R v Murray; Ex parte Proctor [1949] HCA 10

High Court of Australia Latham C.J. Dixon, McTiernan, Williams and Webb JJ. R v Murray; Ex parte Proctor [1949] HCA 10

ORDER Order absolute for writ of prohibition against all respondents other than Caldwell. Costs to be paid by the respondent union.

The following judgments were delivered:—

Latham C.J.

The prosecutors in these proceedings are the members of a firm, the Burgowan Coal Co., which controls a colliery in Queensland known as Burgowan No. 10. The individual respondents are persons joined in the proceedings who are or who have acted as members of a Local Reference Board, established under the Coal Mining Industry Employment Regulations. These regulations were originally made under the National Security Act, 1939, as amended, and were continued in operation by the Defence (Transitional Provisions) Acts, which have been passed after the expiry of the National Security Act. The last relevant Act is the Defence (Transitional Provisions) Act 1947, No. 78, which purported to continue the regulations in operation until 31st December 1948. The other respondent is the Queensland Colliery Employees' Union.

A dispute arose between the union and the firm upon the question whether the employer should have the power of requiring contract miners to build cogs, which constitute a particular form of mine timbering.

This dispute was referred to a Local Reference Board under the regulations, and that Board ultimately, on 7th December 1948, made an order in favour of the contention of the union. The prosecutors obtained an order nisi for prohibition against the enforcement of the order. The grounds of the order nisi are, first:—"That the Defence (Transitional Provisions) Act 1946-1947 in so far as it purports to continue in force the National Security (Coal Mining Industry Employment) Regulations is beyond the powers of the Parliament of the Commonwealth and void," and secondly:—"That the Defence (Transitional Provisions) Act 1946-1947 in so far as it purports to continue in force Part III. of the said Regulations is beyond the powers of the Parliament of the Commonwealth and void." It is not necessary in the view which we take of the case to reach any decision upon these grounds.