R v Foster
103 CLR 256(Decision by: Mctiernan J)
R
vFoster
Judges:
Dixon CJ
Mctiernan JFullagar J
Kitto J
Taylor J
Menzies J
Windeyer J
Legislative References:
Conciliation and Arbitration Act 1904-1956 - s 28; s 78(2); Div 2 of Pt III
Conciliation and Arbitration Act 1958 - s 71
Navigation Act 1912-1956 - s 6; s 405D
Snowy Mountains Hydro-electric Power Act 1951 - s 7
Snowy Mountains Hydro-electric Power Act 1949 - Pt IVA
Commonwealth Conciliation and Arbitration Act 1904-1918 - s 21AA
Seamens Compensation Act 1911 - The Act; s 4(2)
Case References:
Merchant Service Guild of Australasia v Archibald Currie
&
Co Pty Ltd - (1908) 5 CLR 737
Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) - (1920) 28 CLR 495
Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn - (1913) 16 CLR 664
Lauritzen v Larsen - (1952) 345 US 571
Australian Steamships Ltd v Malcolm - (1914) 19 CLR 298
Joyce v Australasian United Steam Navigation Co Ltd - (1939) 62 CLR 160
Morgan v The Commonwealth - (1947) 74 CLR 421; [1947] ALR 161
Judgment date: 12 March 1959
Decision by:
Mctiernan J
The first question which was argued is that the prosecutor is not a party to an industrial dispute which the commission has jurisdiction to prevent or settle under s 72(a) of the Act. Industrial disputes are raised by the logs of claims served by the claimant organizations. So far as the prosecutor is concerned these logs of claims apply to masters, deck officers and engineers employed on certain ships only. They are ships registered in London under the Merchant Shipping Acts. The ships do not make voyages within covering s 5. Their ports of clearance and destination are respectively Adelaide and Kobe, and vice versa. Passengers are embarked and disembarked and goods are loaded and discharged at Australian ports but not in the course of trade and commerce among the States. The ships engage in trade and commerce between Australia and Japan and between countries north of Australia. The masters, deck officers and engineers are Australian residents and the prosecutor engages and discharges them at Sydney. The articles are opened and signed at Hong Kong.
It follows from these facts that Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) (1920) 28 CLR 495 is a clear authority in favour of the prosecutor as regards the question whether it is included in the alleged industrial disputes.
The decision was criticized in argument on the ground that it is an error to confine the term "industrial dispute" in s 51(xxxv) of the Constitution to employment in Australia only, except employment on ships within covering s v The present question, however, is what is the meaning of the term "industrial dispute" in s 72(a). It is plain that Parliament employed the term in its constitutional sense. In my opinion it is right to presume that Parliament employed the term in conformity with the judicial connotation that it then had. In view of the decision cited above it is hardly conceivable that Parliament intended to give the commission jurisdiction to deal with industrial disputes as to the term and conditions of navigating and operating ships beyond the territorial limits of Australia even though they are not ships within covering s v
The construction which the Court placed on "industrial dispute" proceeded upon the view that the object of s 51(xxxv) is "uninterrupted industrial services to the people of the Commonwealth" (1920) 28 CLR, at p 503. It seems to me that the primary object of the power is industrial peace within the Commonwealth. There is nothing in the verbiage of the power that prevents it extending to an industrial dispute within Australia as to the terms and conditions of employment in industrial operations beyond the territorial limits of Australia. Such an industrial dispute may no less than one confined to employment within Australia affect its industrial peace. The objections based on territorial limits of jurisdiction to giving this wider construction to the term "industrial dispute" are not now tenable, having regard to the Statute of Westminster.
But in my opinion the decision in Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (1920) 28 CLR 495 should not be reviewed until the Parliament sees fit to pass legislation under s 51(xxxv) evincing the intention to give jurisdiction extending to industrial disputes arising in Australia and ramifying beyond territorial limits. While s 72(a) stands as it is, the only industrial disputes which Parliament can be presumed to have intended to give jurisdiction to the commission to prevent or settle are those corresponding to the connotation of the term "industrial dispute" laid down in the decision mentioned above. It seems to me that it would be contrary to the intention of Parliament to hold that the term "industrial dispute" in s 72(a) includes an industrial dispute as to the terms and conditions of employment on the prosecutor's ships while they are on the high seas or in foreign ports. The other questions which were argued relate to s 72(b). One of the questions is whether or not that provision is valid. It is an exercise of the legislative power under ss 51(i) and 98 of the Constitution. The argument against its validity is that it is a law with respect to employment hung, as it were, on the subjects of trade and commerce with foreign countries and navigation. The verbiage of the description of "industrial dispute" in s 71 is relied upon to support the argument. I have considered the argument and I think that the pith and substance of the verbiage really makes s 72(a) a law on the subject matters of trade and commerce and navigation. Those terms mark the outlines of powers and according to right rules of construction must be given an ample meaning. It must be borne in mind that the instrument which is being construed is a Constitution. I do not undertake a survey of the authorities. The last of them is R v Wright; Ex Parte Waterside Workers' Federation of Australia (1955) 93 CLR 528. It is too late to argue successfully that it is not within constitutional power to entrust to the commission the jurisdiction conferred by s 72(b). It was also argued that "submitted" means a procedure in which all the parties interested join and as that procedure was not followed the commission cannot act under s 72(b). The meaning of "submitted" is rather obscure. It imposes a condition on the jurisdiction of the commission. Probably the condition is directed against its acting on its own initiative. I think that it is in accordance with the ordinary meaning of the word "submitted" to hold that it refers to an act done by a party interested. It may be a condition that the Attorney-General acting for the Commonwealth in the public interest could fulfil. The word "submitted" is rather a loose one as indicative of a procedure. In my opinion the notification under s 28 whereby the claimant organizations brought the fact that the employers including the prosecutor had not complied with the logs of claims satisfies the word "submitted". In my opinion the commission has jurisdiction to proceed under s 72(b) against the prosecutor but not under s 72(a). I would discharge the order nisi.