R v Foster

103 CLR 256

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(Judgment by: Kitto J)

R
vFoster

Court:

Judges: Dixon CJ
Mctiernan J
Fullagar J

Kitto JTaylor 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

Hearing date: 13, 14, 15 and 16 October 1958
Judgment date: 12 March 1959

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Judgment by:
Kitto J

As regards s 72(a) of the Conciliation and Arbitration Act 1904-1958 (Cth), I agree in the judgment of the Chief Justice and have nothing to add.

As regards s 72(b), I agree in his Honour's reasons for holding the provision to be a valid law of the Commonwealth. I have a difficulty, however, as to the meaning of the word "submitted" in the expression "industrial matters submitted to it" ie to the commission. It is evident that s 72(b) is not just another provision for compulsory arbitration, for whatever "submitted to it" may mean at least its use has the effect of excluding a normal feature of compulsory industrial arbitration systems, namely the power of the arbitral tribunal to intervene of its own motion in a dispute which comes to its notice, whatever may be the source of its information. If the commission is to have power to determine a matter so as to bind by its decision a party or parties who have not invoked and may not desire its intervention, what considerations of policy can there be for making this power conditional upon the receipt of an invitation from another party? It seems to me difficult to suppose that the Legislature intended a system half-way between compulsory arbitration and arbitration by consent, namely arbitration at the request of one or some of the parties, without the consent and even against the will of the other or others. But in any case, in such a context as is found in s 72(b) the word "submitted" seems to me apt only to refer to the result of joint action by all the interested parties, that is to say joint action bringing a stranger, as adjudicator, into a matter in which prima facie he has no business to interfere, and subjecting all the parties to his determination of that matter. It is true that in many "industrial matters" there is such a multiplicity of parties that this interpretation of the word would make the provision difficult to use; but there would still be, I should think, many such "matters" in which a submission by consent of all parties would be practicable. In my opinion, the dispute in the present case has not been "submitted" to the commission, and for that reason I do not feel able to rely upon s 72(b) as a ground of decision.

I would discharge the order nisi.