R v Foster
103 CLR 256(Judgment by: Taylor J)
R
vFoster
Judges:
Dixon CJ
Mctiernan J
Fullagar J
Kitto J
Taylor JMenzies 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
Judgment by:
Taylor J
The questions raised by this application to make absolute a rule nisi for prohibition are concerned with the authority of a presidential member of the Commonwealth Conciliation and Arbitration Commission to make awards prescribing conditions of employment with respect to deck and engineer officers serving upon four specified vessels of the prosecutor. The respondent organizations, which seek such awards, contend that such conditions may be prescribed pursuant to Div 2 of Pt III of the Conciliation and Arbitration Act 1904-1958 either in the settlement of industrial disputes created by the rejection of logs of claims delivered to the prosecutor and others, or, in the determination of industrial matters as defined by the Act.
It will be seen from the statement of facts upon which the parties agreed before the commission that the prosecutor is the owner of four vessels each of about 10,000 tons which are registered in the United Kingdom and which are and have for some time been engaged in the cargo trade and, to a lesser extent, in the passenger trade, between Australia and Japan and also between intervening ports and between those ports and Japanese ports. But its vessels are not ships whose first port of clearnace and port of destination are within the Commonwealth (Commonwealth of Australia Constitution Act, s 5). Nor, are the ships' officers engaged only for the trade in which these vessels are actually employed for, by the articles to which they have subscribed, the limits within which they may be required to serve are specified as "a voyage or voyages from Hong Kong to North China and/or Japan and/or the USSR returning therefrom to Hong Kong and thence proceeding to any port or ports within the limits of 75 degrees north and 60 degrees south latitude in any rotation as may be required by the Master carrying passengers or cargo of all kinds for a period not exceeding two years or the first return of the vessel to Hong Kong". It will be observed that it is agreed that the ships' articles are opened and signed in Hong Kong though "All the masters, deck officers and engineer officers of the said vessels reside in Australia and are actually engaged and discharged in Sydney".
By s 72 of the Conciliation and Arbitration Act 1904-1958 the commission is empowered -
- (a)
- to prevent or settle industrial disputes by conciliation or arbitration; and
- (b)
- to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or among the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters.
For the purposes of this section an industrial dispute means a dispute as to industrial matters which extends beyond the limits of any one State and "industrial matters" mean such matters as would be industrial matters within the definition of that term in subs (1) of s 4 of the Act if the references in that definition to employees were references to seamen only. Finally, "seaman" means a person who is, or whose usual occupation is that of, a master as defined in s 6 of the Navigation Act 1912-1956, a seaman as so defined or a pilot as so defined. In the result, therefore, industrial matters mean all matters pertaining to the relations of employers and seamen and, without limiting the generality of this expression, include matters of the description particularly specified in the body of s 4.
Clearly enough, the provisions of s 72(a) were intended to constitute an exercise of the legislative power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. On the other hand, s 72(b) is a purported exercise of the power to make laws with respect to trade and commerce with other countries and among the States. But according to the argument for the prosecutor neither subsection confers authority upon the commission to prescribe conditions of employment with respect to officers serving upon its vessels for, it is said, no dispute of the character necessary to invoke the power conferred by the former subsection can arise in relation to conditions of employment former subsection can arise in relation to conditions of employment upon its vessels and, so far as the second subsection is concerned, it is impossible to observe any material relationship between such conditions and "trade and commerce with other countries and among the States". In any event, it is, however, contended that it is not competent for the Parliament of the Commonwealth to make legislative provision for the prescription of conditions binding the prosecutor in relation to the employment of officers on its vessels either through the medium of arbitration or, directly, by a law made under the trade and commerce power. In view of the way in which the argument on the appeal developed it is convenient at this stage to discuss the question of constitutional power and to consider at once how far, if at all, awards of the character sought by the respondent organizations may be authorized under the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes.
In advancing its contentions on this point the respondent organizations were immediately faced with the decisions of this Court in Merchant Service Guild of Australasia v Archibald Currie & Co. Pty Ltd (1908) 5 CLR 737 and Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) (1920) 28 CLR 495 which explicitly decided that, subject only to the provisions of covering cl 5 of the Constitution, Commonwealth legislative power under this placitum extends only to disputes concerning conditions of employment in industries carried on within the Commonwealth. This conclusion was based expressly upon the view that -- "subs (XXXV) of s 51 (of the Constitution), on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore (that) the term 'industrial disputes' in that subsection, unextended by covering s V, means disputes as to the terms and conditions of industrial operations in Australia only" (1920) 28 CLR, at p 503. According to the respondents' argument this view rested upon the notion, now outmoded, that the legislative powers of the Commonwealth were, except where otherwise expressly provided, subject to restrictions arising from the concept that the laws of the Commonwealth had, apart from covering cl 5, no operation beyond its territorial limits. It is true that this notion was expressed in their Honours' reasons for they said: "the only question is how far does s 51(XXXV) on its own construction, unextended by the covering s v, apply to the industrial disputes with which the three above-named respondents are concerned. We construe that subsection for the purposes of this case on the same principles as were recently applied in the case of Amalgamated Society of Engineers v Adelaide Steamship Co (1920) 28 CLR 129. That is to say, we interpret the enactment according to the well-recognized standards of interpretation. One of those principles is that, prima facie, jurisdiction is territorial; and covering s v strengthens the view, in relation to the present case, that the language itself of subs (XXXV) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502.
It would, however, be a mistake to treat the case as one in which their Honours purported to deal with the not unfamiliar question whether a particular law should or should not, upon its true construction, be accorded an extra-territorial operation or, indeed, merely with the problem whether a given expression could, in the abstract, be regarded as sufficiently wide to authorize legislation having extra-territorial effect. The problem, as their Honours saw it, required examination of the relevant expression in the constitutional instrument in order to see whether the Imperial Parliament had manifested an intention to invest the Parliament of the Commonwealth with authority to deal with disputes which, for their prevention or settlement, required the promulgation of rules of conduct having an extra-territorial operation. It was, therefore, a problem concerned essentially with the definition of the legislative subject matter. On this basis it was not out of place to have regard to the circumstance that the various heads of power specified in s 51 were conferred upon the Commonwealth Parliament to make laws for the peace order and good government of the Commonwealth and to conclude that the expressions employed to denote generally stated heads of power should, prima facie, be understood as referring to persons, things and activities within the Commonwealth. That being so there seems to be little force in the submission which was made when the case was first argued that the provisions of s 3 of the Statute of Westminster have now displaced the foundation upon which these decisions rest. Indeed, ultimately this was virtually conceded by the respondents as also was the proposition that, whatever effect the declaration contained in s 3 may have in relation to the extra-territorial operation of Dominion laws validly made, it in no way operated to expand or enlarge the various subject matters by reference to which the legislative powers of the Commonwealth were and are defined. Yet, for reasons which I shall endeavour to state it seems to me that when regard is had to more recent views concerning the essential character of industrial disputes these decisions appear to express a view of the extent of the constitutional power which is too narrow and which cannot now be justified.
In considering the character of the subject matter described by the words of placitum (XXXV) it is, of course, impossible to put aside the notion that it was intended as the definition of a power designed to permit Parliament to deal in a specified manner with problems of domestic industrial unrest. The relevant power is a power to make laws for the peace order and good government of the Commonwealth with respect to that subject matter and the circumstance that it is restricted to industrial disputes which have, so to speak, spilled over State borders provides support for the argument that, prima facie at least, it was intended to deal with industrial unrest within the Commonwealth (see per Griffith CJ and Isaacs J in Federated Saw Mill etc Employes of Australasia v James Moore & Sons Pty Ltd (1909) 8 CLR 465, at pp 487, 526) Likewise, in the case of many of the heads of power in s 51 which are defined in general terms it would seem beyond question that, in ascertaining their content, regard must be had to the obvious and overriding circumstance that they are intended to define the power of Parliament to make laws for the peace order and good government of the Commonwealth. In some cases the necessary restriction is obvious. For instance, the power to make laws with respect to immigration must mean immigration into the Commonwealth. And the power to make laws with respect to currency, coinage and legal tender relates to the currency, coinage and legal tender of the Commonwealth. Again, it could not be suggested that Parliament may, under its power to make laws with respect to marriage, prescribe the requisites for a valid marriage between United States' citizens in Utah or, under its power to make laws with respect to old age pensions, legislate for the provision of old age pensions for the inhabitants of Tibet. In other cases the restrictions may not be so readily capable of precise definition but it is clear that the power conferred by placitum (XXXV) is conferred for the purpose of permitting the Parliament to deal, in some measure, with what may be called widespread industrial unrest within the Commonwealth.
But the particular form of industrial unrest with which placitum (XXXV) deals is "industrial disputes extending beyond the limits of any one State" and not industrial unrest generally or the consequences of industrial disputes. The distinction between these concepts is clearly shown by the decisions of this Court in Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 1) (1930) 42 CLR 527 and R v Foster; Ex parte Commonwealth Steamship Owners' Assn (1956) 94 CLR 614. The distinction was not, however, always so clearly recognized with the result that it now seems that on some occasions when it has been necessary to examine the content of the power its central point has received insufficient attention. R v Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586 was, it seems to me, such a case. There, in dealing with the question whether an industrial dispute within the meaning of placitum (XXXV) had arisen Griffith CJ said: "In the Saw-Millers' Case (1909) 8 CLR 465, at pp 488, 489. I expressed the opinion, which I now repeat judicially, that 'The term " industrial dispute" connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more. We have not to deal with technicalities, such as the meaning of the term "conversion" in the old action of trover, in which a demand and refusal were sufficient evidence of conversion. In considering industrial disputes we are concerned with real facts, not words or word-spinning'" (1912) 15 CLR, at p 594.
Much the same view was expressed by Barton J when he said: "That the jurisdiction must be founded on something more than a mere claim is, to my mind, quite apparent. That something is not easy to define. But it must be enough to take the whole position above or beyond mere naked demand and refusal. Before the federal power can be invoked there must, as the Court has repeatedly pointed out, be a dispute actually existing. It cannot be created by the mere paper demand. If however, there is accompanying evidence that the demand, whether written or not, is the culmination of a sense of wrong or injustice, made known or become known to the other party, that it is the expression of 'a real and substantial difference having some element of persistency' (see per Griffith CJ in the Saw Millers' Case (1909) 8 CLR, 465, at p 488, and is not the outcome of caprice or of a mere desire to extort, then whichever side is the promovent, there is an industrial dispute within the meaning of the Constitution" (1912) 15 CLR, at p 605. The views expressed in these passages appear to me to indicate the underlying foundation for the conclusion of the majority in Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No 3) (1920) 28 CLR 495. The problem, as their Honours then saw it, was to ascertain what legislative steps were authorized under a power to deal with "industrial unrest" in such a way as "to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth" (1920) 28 CLR, at p 503. And, according to the majority, the power, "being territorial", meant that "the 'industrial disputes extending beyond the limits of any one State' so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502. But in the intervening years the notion of what constitutes the essential character of an "industrial dispute" has changed substantially, Dixon J (as he then was) being led in 1930 to observe: "Much of the argument addressed to us by counsel for the Commonwealth depended upon the proposition that once a real industrial dispute extending beyond the limits of one State existed, it was not material to inquire into its genesis, and in particular it was nothing to the point that it arose by reason of the desire of one party to obtain an award of the Court. While this may be so, yet when the existence of a genuine dispute is in question the purpose and object with which paper demands were delivered may be decisive. Again much of the same argument was founded upon the view that the Federation and its members intended to press for a code to be formulated by the Court's award or by an agreement having the force of an award which would regulate future conditions. This contention illustrates some of the confusion which attends a jurisdiction which can be exercised when and only when, an interstate dispute exists, but when it does arise enables the arbitrator in some measure to regulate industry. The two-State dispute must exist between the parties antecedently to the award or agreement which composes it, and the dispute must arise out of their disagreement about the manner in which they shall regulate their own industrial relations. Experience has shown that the desire for an award regulating industrial relations has been the cause of the creation and extension of industrial disputes which the Arbitration Court exists to prevent and settle. But in such cases the jurisdiction arises because of the existence of a two-State dispute, and in spite of, and not because of, the motives which generate that dispute". (Caledonian Collieries Ltd v Australasian Coal and Shale Employees' Federation (No 2) (1930) 42 CLR 558, at pp 579, 580.
It is unnecessary to review the cases which have led to the recognition, as such, of industrial disputes created by the making and rejection of demands relating to conditions of employment and which have formulated "the doctrine that the essential quality of an industrial dispute is not the suspension of industrial relations but disagreement, difference, or dissidence". (See per Dixon J in Metal Trades Employers Assn v Amalgamated Engineering Union (1935) 54 CLR 387, at p 429) Such a disagreement may, as was then said, "cause a strike, a lockout, and a disturbance and dislocation of industry; but these are the consequences of the industrial dispute, and not the industrial dispute itself, which lies in the disagreement". It is, I think, sufficient to say that the doctrine which is now so firmly established must be borne in mind when the character of the legislative power conferred by placitum (XXXV) is examined.
When this is done it is seen that the power is directly and immediately concerned with industrial disputes so understood. This is at the very heart of the power and laws may be made with respect to conciliation and arbitration for their prevention and settlement. But it would be wrong to seek to limit the power by first ascribing territorial limits to the rules of conduct which may be made in settlement of industrial disputes and, thereafter, to exclude from the power industrial disputes in the settlement of which legislation having an extra-territorial operation will or may be necessary. This may not be thought to be an illogical process if an industrial dispute means no more and no less than industrial unrest or turmoil. But upon the currently accepted view of what constitutes an industrial dispute the conclusion is inevitable that the reference in placitum (XXXV) is to all industrial disputes which exhibit the necessary attribute, that is to say, an extension beyond the limits of any one State. This is of the essence of the subject matter of the power and it is not to be limited by the circumstance that in the settlement of some of such disputes legislation or rules of conduct having an extra-territorial operation may be necessary. This is not to say that the power is absolute and not subject to restrictions or qualifications of any kind. Indeed, restrictions are to be found in the language of the placitum itself which justify the assertion that the power is concerned with disputes which, in a broad sense, are substantially Australian industrial disputes. First of all, in order that a dispute shall fall within the ambit of the power, it is necessary that it should extend beyond the limits of any one State. No doubt the locality of the dispute will, in the main, be synonymous with the place where the disputants are to be found so that the power is concerned with disputes in this country which are industrial disputes. The expression "industrial disputes" connotes a further limitation for it is not every dispute concerning industrial matters which constitutes an industrial dispute of the requisite character. As is shown by the decision in R v Portus; Ex parte Australian Air Pilots' Assn (1953) 90 CLR 320 and R v Graziers' Assn of NSW; Ex parte Australian Workers' Union (1956) 96 CLR 317 it is essential that the disputants should have a legitimate industrial interest in the subject matter of the dispute. Beyond this, in my view, no further limitation is possible.
In the present case both the prosecutor and the respondents were present in Australia, the relevant dispute arose in Australia, the dispute was concerned with the conditions upon which masters and officers, recruited in Australia, might be employed in an industry which has a substantial connexion with Australia and, in these circumstances, there can be little doubt that each had a legitimate industrial interest in the matters in dispute. Accordingly, if the relevant dispute is one which extends beyond the limits of any one State there can, in my opinion, be no ground for supposing that the dispute is not one which falls within the scope of s 72(a). of the Conciliation and Arbitration Act or within the ambit of constitutional authority. In view of the prosecutor's concession that there was in existence a dispute which so extended it is, however, unnecessary for us to address our attention to this final question. Yet, it is desirable to point out that the evidence concerning the manner in which the dispute arose is scanty and, by itself, quite insufficient to establish the existence of an interstate dispute to which the prosecutor was a party. Probably what happened is that demands were made upon a number of shipping companies and that included among their number was the respondent company and the suggestion appears to be that, although there is no interstate dispute between the prosecutor and the respondent organizations, their dispute is but part of a wider dispute which bears that character. It is, of course, impossible for us to say at this stage whether a full examination of the relevant facts would support this conclusion and I have mentioned the matter merely for the purpose of expressly reserving the point for consideration if and when it should arise.
As already appears the other question debated in the case is concerned with the power of the Commonwealth to make laws with respect to trade and commerce under s 51(i) of the Constitution. In particular the question is whether the legislative power of Parliament under this head of power extends to authorize the general prescribtion of conditions of employment upon vessels engaged not only in trade and commerce between Australia and other countries but also between places beyond the Commonwealth. In my opinion, this broad question should be answered in the negative and I shall state as briefly as I may my reasons for conclusion.
The subject matter of the relevant power is, of course, "trade and commerce with other countries, and among the States" and, by s 98, this power is declared to extend "to navigation and shipping". So understood the power has been held to justify legislation relating to compensation to seamen for injuries by accident arising out of and in the course of their employment (Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 and Joyce v Australasian United Steam Navigation Co Ltd (1939) 62 CLR 160), legislation prescribing who shall be preferred in the stevedoring work necessary in the loading and unloading within the Commonwealth of vessels engaged in trade and commerce of the specified character (Huddart Parker Ltd v The Commonwealth (1931) 44 CLR 492 and Victorian Stevedoring and General Contracting Company Pty Ltd and Meakes v Dignan (1931) 46 CLR 73) and legislation authorizing the prescription of conditions of employment in that branch of the stevedoring industry (R v Wright, Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528) General observations made in these cases may at first sight be regarded as adequate support for the proposition that pursuant to the trade and commerce power Parliament may prescribe or authorize the prescription of conditions of employment upon any vessel which carries goods or passengers to or from the Commonwealth. (See for instance per Isaacs J and Gavan Duffy and Rich JJ in Malcolm's Case (1914) 19 CLR, at pp 329, 335; per Latham J and Starke J in Joyce's Case (1939) 62 CLR, at pp 167, 170 and Wright's Case (1955) 93 CLR, at p 544. I am satisfied, however, that close examination of these cases must lead to the conclusion that they are not decisive of the broad proposition now advanced and, as at present advised, I am not prepared to subscribe to it. Even if, on the strength of the authorities it be assumed that pursuant to the commerce power it is permissible to prescribe the terms and conditions upon which persons may be employed in particular activities which form part of, or are indispensable to, interstate trade and "trade and commerce with other countries", it does not follow that a law prescribing or authorizing the prescription of conditions upon which persons may be employed upon vessels, which, in the course and as part only of their general trading activities, carry goods or passengers to or from the Commonwealth, is a law with respect to "trade and commerce with other countries". If, in some measure, such a law can be said to relate "to trade and commerce with other countries" it would, by parity of reasoning, also reveal itself, in part, as the regulation of trade and commerce among foreign countries. Nor could such a law be regarded as a law with respect to "shipping and navigation as ancillary" to trade and commerce with other countries or as a regulation of "the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce". (cf per Gavan Duffy and Rich JJ in Malcolm's Case (1914) 19 CLR, at p 335) Again the contrary view would find no justification in the reasoning which lead Isaacs J to his conclusion in that case. Indeed it would seem that the members of the Court who decided Malcolm's Case (1914) 19 CLR 298 were not concerned to inquire how far, if at all, the Commonwealth Parliament might legislate with respect to all ships which carry goods or passengers to or from Australia. Malcolm's Case (1914) 19 CLR 298 was decided only six months after the decision in Clarke v Union Steamship Co of New Zealand (1914) 18 CLR 142 and in that case it was held that the Seamens Compensation Act 1911 was not in force on the respondent's vessel at the time when the appellant was injured notwithstanding that the vessel was then "engaged in trading between Sydney and San Francisco and between San Francisco and Sydney" and that the appellant had "entered into his articles in Sydney". The basis of the decision was that the vessel was not a vessel whose first port of clearance and whose port of destination was in the Commonwealth and that, therefore, at the time when the plaintiff sustained his injury, some two hundred miles off San Francisco, the ship was not "subject to the law of the Commonwealth" (Seamens Compensation Act 1911,s 4(2)). On this view it was thought unnecessary to consider the question of the validity of the Act and this question was reserved for consideration in another case (presumably Malcolm's Case (1914) 19 CLR 298) which was then said to be "ready for hearing" (per Isaacs J in Clarke's Case (1914) 18 CLR, at p 149) Again, in Malcolm's Case (1914) 19 CLR 298, Powers J (1914) 19 CLR, at p 337 remarked that "it was not necessary" in Clarke's Case (1914) 18 CLR 142 "to decide the question" of the validity of the Act and it seems reasonably clear that in the later case the Court was concerned only with the question whether, in relation to ships "subject to the law of the Commonwealth", the Seamens Compensation Act was a valid enactment. The observations of the learned Justices who constituted the majority in that case were, it seems clear, made and intended to be understood and applicable only within this narrower framework. Indeed, the observations made by Isaacs J in Malcolm's Case (1914) 19 CLR, at p 329 referring, as they do, to "the interstate and foreign commerce of this country" and to the desirability of encouraging "the vocation of seamen in relation to that commerce", could have no application except within this narrower framework. So understood Malcolm's Case (1914) 19 CLR 298 is no authority for the proposition that it is permissible under the trade and commerce power to prescribe conditions of employment generally with respect to all ships, foreign or otherwise, which carry goods or passengers to or from the Commonwealth. Finally, support for the broad proposition contended for cannot be found in the decisions in the stevedoring cases which were concerned with the employment of persons in the performance in this country of specified activities which were thought to be indispensable to the conduct of interstate trade and trade and commerce with other countries. The earlier stevedoring cases did not, of course, decide that conditions of employment might be prescribed pursuant to the trade and commerce power and the true complexion of the legislative provisions impugned in R v Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 may well be found in the reflection that the prescription of conditions of employment was but one facet of legislation designed to regulate and control the industry generally. The various Stevedoring Industry Acts, which followed upon regulations made under the National Security Act, quite plainly appear as attempts to organize a traditionally unstable industry on a more efficient basis and the prescription of conditions of employment is but part of the whole concept. But whether this is or is not the true explanation of the lastmentioned case I should be loath to accept the view -- as must necessarily follow from the respondents' argument -- that it is authority for the proposition that the legislative power of Parliament extends to the prescription of conditions of employment for all waterside workers who in the course of their work load or unload ships engaged in "trade and commerce with other countries" and whether they be employed and perform their work in the Commonwealth or in any other country.
Accordingly I at present hold the view that, even if Parliament may under the trade and commerce power prescribe conditions of employment for any form of work by means of which trade and commerce with other countries is carried on, the respondents still must fail on this branch of the case for the prosecutor's vessels are engaged not only in trade and commerce of that description but also in trade and commerce between foreign countries. And a law prescribing the conditions of employment on those vessels would not answer the description of a law with respect to "trade and commerce with other countries" or a law with respect to matters incidental to that subject matter. Upon the initial hypothesis it would cover a wider field and would stand revealed as a law with respect to both trade and commerce with other countries and trade and commerce between foreign countries. Accordingly I am of the opinion that the legislative power of Parliament with respect to trade and commerce does not enable it to invest the commission with authority to prescribe conditions of employment upon the prosecutor's vessels. This final observation does not mean that s 72(b) is invalid for that subsection does not, upon its face, purport to cover this field. The nexus between its content and the trade and commerce power is to be found, if it is to be found at all, in the somewhat obscure and indeterminate expression "in so far as those (industrial) matters relate to trade and commerce with other countries or among the States" and, upon any reasonable view of the meaning of that expression, I find it impossible to perceive any material relation between the relevant head of power and conditions of employment upon vessels engaged both in "trade and commerce with other countries" and trade and commerce between foreign countries. For the reasons given earlier, however, I am of the opinion that the order nisi should be discharged.