Aucote and Samson Maritime Pty Ltd
[2014] AATA 296
•14 May 2014
[2014] AATA 296
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/3409, 2013/3870
Re
Noel Aucote
APPLICANT
And
Samson Maritime Pty Ltd
RESPONDENT
DECISION
Tribunal President Kerr
Date 14 May 2014 Place Sydney The Tribunal determines that the Seafarers Rehabilitation and Compensation Act 1992 (Cth) applies to the applicant’s claims.
........................................................................
President Kerr
Catchwords
COMPENSATION – Seafarers compensation – Determination of preliminary issue – Jurisdiction of Tribunal – Whether ship engaged in trade or commerce between Australia and a place outside of Australia
STATUTES – Acts of Parliament – Interpretation – Use of extrinsic materials
Legislation
Constitution (Cth) ss 51(i), 51(xx), 51(xxxix)
Acts Interpretation Act 1901 (Cth) s 15AC
Navigation Act 1912 (Cth)
Seafarers Rehabilitation and Compensation Act 1992 (Cth) ss 3, 4, 19
Seamen’s Compensation Act 1911 (Cth) s 4(1)
Seamen’s Compensation Act 1909 (Cth) ss 4(1), 4(2)
Seamen’s Compensation Act 1960 (Cth) s 3
Statute Law Revision Act 1973 (Cth) s 3
Workplace Relations (Work Choices) Act 2004 (Cth)
Cases
ACCC v Global Prepaid Communications Pty Ltd (In Liq) [2006] FCA 146
Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492
Australian Steamships Ltd v Malcolm (1914) 19 CLR 298
Batchelor v Commissioner of Taxation [2014] FCAFC 41
Cole v Whitfield (1988) 165 CLR 360
Comcare v Lilley (2013) 216 FCR 214
Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594
Lawless v Sullivan (1881) 6 App. Cas. 373
Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565
Rahman and Offshore Marine Services Pty Ltd [2013] AATA 57
R v Wilkinson: Ex parte Brazell, Garlick and Coy (1952) 85 CLR 467
Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30
Smith v ANL Ltd (2000) 204 CLR 493
Summers v Repatriation Commission [2012] FCAFC 104; (2012) 130 ALD 32
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237
The Owners of the S.S. Kalibia v Alexander Wilson (1910) 11 CLR 689
Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218
W & A McArthur Ltd v Queensland (1920) 28 CLR 530
Wragg v New South Wales (1953) 88 CLR 353
Secondary Materials
Professor Harold Luntz, Seamen’s Compensation Review Report (Australian Government Publication Service, 1988)
REASONS FOR DECISION
President Kerr
14 May 2014
The applicant, Mr Noel Aucote, is an Australian seafarer. At the relevant time he was employed as a crew-member (deckhand/dogman) on board the Samson Mariner, a multi-cat Dredge Helper. On 18 June 2011 the applicant injured his right shoulder while throwing a tow-line to a crewman on another vessel, the Phoenix.
At the time the Samson Mariner was on charter to John Holland Pty Ltd. It had been chartered for the purpose of assisting that company construct a privately owned 1.5 kilometre long wharf and associated infrastructure at Cape Lambert in the Pilbara region of Western Australia. Rio Tinto Iron Ore had contracted with John Holland Pty Ltd to build that wharf to provide facilities to Rio Tinto Iron Ore so that company could load iron ore onto very large vessels for its export to China.
The applicant claimed compensation pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (SRC Act) for his injury. His claims were not accepted. He now brings two applications before the Tribunal (a) application 2013/3409 in which he seeks review of a deemed decision disallowing his claim for permanent impairment for his right shoulder condition and (b) application 2013/3870 in which he seeks review of a deemed decision disallowing his claim for incapacity payments for his right shoulder condition.
The parties requested the Tribunal to determine, as a discrete preliminary issue, whether the SRC Act applies to the applicant’s claims. Because that issue appears to be the principal, and perhaps only, issue of fact and law in genuine contention as between the parties the Tribunal assented to that course.
The core dispute
Before addressing the parties’ submissions in detail it is convenient to set out where, at commencement, they most fundamentally differed. It is with respect to whether the Samson Mariner was engaged in trade or commerce between Australia and a place outside of Australia when the applicant was injured.
Mr Aucote’s counsel, Mr King SC, submits that the SRC Act applies to his claim because the Samson Mariner was relevantly “engaged in trade or commerce between Australia and places outside of Australia” within the meaning of s 19(1)(a) of the SRC Act. The Samson Mariner was a prescribed ship. It was engaged in the construction of the wharf at Cape Lambert. The wharf’s construction was integral to trade or commerce (the supply of iron ore) between Australia and a place outside of Australia (China). That is sufficient to ground the applicant’s entitlement to compensation under the SRC Act.
The respondent’s counsel, Mr Harding, submits that the SRC Act does not apply to the applicant’s claim because to enliven s 19(1)(a) of the SRC Act the ship in its activities must be directly and substantially engaged in international trade. While some aspects of the activities of the Samson Mariner could be accepted to have had a degree of connection with international trade none of those matters involved the ship itself being directly and substantially engaged in international trade. The limited degree of connection in this case is insufficient to give rise to eligibility to compensation under the SRC Act.
The facts
In the interests of expedition and reducing costs the parties undertook the task of providing the Tribunal with an agreed statement of facts. With one minor exception they were successful in achieving that objective. The Tribunal commends the parties and their legal representatives for this sensible cooperation which has assisted the quick and economical disposition of this matter. Unlike the circumstances discussed in Batchelor v Commissioner of Taxation [2014] FCAFC 41, in the Tribunal’s opinion the facts as agreed between the parties are sufficiently disclosed so as to permit the Tribunal to proceed with its task of reaching the correct or preferable decision as to the preliminary issue.
The only fact about which the parties did not reach agreement concerned whether the Phoenix, one of two vessels the Samson Mariner worked closely with in the construction of the wharf and to which the applicant was throwing a tow line when he suffered his injury, was foreign owned.
The applicant tendered three documents to establish that fact. Mr King advised the Tribunal that the documents had been obtained through an internet search for information regarding the Phoenix. Mr Harding objected to their reception. The Tribunal received those documents marked for identification. MFI “A” appeared to identify the Phoenix as being on the Korean Register of ships. MFI “B” appeared to be an extract from the Korean Register identifying Eunsung O&C as the vessel’s owner. MFI “C” appeared to be an extract of the details of Eunsung O&C describing it as a Korean company.
Mr Harding informed the Tribunal that the respondent’s sole objection to the Tribunal accepting that the three documents, taken together, established the foreign ownership of the Phoenix was limited to the circumstance that the second page of MFI “B” did not appear to form part of an extract from the Korean Register. Without that link the chain relied upon by the applicant was not established. Upon Mr King offering his assurance as counsel that the second page was part of the Korean Register of ships as disclosed by the applicant’s internet search Mr Harding withdrew the respondent’s objection and the Tribunal received those three documents as exhibits. The Tribunal is not bound by the rules of evidence and, having regard to those exhibits, the Tribunal is satisfied that at all relevant times the Phoenix was foreign owned. Its owner was Eunsung O&C, a Korean company.
It is now convenient to set out in full the Statement of Agreed Facts (incorporating that finding indicated in bold italics) but without reproducing the lengthy and uncontentious documentation of the time charter which was annexed.
The parties are agreed that at the time of the applicant’s injury or at the other times referred to in this paragraph:
(a)The Samson Mariner was a prescribed ship within the meaning of s19 of the Seafarers Rehabilitation & Compensation Act 1992 (Cth) (“SRCA").
(b)The Samson Mariner was a multi-cat Dredge Helper. The vessel was:
(i)Registered on the Australian Shipping Register from a date prior to 25 February 2011 up until 7 June 2012, and was thereafter registered on the Panama Shipping Register;
(ii)Owned by Samson Maritime Asset Holdings Pty Ltd, an Australian Registered Corporation and a subsidiary of the respondent from a date prior to 25 February 2011 up until 31 May 2012 when it was acquired by a non-Australian corporation, namely Stardazz Pty Limited of Singapore.
(c)The Samson Mariner was chartered by a subsidiary of the respondent, Samson Maritime Vessel Operations Pty Ltd to John Holland Pty Ltd under a time charter agreement dated 31 January 2011. Annexed hereto and marked “A” is a copy of the agreement.
(d)John Holland Pty Ltd is an Australian corporation and has had a registered office situated in Victoria at all material times.
(e)Samson Maritime Vessel Operations Pty Ltd trading as Samson Maritime is an Australian corporation and has had a registered office situated in Western Australia at all material times.
(f)Cape Lambert is a port facility operated by Rio Tinto Iron Ore in the Pilbara region of Western Australia and lies 11km west of Point Samson. The port at Cape Lambert is Port Walcott.
(g)Rio Tinto Iron Ore contracted with John Holland Pty Ltd for the construction of a 1.5 kilometre two sided berth to provide facilities and loading for large ore carriers at its port at Cape Lambert. The project is known as the Cape Lambert B Project and its purpose was to provide the necessary infrastructure and ancillaries to process and export up to an additional 50 million tonnes of iron ore per annum. This iron ore is chiefly for export to China. The wharf and infrastructure are a private facility owned and operated by Rio Tinto.
(h)The Samson Mariner was chartered by John Holland Pty Ltd for the purpose of assisting in the construction of the wharf and infrastructure and its activities were confined to this purpose during the period of the charter.
(i)The applicant was employed by the respondent to work on board the Samson Mariner as a deckhand/dogman from 25 February 2011 and joined the vessel in Cape Lambert on about 4 March 2011. He worked a swing of 5 weeks on and 5 weeks off and was employed pursuant to the Samson Maritime Wharf & Jetty Marine Civil Construction Enterprise Agreement 2010. He last worked for the respondent on 5 July 2011.
(j)During the period February 2011 to December 2013 the Samson Mariner worked in close cooperation with two jack-up barges, the Eunsung 1200 and the Phoenix in relation to the construction of the wharf. The Eunsung 1200 and the Phoenix were contracted to John Holland Pty Ltd to work on the project.
(k)The jack-up barge Eunsung 1200 has been registered on the Australian Shipping Register from 2007 to date. From a date prior to 25 February 2011 to the date hereof it has been owned by Fugro Seacorp Australia Pty Ltd, a company which has had a registered office in Western Australia during those times. The jack-up barge Phoenix has never been registered on the Australian Register and from a date prior to 25 February 2011 to the date hereof has been registered in Belize and is foreign owned.
(l)The jack-up barges, the Eunsung 1200 and the Phoenix were the working platforms from which the wharf was constructed. The work the Samson Mariner did in connection with the project was as follows:
(i)Movement
The continual relocation of the two jack-up barges as the construction of the jetty advanced. Neither vessel was self-propelled and they were towed into position by the Samson Mariner. This was frequently a daily event. Sometimes the jack-up barges would be moved several times a day. This usually involved the recovery of the jack-up barges anchors and then dropping them into the new position, whereafter a towline to the jack-up barge would be attached and it would be towed to the approximate area required. The jack-up barge would then use its anchor winches to position it exactly into the required position. Once that was achieved, it would deploy its long support legs into the sea bed and commence construction.
(ii)Transfer of material
All of the material used for the construction of the jetty came into the port on two heavy lift vessels which were Chinese registered. This included many steel pilings, prefabricated steel sections and other equipment. This material was manufactured overseas. All of this was unloaded at the existing wharf and was transferred by the Samson Mariner to the jack-up barges. The pilings were lowered by wharf crane into the water and then floated across to the jetty construction site under tow from the Samson Mariner. The other equipment was loaded by wharf crane onto barges which were towed across to the site by the Samson Mariner. The barges which the crew used included the Miclyn 255, Barge 55 and the LLM 1107. Some smaller items of equipment and materials were taken over on the back of the crew’s vessel. All of this equipment was then lifted onto the jack-up barge by the barge’s crane. The deckhand, and sometimes the engineer, on the Samson Mariner would attach the crane hook to the equipment to be lifted. Keeping the jack-up barges supplied with these materials was a major part of the crew’s duties on the Samson Mariner.
(iii)Provision of Bunkering
Although the jack-up barges relied on the Samson Mariner for propulsion, they had a number of diesel generators on board for the supply of their power, including the operation of winches, cranes and pile driving equipment. That fuel was supplied every four weeks or so by the Samson Mariner. Fuel was taken on at the respondent’s base at John’s Creek, Point Samson and brought back to Cape Lambert and transferred directly to the jack-up barges.
(iv)Cyclones
During the cyclone season (January to March) cyclones came into the area, the Samson Mariner would be required to tow the jack-up barges to safe anchorages outside of Cape Lambert. This often involved tows of up to 80 nautical miles away from Cape Lambert, usually south to an area near Dampier known as Cyclone Alley. In cyclone season the Samson Mariner would also have to engage in towing other barges used on the project, the Miclyn 255, Barge 55 and the LLM 1107 to safe anchorage points.
(v)Dumping of Sewage
At intervals the Samson Mariner would have to sail out to sea beyond the 12 mile limit for the purpose of dumping the vessel’s sewage in accordance with environmental regulations. This occurred every six weeks or so, although sometimes the vessel’s tanks were pumped out by truck which came alongside the wharf. To the recollection of the applicant this occurred on two occasions whilst he was on board the Samson Mariner.
(m)On 18 June 2011 the applicant was working on board the Samson Mariner. The vessel was then located at Cape Lambert and was making preparations to re-position the Phoenix. The applicant threw a heaving line (to which was attached the tow line) to a crewman on the Phoenix and in doing so caused injury to his right shoulder.
(n)Other than during the voyages referred to at paragraph (l)(v) above, the Samson Mariner only operated in Western Australian waters between 25 February 2011 to the date hereof.
(o)In the events that have happened the hire of the vessel under the time charter was extended under a series of addenda to the charter agreement such that the hire of the vessel continues to the date of this statement of facts.
(p)On those occasions when the Samson Mariner went beyond the 12 mile limit as referred to in paragraph (l)(v) it stayed within Australia’s Exclusive Economic Zone, but was outside the Coastal Sea of Australia as defined by the Acts Interpretation Act 1901 (Cth).
A preliminary jurisdictional point
Paragraph (a) of the Statement of Agreed Facts asserts that the Samson Mariner was a prescribed ship within the meaning of s 19 of the SRC Act. The Tribunal accepts this to be the shared conclusion of the parties; however, it may not be strictly correct to classify that conclusion as an agreed fact because it also implicitly answers a threshold jurisdictional question of law that the Tribunal must determine. Accordingly, as a matter of caution, the Tribunal sets out its reasons for reaching the same conclusion.
Section 3 of the SRC Act defines a “prescribed ship” as inter-alia “a ship to which Part II of the Navigation Act 1912 would apply if that Act had not been repealed”. It is sufficient for that purpose if the vessel is on the Australian Shipping Register: Tiwi Barge Services Pty Ltd v Stark (1997) 78 FCR 218 (Tiwi Barge) per Northrop, Cooper and Mansfield JJ at 221-222.
Paragraph (b)(i) of the Statement of Agreed Facts records that the Samson Mariner was on the Australian Shipping Register from a date prior to 25 February 2011 up until 7 June 2012. Applying the ratio of Tiwi Barge to those facts the Tribunal is satisfied that at all relevant time the Samson Mariner was a prescribed ship for the purposes of s19 of the SRC Act.
The relevant law
Section 4 of the SRC Act defines an “employee” to mean, inter-alia, a seafarer. Section 3 provides that a “seafarer” is “a seafarer, as defined in the Navigation Act 2012, who is employed in any capacity on a prescribed ship, on the business of the ship”. Having regard to the Statement of Agreed Facts paragraphs (a) and (i) and given the Tribunal’s disposition of the preliminary jurisdiction point the Tribunal finds that Mr Noel Aucote, was a seafarer and an employee of the respondent within the meaning of the SRC Act.
If such a seafarer employee suffers an injury that results in his or her death, incapacity for work or impairment, then subject to some not presently relevant exceptions, compensation is payable for that injury or incapacity as set out in Part 2 of the SRC Act.
However the operation of the SRC Act is limited by the provisions of s 19. Only if the conditions s 19 refers to are met does the SRC Act apply. Section 19 provides:
19 Application of Act
(1) This Act applies to the employment of employees on a prescribed
ship that is engaged in trade or commerce:
(a) between Australia and places outside Australia; or
(aa) between 2 places outside Australia; or
(b) among the States; or
(c) within a Territory, between a State and a Territory or
between 2 Territories.
(1AA) This Act also applies to the employment of employees on:
(a) a vessel that is used to engage in coastal trading under a
general licence; or
(b) a vessel that is used to engage in coastal trading under an
emergency licence if the vessel is registered in the Australian
General Shipping Register.
(1A) This Act also applies to the employment of employees on any
prescribed ship that:
(a) would be an off-shore industry vessel within the meaning of
the Navigation Act 1912 if that Act had not been repealed
and either:
(i) was, immediately before the repeal of that Act, covered
by a declaration in force under subsection 8A(2) of that
Act; or
(ii) is covered by a declaration in force under
subsection (1C) of this section; or
(b) would be a trading ship within the meaning of the Navigation
Act 1912 if that Act had not been repealed and either:
(i) was, immediately before the repeal of that Act, covered
by a declaration in force under subsection 8AA(2) of
that Act; or
(ii) is covered by a declaration in force under
subsection (1C) of this section.
(1B) However, this Act does not apply because of subsection (1A) to a
prescribed ship that is covered by a declaration in force under
subsection (1D).
(1C) The Authority may declare in writing that this Act applies to a
prescribed ship that would be an off-shore industry vessel, or a
trading ship, within the meaning of the Navigation Act 1912 if that
Act had not been repealed.
(1D) The Authority may declare in writing that this Act does not apply
because of subsection (1A) to a prescribed ship that would be an
off-shore industry vessel, or a trading ship, within the meaning of
the Navigation Act 1912 if that Act had not been repealed.
(1E) A declaration made under subsection (1C) or (1D) is not a
legislative instrument.
(2) This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a
trading corporation formed within the limits of the
Commonwealth; and
(b) a reference to an employee were limited to a reference to an
employee employed by a trading corporation formed within
the limits of the Commonwealth.
(3) This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a
financial corporation formed within the limits of the
Commonwealth; and
(b) a reference to an employee were limited to a reference to an
employee employed by a financial corporation formed within
the limits of the Commonwealth.
(4) This Act also has the effect it would have if:
(a) a reference to an employer were limited to a reference to a
foreign corporation; and
(b) a reference to an employee were limited to a reference to an
employee employed by a foreign corporation.
(5) Subsection (3) does not have the effect of applying this Act with
respect to:
(a) State banking that does not extend beyond the limits of the
State concerned; or
(b) State insurance that does not so extend.
The applicant’s submissions as to the scope of s 19(1)(a)
The applicant contends that s 19 defines the boundaries of the seafarer’s compensation scheme by reference to multiple heads of Commonwealth constitutional power and, in doing so, reveals an underlying statutory intention that the scheme is intended to apply as far as Commonwealth constitutional power allows it to: Applicant’s Submission on Jurisdiction (ASJ) 9.
Section 19(1)(a) should be construed as having the same breadth and reach as does Commonwealth legislative power in respect of trade and commerce engaged in by ships: ASJ 10. So understood it extends to activities which are ancillary to interstate and international trade and commerce by sea: ASJ 13. The scope of the constitutional head of power underlying s 19(1) is complemented by the incidental power under s 51(xxxix) of the Constitution. Once this point is accepted and appreciated it is clear that the meaning of “engaged in trade or commerce between Australia and places outside Australia” mirrors the scope of that constitutional power so that the expression can be satisfied by activities which are incidental to such trade and commerce: ASJ 15.
Rio Tinto was engaged in overseas trade and commerce involving the export of iron ore. The construction of its wharf facility at Cape Lambert was an essential integer of that trade. The activities of the Samson Mariner were both essential to and directed at that construction work and were thus “incidental” in the relevant sense so as to make that activity part of overseas iron ore trade and commerce: ASJ 18. Fulfilling that task was the sole reason for the Samson Mariner’s activities pursuant to the time charter.
The Samson Mariner also was engaged in international trade and commerce between Australia and places outside of Australia by reason of its working with and manoeuvring alongside the Phoenix, a foreign owned and registered vessel. The Phoenix was the vessel to which the applicant was throwing a heaving line when he sustained his injury.
For those reasons the SRC Act extends to the employment of the applicant as a member of the crew of the Samson Mariner.
The respondent’s submissions as to the scope of s 19(1)(a)
The respondent accepts that the Samson Mariner was engaged in “trade or commerce” at all relevant times. Its activities under its charter to John Holland Pty Ltd were for the purpose of assisting in the construction of the wharf and infrastructure at Cape Lambert and therefore were part of that vessel’s trading and commercial activities: Respondent’s Outline of Submissions (ROS) 5.7.
However, in order to enliven s 19 of the SRC Act it is insufficient for there to be merely some relationship between a ship’s activities and international trade no matter how remote and marginal. A number of aspects of the activities of the Samson Mariner had a degree of connection with international trade, but none involved the ship itself being directly and substantially engaged in international trade: ROS 5.15.
The test is “whether in its activities the ship itself is directly and substantially engaged in international trade” (emphasis in original): ROS 5.12. The words of s 19 are plain in that regard. The Samson Mariner had not been engaged in transporting goods interstate or overseas, nor had such a voyage been contemplated. Its activities were confined to the construction of a wharf/infrastructure based off the coast of Western Australia: ROS 5.14. The time charter under which the vessel was operating restricted the Samson Mariner’s contracted area of operation to Cape Lambert, WA and adjacent waters: ROS 5.13(a).
Had the Parliament wished to convey a meaning consistent with the widest meaning of the constitutional power, the Parliament, so as to apply the SRC Act to a vessel only indirectly participating in trade or commerce between Australia and places outside of Australia, could have chosen words such as “in relation to” or “with respect to” that trade or commerce. It had not done so.
Accordingly any relationship between the activities of the Samson Mariner and international trade or commerce was too indirect and too remote to enliven s 19 of the SRC Act. The Samson Mariner had been engaged only in preparatory work (building a wharf) antecedent to, and of a different character to, engagement in international trade; ROS 5.16.
Consideration: s 19(1)(a)
The question of whether Mr Aucote was employed on a ship which was “engaged in trade or commerce between Australia and places outside of Australia” requires the Tribunal to make a threshold legal decision as to what those words mean.
Responding to that question invites attention to (a) the level of analysis to be applied and (b) the degree of connection between the engagement of the vessel upon which the applicant was employed and trade or commerce of the kind required. While Mr Harding conceded that the Samson Mariner had been engaged in trade or commerce and expressly disavowed reliance on Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 (Concrete Constructions) there may be echoes of what was decided in that case underlying the respondent’s submission that the words chosen by Parliament to express the degree of connection required in s 19(1)(a) was “in” trade or commerce between Australia and places outside of Australia and not “in relation to” or “with respect to” trade or commerce between Australia and places outside of Australia.[1] In Mr Harding’s submission the statutory requirement that the Samson Mariner be engaged “in” trade or commerce between Australia and places outside of Australia can be satisfied only if the activities of the ship in international trade or commerce were direct and substantial.
[1] The reasoning of the High Court in that case was specific to the use of the expression ‘in trade or commerce’ in the context of s 52 of the then Trade Practices Act. The Tribunal accepts, for that reason, that Mr Harding was correct to disavow Concrete Constructions v Nelson as binding on the Tribunal or as having direct relevance to the matter before it.
The difficulty in the respondent’s reasoning to that conclusion is that it gives insufficient weight to the history and context of the provision.
The task of statutory interpretation is not mechanical—the Tribunal must give effect to the meaning of undefined words of a statute having regard to their ordinary meaning understood in the context of the Act read as a whole. In Comcare v Lilley (2013) 216 FCR 214 at [67]-[69] the Full Court of the Federal Court of Australia explained how context can be relevant to the approach to statutory construction:
…In Lacey v Attorney-General (Qld) (2011) 242 CLR 573, drawing on the decision of Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, six judges of the High Court held (at [43]-[44], citations omitted):
43 The objective of statutory construction was defined in Project Blue Sky ... as giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have. ... The legislative intention there referred to is not an objective collective mental state. Such a state is a fiction which serves no useful purpose. Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts. ...
44 The application of the rules will properly involve the identification of a statutory purpose, which may appear from an express statement in the relevant statute, by inference from its terms and by appropriate reference to extrinsic materials. The purpose of a statute is not something which exists outside the statute. It resides in its text and structure, albeit it may be identified by reference to common law and statutory rules of construction.
[68] The approach set out in Lacey has been applied in more recent High Court decisions, including Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross (2012) 87 ALJR 131; (2012) 293 ALR 412 at [24]-[25] where French CJ and Hayne J held (citations omitted):
24 The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky..., “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” [emphasis added]. That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole” and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”.
25 Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure.
[69] The Lacey approach was restated in similar terms in Akiba v Commonwealth (2013) 87 ALJR 916; (2013) 300 ALR 1 at [31], where French CJ and Crennan J, citing Lacey, observed:
The identification of a statute’s purpose may aid in its construction. That identification may be done by reference to the apparent legal effect and operation of the statute, express statements of its objectives and extrinsic materials identifying the mischief to which it is directed.
The SRC Act did not emerge from a vacuum. It was enacted in 1992 to modernise and replace the former Seamen’s Compensation Act 1911. The Seamen’s Compensation Act 1911 was enacted after the earlier Seamen’s Compensation Act 1909 had been held to be invalid by the High Court of Australia in The Owners of the S.S. Kalibia v Alexander Wilson (1910) 11 CLR 689 (SS Kalibia).
The plight of seafarers after injury had befallen them had become a subject widely agreed to require legislative redress in the early years of the 20th century. The United Kingdom had passed remedial legislation. In enacting the Seamen’s Compensation Act 1909 the Australian Parliament purported to create its own statutory compensation scheme in relation to the employment of seafarers on “any ship registered in the Commonwealth when engaged in the coasting trade or in trade with other countries” (s 4(1)). The Seamen’s Compensation Act 1909 was designed to introduce “along the coast line of Australia, and throughout Australian registered ships, a uniform law… founded both on humanitarian considerations and economic principles” (Senator Millen, Second Reading Speech, Senate Hansard, 21 July 1909). Section 4(2) of the Act defined the coasting trade so as to include wholly intra-State commerce.
After the High Court ruled in SS Kalibia that s 4(2) was void, could not be severed, and that the Seamen’s Compensation Act 1909 was wholly invalid, the Parliament enacted the Seamen’s Compensation Act 1911. Other than for the new s 4 and the inclusion of a provision repealing the 1909 Act, the 1911 legislation was identical to that which had been passed by the Parliament in 1909. Section 4(1) of the 1911 Act provided (omitting immaterial parts):
…this Act shall apply to the employment of seamen[2] on any of the following ships:-
(a) ships in the service of the Commonwealth, other than the Naval or Military Service;
(b) ships trading with Australia, or engaging in any occupation in Australian waters, and being in the territorial waters of any Territory which is part of the Commonwealth; and
(c) ships engaged in trade and commerce with other countries or among the States.
[2] Generally limited, but not exclusively, to seamen crewing ships registered in Australia—see s 4(2).
Senator MacGregor who, following a change of government, had replaced Senator Millen as Vice-President of the Executive Council spoke on the second reading of the Bill. He told the Parliament that the redrafting of s 4 had been “undertaken with a view to meet the objections raised by the High Court, and to bring the measure within our constitutional powers” (Senate Hansard 6 December 1911 p 3756). Later in debate he explained that s 4 had been drafted to give expression to the widest powers understood to be available to the Parliament:
According to the interpretation given by the High Court, we cannot, in this or any other Bill, go outside the trade and commerce powers…We cannot do any more than we are doing in the Bill. If we attempted to do so we should contravene the Constitution, and might have the Bill thrown upon our hands again…(Senate Hansard, 6 December 1911 p 3761).
In this recast form the Seamen’s Compensation Act 1911 survived a subsequent High Court challenge: Australian Steamships Ltd v Malcolm (1914) 19 CLR 298. In the course of the next half century, s 4 was substituted by the Seamen’s Compensation Act 1960 (No. 67, 1960) s 3 and amended by the Statute Law Revision Act 1973 (No. 216 1973) s 3 but the provision that had been s 4(1)(c) remained materially unaltered in respect of its expressed reach. The form it took immediately prior to the enactment of the SRC Act was:
4(1) This Act applies in relation to—
(a) the employment of seamen on a ship registered in Australia
(i) that is engaged in trade and commerce with other countries or among the States, or between a State or a Territory forming part of the Commonwealth and a Territory (whether forming part of the Commonwealth or not)
That history illustrates that Parliament had first sought to cover the entire field of coastal and international shipping to provide compensation for injured seafarers, and, that, when the High Court had invalidated that legislation, Parliament had acted to cover all of those aspects of the field to the greatest degree constitutionally open to it.
Section 15AC of the Acts Interpretation Act 1901 provides that where an Act has expressed an idea in a particular form of words and a later Act appears to have expressed the same idea in a different form of words for the purpose of using a clearer style, the ideas are not to be taken as different merely because different forms of words were used. In the Tribunal’s view that is the position in the present case.
Sub-sections 19(1)(a) and (b) of SRC Act merely pick up and express in more modern terms provisions which had formerly been expressed by s 4(1)(c) of the Seamen’s Compensation Act 1911.
So understood the Tribunal can find no contextual support for the respondent’s submissions. In the Tribunal’s opinion the respondent seeks to import a gloss on the language of the statute for which there is no warrant.
To the extent it might have been called in aid notwithstanding Mr Harding’s eschewal of it, the Tribunal is satisfied that Concrete Constructions should be distinguished. There is nothing akin to a limiting policy purpose (in Concrete Constructions consumer protection) disclosed in the SRC Act to warrant a narrow reading of its provisions.
In the Tribunal’s opinion the words of s 19(1)(a) understood in context convey their ordinary meaning without requiring any narrowing gloss. They are not words of art. They are entirely apt to apply to any ship engaged in trade or commerce between Australia and places outside of Australia within the power conferred on the Parliament to legislate with respect to “trade and commerce with other countries” by s 51(i) of the Constitution. There is no reason not to give them their full effect. That was what Parliament intended in 1911. That was the mischief it then expressly addressed and nothing in the legislative history, extrinsic materials or text of the statute suggests that the purpose of the legislation was changed, in relevant regards, when that Act was repealed and substituted for by the SRC Act. To that extent the Tribunal accepts Mr King’s submission that s 19(1)(a) mirrors the scope of the s 51(i) constitutional power.
However, contrary to Mr King’s further submission, it appears to the Tribunal equally to impose a gloss on the language of the statute to read s 19(1)(a) as if it also picks up everything that could be legislated for pursuant to the express incidental power under s 51(xxxix) of the Constitution such that the Samson Mariner need only to be engaged in some activity incidental to international trade and commerce that potentially might be the subject of Commonwealth legislation. There is nothing in the drafting of the provision or the extrinsic materials to suggest that such a reading was intended.[3]
[3] This is not to deny that the extension of every head of Commonwealth power by an implied incidental power has been affirmed since the High Court’s earliest days but, even accepting that premise, current constitutional doctrine appears to bind the Tribunal to conclude that the scope of the implied incidental power with respect to s 51(i) is quite limited. That is because of historic sensitivity to encroachment into the domain of purely intra-State trade in this field in contrast to the High Court’s otherwise emphatic repudiation of the doctrine of reserved powers: see for example Wragg v New South Wales (1953) 88 CLR 353 per Dixon CJ at 385-386; O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565; Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492 per Stephen J at 508. This is neither the forum nor the case to explore that tension.
On the Tribunal’s analysis the critical question that must be determined is whether the activities the Samson Mariner as described in the Statement of Agreed Facts disclose that the ship was engaged “in trade or commerce between Australia and places outside Australia” accepting that those words were chosen by the Parliament to have the fullest reach permitted of them by the expression “with respect to trade and commerce with other countries” in s 51(i) of the Constitution.
There is surprisingly little authority as to what the Constitution means when it refers to “trade and commerce with other countries” and there are no cases that the parties or the Tribunal were able to identify that speak directly to the language of s 19(1)(a) of the SRC Act. This may simply be because ultimately, the question of whether or not conduct has been engaged in in trade or commerce with other countries or, as the SRC Act expresses the same notion, between Australia and places outside Australia, turns on fact specific circumstances and the language of both the Constitution and s 19(1) (a) of the SRC Act is not susceptible of more precise definition.[4] In W & A McArthur Ltd v Queensland (1920) 28 CLR 530 (W & A McArthur) Knox CJ, Isaacs and Starke JJ stated at 546-547:
The terms “trade, commerce and intercourse” are not terms of art. They are expressions of fact, they are terms of common knowledge, as well known to laymen as to lawyers, and better understood in detail by traders and commercial men than by Judges. But as Judges we are taken to know and do in fact in this instance know the general import of the words. The particular instances that may fall within the ambit of the expression depend upon the varying phases and development of trade, commerce and intercourse itself… “Trade and commerce” between different countries…. has never been confined to the mere act of transportation of merchandise over the frontier. That the words include that act is, of course, a truism. But that they go far beyond it is a fact quite as undoubted. All the commercial arrangements of which transportation is the direct and necessary result form part of “trade and commerce’. The mutual communings, the negotiations, verbal and by correspondence, the bargain, the transport and delivery are all, but not exclusively, parts of that class of relations between mankind which the world calls “trade and commerce.
[4] This may also be because before Tiwi Barge there had been a series of Tribunal decisions which had held that the requirement that the ship on which a seafarer was engaged be one to which Part II of the Navigation Act 1912 applied imported the additional requirements of Part I of that Act such that not only must the ship be on the Australian Shipping Register but also it must be engaged in a voyage between the States or internationally. If such a voyage were proven it would be only in very rare circumstances open to suggest that the vessel had not been engaged in inter-State or international trade or commerce. Even following the decision in Tiwi Barge decisions of the Tribunal have appeared to have placed some emphasis on notions of “voyage” imported from Part I of the Navigation Act 1912: see eg Rahman and Offshore Marine Services Pty Ltd [2013] AATA 57 at [10].
Save for his contention that the Samson Mariner had been engaged only in preparatory work (building a wharf) antecedent to, and of a different character to, engagement in international trade, Mr Harding made no submission that what the Samson Mariner had been engaged in ought not be viewed as trade or commerce between Australia and places outside of Australia if the question of statutory interpretation was answered by the Tribunal other than as submitted for by the respondent. In any event the Tribunal is not persuaded that the Samson Mariner was engaged only in preparatory work, antecedent to and of a different character to international trade.
The engagement of the Samson Mariner was in international trade. A transaction must be judged by its substantial nature in order to ascertain whether it is or is not of the character predicated: W & A McArthur at 549. Paragraphs (g) and (h) of the Agreed Statement of Facts record:
(g) Rio Tinto Iron Ore contracted with John Holland Pty Ltd for the construction of a 1.5 kilometre two sided berth to provide facilities and loading for large ore carriers at its port at Cape Lambert. The project is known as the Cape Lambert B Project and its purpose was to provide the necessary infrastructure and ancillaries to process and export up to an additional 50 million tonnes of iron ore per annum. This iron ore is chiefly for export to China. The wharf and infrastructure are a private facility owned and operated by Rio Tinto.
(h) The Samson Mariner was charted by John Holland Pty Ltd for the purpose of assisting in the construction of the wharf and infrastructure and its activities were confined to this purpose during the period of the charter.
The Statement of Agreed Facts put before the Tribunal therefore discloses that Rio Tinto Iron Ore had committed to exporting iron ore prior to the events with which these proceedings are concerned. Rio Tinto was, applying the guidance given to the Tribunal by the High Court in W & A McArthur, therefore already relevantly engaged in trade or commerce between Australia and places outside Australia.
The Statement of Agreed Facts directly discloses the purpose for which Rio Tinto’s 1.5 kilometre two sided berth was being constructed. Rio Tinto contracted with John Holland Pty Ltd to build additional private wharf facilities to enable it to expand its trade in iron ore—principally to China. The Samson Mariner was chartered for the purpose of building those facilities. All of the interrelated commercial arrangements of which the charter of the Samson Mariner was part were simply means to achieve an identified end: providing Rio Tinto with the necessary infrastructure and ancillaries to process and export up to an additional 50 million tonnes of iron ore per annum.
Judged so as to identify their substantial nature, the overseas transportation of iron ore by Rio Tinto was the intended, direct and necessary result of those commercial arrangements. Once so characterised, everything undertaken pursuant to those arrangements was in international trade—because it was undertaken in order to achieve the purpose of increasing Rio Tinto’s exports of iron ore. R v Wilkinson: Ex parte Brazell, Garlick and Coy (1952) 85 CLR 467 illustrates that it is unavailing in such instances artificially to separate out and differently characterise claimed preliminary conduct from otherwise relevant trade and commerce when that conduct is intrinsically part of a composite business dealing. Moreover what was occurring at the Cape Lambert site itself bore the clear stamp of international trade and commerce. The wharf being constructed was being built from materials all of which were shipped from overseas to the site on Chinese flagged vessels.
There was nothing insubstantial, tenuous or distant about the engagement of the Samson Mariner in that regard. Accordingly, even had the Tribunal accepted the respondent’s argument that as a matter of statutory construction s 19(1)(a) required that in its activities the ship itself be directly and substantially engaged in international trade, the Tribunal would have reached the same conclusion.
The applicant’s alternative submission: s 19(1)(b)
The applicant submits that the activities of the Samson Mariner were carried out in Western Australia pursuant to an agreement between a company, John Holland Pty Ltd, incorporated in Victoria and the respondent, a company incorporated in Western Australia. The area of operation for the Samson Mariner stated in the charter was ‘Cape Lambert, WA and adjacent waters’ Those circumstances, in themselves, demonstrate that the activities of the Samson Mariner were trade or commerce among the States for the purposes of s 19(1)(b) of the SRC Act: ASJ 27.
That is an alternative path to the Tribunal holding that SRC Act extends to the employment of the applicant as a member of the crew of the Samson Mariner.
The respondent’s submission as to s19(1)(b)
Mr Harding submits that there is High Court authority standing in the way of the Tribunal accepting the applicant’s alternative submission. A transaction said to be interstate must be judged by its substantial nature in order to ascertain whether it is or is not of the character predicated: W & A McArthur v Queensland (1920) 28 CLR 530 at 549.
Everything the respondent did (putting aside the place of John Holland’s incorporation) pursuant to its time charter for the Samson Mariner with John Holland had been done in a single state, Western Australia. The work of the Samson Mariner was undertaken in Western Australia. Judged by its substantial nature such trade or commerce was intrastate, not interstate, trade or commerce.
Consideration: s19(1)(b)
Having decided that the applicant must succeed on the preliminary issue before it in relation to s 19(1)(a), the Tribunal is not strictly required to proceed further to consider s 19(1)(b). However it is convenient for the Tribunal to give short reasons for its conclusions as to the remaining issues to enable the parties to fully consider their respective positions should they be advised to seek judicial review.
Section 19(1)(b) provides that the SRC Act also applies to the employment of employees (seafarers) on an Australian registered ship that is “engaged in trade or commerce among the States”. It is the ship that must be engaged in such trade or commerce.
The Tribunal has concluded that in the circumstances revealed by the Agreed Statement of Facts the Samson Mariner had been engaged in international trade or commerce at the time of the applicant’s injury notwithstanding that it had not travelled outside of Australian waters. It may be conceivable that a ship be engaged simultaneously both in trade or commerce between Australia and places outside of Australia and in trade or commerce among the States—but that circumstance has not been shown to exist in this case.
The Statement of Agreed Facts does not assist the applicant. The materials supplied for the construction of the wharf did not come from inter-State. They were manufactured overseas and came into port on two heavy lift vessels which were Chinese registered. The Samson Mariner worked alongside two jack-up barges, one of which, the jack-up barge Phoenix, was foreign owned.
The other, the jack-up barge with which the Samson Mariner worked, was owned by a company whose registered office was in Western Australia and there is nothing to suggest it had any inter-State role: Statement of Agreed Facts (k). As a matter of geography everything the Samson Mariner engaged in took place in a single state, Western Australia.
Mr King submits that because the Samson Mariner had been chartered by John Holland Pty Ltd, a company incorporated in Victoria, the Samson Mariner’s activities were at all material times carried out pursuant to an agreement between parties in different States and that that was a sufficient connection to engage s 19(1)(b).
However, in ACCC v Global Prepaid Communications Pty Ltd (In Liq) [2006] FCA 146 Gyles J said at [50]:
The mere fact that parties to dealings are in different States or that an international party may be involved is not sufficient to establish the necessary connection. The conduct must take place in the course of interstate or international trade or commerce.
That passage was referred to with approval in Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237 (Warren CJ, Osborn JA and Macaulay AJA) at [412]. It is true that Gyles J’s observations were made about the operation of a different Act but the underlying legal issue he addressed appears to the Tribunal to be the same. While Gyles J’s reasoning may not be strictly binding it is highly persuasive. Adopting that approach the Tribunal finds, in the absence of any other basis to suggest that the Samson Mariner was engaged in inter-State trade, that the place of incorporation of John Holland is of itself too remote, tenuous and insubstantial a reason to justify the Tribunal finding that the ship upon which the applicant was employed was relevantly engaged in trade or commerce among the States.
An issue raised by the Tribunal
The AAT is generally entitled to respond to and determine the issues as they have been identified by the parties and say nothing about issues which have not been raised. However, the Tribunal is an inquisitorial body with the duty to reach the correct and preferable decision. If the material before the Tribunal suggests that a significant question may have been overlooked, the Tribunal is permitted, and in some instances may be required, to draw the point to the parties’ attention to the matter and then seek submissions upon it: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 per Allsop J at [15]; Summers v Repatriation Commission [2012] FCAFC 104; (2012) 130 ALD 32 per Gilmour, Perram and Jagot JJ at [47] and [60].
Neither party made reference in their initial written or oral submissions to s 19(2), (3), (4) and (5) of the Act. Because the legal significance of those provisions appeared to the Tribunal to be potentially material, the Tribunal asked counsel whether they thought it arguable that their effect might be to give the SRC Act an expanded operation in reliance upon the corporations power subject to constitutional limits on state banking and insurance. If such a construction was open s 19(2) might be relevant to the task before the Tribunal. The Tribunal adjourned briefly to permit the parties to consider the question the Tribunal had asked.
Upon the Tribunal resuming counsel submitted that the question was of significance but required their undertaking further research. The point could be dealt with adequately in writing. Leave was sought to file and serve supplemental submissions. The Tribunal made directions accordingly. The parties were granted leave to address the legislative history of s 19 and to annex any extrinsic materials of assistance in its interpretation.
Applicant’s supplemental submissions: s 19(2), (3), (4) and (5)
There are alternative constructions of these subsections open to the Tribunal. That preferred is that they were intended, drawing on the Parliament’s legislative power pursuant to s 51(xx) of the Constitution, to expand the scope of the SRC Act’s compensation scheme beyond the limits of s 19(1) of the SRC Act such that any injury suffered by an “employee” (as defined by s 4 of the SRC Act) of a trading, financial or foreign corporation, whether the ship upon which they served was in port, travelling interstate or beyond, would be covered by the scheme. So construed the applicant was relevantly a seafarer employee of a trading corporation and the SRC Act applied to entitle him to compensation for his injury.
The alternative construction is that the subsections were intended to operate within the scope of s 19(1) and be enlivened only in the event that some part of the SRC Act was beyond the power conferred by s 51(i) of the Constitution.
The first construction should be preferred because the constitutional foundations for s 19(1) had been secured by the time ss 19(2)-(5) of the SRC Act were enacted in 1992. The validity of the analogous earlier provisions in the Seamen’s Compensation Act 1911 had been upheld in Australian Steamships v Malcolm (1914) 19 CLR 298, there had been no further challenge to their validity and the High Court’s subsequent decision in Cole v Whitfield (1988) 165 CLR 360 had cemented that already secure position. The introduction of ss 19(2)-(5) in 1992 therefore indicates Parliament’s intention to widen the scope of the scheme rather than their being enacted as redundant constitutional reinforcements to a robustly secure provision.
The preferred construction is available on the plain words of ss 19(2)-(4) having regard in particular to the use of the word ‘also’ in the chapeaux to each of those subsections. Moreover their enactment reflects the desire, expressed in Professor Harold Luntz, Seamen’s Compensation Review Report (Australian Government Publication Service, 1988) which was referred to in the Second Reading Speeches for a single worker’s compensation jurisdiction for seafarers whether they were engaged in overseas, interstate or intrastate shipping. This construction is consistent with what the Explanatory Memorandum to s 19 of the SRC Act states:
This clause ensures that the proposed Act will be within the Commonwealth’s legislative powers under the Constitution. The primary, although not exclusive, bases of power are the trade and commerce power, and the Commonwealth’s powers to make laws with respect to foreign corporations and trading and financial corporations (Clauses 51(i) and 51(xx) of the Constitution respectively).
This construction is consistent with the observations of Kirby J in Smith v ANL Ltd (2000) 204 CLR 493 at [69] that “However, to be absolutely sure, the Rehabilitation Act is also expressed to have application to the “employees” of corporations to which the Constitution applies.”
The respondent’s supplemental submissions: ss 19(2), (3), (4) and (5)
The better construction is that s 19(2) does not extend the application of the SRC Act to an individual who is merely an employee of a trading corporation formed within the limits of the Commonwealth: it operates to limit the width of the application of the SRC Act in the event that some part of that Act is found to be beyond the scope of s 51(i) of the Constitution.
The language of s 19 supports this narrower construction. Section 19(1) refers to the circumstances in which “This Act applies to...”. To like effect both ss 19(1AA) and (1A) provide “This Act also applies to…”. By comparison s 19(2), (3) and (4) commence with the quite different expression: “This Act also has the effect it would have if…”. It is significant that ss 19(2)-(4) do not state that the Act applies to employees of trading corporations. Had Parliament intended that consequence it would have been a simple thing for the drafter to have used the same language as in ss 19(1), (1AA) and (1A). Where the same phrase or term could have been used but was not, there is a presumption of statutory interpretation that a different meaning was intended: Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25 at 30.[5]
[5] One of the authorities cited by the Full Court in Scott v Commercial Hotel Merbein Pty Ltd was Lawless v Sullivan (1881) 6 App. Cas. 373 at 382-3, where the Judicial Committee of the Privy Council said: “The employment of different language in the same Act may, in some cases, help to shew that the Legislature had in view different objects, but a change in language cannot be relied on as furnishing a general rule of construction, and the weight to be given to such changes must depend on a view of the entire enactments in which they occur, and the degree of ambiguity existing in the language to be construed.”
The use of the phrase “limited to” in the body of those provisions shows the legislature’s intention was to cut down the scope of the word “employee” that might otherwise have had a more ambulatory effect. Thus the general words of s 26 referring to employees having rights to compensation “is limited to a reference to an employee employed by a trading corporation formed within the limits of the Commonwealth”: Respondent’s Supplementary Submissions [10]. That is the work s 19(2) does. Subsections 19(2)-(4) simply limit the application of the SRC Act to ensure that it is within the power of the legislature under the Constitution. In contrast to the drafting of the Workplace Relations (Work Choices) Act 2004 (Cth) in which the scope of that Act’s operation was expressly determined by the definitions of employee and employer, the scope of coverage of the SRC Act is set by ss 19(1), (1AA), (1A) and (1D), with ss 19(2), (3) and (4) operating to delimit the application of the enactment.
The Explanatory Memorandum sheds no light on, the issue of statutory interpretation. Nor does Professor Luntz’s report. The terms of s 19 of the SRC Act make clear that his recommendation that seafarer’s compensation legislation extend to intra-state navigation was not adopted. To the extent that Kirby J in Smith v ANL Ltd proposed the construction of ss 19(2)-(4) favoured by the applicant, his remarks were obiter, were not the subject of argument and should not be followed.
Consideration: ss 19(2), (3), (4) and (5)
Neither party suggested that the provisions of ss 19(2), (3), (4) and (5) are capable of only one possible construction. Each accepts that there is an inherent degree of ambiguity in their expression.
There is little to assist the Tribunal to choose between the contentions of the parties as to the effect of these provisions. There was no reference to those provisions, even in general terms, in the second reading speeches and debates in either House of Parliament to provide insight into what the legislature understood them intended to achieve. The Explanatory Memorandum accompanying their introduction was cryptic and brief.[6] While the applicant draws on its words for support of his position, the respondent plausibly responds that those words are also consistent with its preferred construction. There is no case law to assist the Tribunal other than the Delphic obiter observations of Kirby J in Smith v ANL Ltd referred to above at [72].
[6] See above [72].
The Tribunal agrees with senior counsel for the applicant that it would be strange to accept that the Parliament had enacted these provisions in 1992 merely to provide reinforcement for the constitutional basis of the SRC Act given that its foundations based on s 51(i) had stood unchallenged since SS Kalibia and could be regarded as even more secure given the nature of the evolution of High Court jurisprudence regarding the characterisation of laws since that time: see for example Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1 per Mason J at 18-23.
However, if the drafting was intended not merely to reinforce those provisions but also to work a significant widening of the entitlement of seafarers in reliance on the s 51(xx) corporations power it is at least odd that there was no statement to that effect in the parliamentary record or the Explanatory Memorandum.
There also is force in Mr Harding’s submission that the change in statutory language between ss 19(1), 19(1AA) and (1A) which refer to the circumstances in which the SRC Act “applies to...” and ss 19(2), (3) and (4) which use the quite different expression: “This Act also has the effect it would have if…” engages the statutory presumption that a different meaning was intended.
However, there is another relevant presumption of statutory interpretation—that all provisions of a statute are to be read as if they have work to do. The work that Mr Harding submits s 19(2) does, ensuring that the general words of s 26 referring to employees having rights to compensation are “limited to a reference to an employee employed by a trading corporation formed within the limits of the Commonwealth” is implausible—it would remove long existing entitlements to compensation from seafarers engaged in inter-State or international trade or commerce if the ship they were engaged on had an individual rather than a corporate owner. Not only was there no mention of such an intent in the extrinsic materials, to impute such intent would be entirely inconsistent with the tenor of the parliamentary debates and the recommendations of Professor Luntz’s 1988 review of seamen’s compensation that had preceded the introduction of the Bill. The Tribunal rejects the submission.
That however leaves the Tribunal to choose between two only slightly more plausible contentions: the first, that they are dormant provisions enacted against the manifestly improbable prospect that the course of High Court jurisprudence regarding the characterisation of such a law might undergo such radical change so as to undermine the other constitutional foundations of the SRC Act; the second, that notwithstanding there being no reference to such an intention in the extrinsic materials, they were intended to expand the scope of the SRC Act’s compensation scheme beyond the limits of s 19(1), so that any injury suffered by a seafarer relevantly defined employed by a trading financial or foreign corporation is covered by the scheme.
Notwithstanding Mr King’s submission that the construction preferred by the applicant is available on the plain words of ss 19(2)-(4) having regard in particular to the use of the word “also” in the chapeaux to each of those subsections, in the Tribunal’s view neither outcome can be said to be obvious from the natural reading of the text of the provisions—they were clearly intended to do something but precisely what they were intended to do is obscure. Having rejected the respondent’s contention that they were intended to cut down the meaning of the word “employee” in the SRC Act, the Tribunal is of opinion that there appears to be no better candidate for what they might mean than the rival contentions set out above—at least none that the parties or the Tribunal have been able to identify.
Not without hesitation, the Tribunal has concluded that there is slightly more to be said in favour of the applicant’s preferred reading. The flaw, as the Tribunal apprehends it, in the respondent’s submission concerning the change of statutory language between “applies to” and “has the effect it would have if” is that each of the statements in ss 19(1), 19(1AA) and (1A) which use the expression “applies to...” refer “to the employment of employees on” followed by a description of the relevant kind of ship or vessel to which those words attach. An identical drafting template could not be followed if the intention was to expand the scope of the SRC Act’s compensation scheme beyond the limits of s 19(1) so that any injury suffered by a seafarer relevantly defined employed by a trading, financial, or foreign corporation is covered by the scheme. A different mode of drafting and expression inherently would have been required. It therefore makes no sense to reason from the fact that different language was employed to a conclusion that the outcome contended for by the applicant was not intended.
The indicia inclining the Tribunal towards the applicant’s preferred reading of the provision include that: (a) there was at least a proposal to rely on s 51(xx) to widen the substantive operation of the scheme in Professor Luntz’s 1988 review of seamen’s compensation; (b) Professor Luntz’s report can be referred to as relevant extrinsic material as it was referred to in the parliamentary debates; (c) the Explanatory Memorandum, whilst cryptic, expressly referred to s 51(xx) as one of two primary bases of the constitutional power for the legislation (emphasis added); (d) the word “also” in the chapeaux to each of those subsections, while clearly not decisive, leans in favour of this interpretation; and (e) the inherent improbability of the alternative proposed.
Accordingly the Tribunal concludes that the SRC Act applies to the applicant’s claim.
These reasons dispose of the preliminary point. It may be that the parties will now be in a position to file a consent memorandum but unless the Tribunal is so advised it will relist the substantive matter for hearing in due course.
I certify that the preceding 88 (eighty eight) paragraphs are a true copy of the reasons for the decision herein of President Kerr ........................................................................
Associate
Dated 14 May 2014
Date(s) of hearing 31 March 2014 Date final submissions received 14 April 2014 Counsel for the Applicant Mr L King SC and Mr H Chiu Solicitors for the Applicant WG McNally Jones Staff Counsel for the Respondent Mr A Harding Solicitors for the Respondent Sparke Helmore
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