R v Foster
103 CLR 256(Judgment by: Dixon CJ)
R
vFoster
Judges:
Dixon CJMctiernan 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:
Dixon CJ
The Merchant Service Guild of Australasia and the Australian Institute of Marine and Power Engineers delivered to a large number of shipowners and others employing members of those respective bodies logs of claims or demands relating to the terms and conditions of employment. Included among the employers to whom the respective logs were delivered is the Eastern and Australian Steamship Company. That company is the prosecutor in the order nisi for a writ of prohibition now before us. The demands contained in the logs covered the salaries and the working conditions at sea or in port of the various descriptions of employees represented by the two bodies. In the one case the description was limited to a master or mate or an engineer being a member of the Merchant Service Guild. In the other case the log dealt in effect with ships' engineers but the definition extended to any member of the Institute of Marine and Power Engineers employed by employers upon whom the log was served. One may suppose that the ships of the greater number of the employers served are engaged in interstate trade upon the Australian coast. But that is not true of the Eastern and Australian Steamship Company. That company has four vessels which trade via ports between Adelaide and Kobe in Japan. The ships are registered in London but in every case the ship's articles are opened and signed in Hong Kong. Apart from the master, deck officers (usually four in number) and the engineer officers (usually eleven) the crew reside in Hong Kong or China. The master, deck officers and engineer officers are engaged or discharged in Sydney and reside in Australia.
The company did not comply with the demands made in the logs or with any of them. Doubtless this was true too of many others of the shipowners concerned and both the guild and the institute claimed that an industrial dispute extending beyond the limits of one State had been created. Notifications were sent accordingly to the Commonwealth Conciliation and Arbitration Commission as under s 28 of the Conciliation and Arbitration Act 1904-1956. The Eastern and Australian Steamship Company objected that no dispute affecting that company had come into existence which would give the commission authority to make an award binding upon it and that the matter lay outside the jurisdiction of the commission. For this contention reliance was placed upon the decision given in 1920 by this Court concerning the same shipping company, namely, that reported as Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) (1920) 28 CLR 495 a decision founded, at all events in some degree, upon Merchant Service Guild of Australasia v Archibald Currie & Co Pty Ltd (1908) 5 CLR 737. The contention was rejected by the learned presidential commissioner (Foster J). His Honour's reasons for rejecting it included the effect of the Statute of Westminster, which was not in operation at the date of the decision. His Honour said: "I propose to retain the Eastern and Australian Steamship Co Ltd as respondents to these proceedings and if necessary to make an award binding that company in the dispute created by the log of demands already referred to". The purpose of the writ of prohibition for which the company has obtained the order nisi is to restrain the commission from acting in accordance with this statement.
It will be noticed that the learned commissioner spoke in terms appropriate to an industrial dispute. His Honour was however sitting to exercise the power conferred upon the commission by s 72 of the Conciliation and Arbitration Act 1904-1958. That provision purports to confer a double power; a power which as to one part is dependent upon s 51(i) and as to the other part upon s 51(xxxv) of the Constitution. It is desirable to give the text of s 72, which is as follows: "The Commission is empowered -- (a) to prevent or settle industrial disputes by conciliation and arbitration; (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 amont the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters".
In para (a) of this provision "industrial dispute" means an industrial dispute as to industrial matters extending beyond the limits of any one State. The expression "industrial matters" carries the same meaning as it does in the sufficiently familiar definition contained in s 4(1) except that the references to "employees" are to be read as references to seamen, a word comprising masters and every other person employed or engaged in any capacity on board a ship except apprentices and persons temporarily on the ship in port. The word also includes pilots. These meanings are the result of the definitions of "industrial matters" and of "seaman" inserted in s 71 by the Conciliation and Arbitration Act 1958 (No 30 of 1958) and incorporating the definition of "master" and of "seaman" in s 6 of the Navigation Act 1912-1956. Perhaps it should be added that the order nisi was granted some days before the Act of 1958 was assented to and took effect, but we are of course concerned with the power or authority belonging to the Conciliation and Arbitration Commission now, when the question must be decided whether for the commission to proceed in the matter would mean an excess of its existing authority. Ss 71 and 72 are contained in Div 2 of Pt III of the Conciliation and Arbitration Act 1904-1958, a division headed "Industrial Matters -- Maritime Industries" and extending to s 75. S 73 provides that excepting references and appeals the powers of the commission in respect of an industrial question under that division shall be exercisable by the commission constituted by a presidential member assigned by the president for the purpose and not otherwise. The expression "industrial question" is defined to cover both an industrial dispute and an industrial matter -- s 71.
If the power or authority of the Conciliation and Arbitration Commission over the "industrial question" raised by the logs depended upon the interpretation of s 72 according to the natural meaning of terms perhaps little ground could be discovered for contesting it. No one denies that the logs and the failure by the Eastern and Australian Steamship Co Ltd to comply provide sufficient prima facie evidence of a dispute about the subjects of the demands contained in the log. It would be difficult to deny that for the most part, at all events, the subjects of the demands bring them within the natural meaning of the words of the definition of industrial matters.
No question is raised as to the interstate character of the alleged disputes. Presumably it is taken for granted that the whole of each dispute to which other shipowners as well as the Eastern and Australian Steamship Co Ltd on the one side and the organization of employees on the other side are parties must be interstate, that is to say, necessarily extends from one State into another. No doubt it strikes the mind that an award or an order prescribing the duties of masters, officers and engineers at sea would purport to operate beyond the territorial jurisdiction of the Commonwealth but since the Statute of Westminster that would not go to the validity of the award or order. It may not be a "law" but if it is regarded as a "factum" the operation of which to impose obligations is the result of the Act as a law of the Commonwealth, that is enough. It cannot be invalid for extra-territoriality; for s 3 of the Statute of Westminster declares and enacts that the Parliament of a Dominion has full power to make laws having an extra-territorial operation. Since the adoption of the Statute of Westminster by Act No 56 of 1942 it can be no objection to the validity of a law of the Commonwealth that it purports to operate outside Australia. The result may be an enlargement of federal power, but it is not an enlargement against which s 9(1) of the Statute of Westminster can have anything to say. That subsection provides that nothing in the Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. S 9(1) cannot have anything to say against it because it is obvious that before the Statute, if and where on the ground of extra-territoriality the Commonwealth lacked power, there also the States lacked power on the same ground. If the natural meaning of the terms employed in s 72(a) and (b) is to be restrained by reason of territorial considerations, it must be because of some more general presumption, not one resting on territorial limitations of power.
The case therefore would involve few or no difficulties if it were governed by the words of s 72 in their natural meaning. But perhaps there is one rather puzzling phrase contained in para (b) of s 72. What does "submitted to it" mean in the expression "to hear and determine industrial matters submitted to it"? Who does the submitting of the matter and how? It cannot mean that the parties to a matter must combine in submitting it; for seldom could you be sure how many "parties" would be affected and if you did ascertain that accurately, it would still be unlikely that you would get them all to agree in submitting the matter to the commission. No one seems to know what the legislature contemplated by the words "submitted to it"; yet these words seem to contain a necessary condition of jurisdiction or authority. The words appear in s 77(b) in Div 3 relating to industrial matters in the Snowy Mountains Area, and in s 82(b) in Div 4 relating to industrial matters in the stevedoring industry. Apparently the form of words in question was first adopted in the amendments made by s 7 of the Snowy Mountains Hydro-electric Power Act 1951 (No 47). That section introduced Pt IVA into the Snowy Mountains Hydro-electric Power Act 1949 (No 25) and s 24C (1), a provision of Pt IVA, is obviously the source of s 78(2) of the Conciliation and Arbitration Act 1904-1956. The form of this s 24C (1) seems to have been adopted in s 405D of the Navigation Act 1912-1952, a provision introduced into that statute by the Navigation Act 1952. That is the source of s 72 of the Conciliation and Arbitration Act 1904-1956. S 82 seems to have been framed in 1956 on the same model: see No 44 of 1956, s 7(introducing s 16BT) and No 53 of 1956, s 5. In the case of all three provisions (scil. s 72(b), s 77(b) and s 82(b)) the words "submitted to it" suggest that the legislature intended that the tribunal should not of its own motion exercise the specific power or authority conferred by the paragraph. But there is no indication by whom or by what means the "matter" must be "submitted". The best that a court of construction can do is to say that it must be submitted by somebody possessing an interest and by whatever procedure is in use by or in reference to the commission. In the present case we are told that the guild and the institute gave notifications of disputes to the commission purporting to do so in pursuance of s 28 of the Act, cf reg 16 of the Conciliation and Arbitration Regulations. This would seem to be enough to "submit" the matters involved to the commission.
Adopting that view, there is nothing in the natural meaning of the words used in s 72 to prevent that section in both branches from applying to the dispute or the industrial matter or matters to which the demands contained in the logs give rise or from empowering the commission to deal with them.
The whole case, in other words, must depend upon the existence of reasons for denying validity to the provision or else for limiting its meaning and application by construction based upon considerations going outside or beyond the natural meaning of the words in which it is expressed.
So far as para (a) of s 72 goes, what must be admitted to be a strong prima facie reason exists in decisions of this Court for "construing down" the provision so as to exclude this case. In Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3) (1920) 28 CLR 495 on facts relating to the Eastern and Australian Steamship Co Ltd almost identical with those of the present case, this Court decided that there was no jurisdiction in the Court of Conciliation and Arbitration to make an award as to the company with respect to industrial conditions to be observed on its ships. The ships traded in the manner that has already been described with reference to the company's ships of today. The question did not come before the Court on prohibition as the present case does. A summons had issued under the now repealed s 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1918 for a decision of a judge on the question whether an alleged industrial dispute extending etc existed between the Merchant Service Guild and certain ship-owners, including the company. The summons came before Higgins J. The company objected "to being included in the decision as being parties to the dispute" (1920) 28 CLR, at p 496. Higgins J then stated a case for the Full Court in which he said that he was prepared to find that the company was a party to the dispute in fact, and submitted the question whether it was proper for him as a Justice of the High Court to include the company (among other respondents) "in any decision as being parties to an industrial dispute within the meaning of s 51 (XXXV) of the Constitution" (1920) 28 CLR, at p 498. Knox CJ, Isaacs, Rich and Starke JJ in a joint judgment gave reasons for the conclusion that the objection was well founded. Higgins J said that on the authority of Currie's Case (1908) 5 CLR 737, he concurred in the view that the Court of Conciliation and Arbitration had no jurisdiction to deal with the dispute so far as regards the company. The learned judge ended his judgment by saying that the question asked was in substance the following, viz -- treating the respondent as party to the dispute in fact (along with hundreds of other respondents) is the Court of Conciliation and Arbitration competent to entertain the claims as between the guild and the respondent, the operations being carried out mainly outside Australia? (1920) 28 CLR, at p 506. Doubtless Higgins J gave this explanation of the question because Gavan Duffy J in the reasons he had prepared expressed doubt as to what point was submitted for the determination of the Court (1920) 28 CLR, at p 507. That learned judge expressed his conclusion in an alternative. His Honour said, "For practical purposes it will probably be sufficient to say that, if the learned Judge wishes to know whether a dispute within the meaning of s 51(XXXV) of the Constitution can exist with respect to industrial operations conducted outside the territorial limits of the Commonwealth, I adhere to what was said by my brother Rich and myself in Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (1913) 16 CLR 664, and I answer Yes. If he wishes to know whether such a dispute exists in the present case, I answer that I am unable to say on the facts stated, though the learned Judge may, of course, do so by ascertaining whether the facts which were then declared to be necessary to constitute an industrial dispute with reference to extra-territorial operations are to be found here" (1920) 28 CLR, at p 507 The question was answered in the negative. Now in the case of Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (1913) 16 CLR 664, at pp 702, 703 to which Gavan Duffy J refers, certain questions had been submitted to the High Court by the President of the Court of Conciliation and Arbitration relating to alleged industrial disputes involving two ships. One of them ran between Sydney, Fiji and Auckland but without any regular itinerary. The other carried phosphate from Ocean Island. She usually cleared from an Australian port to Ocean Island with cargo on the return journey for Sydney Heads for orders. In each case the ship's officers were engaged in Australia and the dispute was about their terms and conditions of service. The judges in the High Court were not agreed on their decision upon the case stated and it is evident that during the argument difficulties arose out of the form of the questions submitted which were ultimately reframed but even as amended they were not answered in full or categorically. For the purpose of explaining the significance of Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3)(1920) 28 CLR 495 and more particularly the significance of the observations therein of Gavan Duffy J already quoted, it will suffice to set out the answers to the first and third questions in the earlier case. The second question was not answered. The answers are as follows: " (1913) 16 CLR, at p 704 The dispute is not the less a dispute extending beyond the limits of any one State merely because some of the operations in respect of which the dispute exists are performed beyond the territorial limits of the Commonwealth . . . (3) The Court has power to require that any of the terms and conditions which it lawfully determined should be in operation between the organization and the respondents to the plaint, including those represented on the argument of the special case, shall be incorporated in a written agreement between them" (1913) 16 CLR, at p 704 Now a close reading of the reasons of the learned judges will show that these answers were the result of the concurrence of Isaacs, Higgins, Gavan Duffy and Rich JJ. But Isaacs J and apparently Higgins J too, justified the propositions which the answers embody by reference to the provisions of s 5 of the covering clauses of the Commonwealth of Australia Constitution Act which says that the laws of the Commonwealth shall be in force on British ships whose first port of clearance and whose port of destination is within the Commonwealth, while in their joint judgment Gavan Duffy and Rich JJ took wider ground. It will be necessary to return to the reasons contained in the joint judgment of their Honours, but the foregoing explanation makes it possible to take up again the decision of the majority of this Court in Merchant Service Guild v Commonwealth Steamship Owners' Assn (No 3)(1920) 28 CLR 495. In that case it is evident that Gavan Duffy J in his dissent was treating the answers to the questions in the earlier case as constituting a governing authority. And so they might have been, if they were read without the reasons at all events of two of the learned judges forming the majority. For it was only by their reliance upon s 5 of the covering clauses that their Honours were led to concur in the answers. In the later case Knox CJ, Isaacs, Rich and Starke JJ said (1920) 28 CLR, at p 502: "As none of the ships now under consideration come within the description given by (s 5) that provision may be disregarded and 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" they were then concerned. Their Honours then proceed to say: "We interpret the enactment" (scil. para (XXXV) of s 51) "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. The expression 'industrial dispute' in subs (XXXV) does not mean simply a dispute as to an agreement to perform work anywhere in the world. It does not, for instance, mean a dispute in Australia between shipowners of various nations and their crews of their respective nationalities as to the terms on which employment should proceed in the various countries represented. If so, there is no jurisdiction in the present case" (1920) 28 CLR, at pp 502, 503 Then their Honours conclude: "We think that subs (XXXV) of s 51, 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 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. Currie's Case (1908) 5 CLR 737 was decided in conformity with the opinions we have expressed, and in some respects was an a fortiori case" (1920) 28 CLR, at p 503 Currie's Case (1908) 5 CLR 737 thus referred to concerned ships engaged in trade between Australian ports and English ports whose articles were opened in Calcutta but whose officers were engaged in Australia. The decision was against the jurisdiction of the Court of Conciliation and Arbitration over a dispute between the shipowners and the officers. The ships were not within s 5 of the covering clauses. It is clear from the opening sentence of the judgment of O'Connor J that he treated the question of jurisdiction as depending upon competence to make an award the provisions of which would operate on the high seas to impose duties and obligations. S 5 at that time appeared to his Honour to express the only extension of the territorial limitation of legislative power so that on a ship not embraced in that covering clause an award could not operate. That view appears really to have formed the basis of the decision of the Court, which consisted of Griffith CJ, O'Connor, Isaacs and Higgins JJ. It is a view which could only obtain before the adoption of the Statute of Westminster. It is not the same view as that expressed in the passages quoted from Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No 3)(1920) 28 CLR 495, at pp 502, 503 The view expressed in that case depended not on placing a territorial limitation on the power to settle an industrial dispute because an award would not run outside the jurisdiction; but on adopting a conception of an industrial dispute which limited it to industrial services geographically within Australia. The reference to territorial limits upon jurisdiction is to the jurisdiction not of the legislature to provide for the enforcement of an award but that of the Arbitration Court to make one. Perhaps more strictly it should be described as a limit upon the power to conciliate and arbitrate in the dispute. It is not perhaps a cardinal matter but it may be suggested that their Honours' statement that one of the principles of interpretation is that prima facie jurisdiction is territorial is introductive of a misleading analogy. For after all in English law jurisdiction at common law in transitory actions depended on nothing but service upon the defendant within the jurisdiction of the writ of summons or other process and in equity upon the power to Act upon him in personam. But the limitation which the decision may seem to fasten upon para (XXXV) of s 51 is of different description. It goes to the subject matter of the legislative power and limits it to disputes as to the terms and conditions of industrial operations in Australia or aboard a ship within covering cl 5. This involves a very drastic and, as events have developed, a most serious restriction. If the restriction be literally applied it means that once an Australian aircraft is well over Bass Strait the terms and conditions of employment of the crew are outside the operation of the power of the Conciliation and Arbitration Commission or of the constitutional power whence it derives. It means that in the countless enterprises which nowadays involve Australians whose work takes them abroad in the course of their employment, whether for a term or for an occasion, an industrial dispute in Australia as to the terms and conditions of their employment falls outside the legislative power conferred by s 51(XXXV). It is a question independent of the Statute of Westminster because the limitation which the joint judgment expresses does not appear to arise from the then territorial limitation upon the possible operation or validity of all laws of the Commonwealth considered as a Dominion, but rather to depend upon the nature of the industrial dispute to which s 51(XXXV) can or does apply. No doubt it is easy to see in the reasons that the one conception influenced the other.
Notwithstanding the considerations referred to the Court must hesitate in departing from a construction of s 51(XXXV) particularly one so deliberately adopted and so long ago. But the words emphasized, "industrial operations in Australia" (1920) 28 CLR, at p 503, impose a limitation which, if accepted literally, seems to involve an unreasonable restriction of legislative power and to have nothing to support it either in the text or in previous authority. It is in opposition to the view expressed by Gavan Duffy and Rich JJ in the earlier case, a view which Gavan Duffy J regarded, though perhaps incautiously, as actually embodied in the Court's answers to the questions submitted. Their Honours in their reasons expounded that view as follows: "Let us assume that the expression 'industrial disputes' in s 51(XXXV) of the Constitution means industrial disputes existing within the Commonwealth. When does such a dispute exist within the Commonwealth? We think it exists within the Commonwealth when the disputants reside, the demands and the refusal are made, and the dissidence, dissatisfaction and unrest prevail within the Commonwealth, although the dispute itself may have relation, as in this case, to labour to be performed outside the territorial limits by the employees who are parties to the dispute. If the Court of Conciliation and Arbitration can have cognizance of such a dispute, it can, of course, control the parties to the dispute so far as their conduct within the territorial limits of the Commonwealth is concerned; but can it control their conduct in places outside these limits? We think it can" (1913) 16 CLR, at pp 702, 703. Their Honours proceed to refer to the question which now the Statute of Westminster removes from consideration, namely, whether the legislative power implied an authority to make and enforce awards operating extra-territorially. The learned judges reach a tentative answer in the affirmative, agreeing however that for the purpose of the answers given by the Court a sufficient justification would exist in covering cl 5. With all respect to the judgment of the majority of the Court the above statement set out textually from the judgment of Gavan Duffy and Rich JJ seems to me clearly to be correct. It is not, of course, exhaustive nor was it so intended. The connexion of an industrial dispute with Australia may take various forms. At this date, however, I think that the statement of Gavan Duffy and Rich JJ so far as it goes should be adopted as expressing correct principle: for in the first place the Statute of Westminster has deprived the majority judgment of some of the ground assigned for the conclusion; in the second place the development of Australian activities in and with other countries has revealed the inadequacy of that reasoning and made it particularly inappropriate; and thirdly, the statement of Gavan Duffy and Rich JJ carries conviction as a matter of interpretation. It is necessary to add that the statement of Gavan Duffy and Rich JJ is expressed hypothetically. It begins "Let us assume that the expression 'industrial dispute' in s 51(XXXV) means industrial disputes existing within the Commonwealth" (1913) 16 CLR, at p 702. The exact meaning or the validity of this assumption need not be examined at present. Doubtless s 51(XXXV) is speaking of industrial disputes connected with the Commonwealth; by definition they must extend beyond the limits of one State. What is important is the positive statement of what will satisfy the necessity of a connexion with Australia. Perhaps less will do so. But in the present case the elements are sufficient. The disputants are for the most part connected by residence or the like with Australia and the demands were made here with respect to employment for which the masters, officers and engineers are engaged here. In all these circumstances there seems no sufficient reason why the case should not fall within para (a) of s 72.
That conclusion means that the attack on the commission's jurisdiction has not been sustained. But even if we were prepared to follow Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Assn (No. 3) (1920) 28 CLR 495 literally and so exclude the application of para (a) of s 72, I think that the power of the commission under para (b) would attach. The words of para (b) are both wide and vague and probably they should be subjected to what may be called a restrictive construction. It does not follow from the adoption of the Statute of Westminster that Commonwealth legislation should be construed as if there were no territorial considerations affecting its interpretation. Indeed it may be fairly said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation. That is a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers. It may well be correct that para (b) ought not to be interpreted as extending to ships which are governed entirely by the laws of other countries and bring themselves into relation with Australia only as carriers of goods or passengers which are shipped or unshipped at our ports. See Lauritzen v Larsen (1952) 345 US 571, particularly at pp 577-583 (97 Law Ed 1254, at pp 1265- 1268.) But in the present case we have a practice of engaging masters, deck officers and engineers in Australia. The shipowners in other words employ Australian personnel for their officers. There is no presumption that would authorize a construction of s 72(b) resulting in the exclusion of such a case. But is para (b) valid? It is framed in a form that is always calculated to arouse doubts. The power being to make laws with respect to trade and commerce with other countries and among the States, para (b) does not pick out a matter inherently possessing the characteristics of such trade or commerce and legislate with respect to that matter. On the contrary at a first reading it seems almost to pick out something else as the subject "with respect to" which the law is made, namely the determination of industrial matters, and then to go on to limit the subject by the words "so far as they relate to trade and commerce" etc. Unless "industrial matters" on closer examination were revealed as in themselves possessing a sufficient connexion with oversea and interstate commerce to belong to the subject of the power, this form of legislation might be regarded as doing no more than taking the subject of the legislative power as a peg to hang the provision upon and not as really providing anything "with respect to" the subject matter of the power. The same observation might no doubt be made concerning s 83(b) but it is more immediately met by the inherent character of stevedoring operations, which, because they centre upon the loading and discharge of ships go to something necessarily possessing the characteristics of oversea and interstate trade and commerce. But a careful scrutiny of the definitions on which s 72(b) depends for its meaning and application shows that the same kind of reasoning really applies to support the validity of that provision. If you take the definition of "industrial matters" you will find that the definition relates entirely to the terms and conditions of employment of persons whose work is identified with oversea or interstate trade and commerce. It probably makes no real difference as to validity but it is that definition contained in the amendment made by Act No 30 of 1958 that concerns this order nisi. The expression "seamen" means every person employed or engaged in any capacity on board a ship, except masters, pilots and apprentices and persons temporarily employed on the ship in port: s 6 Navigation Act 1912-1956. "Master" means any person having command or charge of a ship: ibid. "Pilot" means any person appointed or licensed as such under the Navigation Act and not belonging to a ship who has the conduct thereof: ibid. S 71 of the Conciliation and Arbitration Act, as the result of the amendments made by s 13 of Act No 30 of 1958, defines "seaman" to include master, pilot and seamen (using each of these words in the defined sense). But it proceeds to extend the application of the meaning by including those whose usual occupation is that of master, pilot and seamen. Then s 71 as so amended makes the words "industrial matters" apply in the case of masters, pilots and seamen to the long string of things relating to employment set out in the definition of the term in s 4(1) of the Conciliation and Arbitration Act 1904-1958. Now, apart from the possible effect of the extension of the definition to those whose usual occupation is that of master, pilot or seamen, the consequence would be that you are dealing with questions affecting the employment of persons in ships. In the long list of particulars comprised in paras (a) to (q) in the definition of industrial matters there are references inappropriate to employment in ships. There may also be paragraphs which in whole or in part go further than legislative power permits. But they are severable and it is no less true that the subject matter is the employment of persons to serve or who usually serve aboard ship. If there were no further limitation the indefinite inclusion of those whose usual occupation is that of "seamen" might cause doubt and uncertainty. One may suppose that the reason for this inclusion is simply to avoid in advance the point that a man is not a seaman within the definition of the Navigation Act until he signs on or otherwise is engaged or is employed on board the ship. Nevertheless it might cover temporary employment on shore work. However, there is a further limitation, namely that contained in s 72(b) in the words "so far as those matters relate to trade and commerce with other countries and among the States." Although these words might not themselves have supplied the necessary subject matter, yet when you find that the main subject is the employment of masters, pilots and seamen they suffice to prevent the inclusion of those usually occupied as such from extending the provision to irrelevant employments. Nevertheless, if it were not for s 98 of the Constitution the direct relation to ships might not have been enough to bring the subject into trade and commerce. S 98 provides that the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping. This does much more than enable the legislature to deal with trade and commerce when conducted by means of ships. "It says in effect that the power to make laws with respect to trade and commerce shall include a power to make laws with respect to navigation and shipping as ancillary to such trade and commerce. It authorizes Parliament to make laws with respect to shipping, and the conduct and management of ships as instrumentalities of trade and commerce, and to regulate the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce, both among themselves and in relation to their employers on whose behalf the navigation is conducted". This passage from the judgment of Gavan Duffy and Rich JJ in Australian Steamships Ltd v Malcolm (1914) 19 CLR 298, at p 335 expresses the point of the decision of the Court. See too Joyce v Australasian United Steam Navigation Co Ltd (1939) 62 CLR 160, at pp 167, 170, 174-176, 177; Morgan v The Commonwealth (1947) 74 CLR 421, at pp 454, 455; [1947] ALR 161.
In my opinion para (b) of s 72 is a valid law of the Commonwealth and for the reasons I have given I think that it covers this case. It is desirable however to repeat that it does not follow that as a matter of interpretation s 72(b) is applicable to ships governed by other laws which do no more than carry goods to or from this country. It may be assumed that the wide general language used by the legislature was not intended to refer to the shipping of other countries possessing no distinct industrial connexion with Australia. But that is not the position in the present case.
In my opinion the order nisi should be discharged.