Court expressed the limitation in the following way:
“The limitation consists of two elements:
(1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities (“the limitation against discrimination”) and
(2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments.” 26
 In relation to paragraph (xxxv), the Court found that the limitation operates in two ways. First, the limitation protects the ability of a State to control the number and identity of its workforce, subject to some qualifications. It was held that a State Government could not be deprived of the right to determine “the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of persons whom it wishes to dismiss, with or without notice, on redundancy grounds.” 27 Secondly, the limitation operates to exclude completely particular classifications of State employment and particular State officers from the legislative influence of the Commonwealth. In this respect it was held that State Governments are immune from Commonwealth interference in determining the terms and conditions of engagement of “Ministers, ministerial assistants and advisors, heads of departments and high level statutory office holders, parliamentary officers and judges . . . and possibly others as well.”28 The effect of the limitation is that in State employment generally Commonwealth law can prescribe conditions of employment, other than staffing levels and the term of employment, and may provide for remedies in relation to termination of employment except where the termination is on redundancy grounds. In relation to particular classes of State employees and officers, Commonwealth law can have no operation at all.
 In Victoria v Commonwealth (Industrial Relations Act Case) 29 the Court applied the limitation discussed in Re Australian Education Union to read down various provisions which were expressed to apply to employers generally, so as to limit their application to the States. In the result it was held that the termination of employment provisions did not apply to employees engaged in the administrative services of a State nor to the termination by a State of the employment of its employees where the termination was on redundancy grounds.
 Before leaving this theme it may be of interest to recall that the controversy concerning the reach of the industrial dispute power in relation to the States is now largely moot as a result of the amendments to the Workplace Relations Act in 2006. The operation of the federal industrial relations system is confined for the most part to corporations of the kind identified in s.51(xx) of the Constitution. While a State may choose to delegate functions to such a corporation, in other respects its employees are apparently beyond the reach of the system. Attempts by the States to avoid the operation of federal industrial laws are in the future likely to find expression in controversies concerning the construction of s.51(xx).
What Constitutes an Industrial Dispute?
 The scope of s.51(xxxv), and in particular the meaning of the phrase “industrial disputes”, was considered in Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (Jumbunna) in 1908. 30 That case is significant primarily because it upheld the validity of statutory provisions permitting the registration and incorporation of organisations of employers and employees formed for the primary purpose of industrial representation. The legislation was founded on the incidental power in s.51(xxxix). In the course of their judgments, Griffith CJ, O’Connor and Isaacs JJ all adopted a broad meaning of the term “industrial dispute”. Leaving aside issues relevant to the doctrine of implied immunity of instrumentalities, at that time the received wisdom, the Court’s approach is well captured by the following passage from Griffith CJ’s judgment:
“A question which arises at the outset is, what is an ‘industrial dispute’ within the meaning of the Constitution? It must, of course, be a dispute relating to an ‘industry’, and, in my judgment, the term ‘industry’ should be construed as including all forms of employment in which large numbers of persons are employed the sudden cessation of whose work might prejudicially affect the orderly conduct of the ordinary operations of civil life.” 31
 Justice O’Connor, incidentally the first President of the Arbitration Court, had this to say:
“The use of the word [industrial] in its wider sense does not offend against any prohibition of the Constitution, nor is it inconsistent with any of its provisions . . . It was to remedy the evils of industrial disturbances extending beyond the territorial limits of any one State that the power in question was conferred . . . There seems to be nothing in the Constitution itself to indicate that the power conferred was intended to cover part only of the evils aimed at. The words used are large enough to cover all of them . . . it must always be remembered that we are interpreting a Constitution broad and general in its terms, intended to apply to the varying conditions which the development of the community must involve.” 32
 The Municipalities Case has been mentioned earlier in connection with the operation of s.51(xxxv) in relation to State employees. The case was also significant because of the Court’s rejection of the contention that an “industrial dispute” could only occur in an industry, trade or business carried on for profit. The Court adopted a broad view of the term “industrial disputes”, akin to the view of the majority in Jumbunna. Although this view was later to be narrowed by decisions in relation to State school teachers and others, it was reinstated in the CYSS Case in 1983. 33
 The expansion of the concept of industry was confirmed by the High Court in 1923 in Australian Insurance Staffs’ Federation v Accident Underwriters’ Association (Insurance Staffs’ Case). 34 It was held that disputes between employers and employees in the business of banking and in the business of insurance were capable of being industrial disputes. The unsuccessful argument for the applicant employers, advanced by no less an advocate than Owen Dixon KC, was that it is impossible to apply the word “industrial” to the operations of commerce. Knox CJ and Gavan Duffy J dissented.
 The High Court reinforced the significance of federal awards and their supremacy over State legislation in Clyde Engineering Co Ltd v Cowburn (Clyde Engineering) in 1926. 35 A question arose concerning the legal effect on employment covered by a federal award of a New South Wales statute prescribing a 44 hour standard working week. The federal award in question prescribed a standard working week not of 44 hours but of 48 hours. Knox CJ and Gavan Duffy J emphasised the fact that, if given effect to, the State statute would constitute a variation to the settlement of the federal dispute embodied in the award. For that reason there was an inconsistency between the two instruments which must be resolved in favour of the federal award. Isaacs J, with whom Starke J agreed, articulated the covering the field doctrine as follows:
“If . . . a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.” 36
“If such a position as I have postulated be in fact established, the inconsistency is demonstrated, not by comparison of detailed provisions, but by the mere existence of the two sets of provisions. Where that wholesale inconsistency does not occur, but the field is partly open, then it is necessary to inquire further and possibly to examine and contrast particular provisions.” 37
 Like the Engineers’ Case, this decision is an example of the development of over-arching legal principles in the context of industrial controversies. The Court’s decision a few years later in Ex parte McLean, 38 another case dealing with inconsistency between federal and state industrial laws, is a further example. But the encouragement given by the decision in Clyde Engineering to the growth of the federal industrial system was counteracted by the decision a few years later in the State School Teachers’ Case (1929).39 A union of teachers employed in government schools sought to raise a dispute with the Governments of Victoria and Tasmania in the Arbitration Court. The question which arose was whether a dispute between a union of State school teachers and the Government which employed them was within the constitutional concept of an industrial dispute. The High Court held that the occupation of school teachers was not an “industrial” occupation and that the dispute in question was not an industrial dispute within s.51(xxxv). Isaacs J dissented. In the course of a detailed argument for a broad construction of the term “industrial dispute” he suggested that the judgment of the majority was inconsistent with general language they themselves had subscribed to in the Insurance Staffs’ Case. The decision of the majority, however, rested on the limited proposition that carrying on a system of public education is not an industrial activity. This way of viewing the issue focussed on the output or product of the occupation not on the occupation itself. At all events this narrowing of the notion of an industrial dispute would have an influence which would not finally be dispelled until the Court’s decision in the CYSS Case in 1983.40
 The Professional Engineers’ Case in 1959, while it changed the law significantly so far as State employment was concerned, maintained an approach to the construction of the term “industrial dispute” which gave particular emphasis to the adjective “industrial” for the purpose of characterising the employment in question. This approach drew, not surprisingly, upon the decision in the State School Teachers’ Case. Versions of that approach resulted in State firefighters being excluded from the Commission’s jurisdiction in Pitfield v Franki in 1970 41 and the staff of universities in R v McMahon; Ex parte Darvall (McMahon) in 1982.42 In the latter case Gibbs CJ noted that the prosecutor had not asked the Court to overrule decisions which had narrowed the broad meaning given to the term “industrial dispute” by Griffith CJ and O’Connor J in Jumbunna and decided the case on the assumption the later decisions were correct. Three other justices expressed similar reservations about the course of authority since Jumbunna.43 The judgment in McMahon was delivered on 12 October 1982. If the case represented a missed opportunity for university staff to enter the federal system, the Australian Social Welfare Union was not slow to take the hint. It raised the issue in the course of a challenge to a finding by a Full Bench of the Commission that project officers employed by Community Youth Support Scheme Committees were not engaged in or in connection with an industry – the CYSS Case. The Court heard argument on 8 and 9 March 1983 and gave its joint judgment three months later.44 The decision, consistent with the intimations in McMahon, reinstated the broad approach to the construction of the term “industrial dispute” adopted by Griffith CJ and O’Connor J in Jumbunna and swept away the narrower approaches in the decisions of the intervening years. The Court found that decisions which had limited the meaning of the words contained no consistent rationale for doing so and had not resulted in a settled interpretation of the phrase. The Court’s reasoning is apparent from the following passage:
“The correct approach to the construction of the expression ‘industrial disputes’ in s.51(xxxv) was, we think, expressed by Higgins J. in the Municipalities’ Case (1919) 26 CLR, at pp 572-575 and the Insurance Staffs’ Case (1923) 33 CLR, at pp 528-530 , reflecting the view earlier expressed by O’Connor J. in Jumbunna shorn of its association with the doctrine of intergovernmental immunities. The words are not a technical or legal expression. They have to be given their popular meaning - what they convey to the man in the street. And that is essentially a question of fact. That the expression is ‘industrial disputes’, not ‘disputes in an industry’, as Higgins J. noted, makes quite inexplicable the emphasis given in the later cases to limitations on the power derived from the meaning of the word ‘industry’.
. . .
We reject any notion that the adjective ‘industrial’ imports some restriction which confines the constitutional conception of ‘industrial disputes’ to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.” 45
 This decision was clearly a very significant one. It directly overruled the State School Teachers’ Case and undermined the basis for many other decisions on the scope of s.51(xxxv). Thenceforth, subject to any implication derived from the federal structure of the Constitution, the term “industrial dispute” has been given its popular meaning – “what it conveys to the man in the street”. Of course neither before nor since has the legislature purported to utilise the full extent of the power conferred by s.51(xxxv). The most notable statutory limitation on the constitutional meaning of the phrase was that the jurisdiction conferred on the Commission in relation to industrial disputes has always been confined, leaving aside demarcation disputes, to disputes about matters pertaining to the relations between employers and employees. While the application of the limitation is beyond the scope of this paper, it has itself been productive of much litigation. 46
 The possibility that a dispute extending beyond the limits of any one State could arise through the rejection of a written demand was one which was considered very early in the history of the federal industrial relations system. In Federated Saw Mill, Timber Yard & General Woodworkers Employees’ Association of Australasia v James Moore & Sons Pty Ltd in 1908 47 the High Court considered the relationship between disputes within the jurisdiction of the Commonwealth Court of Conciliation and Arbitration and awards of State arbitral bodies. The majority held that while the Court could make an award inconsistent with an award of a State arbitration court, it had no power to make an enforceable award inconsistent with a determination of a State industrial authority with the power to fix minimum wages. This decision would be overruled not long after, but the case is notable for the spirited attack made by the Chief Justice, Sir Samuel Griffith, on the suggestion that an industrial dispute could be evidenced merely by the rejection of a written demand:
“(12) The term ‘industrial dispute’ connotes something in the nature of industrial war, existing or threatened. Sporadic differences confined to small localities in two or more States, even if they possess all the other elements of substantial identity of subject-matter, cannot be said to extend beyond the limits of one State merely because the parties to the differences in the several States combine in making a request in identical terms to their respective employers.
. . .
(14) The dispute must be actually existing and actually extending beyond the limits of one State before such an occasion can arise. Mere mischief-makers cannot, therefore, by the expenditure of a few shillings in paper, ink and postage stamps create such an occasion.” 48
 The case also contains a particularly vivid account by O’Connor J, a participant in the Convention and Parliamentary debates, of the social context in which paragraph (xxxv) was adopted.
“For many years the majority of people in England and Australia had realized that the settlement of industrial disputes in some more humane and reasonable way than by strike or lockout, with the disturbance of industrial conditions, the bitterness, the cruel consequences to the weak and helpless, the dislocation of trade, the monetary loss to the community which those crude methods involved, was more a matter of national than of private concern. The view steadily gained ground that public tribunals should be created for the settlement of these differences as they arose . . . Most important, also, as throwing light on what must have been in the mind of the legislature, is the fact that some years before the Constitution was framed the people of Australia had seen an industrial dispute, originating in one State, grow into a serious industrial disturbance, spreading over many States, and had thus learned, from bitter experience the need of a tribunal with jurisdiction wide enough to settle industrial disputes extending throughout Australia.” 49
 Griffith CJ’s view that a written demand on its own could not evidence an industrial dispute held sway for a while, 50 but was eventually discarded by a majority of the Court in Merchant Service Guild of Australasia v Newcastle & Hunter River Steamship Co. Ltd [No. 2].51 The development of the paper dispute procedure was to become critical in the extension of the jurisdiction of the Arbitration Court and also an enduring cause for criticism, even ridicule, of the industrial relations system of which it became, in many cases, the integral component. As Callinan J records in the Corporations Power Case, members of the High Court were proclaiming that the procedure was flawed until the early 1920s.52
 Another powerful stimulus to the growth of the federal jurisdiction was provided by the decision in Commonwealth Court of Conciliation & Arbitration v Australian Builders’ Labourers’ Federation; Ex parte Jones in 1914. 53 In that case the Australian Builders’ Labourers Federation had served a log of 32 demands on 560 employers located in five States. A majority of the Court found that there was a dispute extending beyond the limits of one State. Griffith CJ and Barton J dissented. They emphasised the local character of the issues likely to arise as to conditions of work in the building industry and the competence of each of the States to deal with such issues. They held in effect that there were a number of disputes none of which extended beyond the limits of one State.54 This conclusion rested in turn upon a view of s.51(xxxv) which would now be regarded as an historical oddity. Quoting from his own judgment in an earlier case, the Chief Justice said of s.51(xxxv) that it was “a new power conferred upon a legislature of limited jurisdiction, which as a general rule has no authority to interfere with the domestic trade or industry of a State.”55 Be those views as they may, the decision of the majority established once and for all that the service of a log of claims on a large number of employers in a number of States operating on an intrastate basis as well as an interstate one could, if unsatisfied, give rise to an industrial dispute within the meaning of s.51(xxxv).56
 The concept of paper disputes was further developed in Burwood Cinema Ltd v Australian Theatrical & Amusement Employees’ Association (Burwood Cinema Case). 57 The union had served a log of claims upon a number of employers in the theatrical industry in various States and in due course notified a dispute. A number of employers objected to the Arbitration Court’s jurisdiction. While the claims were real and genuine claims on the union’s part, they were not real or genuine claims on the part of any member of the union employed by the applicant employers in the theatrical industry. In some cases the applicants did not employ any members of the union at all and in cases where they did, the members so employed were in fact satisfied with their wages and conditions. The majority held that by registration the union acquired the ability to represent the industrial interests of the class it was established to represent. It followed that the union could itself initiate a dispute with an employer, regardless of the union membership of the employer’s employees and regardless of the views of those employees as to the conditions demanded. Isaacs J was obviously influenced by the consideration that if a union could not create a dispute with an employer which did not employ union members, employers could avoid the federal power by refusing to employ any union members, with significant consequences for the conditions and security of union members.58 That rationale seems to have been accepted in later cases.
 The potential reach of the Arbitration Court’s jurisdiction through the mechanism of paper disputes was confirmed in Metal Trades Employers Association v Amalgamated Engineering Union (Metal Trades Case). 59 It had been held in Australian Boot Trade Employees’ Federation v Whybrow & Co (Whybrow)60 that s.51(xxxv) did not authorise the making of a common rule award. That decision formed the launching pad for the attack on the Arbitration Court’s jurisdiction to make an award binding on an employer in relation to employees who are not union members. In the Metal Trades Case it was contended that the Court could not settle an industrial dispute by making an award binding on employers which did not employ any union members at all as this would be tantamount to a common rule. The Court rejected this analysis. The majority found that the rationale of the Whybrow decision was that an award could not extend beyond the area of the relevant industrial dispute and could only bind the parties to the dispute. Applying the Burwood Cinema Case they held that because the union could initiate a dispute with an employer which did not employ any union members the Arbitration Court could make an award binding on such an employer in settlement of the dispute.61 Echoing the views of Isaacs J in the Burwood Cinema Case, Chief Justice Latham said:
“Unionists may be concerned and apprehensive with respect to any matters which may affect the terms upon which their employers can afford to employ them. If other employers are at liberty to employ non-unionists at lower rates of wages, the competitive efficiency of employers employing unionists may be seriously prejudiced, and the continued employment of the unionists may be jeopardized.” 62
 It was clear from the Burwood Cinema and Metal Trades cases that a union could create a dispute about the terms of employment of non-unionists. In those cases the Court reasoned that the union has an interest in the conditions of non-members because of the potential for those conditions to affect the income and security of members. 63 In a later case, R v Graziers’ Association of New South Wales; Ex parte Australian Workers’ Union in 1957,64 it was argued that an employer could create a dispute with a union as to the terms to be afforded by the employer to non-unionists. The Court decided that it could not. As the Court explained, a union does not represent persons who are not members. For that reason a demand made on a union by an employer as to the conditions to be afforded to employees who are not union members cannot give rise to an industrial dispute.
 The ambit doctrine flourished thereafter, but challenges were mounted occasionally. In R v Association of Professional Engineers of Australia; Ex parte Victoria 65 and R v Heagney; Ex parte ACT Employers Federation,66 in 1956 and 1976 respectively, the High Court again rejected challenges to ambit logs of claims. In each case it was claimed that the demands made were so vague or uncertain as to be incapable of giving rise to an industrial dispute. In the later of the two cases, which must be the high watermark of the ambit doctrine, it was held that so long as the demand was capable of having a meaning assigned to it that was sufficient to create a dispute, even if the demand might be open to more than one interpretation.67 The High Court made an attempt to curtail the excesses to which these decisions gave rise in Re State Public Services Federation; Ex parte Attorney-General (WA) in 1993.68 In that case the State Public Services Federation served a log of claims on several State Governments demanding a minimum wage of $5000 per week plus an additional minimum allowance of $2500 per week for all employees, and that pay and allowances be adjusted quarterly to take account of increases in the cost of living as measured by the consumer price index. All seven members of the High Court found that the rejection of the claims did not give rise to an industrial dispute. The following passage contains a sufficient indication of the court’s view:
“Given the doctrine of ambit and given that there is nothing inherently artificial about written demands, or ‘paper disputes’, it will not often be the case that a written demand with respect to the wages or conditions of employees will be other than a genuine demand. Generally speaking, and whether the question falls for decision in this Court or in the Commission, a demand, as to the wages or conditions of employees made by an organization of employees and authorized by its rules and in accordance with its procedures, will be treated as a genuine demand unless it is plainly fanciful or unless it appears that the demand was made merely to dress up some other claim which, on its own, would not constitute a dispute as defined in s.4(1) of the Industrial Relations Act 1988 (Cth) (‘the Act’).
. . .
[T]here are features which indicate that its [the SPSF’s] demand, if read according to its terms, is, in truth, fanciful. The notion of weekly earnings of $7,500 for all employees, regardless of skill, qualification, or the nature of the work performed, is one that is at odds with established wage fixing principles. And, unless one subscribes to some extravagant, post-modern notion of equal pay involving the same rate of pay regardless of the work or the worker concerned, it is one that is at odds with those general theories and concepts that fashion those principles. Nor is the claim explicable as an ambit claim in which there is some in-built allowance for inflation, for the claim contains an express stipulation that wages and allowances should be adjusted for cost of living increases. These matters persuade us that the demand, if read strictly according to its terms, must be treated as fanciful and, hence, not a genuine demand.” 69
 It was found that the claim was an attempt to attract the Commission’s jurisdiction and was in effect a claim for wages and conditions as determined by the Commission. Such a claim could not give rise to an industrial dispute because the Commission is not a general regulatory body and because “the assent or dissent of employers is entirely irrelevant to a demand of that kind.” 70
 Not unnaturally this decision led to much litigation, predominantly in the Australian Industrial Relations Commission. It provided employers with a means to challenge the Commission’s jurisdiction on the basis that the log of claims in question was so lacking in industrial reality as to be fanciful. This burst of activity culminated some four years later in a decision which reasserted the efficacy of logs of claims in creating disputes and gave further definition to the ambit doctrine. 71 Relevantly the head note to that case reads:
“Although some of the demands, particularly those for wage rates, were excessive and beyond attainment in the short term, the logs provided a framework for further discussion, negotiation, conciliation and arbitration and did not make demands so unrealistic as to suggest a purpose different from the creation of an industrial dispute.” 72
 Before leaving paper disputes some mention should be made of termination of employment cases. Over many years attempts to attract the jurisdiction of the Commission in disputes in which reinstatement in employment was sought, even if successful in the Commission, generally came to grief subsequently in the High Court. In one such case, in which the dispute arose after the termination, the Court found that the dispute did not extend beyond the boundary of the State in which the termination occurred. 73 In other cases attempts were made to generate an interstate industrial dispute about reinstatement in advance of termination occurring. Prior to 1987 those attempts failed, usually because it was found that the claim purported to confer judicial power on the Commission.74 In 1987, however, the proposition that the exercise of a power to reinstate in employment was an exercise of judicial power was the subject of significant re-evaluation in Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (Ranger).75
 In Ranger the Court held that, questions of interstateness apart, the Commission had jurisdiction to consider whether to make an award of reinstatement provided that its purpose in doing so was to ascertain whether a new obligation should be placed upon the employer and not to enforce an existing legal obligation. In the former case the Commission would be carrying out an arbitral function, but not in the latter. The joint judgment contains this classical statement of the relevant distinction:
“The power of inquiry and determination is a power which properly takes its legal character from the purpose for which it is undertaken. Thus inquiry into and determination of matters in issue is a judicial function if its object is the ascertainment of legal rights and obligations. But if its object is to ascertain what rights and obligations should exist, it is properly characterized as an arbitral function when performed by a body charged with the resolution of disputes by arbitration.” 76
 With the judicial power obstacle all but removed, the way seemed clear for the development of the Commission’s reinstatement jurisdiction. But shortly after Ranger another problem arose in Re Federated Storemen & Packers Union of Australia; Ex parte Wooldumpers (Vic) Ltd (Wooldumpers). 77 In that case a union had served a log of claims on the relevant employer in 1986. The log contained demands that all employment should be permanent, that no notice of termination of employment should be given without the prior consent of the union and that employees should be given six months’ notice of termination. In 1988, two years later, the union notified the Commission of a dispute in relation to the termination of employment of a particular employee and sought his reinstatement. On objection being taken by the employer that there was no industrial dispute properly before the Commission, the union invoked the relevant terms of the 1986 dispute. The Commissioner dealt with the 1988 dispute on the basis that it was within the ambit of the dispute created by the employer’s failure to agree to the 1986 demands. The High Court held, however, that the 1988 reinstatement dispute was not part of, sufficiently related to or incidental to the 1986 dispute. Accordingly the proceedings in the Commission failed for want of jurisdiction. While there were a number of separate judgments, it may be said that the Court indicated that if the claim in the log of claims had been formulated differently, the result might also have been different. Indeed the judgment of Deane J tentatively suggested a form of draft claim which might be adequate to create a dispute with ambit for future reinstatement claims.78
 A similar question arose in 1992 by which time a new standard termination of employment claim was in wide use. 79 Perhaps the claim had been formulated after careful consideration of the reasons for decision in Wooldumpers. In any event it fell for consideration in Re Boyne Smelters.80 In August 1990 a union served a log of claims on employers in the aluminium industry. The log included a claim that the employer should not dismiss any employee and, paradoxically, should immediately reinstate any employee dismissed. The Commission found that the log gave rise to a dispute. On the retrenchment of a number of employees from an aluminium smelter located at Boyne Island in 1991 by an employer party to the dispute, the union applied for an award of reinstatement. It relied on the ambit of the reinstatement claims in the 1990 dispute. The Court decided that the 1990 claim was capable of being settled by the award of reinstatement in individual cases of dismissal. It was further held that there was a sufficient connection between the circumstances of the 1991 retrenchments and the 1990 claim. Accordingly the Commission had jurisdiction to conciliate and arbitrate the 1990 dispute so far as it concerned the retrenched employees.
 Through this series of cases, spread over more than 30 years, a way was found to give the national industrial tribunal power to deal with reinstatement cases. It is one of those curious twists, often encountered in the development of industrial law, that within just one more year power would be conferred directly on the Commission to deal with applications for a remedy in relation to termination of employment using not the power in s.51(xxxv) but the power to legislate in relation to foreign affairs found in s.51(xxix).
The Arbitration Power
 The nature of the body envisaged by s.51(xxxv) is a matter which has attracted its share of controversy. While the powers and functions to be exercised by the national tribunal have altered many times in accordance with the will of Parliament, from a constitutional point of view the most significant changes occurred in 1956 and 2005. Some of the earlier cases should be mentioned by way of introduction to those developments. In Waterside Workers’ Federation of Australia v JW Alexander Ltd 81 in 1918 it was held that certain powers which the Conciliation and Arbitration Act purported to confer on the Arbitration Court, including in particular the power to enforce its own awards, were judicial in character and could not be exercised by that Court because its President was not appointed on judicial terms. A case in 1930 concerned the establishment by legislation of conciliation committees to deal with industrial disputes in railways operated by various State Governments and to vary awards previously made by the Arbitration Court. The committees were comprised of equal numbers of employer and union representatives. The Court held that the law establishing the committees was not a law with respect to conciliation and arbitration in the relevant sense because the committees, although not obliged to do so, could make a decree after discussion and without any hearing or determination among the disputants.82
 A major change occurred in 1956 when the constitutional basis for the creation of the Arbitration Court was found to be invalid in R v Kirby; Ex parte Boilermakers’ Society of Australia 83 and the Court ceased to exist. The rationale for the decision was that the judicial power of the Commonwealth cannot be conferred on a body other than a court. Because the powers and functions of the Arbitration Court were primarily arbitral in character it was not a court. The power purportedly conferred on it to direct compliance with its own awards and to punish for contempt were judicial functions which could only be carried out by a court. The High Court’s decision, although by a majority of four to three justices, had been anticipated, however, and the Government enacted remedial legislation. Two new bodies were established, one to carry out conciliation and arbitration functions and the other judicial functions. The first was the Commonwealth Conciliation and Arbitration Commission of which the Australian Industrial Relations Commission is the successor. The other was the Commonwealth Industrial Court whose jurisdiction later passed to the Federal Court.
 The requirement that the new Arbitration Commission exercise only arbitral functions gave rise to occasional difficulty. While it was clear that the Commission could not perform its arbitral functions without deciding legal questions from time to time, more substantial issues required resolution. 84 This was nowhere more evident than in disputes relating to termination of employment in which reinstatement was the remedy claimed.85 Similar issues have arisen in relation to the operation of dispute settlement provisions in awards and agreements. It has been held that an award made in settlement of an industrial dispute may empower the Commission to settle disputes over the application of the award, provided the power is designed to make the settlement effective and enduring.86 In a similar way, and subject to the terms of the legislation, parties may agree to confer a power of private arbitration on the Commission in relation to their legal rights and liabilities under an industrial agreement.87
 In 1996 there was a further significant alteration of the federal industrial system. Some elements of the new regime were considered in Re Pacific Coal Pty Ltd, Ex Parte Construction, Forestry, Mining & Energy Union. 88 The legislation contained provisions limiting the matters which could be the subject of arbitration and award-making. It also included provisions which operated, after an interim period, to render award provisions dealing with certain matters ineffective. These provisions were challenged on the basis that the Parliament was not authorised by s.51(xxxv) to intervene directly in the exercise of powers of conciliation and arbitration. The challenge was rejected by a majority of the justices. The case is also noteworthy for the approving reference made by the Chief Justice to the proposition formulated by Latham CJ in Pidoto v Victoria89 and later adopted and applied by a majority of the Court in the Corporations Power Case.90 In the latter case, the Court also upheld the creation of a wage-setting body with general powers to fix minimum wages and casual loadings for all employees of corporations as well as other employees within the legislative reach of the Commonwealth. The constitutional foundation for the creation of that body is found in parts of the Constitution other than s.51(xxxv) and its jurisdiction is not subject to any of the limitations in that paragraph.
Other Heads of Power
 While s.51(xx) has recently been used to establish a national industrial relations system, this was by no means the first time that powers other than the power in s.51(xxxv) had been used for industrial relations regulation. One early example is Huddart Parker Ltd v Commonwealth (Huddart Parker) in 1931. 91 Regulations made under the Transport Workers Act 1928–1929 provided that in the engagement of waterside workers for interstate and overseas vessels, preference should be given to members of the Waterside Workers’ Federation. A group of ship-owners and stevedores challenged the regulations on grounds which included constitutional invalidity. The Court held by a majority of three to two that the regulations, and the statute under which they were made, were within the legislative competence of the Parliament, more particularly the power in s.51(i) to make laws with respect to trade and commerce with other countries and between the States. The leading judgment, that of Dixon J, contains the following passage:
“Because the power relates exclusively to trade and commerce with another country or among the States, the movement of commodities between States or between this country and another country must be an operation which comes directly within the power and is under its immediate and full control. This operation is incomplete until the goods carried are unloaded, and it begins as goods are loaded for carriage. The question who shall take part in such an operation is to be determined by the legislative power which governs the operation. The question who shall be preferred amongst those ready to take part in it, is one of the same order. Once the power over the matter is established, it becomes irrelevant how, or upon what grounds, or for what motives it is exercised.” 92
 Following this case, s.51(i) became the foundation for a significant extension of the jurisdiction of the Arbitration Court in relation to stevedoring, a jurisdiction which did not require an industrial dispute extending beyond the limits of any one State for its exercise.
 Pidoto v Victoria, 93 briefly mentioned already, concerned a challenge by the State of Victoria to the validity of the National Security (Industrial Peace) Regulations and other regulations made under the National Security Act (1939–1940). The legislation was made pursuant to the defence power in s.51(vi). The regulations were designed to permit the Arbitration Court to deal with industrial disputes of various kinds without regard to the limitations in s.51(xxxv). For example, it was not a pre-condition to the exercise of its powers of conciliation and arbitration that there be a dispute extending beyond the limits of any one State. Purporting to act pursuant to the regulations, a number of employees in the Public Works Department of the State of Victoria applied to the Arbitration Court for arbitration of various grievances. Among the grievances was a claim for additional pay for working on what might be described loosely as public holidays, including the first Tuesday in November 1942.94 The employees worked at an explosives depot located at Truganina and were primarily engaged in the loading of explosives onto ships by means of lighters which the employees also maintained from time to time. For the most part the explosives were destined to be used, either directly, as munitions, or indirectly in the war effort. The jurisdiction of the Arbitration Court depended upon the validity of the regulations. The High Court found by a majority of four to one that the regulations were valid. The Chief Justice, Sir John Latham, formulated a proposition which has recently been the subject of debate and comment in the Corporations Power Case. The proposition is:
“Section 51(xxxv) is a positive provision conferring a specific power. The particular terms in which this power is conferred are not, in my opinion, so expressed as to be capable of being so construed as to impose a limitation on other powers positively conferred.” 95
 No other member of the Court adopted a principle in such wide terms and McTiernan and Williams JJ appeared to adopt the more limited proposition that the operation of the industrial dispute power is subject to the defence power. 96
 In the Corporations Power Case the majority adopted Latham CJ’s proposition, without examining the views of the other members of the Court, on the basis that “the reasoning . . . is compelling and should be followed.” 97
 Apart from the use of the defence power in Pidoto v Victoria there were a number of other instances of the legislature extending the jurisdiction of the Commonwealth tribunal by use of other powers in s.51 in conjunction with the industrial dispute power, notably into the waterfront, maritime and commercial airline industries. Reference has been made earlier to the use of the trade and commerce power in Huddart Parker. This experimentation was taken to a new level in 1993 when the Federal Parliament passed the Industrial Relations Reform Act. That Act made a range of changes in the federal industrial relations system, relying to an unprecedented degree on heads of power other than s.51(xxxv).
 With respect to the industrial relations system itself, the legislation provided for the fixation of minimum award rates by conciliation and arbitration, but otherwise imposed significant limitations on the exercise of the Commission’s powers of arbitration. The legislation invoked the corporations power in s.51(xx) and the foreign affairs power in s.51(xxix), as well as the industrial dispute power, as the foundations for the Act. There were two sets of provisions to which reference should be made in particular. The first contained employment safeguards of various kinds including minimum wages, equal pay and termination of employment. These provisions were based upon various International Labour Organization conventions (ILO) and other ILO instruments to which Australia was a party. The second set of provisions related to enterprise bargaining. They dealt with the taking of protected industrial action, collective bargaining and the formation and implementation of agreements of various kinds. The Court considered the validity of the legislation in the Industrial Relations Act Case. 98
 In considering the provisions based on ILO instruments, the Court set out the approach to be taken where the validity of a law which purports to implement a treaty obligation is challenged on constitutional grounds. Where the law in question prescribes a regime in relation to a domestic matter, to be valid the law “must be reasonably capable of being considered appropriate and adapted to implementing the treaty.” 99 Applying that approach, the Court found that for the most part the provisions dealing with minimum wages, equal pay and termination of employment were a valid exercise of the power in s.51(xxix) either alone or in combination with s.51(xxxv). The termination of employment provisions, however, imposed a criterion that termination of employment ought not be harsh, unjust or unreasonable. Because this was not a criterion derived from the relevant treaty, that part of the Act was invalid.
 A potentially more important aspect of the decision concerned s.51(xx), the power to make laws with respect to, relevantly, trading and financial corporations. The enterprise bargaining provisions providing for the making and certification by the Commission of agreements with such corporations were held to be valid, as were the provisions immunising trade unions from civil liability for damages caused to such corporations subject to the conditions specified in the legislation. This was not the first occasion on which the corporations power had been used in an industrial relations context, but earlier instances tended to be confined to one industry rather than of general application. 100 The Industrial Relations Act Case established the potential for s.51(xx) to play a central role in the entire industrial system both federal and state. That potential was fulfilled last November when the Court upheld the Workplace Relations Amendment (Work Choices) Act 2005 in the Corporations Power Case.
 By the Work Choices legislation, the Parliament established machinery for the resolution of workplace relations disputes including administrative procedures for giving effect to individual and collective workplace agreements, directly established minimum employment entitlements of various kinds, a new commission to fix minimum rates of pay and casual loadings and provided for the rationalisation and simplification of the award system—without any reliance on s.51(xxxv).
 To speak of industrial law in the federal context in 2007 is to run a serious risk of being misunderstood. Once s.51(xxxv) was the touchstone for federal industrial law. Writing in the Australian Law Journal in 1951 the Solicitor General of the Commonwealth put it this way:
“The industrial relations power has been exercised in a long series of Acts of Parliament. It has been one of the main battle-grounds of constitutional interpretation. It has been the most frequently litigated of all the paragraphs in s.51. It has been a major subject of attempts at constitutional alteration.” 101
 The operation of the power has been at the turning point of relations between the Commonwealth and the States since Federation. Now it finds legislative expression only in transitional provisions which are to expire in four years time. The substance of current federal industrial law is founded on the power to make laws with respect to corporations. All of the issues dealt with in the historic cases which have been referred to have been avoided or resolved. While there is still some scope for argument about the application of the federal law to state employees, there is no room or need for debate about the concept of an industrial dispute or the creation of such a dispute by the service of an ambit log of claims. And the content of the phrase “conciliation and arbitration” is a matter, for the present and foreseeable future, of mainly academic interest. These advances have been made, not by constitutional amendment, but by using heads of power other than the power in s.51(xxxv).
 The current legislative scheme has some features which might be thought paradoxical. For example, while the Commonwealth has withdrawn from reliance on s.51(xxxv), the legislation still provides for the exercise of compulsory arbitration powers, although not in the manner provided for and circumscribed by paragraph (xxxv). The Workplace Relations Act 1996 now confers powers of compulsory arbitration on the national industrial tribunal as a substitute for industrial action which is threatening to cause serious economic or social harm. The avoidance of such harm lay at the centre of the case advanced in the Convention debates for a Commonwealth industrial power. Not only can the legislature now confer powers of industrial arbitration without resort to the industrial power, but the constitutional limits imposed upon the industrial power, in particular that it only be exercised in relation to interstate industrial disputes, do not apply.
 There may also be some irony in the fact that reliance on another Constitutional power has enabled the Commonwealth to do something that it could never have done using the industrial dispute power, namely to stop the States from dealing with industrial disputes which do not have any interstate element. The Commonwealth, having elected not to legislate pursuant to the industrial dispute power, has nevertheless invalidated the State conciliation and arbitration systems to the extent that they would otherwise apply to employers and employees covered by the federal system.
 For the first time the Commonwealth Parliament has been able to implement an industrial relations system which can truly be described as national in scope and to do so without reliance on the power included in the Constitution for the express purpose of facilitating the prevention and settlement of industrial disputes. For the present, therefore, the Commonwealth’s industrial dispute power has been packed away and much of the law which it gave rise to has been consigned to the library. One might wonder whether and in what circumstances the power might be exercised again. Another question is whether the important role which the Arbitration Court and its successors played at various times in the industrial and economic life of the nation was in accordance with the intentions of those responsible for the drafting of s.51(xxxv). Speculation about questions such as these, however, is unlikely to distract those responsible for policy formulation for long. Far more interesting for them are the intriguing possibilities for the expansion of Commonwealth influence, not just in workplace relations but in many other areas as well, which the Corporations Power Case has highlighted.
1 Rowse T, “Elusive Middle Ground: A Political History” in Isaac J and Macintyre S (eds), The New Province for Law and Order (Cambridge University Press, 2004) at 18.
2 Rowse, at 19.
3 (1906) 4 CLR 488.
4 Railway Servants’ Case (1906) 4 CLR 488 at 539.
5 (1920) 28 CLR 129.
6 (2006) 81 ALJR 34;  HCA 52.
7 (1908) 6 CLR 41.
8 Barger (1908) 6 CLR 41, especially at 73-8.
9 Ex parte H v McKay (1907) 2 CAR 1 (Harvester).
10 Harvester (1907) 2 CAR 1 at 4.
11 Harvester (1907) 2 CAR 1.
12 (1919) 26 CLR 508.
13 (1920) 28 CLR 129.
14 The so-called “implied prohibition” on which the immunity of instrumentalities doctrine was based was rejected as a foundation for the Court’s earlier decision in D’Emden v Pedder (1904) 1 CLR 91. That decision was said to be based simply on the supremacy of Commonwealth laws.
15 Engineers’ Case (1920) 28 CLR 129 at 154.
16 See Corporations Power Case (2006) 81 ALJR 34 at 95-6, 163 and 198;  HCA 52 at paras 222-5, 587 and ff., 722 and ff.
17 Engineers’ Case (1920) 28 CLR 129 at 151.
18 (1959) 107 CLR 208.
19 Professional Engineers’ Case (1959) 107 CLR 208 at 233.
20 Professional Engineers’ Case (1959) 107 CLR 208 at 234.
21 (1983) 153 CLR 297.
22 CYSS Case (1983) 153 CLR 297 at 313.
23 (1929) 41 CLR 569.
24 (1986) 160 CLR 430.
25 (1994) 184 CLR 188.
26 Re Australian Education Union (1994) 184 CLR 188 at 231.
27 Re Australian Education Union (1994) 184 CLR 188 at 232.
28 Re Australian Education Union (1994) 184 CLR 188 at 233.
29 (1996) 187 CLR 416.
30 (1908) 6 CLR 309 at 361.
31 Jumbunna (1908) 6 CLR 309 at 332-3.
32 Jumbunna (1908) 6 CLR 309 at 367-8.
33 (1983) 153 CLR 297.
34 (1923) 33 CLR 517 (by majority, Knox CJ and Gavan Duffy J dissenting).
35 (1926) 37 CLR 466.
36 Clyde Engineering (1926) 37 CLR 466 at 489.
37 Clyde Engineering (1926) 37 CLR 466 at 490; Knox CJ and Gavan Duffy J subsequently endorsed the approach in Hume v Palmer (1926) 38 CLR 441.
38 (1930) 43 CLR 472.
39 (1929) 41 CLR 569.
40 (1983) 153 CLR 297.
41 (1970) 123 CLR 448. Although the construction of the relevant statutory provisions was the setting, the Court referred to and applied the cases concerning the scope of s.51(xxxv).
42 (1982) 151 CLR 57.
43 (1982) 151 CLR 57 at 60; see also Mason J at 65, Murphy J at 71-3 and Brennan J at 74.
44 CYSS Case (1983) 153 CLR 297.
45 CYSS Case (1983) 153 CLR 297 at 312-3.
46 Examples in the last 35 years alone include R v Portus; Ex parte ANZ Banking Group Ltd (1972) 127 CLR 353; Re Amalgamated Metal Workers’ Union of Australia; Ex parte Shell Co of Australia Ltd (1992) 174 CLR 345; Re Manufacturing Grocers’ Employees Federation of Australia; Ex parte Australian Chamber of Manufactures (1986) 160 CLR 341; Re Cram; Ex parte NSW Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; Re Alcan Australia Ltd; Ex parte Federation of Industrial Manufacturing & Engineering Employees (1994) 181 CLR 96; and Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309.
47 (1909) 8 CLR 465 (Sawmillers Case).
48 Sawmillers Case (1909) 8 CLR 465 at 490-1.
49 Sawmillers Case (1909) 8 CLR 465 at 503.
50 See, for example, R v Commonwealth Court of Conciliation & Arbitration; Ex parte Alan Taylor & Co Ltd (1912) 15 CLR 586.
51 (1913) 16 CLR 705, especially at 710.
52 Corporations Power Case (2006) 81 ALJR 34 at 228-9;  HCA 52 at paras 823-4.
53 (1914) 18 CLR 224 (Builders’ Labourers’ Federation Case).
54 Builders’ Labourers’ Federation Case (1914) 18 CLR 224 at 228-9.
55 Builders’ Labourers’ Federation Case (1914) 18 CLR 224 at 227.
56 For a more recent attack on this practice based on statutory grounds which also failed, see R v Alley; Ex parte New South Wales Plumbers & Gasfitters Employees’ Union (1981) 153 CLR 376. In that case the list of 1992 persons on whom the log of claims was served had apparently been derived mainly from telephone directories.
57 (1925) 35 CLR 528.
58 Burwood Cinema Case (1925) 35 CLR 528 at 536.
59 (1936) 54 CLR 387.
60 (1910) 11 CLR 311.
61 Metal Trades Case (1936) 54 CLR 387 at 411.
62 Metal Trades Case (1936) 54 CLR 387 at 403; see also Rich and Evett JJ at 417.
63 For a later application of these concepts see Re Finance Sector Union; Ex parte Financial Clinic (Vic) Pty Ltd (1993) 178 CLR 352.
64 (1957) 96 CLR 317.
65 (1956) 100 CLR 155.
66 (1976) 137 CLR 86.
67 R v Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86, per Mason J at 100, Murphy J at 106.
68 (1993) 178 CLR 249 (SPSF Case).
69 SPSF Case (1993) 178 CLR 249, per Mason CJ, Deane and Gaudron JJ at 268 and 269.
70 SPSF Case (1993) 178 CLR 249 at 270.
71 Attorney-General (Qld) v Riordan (1997) 192 CLR 1.
72 Attorney-General (Qld) v Riordan (1997) 192 CLR 1 at 2.
73 R v Gough; Ex parte Cairns Meat Export Co Pty Ltd (1962) 108 CLR 343.
74 See, for example, R v Portus; Ex parte City of Perth (1973) 129 CLR 312; R v Gough; Ex parte Meat & Allied Trades Federation of Australia (1969) 122 CLR 237.
75 (1987) 163 CLR 656.
76 Ranger (1987) 163 CLR 656 at 666.
77 (1989) 166 CLR 311.
78 Wooldumpers (1989) 166 CLR 311 at 333.
79 Re Boyne Smelters Ltd; Ex parte Federation of Industrial Manufacturing & Engineering Employees of Australia (1993) 177 CLR 446 (Re Boyne Smelters), see joint judgment at 453.
80 (1993) 177 CLR 446.
81 (1918) 25 CLR 434.
82 Australian Railways Union v Victorian Railways Commissioners (1930) 44 CLR 319.
83 (1956) 94 CLR 254.
84 R v Lydon; Ex parte Cessnock Collieries (1960) 103 CLR 15; Re Cram; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 at 149.
85 Ranger (1987) 163 CLR 656.
86 R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 629.
87 Construction, Forestry, Mining & Energy Union v Australian Industrial Relations Commission (2001) 203 CLR 645 at 658-9.
88 (2000) 203 CLR 346.
89 (1943) 68 CLR 87.
90 (2006) 81 ALJR 34;  HCA 52.
91 (1931) 44 CLR 492.
92 Huddart Parker (1931) 44 CLR 492 at 514-5.
93 (1943) 68 CLR 87 at 121.
94 Colonus by 7 lengths, starting at 33-1.
95 Pidoto v Victoria (1943) 68 CLR 87 at 101.
96 Pidoto v Victoria (1943) 68 CLR 87 at 123 and 127. Rich J was ambivalent on the point, as he expressed “substantial agreement” with Latham CJ and Williams J at 115.
97 Corporations Power Case (2006) 81 ALJR 34 at 96;  HCA 52 at para. 227.
98 (1996) 187 CLR 416.
99 Industrial Relations Act Case (1996) 187 CLR 416 at 487.
100 Actors & Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169; Re Dingjan; Ex parte Wagner (1995) 183 CLR 323.
101 Bailey KH, “Fifty Years of the Australian Constitution” (1951) 25 ALJ 314 at 318.