R v Foster
103 CLR 256(Judgment by: Windeyer J)
R
vFoster
Judges:
Dixon CJ
Mctiernan J
Fullagar 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
Judgment by:
Windeyer J
The facts in Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) (1920) 28 CLR 495 were practically identical with those of this case. But since that case was decided, in 1920, there have been great developments in the political status and constitutional law of the British Dominions and also in the industrial law of the Commonwealth. And in the two matters concerning servants of Qantas to which the learned Commissioner refers in his judgment, the Commonwealth Arbitration Court expressly held that its jurisdiction was not restricted by that decision. It must therefore be considered at the outset. A close analysis of the judgments in that case, in Merchant Service Guild of Australasia v Archibald Currie & Co Pty Ltd (1908) 5 CLR 737 and in Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (1913) 16 CLR 664 reveals dialectic difficulties and inconsistencies. The limitation, ill-defined but generally accepted, upon the power of Dominion legislatures to enact laws having an extra-territorial operation was a main ground for the judgments in the first two cases; and it clearly influenced the majority judgments in the third. Griffith CJ in Currie's Case (1908) 5 CLR 737 said: "Of course, the jurisdiction of the Commonwealth Courts and the operation of the Commonwealth laws extend only to places within the Commonwealth, except so far as a larger jurisdiction or operation is given to them by law" (1908) 5 CLR, at p 743, and he went on to refer to covering cl 5. And O'Connor J said: "The jurisdiction of that court, (scil. the Commonwealth Court of Conciliation and Arbitration) must, of course, be confined within the territorial limits over which the laws of the Commonwealth extend, . . . " (1908) 5 CLR, at p 744. In the next case (1913) 16 CLR 664 which was argued three times before a decision was given, the territorial limitation upon Commonwealth legislative power was thought by some members of the Court to restrict the meaning of "disputes" in s 51. (xxxv) of the Constitution to disputes about work to be done in the Commonwealth. For example, Barton ACJ said: "Subs. (xxxv) is therefore a power to the Parliament to make rules of conduct to be observed within that territory in respect of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. As industrial disputes are disputes as to the conditions of industrial employment, the employment must be within the territorial jurisdiction of the Commonwealth" (1913) 16 CLR, at p 677. And Isaacs J said: " . . . the dispute must be about the terms on which the Australian industry is conducted; in other words, the subject matter of dispute is territorial, just as the dispute itself is" (1913) 16 CLR, at p 691. Gavan Duffy and Rich JJ in their dissenting judgment took a different and wider view. What they said has been set out by my brother Menzies in his judgment in this case; and I need not repeat it. Then in The Merchant Service Guild Case (No 3)(1920) 28 CLR 495, on which the prosecutor here relies, the decision of the majority expressly denied jurisdiction to the Arbitration Court to make an award on the ground that, apart from covering cl 5, the constitutional power under s 51(xxxv) extends only to disputes as to the terms and conditions of industrial operations carried on within the territorial limits of the Commonwealth. In their interpretation of the actual words of s 51(xxxv) the majority were clearly influenced by the two earlier decisions and by the accepted overriding territorial limitation on the exercise of all Commonwealth legislative power. But to-day the last vestiges of the doctrine Lord Halsbury enunciated in Macleod v Attorney-General for New South Wales (1891) AC 455 have, so far as the Commonwealth is concerned, been swept away by the adoption of the Statute of Westminster. We can consider the interpretation and application of s 51(xxxv) unaffected by the influence of that doctrine. And, when this be done, I agree with the other members of the Court, whose judgments I have read, that the dissenting judgments of Higgins J in The Merchant Service Guild Case (No 3) (1920) 28 CLR 495 and of Gavan Duffy and Rich JJ in the earlier case are to be preferred to the judgments of the majority.
Decisions of this Court have given the Commonwealth industrial tribunals a jurisdiction probably very much greater than those who framed para (xxxv) ever contemplated. Accepting, as to-day one must, these decisions and the implication of the doctrine of "paper disputes", strange results would follow if in the exercise of their large jurisdiction Commonwealth industrial tribunals could say nothing about, for example, the conditions of workers in aeroplanes flying to New Guinea or Norfolk Island once they had got more than three miles away from the coast. The development of Australian nationhood, both actually and in juristic theory, and the expansion of Australian interests, undertakings and responsibilities abroad force a reconsideration of constitutional limitations which were influenced by a doctrine always obscure and no longer compelling. Since 1920 there have been great developments in the territories of the Commonwealth beyond Australia; new territories have been acquired in the Antarctic, the Indian and Pacific Oceans; and sea and airborne traffic between the mainland of Australia and places overseas which might be vital for the welfare and security of the Australian nation has increased enormously.
Counsel for the prosecutor argued firstly that it was beyond the legislative competence of the Commonwealth Parliament under either the industrial power (s 51(xxxv)) or the trade and commerce power (s 51(i)) to confer upon the Conciliation and Arbitration Commission power to make an award binding upon the prosecutor in respect of the ships' officers and engineers it employed; and secondly that, upon its true construction, s 72 of the Conciliation and Arbitration Act 1904-1958 did not purport to confer such a power upon the commission.
In support of the first contention it was argued that as, by the Constitution, the power of the Commonwealth Parliament is expressed to be "to make laws for the peace, order, and good government of the Commonwealth" with respect to the enumerated topics, a Commonwealth Act would not be valid if it provided for matters with which the Commonwealth could have no concern. By way of emphatic illustration of this argument extravagant hypotheses were suggested, such as Australian legislation dealing with marriages of foreign people in foreign lands, or with pensions, or weights and measures in foreign places, and so forth. But any Commonwealth statute if it be a law in respect of one of the subjects mentioned in s 51 is constitutionally valid. If it purported to affect the internal affairs of another country it might be unenforceable, ineffectual and contrary to the comity of nations. It would be ultra vires, in the sense in which Dicey used the expression for the purposes of private international law (Conflict of Laws 5th ed (1932) 20). But it would not be ultra vires the Commonwealth Parliament in a constitutional sense. A statute in general terms is always construed as prima facie affecting things and persons within the territory of the country which enacts it, and as not affecting things elsewhere. Even where some extra-territorial application is clearly intended, this application will often be restricted to persons and things with which the country of the legislature has some direct relation or concern, for example, its nationals and their property. This is simply a rule of construction, the corollary of the principle that sovereignty is, by the law of all countries that have inherited the common law, regarded as territorial; because territorial boundaries ordinarily mark the limits of the effective enforcement of municipal law. Territoriality (as an element in domicile, residence or presence) rather than political allegiance has by our law been recognized as the ordinary foundation of curial jurisdiction. But legislative competence is different. If the Commonwealth Parliament were to legislate gratuitously in respect of foreign persons in foreign territory, in one of the ways fancifully suggested in argument, an Australian court could not hold the legislation was invalid -- provided, always, that it was in respect of one of the matters in s 51. Vis-a-vis the States, the competence of the Commonwealth Parliament remains limited and the Statute of Westminster does not affect this. But in respect of the matters set out in s 51 the Parliament is now in reality fully sovereign, except perhaps in a theoretical unrealistic sense satisfying to convinced Austinians who see the Statute of Westminster as a repealable enactment of the Imperial Parliament. Whatever limitations international comity may impose are the consequences of considerations of political propriety and of the limitations of political power, not of legal capacity. The Privy Council summed the whole matter up: "Their Lordships would point out that what is here in issue is the extent of the legislative power of a Dominion legislature having regard to the language of the Statute of Westminster. This is not the same question as the question whether legislative power is so used as to extend beyond what will prove to be effective. A legislature which passes a law having extra-territorial operation may find that what it has enacted cannot be directly enforced, but the Act is not invalid on that account, and the courts of its country must enforce the law with the machinery available to them" (British Columbia Electric Railway Co, Ltd v The King (1946) AC 527, at p 542. Where the Statute of Westminster does not apply -- for example, in relation to enactments of a State legislature (especially fiscal legislation) affecting things outside the territory of the legislature -- words such as "peace, order, and good government" in a constitutional instrument may still be of cardinal importance. But this is only because they have become the accepted touchstone of whatever territorial limitations still exist upon the powers of subordinate legislatures in British dependencies (see Johnson v Commissioner of Stamp Duties (1956) AC 331; (1957) SR (NSW) 313 and cases there referred to). That the requirements of peace, order, and good government provide the only limitation of the validity of any extra-territorial legislation otherwise within power has been accepted by this Court since Croft v Dunphy (1933) AC 156 (eg Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation (1933) 49 CLR 220, per Evatt J (1933) 49 CLR, at pp 228-241; Crowe v The Commonwealth (1935) 54 CLR 69, per Starke J (1935) 54 CLR, at p 85) The words "peace, order, and good government" or the similar expression "peace, welfare, and good government" are, it has now been said, words of very wide import giving a wide discretion to any legislature empowered to pass laws for such purposes (Attorney-General for Saskatchewan v Canadian Pacific Railway Co (1953) AC 594, at pp 613, 614) Their significance in relation to territorial limitations upon colonial legislatures was foreshadowed in Ashbury v Ellis (1893) AC 339 and the view which now prevails of their effect in this context is, in substance, that which Sir John Salmond put forward (1917) 33 LQR 117. He urged it upon the Supreme Court of New Zealand in R v Lander (1919) NZLR 305; but it then gained the assent only of Stout CJ But although the requirements of "peace, order and good government", rather than any purely geographical consideration, are now the measure of the territorial limitation upon legislative competence, where that limitation still applies, it is, I think, a mistake to regard the phrase as the origin of the prohibition of extra-territorial legislation by colonial legislatures. Indeed the origin and extent of that much discussed doctrine are obscure. Professor W Harrison Moore said of the words "peace, order, and good government" in s 51 of the Commonwealth Constitution: "They do not in themselves confer any substantive power, nor do they, it is submitted, warrant the view that the matters enumerated are merely means towards an end. They simply express the fact that in 'a general and remote sense the purpose and design of every law is to promote the welfare of the community'." (Commonwealth of Australia 2nd ed (1910) pp 274, 275). They or similar phrases such as "peace, welfare and good government" have long been a common form in instruments conferring legislative power in British dependencies. A list of statutes in which they appear going back to 1774 (14 Geo III c 83) appears in Quick & Garran on The Constitution (1901) p 511. But they were in use before 1774. In Stokes Constitution of the British Colonies in America, published in 1783, the common form of a colonial governor's commission in the American colonies before the Declaration of Independence is set out. It contains the following: "And you the said A B by and with the consent of our said Council and Assembly, or the major part of them respectively, shall have full power and authority to make constitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of our said Province, and of the people and inhabitants thereof, and such others as shall resort thereto and for the benefit of us our heirs and successors; which said laws statutes and ordinances are not to be repugnant, but as near as may be agreeable to the law and statutes of this our Kingdom of Great Britain". I do not know when this form was first used; but it very closely follows the words of the commission which Charles II issued to Sir Jonathan Atkins as Governor of Barbados in 1673 (see Labaree, Royal Instructions to Colonial Governors). So far as the Commonwealth is concerned, it is now for Parliament alone to judge whether a measure in respect of any topic on which it has power to legislate is in fact for the peace order and good government of the Commonwealth (cf Riel v The Queen (1885) 10 App Cas 675, at p 678).
Covering cl 5 was referred to in argument. But the prosecutor's ships are not within it; and it seems to me to have little bearing on the matter we have to decide. Before the Statute of Westminster the doctrine that the Commonwealth Parliament could not give its legislation an extra-territorial operation (whatever the extent of that doctrine) was not qualified by covering cl 5, except in the sense that ships there referred to were, for the purposes of the doctrine, to be treated as part of the territory of Australia. To-day the only result of covering cl 5 is that, as a matter of construction, any valid Commonwealth legislation prima facie applies in such ships, whereas prima facie it does not apply elsewhere outside the territorial limits of the Commonwealth.
The two heads of power relied upon by the respondents and by the Commonwealth in this case are the industrial power (s 51(XXXV)) and the trade and commerce power (s 51(i)). Although the Commonwealth Parliament is not now restrained by any overriding territorial limitations, each of these powers is -- unlike some others of the enumerated powers -- by its terms confined to matters having some connexion with Australia. But I do not think that power in respect of conciliation and arbitration postulates a capacity for direct supervision or effective control of all matters which may be the subject matter of an award. The possibility of effectual enforcement may be helpful in construing the scope of any exercise of a power, but it does not determine the legal scope of the power itself. In Waterside Workers' Federation of Australia v JW Alexander Ltd (1918) 25 CLR 434, Isaacs and Rich JJ (in a passage quoted by the Privy Council in Attorney-General of the Commonwealth of Australia v The Queen (1957) AC 288, at p 310; (1957) 95 CLR 529, at p 535 said: " . . . the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other" (1918) 25 CLR, at p 463.
As to the trade and commerce power, the necessary connexion with Australia is obvious from its words "trade and commerce with other countries and among the States". But when this connexion exists the full implications of the decisions in Australian Steamships Ltd v Malcolm (1914) 19 CLR 298 and Huddart Parker Ltd v The Commonwealth (1931) 44 CLR 492 should, I think, be accepted without hesitation It seems to me that prima facie Parliament could regulate the conditions of work of persons engaged in any activity in respect of which it has express power to legislate. Constitutional interpretation has moved far since 1906, when it was said that "the general conditions of employment" were not within the ambit of the trade and commerce power: The Federated Amalgamated Government Railway and Tramway Assn v The New South Wales Railway Traffic Employees Assn (1906) 4 CLR 488, at p 545. Nevertheless, in our Constitution the scope of the power in respect of trade and commerce is not necessarily to be measured by the scope which modern American decisions have given to the commerce clause in the Amercian Constitution. General statements in Gibbons v Ogden (1824) 9 Wheat 1; 22 US 1 (6 Law Ed 23) may be accepted without viewing our s 51 (i) through later American cases, which seem to see the horizon of the commerce power ever receding and the persons and things within it ever increasing, as, for example, 10 East 40th Street Building, Inc v Callus (1944) 325 US 578 (89 Law Ed 1806) In the course of a passage which echoes the eloquence of Marshall CJ in Gibbons v Ogden (1824) 9 Wheat 1; 22 US 1 (6 Law Ed 23), Story said of the commerce clause: "The subject to be regulated is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense . . . Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse". (Commentaries on the Constitution Vol II, para 1061, pp 3, 4). In our Constitution the trade and commerce power is extended to navigation and shipping by s 98 (Newcastle and Hunter River Steamship Co Ltd v Attorney-General for the Commonwealth (1921) 29 CLR 357; Morgan v The Commonwealth (1947) 74 CLR 421, at p 455. This puts the matters to which Story referred beyond argument. But this express extension into one field is, in my view, one of the circumstances that prevents the extension of the Commonwealth power over trade and commerce to all the matters which it is now said the commerce clause in America tacitly comprehends.
Bearing in mind the recommendation of the Chief Justice -- that "In dealing with the trade and commerce power, it is peculiarly desirable to consider each case which arises without entering more largely upon the interpretations of the Constitution than is necessary for the decision of the particular case" (1931) 44 CLR, at p 514 -- I say no more than that a law defining the conditions of service of the master and other mariners in a merchant vessel is, in my view, a law with respect to navigation and shipping; and, if the vessel be engaged in regular voyages to and from Australian ports from and to places beyond Australia for the purposes of trade, then such a law is a law with respect to trade and commerce with other countries, and is a valid exercise of the constitutional power under s 51(i) and s 98. A merchant vessel coming to Australia with passengers and cargo, or for passengers and cargo, is not, I think, from the point of view of Australia, any the less engaged in trade and commerce with other countries because in the course of her voyage she may also, as ships commonly do, load and discharge cargo and embark and disembark passengers at ports in other countries.
It is, however, one thing to say that the Commonwealth Parliament has a constitutional power to make a law having a wide extra-territorial operation. It is quite another thing to say that it has confided the exercise of such a power to a subordinate law-making authority. The Parliament might, as a matter of law, exercise its powers in defiance of international comity and heedless of whether or not its laws could be enforced. It does not follow that it has authorized its industrial tribunals to do so. Prima facie Commonwealth statutes ought not to be so construed as authorizing any subordinate law-making body to deal with matters which have no real and substantial connexion with Australia or to make any rules except such as can be directly or indirectly enforced by the authority of Australian courts.
Turning therefore to the jurisdiction conferred upon the Commonwealth Conciliation and Arbitration Commission under s 72 of the Conciliation and Arbitration Act 1904-1958, I have had the advantage of reading the judgment of the Chief Justice in this case; and I respectfully agree with his analysis and construction of paras (a) and (b) of that section. The matters here in question have a direct, real and substantial connexion with Australia. The prosecutor, being registered here as a foreign company, is amenable, as is a resident, to the jurisdiction of Australian courts. The ships' officers whose conditions of service are in question reside in Australia, and they are engaged and discharged in Sydney. Probably they, or most of them, are Australian citizens and are domiciled in Australia. The ships on which they serve are British ships regularly coming to and departing from Australian ports in the course of voyages for the purpose of trade, including carrying cargo and passengers to and from Australia. These circumstances are enough to bring the matter within those with which, under either para (a) or (b), s 72 upon its proper construction empowers the Arbitration Commission to deal. The case seems to me very different from some of those imagined in argument concerning affairs aboard foreign ships and the labour conditions of foreign crews having no real or substantial connexion with Australia beyond the fact that the vessels in which they serve from time to time come into Australian ports. Some of the imagined circumstances might well be within the constitutional power of Parliament under s 51(i), however inappropriate it might seem to be for it to legislate in respect of them; but they would not fall within the powers Parliament has confided to the Arbitration Commission on the proper construction of its statute.
The prosecutor's contention that it should be discharged from the proceedings before the learned Commissioner thus fails. But I do not mean that I think an award in the very terms put forward could properly be made by the learned Commissioner in respect of officers and engineers serving in the prosecutor's ships. The log of claims seems to involve an assumption that an award might be made in respect of working conditions aboard the prosecutor's ships in exactly the same terms as an award could be made to operate in respect of work to be done in ships within covering cl 5. This I think is a mistake. An award of the Arbitration Commission operating in ships within covering cl 5 is merely part of the law of Australia operating where Australian law is in force; whereas an award in relation to work to be done aboard the prosecutor's ships gets its efficacy because it prescribes terms and conditions which are to be read into a contract of service made in Australia between Australia residents. Whether the courts of another country would treat these enforced terms in a contract made in Australia as binding would depend upon the doctrine of private international law applied in those courts. The distinction between serving in the prosecutor's ships and serving in ships within covering cl 5 is not merely theoretical. Some of the provisions of the proposed award, whether or not they would be suitable to employment in Australian ships, would not be appropriate terms in contracts made by the prosecutor with Australians for services as officers in its ships. I may mention one such matter. The log of claims of the Merchant Service Guild of Australasia apparently claims that every master or mate on a ship of the prosecutor, whoever he be and wherever he be engaged, must henceforth be employed in accordance with the terms proposed, whether or not he be a member of the guild. But it is not, I think, in any way certain that the Arbitration Commission has under its statute any authority to dictate terms of contracts to be made in the future outside Australia, by persons not represented in these proceedings and who could be foreign nationals having no connexion by residence or domicile with Australia. As I see the matter at present, that would travel far beyond the essential facts of this case and far beyond anything which the decision in Metal Trades Employers Assn v Amalgamated Engineering Union (1935) 54 CLR 387 would support And I do not think this obstacle is at all overcome by the proposed clause that "all future ships' articles signed by employees (as defined) shall be deemed to incorporate the terms hereof". The history of ships' articles is explained in Abbott on Shipping 14th ed (1901) p 220. In relation to British ships, the expression means the agreement between the master and the crew, provided for now by s 114 of the Merchant Shipping Act. The articles of the prosecutor's ships are signed in Hong Kong pursuant to the Merchant Shipping Act, s 124. This, it seems, is because most members of the crews are Chinese who are engaged in Hong Kong. But the Australian masters, mates and engineers are engaged in Australia. The statutory provisions under the Merchant Shipping Act do not prevent the making of a contract outside, or additional to, the statutory articles; and if such a contract be more beneficial to the seaman than the articles, and not inconsistent with them, it is enforceable: McKernan v Fraser (1931) 46 CLR 343, at p 358; Moore v "City of Malines" (1947) 81 LlLR 96; Federated Seamen's Union of Australasia v Commonwealth Steamship Owners' Assn (1922) 30 CLR 144. So far as the prosecutor and the respondents are concerned, the present dispute has occurred in Australia in relation to the conditions of employment of Australians under contracts made in Australia. In my view, the learned Commissioner has power in respect of these respondents to proceed to the making of an award, but not necessarily to make an award in the terms proposed.
I consider that the order nisi should be discharged.