In Search of the Magic Pudding
Essential Services Legislation---Magic Pudding or Boarding School Blancmange
David Russell QC
'It's obvious that measures have to be taken. Drastic measures,'' said James Taggart, speaking, not to Mr Thompson, but to Wesley Mouch. 'We can't let things go the way they're going much longer.' His voice was belligerent and shaky.
'Take it easy, Jim,' said Orren Boyle.
'Something's got to be done and done fast!'
'Don' t look at me,' snapped Wesley Mouch. 'I can't help it. I can't help it if people refuse to co-operate. I'm tied. I need wider powers.' 1
Outline and Scope
The former UK Prime Minister, Harold Wilson, is credited with the first public expression of the proposition that 'A week is a long time in politics'.2 In the face of such wisdom expressed by so eminent a practitioner of the political arts, one necessarily is reticent to make long-term predictions about issues which will be significant in political debate in the future. None the less, it seems a reasonably safe prediction that the desirability or otherwise of essential services legislation will continue to agitate the minds of our politicians for some time to come.
Essential services legislation has now been enacted under that name in Victoria,3 Queensland4 and New South Wales5, the then Opposition's policy that it be introduced having played a significant part in the recent election campaign in the last-mentioned State. The Victorian Opposition has foreshadowed revamping of, and increased reliance upon, that State's Essential Services Act should it win the next election,6 and the introduction of such legislation is a major plank of the Federal Opposition's Industrial Relations Policy, which inter alia provides:
'5.18 Industrial action may sometimes pose a real threat to public order, or to the safety, health or life of individuals. The States have at their disposal a variety of essential services legislation, and where such threats arise in State jurisdictions, they will be best able to act accordingly.'
'5.19 The Commonwealth currently has no essential services legislation. We will enact comprehensive legislation to protect the public and the national interest in the Commonwealth area where unacceptable threat to health and safety arises, and where economically essential services or the defence of Australia are prejudiced.' 7
As is usual in the industrial area, the terminology used here is more likely to confuse than to illuminate the argument. It would seem from the foregoing that to the Opposition provisions such as section 30J and 30K of the Crimes Act and subsection 45D(lA) of the Trade Practices Act do not warrant the description of 'essential services legislation'. Yet these provisions prohibit industrial action which obstructs or hinders transport of goods or passengers between the States within territories or in international transactions, or obstructs or hinders the provision of public services by the Commonwealth or its public authorities, which in some cases at least clearly fall within the definition of 'essential services'. In this paper, in referring to 'essential services legislation', I shall be referring to the legislative schemes established by the Victorian, Queensland and New South Wales Essential Services Acts, the Queensland State Transport Acts 1938 to 1943, the Victorian Public Safety Preservation Act 1958, Vital State Projects Act 1976 and Fuel Emergency Act 1917 and sections 30J and 30K of the Crimes Act.
The Crimes Act provisions were enacted by the Commonwealth Parliament at the request of the Bruce Government in 1926. One Proclamation of Emergency has been made pursuant to section 30J.8
The first State essential services legislation was the Public Safety Preservation Act 1928 (Victoria). It was followed by section 22 of the State Transport Act 1938 (Queensland), enacted by the State's Parliament at the request of the Forgan Smith (Labor) Government. The latter provision provided that---
'Where at any time it appears to the Governor in Council that any circumstances exist or are likely to come into existence within the State or within any part of the State, whether by fire, flood, storm, tempest, act of God or by reason of any other cause or circumstance whatsoever whereby the peace, welfare, order, good government, or the public safety of the State or any part thereof is or is likely to be imperilled, the Governor in Council may, by Proclamation published in the Gazette (in this section referred to as a 'Proclamation of emergency') declare that a state of emergency exists in the State or within such part of the State as may be defined in such Proclamation. Every such Proclamation of emergency shall be in force for the period specified therein not exceeding three months but may be a further Proclamation or further Proclamation of emergency be extended from time to time for a further period or periods no one of which shall exceed three months.
When any such Proclamation of emergency is in force in the State or in any part of the State, the Governor in Council may by Order in Council give such directions and prescribe such matters as he shall deem necessary or desirable to secure the peace, welfare, order, good government, and/or the public safety of the State or any part of the State according as a state of emergency has been declared under this Act to exist within the State or within such part thereof. And without limiting the generality of such powers the Governor in Council may make provisions for securing the essentials of life to the people generally or, in any particular case, the securing and regulating of the supply and distribution of food, water, fuel, light and/or other necessities, the provision and maintenance of the means of transit, transport, locomotion, and/or other services, and prescribing such other acts, matters, and things as the Governor in Council shall consider necessary or expedient to give effect to any such Order in Council.
And every such order and direction shall be obeyed and have full force and effect accordingly.'
Section 23 of the Act imposed a penalty of 100 pounds, now increased to $1,000, for non-compliance with a provision of the Act, which includes a direction under section 22.
Hansard records9 that no member of the Parliament voted against the Bill, or this clause in the Committee stages.
It was also a Labor Government (the Hanlon Government) which first used the section in an industrial context, pursuant to a Proclamation of Emergency gazetted on 27 February 1948.10 Resort to the provision has since been made in 1964 (Mt Isa miners' strike),11 1971 (Springbok Rugby tour),12 1981 (transport strike),13 1982 (shorter working week campaign)14 and 1985 (electricity dispute)15.
The provisions of the Queensland Order in Council made in connection with the electricity dispute were subsequently enacted as the Electricity (Continuity of Supply) Act 1985. This Act has now been largely repealed, although provisions imposing certain penalties (liability to dismissal and loss of benefits) upon striking employees in the electricity industry have been enacted as part of the Electricity Authorities Industrial Causes Act 1985-1988.
Given the ambit of the powers conferred by section 22 of the State Transport Acts, it is not easy to identify any additional advantage achieved by the enactment by the Queensland Parliament of the Essential Services Act in 1979. Since its enactment, Proclamations of Emergency under it have been made in 1980 (electricity strike)16 and 1982 (transport strike).17 The fact that the State Transport Acts procedures have been used since that time suggests that they are considered more effective.
The Public Safety Preservation Act was in slightly more circumscribed terms than section 22 of the Queensland State Transport Acts. The Proclamation of Emergency might only be made for one month, although it was renewable (section 3), any action thereunder was to be taken by Regulation (section 4), and unless such Regulations were 'for or with respect to securing the essentials of life to the community or any substantial proportion of the community' and similar objects, they might not provide for 'industrial conscription' or make it an offence to go on strike or peacefully incite others to do so (sections 5, 7 and 8). It was re-enacted in 1958.
|Service||Commonwealth Crimes Act||Victoria Section 3
Section 3(1) Essential ServicesAct
|New South Wales Section 41 Essential ServicesAct|
|(a)(i)(public||(b) transport other than taxis only)|
}electricity ) (a)
|Sewerage||-||(f)||(a)(vii||(g) (includes garbage and sanitary cleansing in each case)|
|(g)||(c)(K)(includes supply of goods)|
|-||(b) and (c)(1)|
In 1948, the Victorian Parliament enacted that State's Essential Services Act. It was re-enacted in 1958. Proclamations of Emergency under that Act were made in 1982 (transport strike)18 and 1986 (milk suppliers bans)19. That Act does not contain the limitations previously referred to in respect of the Public Safety Preservation Act, but applies to a more restricted list of services.
This legislation was followed in 1976 in the Vital State Projects Act. The Construction of the Newport Power Station was declared a 'vital state project' by resolution of both Houses of Parliament in 197720.
In 1977, The Victorian Parliament enacted the Fuel Emergency Act 1977.
The New South Wales Essential Services Act was enacted in 1988.
There do not appear to be any similar provisions in the legislation of the other States, although this observation should be qualified by the fact that in my research I have looked principally for legislation with similar titles to those Acts listed above. There may well be similar provisions in more innocuous-sounding legislation: indeed, the earlier of the Queensland provisions may be thought to be inappropriately located.
Ambit of Essential Services Legislation
At the outset, it is necessary to identify what is an 'essential service' for the purpose of the legislation. Each of the Acts under consideration, (other than the Queensland State Transport Acts and the Victorian Public Safety Preservation Act contains a definition of the term. These services which have been so specified are listed in Table 1.
These lists contain a bias towards services provided by Governments, both implicitly in the nature of the services to which they apply and explicitly in qualifications to the lists in the Victorian and Queensland Acts. The Victorian Essential Services Act applies in relation to services provided by 'the Metropolitan Tramways Board, the State Electricity Commission of Victoria, the State Rivers and Water Supply Commission, the Melbourne and Metropolitan Board of Works, the Geelong Waterworks and Sewerage Trust', various statutory authorities under the Water Act 1958, the Sewerage Districts Act 1958, and the Gas Regulation Act 1958, and 'any other person or body specified (whether generally or specially and whether that person or body is a person or body representing the Crown or not, which is proclaimed'. The Queensland Essential Services Act is similarly restricted expressly to public bodies, e.g. 'public transportation...other than taxis', and 'hospitals administered under the Hospitals Act' and the residual power to declare essential is limited to services or facilities concerned with public health or a public utility.
The New South Wales Essential Services Act breaks new ground in treating services provided by persons other than governments as 'essential services'.
|Crimes Act||Section 30J||Proclamation by the Governor-General that there exists in Australia a serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States|
|Public SafetyPreservation Act 1958 (Victoria)||Section 3||Proclamation of Emergency by Governor in Council for period not exceeding one month (renewable)|
|State Transport Acts 1938-1943||Section 22||Proclamation of Emergency by Governor in Council for period not exceeding three months (renewable)|
|Essential Services Act 1948 (Victoria)||Subsection 4(1),(3),(4) (Victoria) (renewable)||Proclamation of Emergency by Governor in Council for period not exceeding one month|
|Vital State Projects Act 1975||Subsection 2(1)||Resolution of both Houses of Parliament or Proclamation by Governor in Council in relation to project specifically authorised by Act of Parliament|
|Fuel Emergency Act 1977||Section 3||Proclamation of Emergency by Governor in Council for period not exceeding 7 days (Victoria) (renewable)|
|Essential Services||Subsections||Proclamation of Emergency by Governor in Council|
|Act 1979 (Queensland)||5(1),(4)||for period exceeding one month, (Queensland) (renewable)|
|Essential ServicesAct 1979 (Queensland)||Subsections24(1),25(1)||Order in Council that those sections (or one of them) applies in relation to strike in question|
|Essential Services Act 1988 (New South Wales)||Subsections 8(1),(4),(5)||Proclamation of Emergency by Governor in Council for period not exceeding one month (renewable)|
Circumstances for Operation of Legislation
With the exception of section 30K of the Crimes Act, each of the provisions under discussion above is dependent for its operation upon further act of the Executive Government as set out in Table 2.
Each of the State Essential Services Act provides that once a Proclamation of Emergency is in force, a Minister designated in the Proclamation may exercise wide powers, including:
- the giving of directions what services shall be maintained and the terms and conditions of their operation (Vic. para. 5(3)(a), Qld para. 6(2)(b));
- the giving of directions to persons to operate and maintain services upon terms specified in the direction (VIC. para. 5(3)(b), Qld. para. 6(2)(c), NSW para. 11(i)(b));
- rationing of the essential service (Vic. para. 5(3)(c), Qld. para. 6(2)(d));
- prohibition of operation or use of the essential services (Vic. para. (5)(3)(d), Qld. para. 6(2)(c));
- requisitioning of property in connection with maintenance or operation of the essential service (Vic. para. (5)(3)(e), Qld. para (6)(2)(f));
- control of storage and preservation of property used in provision of the service (Vic. para. 5(3)(f), Qld. para. (6)(z)(h));
- the giving of directions necessary to regulate, control, direct, restrict or prohibit the provision of the essential service and the activities of any person involved in the provision of the essential service (NSW para. 11(i)(e));
The Victorian Fuel Emergency Act confers similar powers on the relevant Minister, although they are restricted to matters affecting fuel supply. The powers conferred by the Public Safety Preservation Act and the State Transport Acts have already been mentioned.
These powers, and others not listed above, provide ample basis for the Minister concerned to give any direction he wishes, including directions not to engage in industrial action. The possibility of unreasonable directions, frequently raised in political debate on legislation of this sort, can be disregarded since the law implies a requirement that any direction be reasonable and relevant having regard to the purpose for which the power was conferred.2l
The Crimes Act, by way of contrast, simply creates offences of aiding, abetting or participating in strikes (section 30J) or obstruction or hindrance by way of threat or intimidation or boycott (section 30K). The Vital State Projects Act creates similar offences to section 30K in relation to work on a declared project.
The practical consequence of these provisions is that an offence will be committed where a direction is under the carious State Acts and not complied with, or the requirements of the legislation itself are contravened. The prescribed maximum penalties are as set out in Table 3.
Both Queensland Acts provide that unpaid fines are to be collected as civil debts rather than by way of imprisonment in default of payment: State Transport Acts Section 23A, Essential Services Act section 36.
Other provisions in the State Essential Services Act include:
- compensation for persons complying with directions under the Act (Vic. section 9, Qld. sections 11-13);
- prohibition of strikes in essential services not preceded by secret ballot (Vic. sections 11,12);
- prohibition of lockouts in essential services (Vic. section 13, Qld. section 37);
- prohibition of intimidation of persons performing services during proclamation period (Vic.section 14, Qld. section 15);
- modification of conciliation and arbitration procedures (Qld. sections 17-22, NSW sections 15-16);
- evidentiary aids (Qld. sections 33, 38).
In addition, the Wrongs (Public Contracts) Act 1981 (Victoria) provides for civil liability of employee associations to the Crown or prescribed public authorities for losses caused by industrial action on major public works declared as such by the Victorian Parliament or the Governor in Council. It contains a number of evidentiary aids similar to the Queensland Essential Services Act.
Essential Services Legislation and Common Law
(including Analogous Statutory Provisions)
The width of the provisions of essential services legislation stands in high contrast to its efficacy in practice. There have been two Proclamations of Emergency under the Victorian Essential Services Act, one declaration of a project for the purposes of the Vital State Projects Act, two Proclamations of Emergency under the Queensland Essential Services Act and six under the State Transport Acts.
|Crimes Act||Sections 301||1 year's imprisonment (a fine may be imposed|
|(Commonwealth)||and 30K||in lieu see section 16)|
|Public Safety||Section 9||Fine $200 or 3 months' imprisonment|
|State Transport||Section 23||Fine $1,000|
|Essential Services||Subsection||Fine $1,000 or 6 months imprisonment|
|Vital State Projects||Subsection 8(3)||Fine $50,000 (Union) $10,000 (Individual)|
|Fuel Emergency||Section 9||Fine $1,000|
|Essential Services||Employees:||Fine $1,000 and daily penalty $50|
|Act (Queensland)||Subsection 9(1)|
|Termination of employment|
|Termination of employment|
|Fine $10,000 and daily penalty $500|
|Civil liability for loss caused|
|Deemed vacation of office|
|Essential Services||Employees:||Fine $1,000|
|Act (New South||Section 26|
|Unions: Section||Suspension of registration or deregistration|
It is interesting to note that when the Vital State Projects Act was relied upon in the Newport Power dispute, the Government of the day had no great confidence that such reliance would be effective.22
Whilst these provisions have been relatively little used to prevent strikes, common law remedies and their statutory equivalents in section 45D of the Trade Practices Act and the Industrial (Commercial Practices) Act (Qld) have been widely used and regarded as industrially effective.23 This raises the question whether the difference is inherent in the nature of the alternative remedies, or coincidental. The differences between the remedies include the following in Table 4.
|Parameter||Essential services legislation||Common Law and analogous statutory remedies|
|Application||Industry Selected (largely Government)||Universal|
|temporal||During Proclamation of Emergency||Universal|
|Penalty for infringement||Fine (or imprisonment) in Victoria and New South Wales||Civil liability to injunction or damages|
|Persons entitled to enforce rights||Minister named in proclamation||Any person (where statutory injunction sought)
Any person suffering loss (where Common Law injunction or damages claimed)
|Consequence of enforcement||Fine paid to Crown (in Queensland only, collectable by civil process)||Loss recovered|
This comparison provides strong support for the view that the comparative success of common law and similar remedies is a direct result of the differences listed. Dealing with each in turn:
- Most attempts by governments to invoke essential services legislation will be seen as discriminating against the employees involved. There is something particularly indefensible about governments, who have the power to create a fair industrial environment, unilaterally arrogating to themselves advantages in dealing with a dispute not available to other participants. Many would argue that whoever else is entitled to escape from the absurdities of the Australian industrial relations system, the governments who created and maintain it are not. In any event, the definition of some services as 'essential' and others as not so involves questions of degree and value judgments which are unlikely to be satisfactory and ignore the fact that in a modern economy of interdependence of enterprises is such that few services could be categorically described as non-essential.
- The taking of a positive act in the context of an industrial dispute such as the making of a Proclamation of Emergency will itself be regarded by unions, the media and others as an act of provocation which will tend to exacerbate the dispute. It will therefore tend to widen the dispute, since it will usually encourage sympathy action by exposing responsible union elements to the allegation of 'scab' or 'backslider' if they do nothing, and heighten tension, particularly since the draconian nature of the powers conferred will inevitably be the subject of media comment. Where legislation is in such vague terms, use of the Proclamation device is necessary for civil liberties reasons: it can be avoided if the provisions which are to apply can be identified in advance and made part of the generally applicable law, as in section 24 of the Queensland Electricity Authorities Industrial Causes Act.
- Criminal proceedings have the consequence that any fines will probably not be paid, leaving governments (except in Queensland) with the alternatives of not collecting the fines and seeing the law openly flouted, or seeking to imprison the defaulters with the industrial consequences demonstrated in the O'Shea case.24 Civil proceedings for breaches of a generally applicable law, on the other hand, cannot so readily be represented as persecution, do not involve the media 'flashpoints' in enforcement such as police arresting uncooperative persons, and involve the application to the facts in issue of legal principles well understood and applied in other areas of the law, namely that the deliberate infliction of harm or breach of contract entitles the injured party to remedy.
- The taking of action by the Crown rather than an injured party plays into the hands of those seeking to portray any action against unions as persecution and involves the government in the dispute. Individual parties who have been injured are much more free to act and are not subject to pressure applied to other elements of government or subject to political pressures. It can hardly be contended that these pressures do not exist: the dairy farmers' actions in Victoria in 1986 did less to disrupt essential services than either the nurses' strike in 1986 or the recent transport and electricity strikes, yet it was the former conduct rather than the latter which resulted in the most recent use of the Victorian legislation.
- A belief in the rule of law involves acceptance of the principle that the law should apply equally to all. Singling out unions or their members for special treatment, be it favourable or adverse, detracts from the rule of law. Experience overseas suggests that this principle is understood by the public, demonstrated by the comparative support for, and ultimate success of, the Thatcher Government's trade union reforms, which have proceeded by way of increasing the exposure of trade unions to ordinary civil remedies before the ordinary Courts25, as opposed to the Heath Government's Industrial Relations Act 1971 which sought to establish a separate system of law for industrial relations overseen by a National Industrial Relations Court.
- The civil Courts have demonstrated that wide-scale violence can be suppressed by civil action as well as by remedies such as arrest without warrant.26
- The possibility of an action for recovery of pecuniary penalty by the Minister administering the Act provided for in both the Trade Practices Act and the Industrial (Commercial Practices) Act may be thought to lie oddly with the conclusions expressed above. No such action has been brought in the context of sections 45D and 45E of the Trade Practices Act, whilst the few occasions on which such an action has been brought under the Industrial (Commercial Practices) Act involved circumstances of widespread loss by the community generally in the context of the Queensland legislation. As a matter of philosophy, a ministerial action of this type could well be replaced with the right of individuals to bring a class action coupled with legal professionals being authorised to charge on a contingency fee basis.
Summary and Conclusion
Theodore Roosevelt is credited with the proposition
'Speak softly and carry a big stick; you will go far' 27
It is a common feature of the underlying principle and practical application of each of the examples of essential services legislation discussed in this paper that it reflects the contrary view that problems of this sort are addressed by much noise and little effective action. Essential services legislation has not provided, and is unlikely in the future to provide, any practically useful response to misuse of trade union power in essential service industries and is inferior to a common law regime or a statutory formulation embodying common law principles. This view appears to be shared by the Commonwealth Government, whose Industrial Relations Bill if enacted will limit to some extent the operation of both the Industrial (Commercial Practices) Act and the Wrongs (Public Contracts) Act but will not affect the other legislation discussed in this paper by reason of clauses 164 to 167 of the Bill.
The advantage of a statutory code such as sections 45D and 45E of the Trade Practices Act and the Industrial (Commercial Practices) Act is the simplicity of clearly stated law. In such a code the relevant principles can be properly formulated so as to enable debate upon their merits as legal propositions. Given that the common law remedies are relatively poorly known and their discussion confused,28 there is in my view a strong case for codification.
Such a code would:
- provide for civil rather than criminal penalties;
- provide that rights available apply generally to all persons and are broadly consistent with common law principles;
- provide that the rights are enforceable in the ordinary Courts.
At the risk of being accused of parochialism, I suggest
that as an appropriate model, the Queensland Industrial
(Commercial Practices) Act 1984-1987 is a good
starting-point for drafting legislation of the type
1 Rand:Atlas Shrugged (1957) Random House, New York p.500.
2 Wilson: Oxford Dictionary of Quotations (1965-6),574:18.
3 Essential Services Act 1958 (reenacting Essential Services Act 1948).
4 Essential Services Act 1979.
5 Essential Services Act 1988.
6 Liberal and National Industrial Relations Policy (1988) Canberra.
7 Liberal Industrial Relations Policy, May 1988, Melbourne.
8 Commonwealth Government Gazette 1950 No. 17 23 March, revoked No. 22 20 April.
9 Queensland Parliamentary Debates, 3 November 1938, p.l, 475.
10 Queensland Government Gazette Vol. CIXX No. 38, 27 February 1948, p.649.
11 Ibid. Vol. CCXVII No. 61,10 December 1964, p.l, 455.
12 Ibid. Vol. CCXXXVII No. 86, 14 July 1971, p.l, 503.
13 Ibid, Vol. CCLXVII No. lOOA, 24 July, p.2, 042A.
14 Ibid. Vol. CCLXX No. 121 26 July 1982.
15 Ibid. Vol. CCLXXVIII No 25A 7 February 1985.
16 Ibid. Vol. CCLXIII No. 60, 27 March 1980, p.1, 079.
17 Ibid. Vol. CCLXX No. 130 16 August 1982.
18 (Transport Strike P/E))
19 (Milk Supply bans P/E)).
20 (Newport Resolution).
21 R.v. Trebilco: Ex parte F.S. Falkiner & Sons Ltd. (1930) 56 C.L.R. 20 at p.32.
22 Thompson: Parliamentary Government or Union Tyranny (1987) Vol. III, Proceedings of H R Nicholls Society Melbourne, p.34.
23 see, e.g., Confederation of Australian Industry Memorandum of 5 October 1984.
24 Kerr: Recalling the .... O'Shea case (1986) Vol. I, Proceedings of the H R Nicholls Society, Melbourne, pp.185-93.
25 Employment Act 1980 (secondary action), Employment Act 1982 (closed shops, strikes without prior secret ballot).
26 Thomas v. National Union of Mineworkers (South Wales Area)  Ch. 20; Dollar Sweets Pty Ltd v. Federated Confectioners Association of Australia and Others  V.R. 383.
27 Roosevelt, Theodore: speech at Minnesota State Fair, 2 September 1901.
28 Heydon: Economic Torts (2nd ed. 19780) Sweet & Maxwell, London (p.9).