Usual; but not invariable."It is interesting to note that Montesquieu, whose concern was not with laws but with the action their spirit would inspire, defines laws as rapports subsisting between different beings.... This definition is surprising because laws had always been defined in terms of boundaries and limitations."Hannah Arendt, The Human Condition (Doubleday , New York, 1959), p. 352.
2.
The System of Industrial Relations in Great Britain, ed. Flanders and Clegg (Basil Blackwell, Oxford, 1963), ch. II, "Legal Framework", by O. Kahn-Freund, p. 43.
3.
E.g., "Labour Arbitration in Australia", by Professor E. I. Sykes, reprinted in Australian Labour Relations, ed. Isaac and Ford (Sun Books, Melbourne, 1966), from The American Journal of Comparative Law, Vol. 13, No. 2, Spring, 1964.
4.
Despite the existence of six State and one Federal jurisdiction, there are some good reasons for regarding industrial relations in Australia as comprising one system, though the point is not of profound importance here.
5.
See Conflict and Defense by Kenneth E. Boulding ( Harper Torchbooks, New York, 1963 ).
6.
O. Kahn-Freund , op. cit., pp. 43 and 44. See, too, report by Judith Reid in Society of Public Teachers of Law of the Ford Foundation Workshop on Labour Law held in London in July, 1967.
7.
A blatant version of this theme is seen in Industrial Relations: Contemporary Problems and Perspectives, ed. B. C. Roberts ( Methuen, London, 1962),
8.
ch. 7, "Legal Perspectives" by Olga L. Aikin, 7. See The Concept of Law, H. L. A. Hart (O.U.P., London, 1961), ch. V.
9.
It is easier to maintain this viewpoint in English law since the demise of the forms of action has made the dependence of the remedy on the legal right quite explicit.
10.
Olga L. Aikin , op. cit., p. 195.
11.
The same sort of limitation is found in Labour Relations and the Law, ed. O. Kahn-Freund (Stevens, London, and Little Brown, Boston, 1965).
12.
Compare, for example, The Worker and the Law, K. W. Wedderburn ( Penguin Books, 1965),
13.
and the same writer's invaluable Cases and Materials on Labour Law (Cambridge University Press, 1967).
14.
The precision is more apparent than real, chiefly because of the development of judicial interpretation of constitutional provisions. It is impossible to document the process here, but a glimpse of it can be obtained from Federal Industrial Laws (4 ed.), ed. C. P. Mills and G. H. Sorrell (Butterworths, Australia, 1968), espec. Introduction, pp. 49ff.
15.
The Queen v. The Commonwealth Conciliation and Arbitration Commission and Others; Ex parte Amalgamated Engineering Union (Australian Section ) and Others (1967), 41 A.L.J.R. 245, at 253.
16.
Ibid., at p. 264.
17.
Waterside Workers' Federation v. Commonwealth Steamship Owners' Association (1920), 28 C.L.R. 209.
18.
(1956), 94 C.L.R. 254.
19.
On this, generally, see Mills and Sorrell, op. cit., pp. 358-365, 373-381, and "The Practice of the Commonwealth Industrial Court in Strike Cases", C. P. Mills, The Australian Lawyer , Vol. 7, p. 137, 1968.
20.
For practical purposes, and despite the "cooling-off" provisions of s. 109A enacted in 1965.
21.
See R. v. Austin; Ex parte Farmers and Graziers Co-operative Co. Ltd. (1965), 112 C.L.R. 619.
22.
See, for example, The Builders' Labourers' Case (1914 ), 18 C.L.R. 224.
23.
See Australian Railways Union v. Victorian Railway Commissioners (1930), 44 C.L.R. 319.
24.
Australian Boot Trades Employees' Federation v. Whybrow (1910), 11 C.L.R. 311.
25.
Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association (1925), 35 C.L.R. 528. See, too, Some Principles and Sources of Australian Constitutional Law, P. H. Lane (The Law Book Co. of Australasia, 1964), pp. 58-9, where the matter is discussed somewhat more fully than here. Professor Lane uses the term "groupism" where I find, purely as a matter of taste, "corporative" to be preferable.
26.
See Conciliation and Arbitration Act 1904-1967, s. 4, definitions of "industrial matters" and "industrial disputes", and s. 23.
27.
See R. v. Hamilton Knight; Ex parte Commonwealth Steamship Owners' Association (1952), 86 C.L.R. 283.
28.
R. v. Spicer; Ex parte Seamen's Union of Australasia (1957), 96 C.L.R. 341.
29.
See Re Vehicle Industry Award; Re General Motors-Holden , 1966Australian Industrial Law Review, Rep. 323.
30.
On this see Essays on the Australian Constitution , ed. Else-Mitchell (Law Book Co. of Australasia, 1961), ch. V, "The Trade and Commerce Power", P. D. Phillips, pp. 142-143.
31.
On this, see Mills and Sorrell, op. cit., p. 319. The point, with which I agree, was made, I think, by C. P. Mills. S. 51 (1) of the Constitution empowers the Parliament to make laws for the peace, order and good government of the Commonwealth with respect to trade and commerce with other countries, and among the States. S. 98 supplements this by expressly providing that this power extends to navigation and shipping, and to railways the property of any State.
32.
Though there have been recent indications that the High Court is not indissolubly tied to the Barger decision. See Fairfax and Ors. v. The Commissioner of Taxation (1965), 39 A.L.J.R. 308.
33.
Royal Commission on Trade Unions and Employers' Associations: Research Paper 3 (H.M.S.O., London, 1966).
