THE COMMONWEALTH OF AUSTRALIA AND ANOTHER V. THE STATE OF QUEENSLAND AND ANOTHER

THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

THE STATE OF QUEENSLAND AND ANOTHER

MASON C.J. WILSON _J. BRENNAN J. DEANE J. DAWSON JUDGMENT TOOHEY J.

CORAL) GAUDRON J. 5.11.87

THE COMMONWEALTH OF AUSTRALIA AND ANOTHER

Vv.

THE STATE OF QUEENSLAND AND ANOTHER

On the hearing of this demurrer to the plaintiffs' action for declaratory relief the question arose whether this Court should in the exercise of its discretion to grant relief of that kind proceed to determine the matters sought to be raised in the action and by the defendants' demurrer. By their statement of claim the plaintiffs originally sought a

declaration -

" that each of sections 6, 7, 8, 8A, 28 and Part Ill of the Industrial (Commercial Practices) Act (Queensland) 1984-1987 is inconsistent with the: - Conciliation and Arbitration Act 1904;

- Trade Practices Act 1974; - Crimes Act 1914

and is to that extent invalid".

The main thrust of the plaintiffs' case is that the

relevant provisions of the Industrial (Commercial Practices)

Act ("the Queensland Act") are inconsistent with the provisions of ss.45D and 45E of the Trade Practices Act 1974 (Cth) and with s.30K of the Crimes Act 1914 (Cth) and are to

that extent invalid. The plaintiffs ask us to determine as

abstract questions of law important and complex questions which are necessarily involved in the making of such a declaration. The statement of claim does not allege or particularize an actual case in which an issue as to the validity or operation of the Queensland Act has arisen for decision. The plaintiffs' counsel concedes that, even if

the plaintiffs' arguments are accepted by this Court, the provisions of the Queensland Act will have some valid operation by reason of the presence in that Act of a reading down provision (s.5). Just what that valid operation might be would depend on a consideration of the ambit of a number of heads of Commonwealth legislative power in their application to a wide variety of hypothetical factual situations. The Court would not undertake the task of charting in the abstract the outer limits of a legislative power of the Commonwealth in order to ascertain what the valid operation of a State law might be. Moreover, to determine the operation of the Queensland Act would call for an interpretation of its provisions as they might apply to