Australian Federation of Air Pilots v Ray, R
[1990] FCA 253
•31 May 1990
!.
JUDGMENT NO. 2.53 ./.?.Q ,......
GEXERAL DIS'J?P,IBtiTIOI? ROT REQUIRED
IN THE FEDE~AL COURT OF AUSTRALIA)
)
VICTORIA DISTRICT REGISTRY ) VG NO. 85 of 1990 1 GENERAL DIVISION )
B E T W E E N :
AUSTRALIAN FEDERATION
OF AIR PILOTS
Applicant
A N D :
ROBERT RAY (in his caoacitv as former ~ihiste; of State for
Immigration Local Government and Ethnic
Affairs)
First Respondent
NORMAN HOFFKANN (in his ca~acitv as former
viktorian State Director of the
Department of Immigration Local Government and Ethnic
Affairs)
Second Respondent
IAN HEATH (in his capacity as Victorian State Director of the
Department, of
PRINCIPAL
Immigration Local Government and Ethnic
Affairs)
Third Respondent
ANSETT TRANSPORT INDUSTRIES(OPERATIONS)
PTY. LTD.
Fourth Respondent
EAST-WEST AIRLINES
RECEI\/F r)
13 JUN 1990
AUSTRALIA
(OPERATIONS) PTY. LIMITED Fifth Respondent
MAYNE NICKLESS LIMITED (trading as IPEC AVIATION)
Slxth Respondent
AUSTRALIAN AIRLINES
LIMITED
Seventh Respondent
GERARD LESLIE HAND (in hls capacl ty as Mlnlster of State for
Immigration Local Government and Ethnic
Affairs)
Elghth Respondent
Ninth to Twenty- Second Respondents
JUDGE : The Hon Mr Justice Keely DATE : 31 Nay 1990
PLACE : Melbourne
MINUTES OF ORDER
The applicant by its counsel having undertaken to pay to any party to these proceedings adversely affected by the interlocutory orders herein and to any of the persons named in paragraph 5 of the affidavit of Ian Arend Posthumus sworn 10 April 1990 and to Terry Richard Stronks such compensation (if any) as the Court thinks lust, in such manner as the court directs:
THE COURT ORDERS THAT
1. The third and eighth respondents, by themselves, their successors, servants, agents and delegates, be restrained, until the determination of the application herein or further order, from granting to any non-cltizen of Australia, being by occupation an airline pilot, who:
(a) was not physically present in Australia at the date of this order; and
(b)
applies, or has, since 24 August 1989, applied for any vlsa, entry visa, entry permit or other permission to travel to or enter Australia pursuant to any nomination or sponsorship by or approval granted to any of the fourth, fifth, sixth or seventh respondents under the ~igration Act 1958 in respect of the employment by any of them of airline pilots
any visa, entry visa or entry permit to the non-citlzen under the Employer Nomination Scheme, or the Skills Transfer Scheme, or Regulation 51, 77 or 139 of the Migration Regulations (save where, in the case of an entry permlt under Regulation 139, such permit is proposed to be granted otherwise than on the basis that the non-citizen satisfies the prescribed criteria in relation to an Employer Nominatlon Visa as required by sub-paragraph 139(c)(iv) thereof).
The third and eighth respondents, by themselves, their successors, servants, agents and delegates be restrained until the determination of the application herein or further order, from granting to any non-citizen of Australia, being by occupation an airline pilot, who was present in Australia at the date of this order and who
entry visa or entry permlt granted pursuant to any entered Australia on or after 24 August 1989 on a visa, nomination or sponsorship by or approval granted to any
of the fourth, fifth, slxth or seventh respondents under the Migration Act 1958 in respect of the employment by any of them of alrline pilots, any vlsa, entry vlsa or entry permit purporting to authorise the non-citlzen to remain in Australla permanently under the Employer Nomination Scheme, or the Skills Transfer Scheme or Regulation 51, 77 or 139 of the Migration Regulations (excepting an entry permit under Regulation 139 granted otherwise than on the basis that the non-citizen
satisfies the prescribed crlteria in relation to an
Employer Nomination Visa as requlred by sub-paragraph
139(c)(iv) thereof).3. Notwithstanding the above, where a non-citizen of Australia:
(a)
has held, at any time between 24 August 1989 and the date of this order, a temporary or permanent visa, entry visa or entry permit; and
(b)
has entered Australla at any time between 24 August 1989 and the date of this order on the authority of such visa, entry visa or entry permit; and
(C) has departed from Australla temporarily or hereafter departs from Australia temporarily;
paragraphs 1 and 2 of this order do not prevent the granting to that non-cltlzen of such further temporary or permanent visa or entry permit (as the case may be) as may be necessary to restore that non-citizen to the
status held by him or her immediately prior to his or
her temporary departure from Australia.
Without affecting the operation of paragraph 2 of this order, where:
(a)
a non-citizen of Australia has held, at any time between 24 August 1989 and the date of this order,
a visa, entry visa or entry permit; and
(b) under the conditions of the visa, entry visa or entry permit the non-citizen is requlred to leave Australia on a specified day or within a specified period; and (C) the non-citizen applies to extend the day or the period (whether or not the day or the period has passed) ;
paragraph 1 of this order does not prevent the granting
period or the granting to the non-citizen of a further to the non-citizen of an extension of the day or the temporary visa, temporary entry visa or temporary entry permit of the same class extending the day or the perlod.
5. The order made by the court on 30 April 1990 be
discharged.
(Note: Settlement and entry o f these orders are d e a l t w i t h i n Order 36
o f h e Federal Court R u l e s . )
GEKEP-\L DISTF.ISUTIOP: NOT RPQUIRED
IN THE FEDERAL COURT OF AUSTRALIA)
)
VICTORIA DISTRICT REGISTRY ) VG No. 85 of 1990 1 GENERAL DIVISION 1 B E T W E E N :
AUSTRALIAN FEDERATION
OF AIR PILOTS
~ p p l i cant
A N D :
ROBERT RAY (in hls capacity as former Minister of State for
Immigration Local
Government and Ethnlc -~ ~ Affairs)
First Respondent
NORMAN HOFFMANN ( in hi S capacity as former
vlctoriin state Director o f the
Department of Immigration ~ o c a l Government and Ethnic
Affairs)
Second Respondent
IAN HEATH (in his capacity as Victorian
State Director of the
Department o f
Immigration Local Government and Ethnlc
Affairs)Thlrd Respondent
ANSETT TRANSPORT INDUSTRIES(OPERATIONS)
PTY. LTD.
Fourth Respondent
EAST-WEST AIRLINES (OPERATIONS) PTY. LIMITED Fifth Respondent
MAYNE NICKLESS LIMITED (trading as IPEC AVIATION)
Sixth Respondent
AUSTRALIAN AIRLINES
LIMITED
Seventh Respondent
GERARD LESLIE HAND (in hls capacity a S Mlnlster of State for
Immigration Local Government and Ethnic
Affairs)
Eighth Respondent
CHARLES MICHAEL EKISS, SANDOR TOTH, RICHARD LEE THOUS, BRUCE
CHARLES MOREHOUSE, ANTHONY P. DAVI S, THOMAS LARRY SPOTTS ,
ROBERT NICHOLAS CARTWRIGHT, MICHAEL LA GRANGE, GREGORY
DAVID QUENNEVILLE, GABOR KARACSONYI, ROGER ELLIS, ARTHUR JANES STANLEYRICKETTS,
GEOFFREY ROBERT JEFFERS SKERMER, Ninth to Twenty-
Second Respondents
31 MAY, 1990 KEELY J.
REASONS FOR JUDGMENT
The Course of the Proceedings.
The Australian Federation of Air Pilots ("the Federation"), by application filed 2 0 March 1990 ("the substantive application"), applled :
"to review each decision made by or on behalf of each of the first, second and third respondents since 24 Auqust 1989 under the -~i~ratlon Act 1958 (as amended) or the regulations thereunder (as amended) to:
(a)
grant a purported approval under the scheme known as the Employer Nomination Scheme, or under the like scheme referred to in regulations 4 2 and 51 of the Migration (Criteria and General) Regulations (Statutory Rules 1989 No. 365), to the fourth, fifth, sixth or seventh respondent whereby such respondent was purportedly authorised to nominate a number of persons to travel to, enter and remain in Australia permanently to work as airline pllots for such respondent.
(b)
grant a visa or entry permit to a person pursuant to a purported approval referred to in paragraph (a) above.
(C) grant at the request or nomination of the fourth, fifth, sixth or seventh respondent, under the scheme known as
the Skills Transfer Scheme or under
the like Scheme referred to in regulations 42 and 77 of the Migration (Criteria and General Regulations) Statutory Rules 1989 No. 365), a visa or entry permit to a person for the purpose of enabling him or her to travel to, enter or remain in Australia temporarily in order to take up employment or continue in employment as an airline pilot with any of the fourth, fifth, sixth or seventh respondents.
(d)
otherwise grant a visa or entry permlt to a non-cltizen or non-permanent resident of Australia for the purpose of enabllng him or her to travel to, enter or remain in Australia in order to take up employment or continue in employment as an airline pilot with any of the fourth, fifth, sixth or seventh respondents.
(e)
fail to take steps to prevent the entry into Australia or the remaining in Australia of non-citlzens and non-permanent residents who have entered or remained in Australia in order to take up employment or continue in employment as airline pilots with the fourth, fifth, sixth and seventh respondents."
The application sought relief in the form of an order under S. 16 of the Admlnistratlve Decisions (~udicial Review) Act (Cth) 1977 ("the Judicial Review Act") directing the third and eighth respondents :
"... not to grant (whether by themselves,
their servants, agents or delegates) in contravention of the Migration Act 1958 and the regulations thereunder, any further approval, visa or entry under the said ~ c t
and regulations to or in respect of any non-citizen or non-permanent resident of
Australia seeklng to travel to, enter or
taking up employment or continuing in remain in Australia for the purpose of employment as an airline pilot with any of the fourth, flfth, slxth or seventh respondents where such approval, visa or entry permit is sought on the ground of an alleged inability to recruit sufficient air pilots from amongst Australian citlzens or permanent residents."
It also sought an injunction under S. 39B of the Judiciary
Act (Cth) 1903 in substantially the same terms.
Gerard Leslie Hand, who is now the Minister of State for Immigration, Local Government and Ethnic Affairs, is the eighth respondent, added by leave without objection on 11 April 1990. Fourteen foreign pllots (to adopt the words used by counsel in these proceedings when referring to pilots from various overseas countries including Canada, the U.S.A., and the United Kingdom) applied to be added as respondents. Their motion was consented to by the Federation and they became the 9th to 22nd respondents on 18 Aprll, 1990. It is
convenient to refer (a) to them as "the 14 foreign pilots",
(b) to the lst, 2nd, 3rd and 8th respondents (for whom the same counsel appeared) as "the Commonwealth respondents", (c) to the 4th, 5th and 6th respondents (for whlch companies the same counsel appeared) as "the Ansett companies" and (d) to the 7th respondent as "Australlan Airlines".
These reasons for judgment deal with an application by
the Federation for interlocutory orders, to be in force until
the determination of the substantive application. The
hearing, which commenced on Monday 9 April, occupied 13
sltting days, resulting in other matters being taken out of the court's list. The hearing concluded on Monday 7 May, but, by leave, wrltten submissions were received from the Commonwealth respondents and from Australian Airlines on 8 May and from the Federation on 10 May.
By the time of the luncheon adjournment on Thursday, 12 April (i.e. after three and a half sltting days) the court had heard addresses by senior counsel for the Federation in support of the application for interlocutory orders and by senior counsel for the Commonwealth respondents, opposing the application. Only a small part of the address by senior counsel for the Ansett companies, opposing the application, had been heard and counsel for Australian Airllnes had not been heard. The Federation applied for interim orders, to apply until the determination of the application for interlocutory orders. Its submissions and those of senior counsel for each of the (then) respondents in opposition to the making of such orders occupied that afternoon.
Later that afternoon the court made interim orders. It is convenient to set out the short reasons for the making of those orders, glven orally. They were as follows:
"The Pilots' Federation, by its application, filed 20 March 1990, contended that certain decisions made by the Minister for Immigration, or certain officers of his
Department on his behalf, were unlawful and that as a result there are already in Australia a substantial number of forelgn
pilots who are "illegal entrants".A letter from the Australian Government Solicitor, dated 4 April 1990, stated that the airlines were glven approval in respect of 166 places under the Employer Nomination Scheme but that that number was later reduced to 130 because the airllnes no longer sought the hlgher number.
The Federation claimed, firstly, that the decisions were unlawful in that they were not authorised by the Migration Act 1958 under which the powers were purportedly exercised. Secondly, there had been an lmproper exercise o f the power. Particulars under that ground included that the power was exercised at the direction or behest of Mr. Hawke (the Prlme Minister) and the Executive Government of the Commonwealth of Australia and of the airlines. Thirdly, it claimed that each decision was "so unreasonable that no reasonable person could have so exercised the power". Fourthly, it contended that the Minister and hls officers in making the decisions breached the rules of natural justice; under that ground it relied upon the failure of the Minister and his offlcers to glve the Federation a reasonable opportunity to be heard in opposition to the proposed decisions.
It should be sald that in the present hearing, whlch began last Monday, the Pilots' Federation has not relied upon certaln of the matters contained in the substantive application for orders. It has not relied upon its claim that the making of each decision was an improper exercise of the power because it was done at the
direction or behest of Mr. Hawke and the Executive Government and the four airline respondents. The Federation's counsel has stated that it has taken that course of not relying in the present hearing upon those claims, in an endeavour to shorten the length of the present hearing but that it is still pursuing those clalms made under the application.
The application was flled on 20 March 1990
and originally fixed for a preliminary hearlng on Friday, 23 March. That date was altered to Thursday, 5 Aprll, 1990 for the hearlng of the application for interlocutory orders.
However, late on Wednesday, 4 Aprll some respondents filed and served on the
Federation a large amount of material. On the following day, the Federat~on's counsel said that, as a result of that action by the respondents, they were unable to conduct the Federation's case last Thursday and, after hearing the parties, the court
adjourned the hearing of the present application untll Monday last, 9 April. Since then further affidavits and exhibits have been filed. Today is the fourth day of the hearing and it is now clear that the hearing of the application for interlocutory rellef will not be completed today and will have to be adjourned to next Wednesday, 18 April, the first available date after the Easter holidays.
Yesterday Mr. North informed the court
that:"Because the matter is taking the length it is, I raised with my learned friend, Mr. Shaw [senior counsel for the Commonwealth respondents] the question of whether the Mlnister would be prepared to give an undertaking to hold the positlon just for a 24 hour period
We would want to ask you at some convenient time to make interim orders in the terms of the orders we have handed up, just for a few days, in the llght of the fact that my learned friend has conveyed to me his instructions not to give an undertaking to preserve matters even for 24 hours."
Mr. North sought to make that application for interim orders yesterday, but the court indicated that it was not disposed to hear it until today. The application was made today at 2.15 and opposed by all
As this is an application for interim respondents. orders, the only oplnion that I shall express is that, in the light of the material before the court and the submissions which I have heard to date, accepting that they are not the full submissions, in my view the proper course for the court, in order to hold the position pending the completion of the hearing of the application for interlocutory orders and its determination, is to make the orders sought subject to certain alterations as to the words.
I should say that I have had doubts as to the making of the first order sought, the mandatory order. I have decided to make it, not because of the "high degree of assurance" that the applicant wlll succeed,
- the words used in the Dassaae auoted from - - . Gibbs CJ. in State of Queensland v Australian Telecommunlcatlons Commission (1985) 59 ALR 243 at 245, - but because I consider that speclal circumstances exist in this case.
In reaching that conclusion to make the orders sought I have given careful consideration to the affidavit material put to the court as to the balance of convenience, both as to the effect of any order upon the airllne respondents and upon foreign pilots. As to the foreign pilots some of the evidence related to hardship which would arise from the grant of
interlocutory injunctions rather than the grant of interim injunctions. In my opinion the making of the orders sought is the proper course for the court to follow, having regard to its discretionary power to make such orders as it considers necessary to do justice between the partles. I am not prepared to uphold Mr. Sutherland's [counsel for Australian Airlines] submission as to the desirability of ordering security in respect of the undertaking."
Those interim orders were varied on 15, 17, 20 and 23
April and on 30 ~ p r l l
discharged upon the making of interim orders in a form to 1990 those orders, as varied, were
which counsel for all parties had consented (transcript 969).
Whether the Federation is a "person who is aggrieved".
Counsel for the Commonwealth respondents, the Ansett companies, Australian Airlines and the 14 foreign pilots all submitted that the Federation had no standing to make the application on the ground that it is not a "person who is aggrieved" within the meanlng of S. 5(1) of the Judicial Review Act and is not a person having a special interest to claim relief under S. 39B of the Judiciary Act (Cth) 1903.
(a) The principles applicable.
In Tooheys Ltd. v Minister for Business and Consumer Affairs (1981) 54 FLR 421 at 437 Ellicott J. said:
"The words 'a person who is aggrieved' should not, in my view, be given a narrow construction. They should not, therefore, be confined to persons who can establish that they have a legal Interest at stake in the making of the decision. ... Thls does not mean that any member of the public can seek an order of review. I am satisfied, however, that it at least covers a person who can show a grievance which will be suffered as a result of the decision complained of beyond that which he or she has as an ordinary member of the publlc."
That passage was quoted in the decision of a Full Court of this court in Ogle and Anor. v Strickland and Ors. (1987) 13
also Ricegrowers Co-operative Mills Ltd. v Bannerman (1981) FCR 306 at 314 by Lockhart J. - and see Fisher J. at 307; see 56 FLR 443 at 446-448; Lamb V #oss (1983) 76 FLR 296 at
316-317. At p. 315 Lockhart J. sald:
"There are sound reasons why the expression should not be extended to include a member of the public who does not have a grievance
which he or she will suffer beyond that which he or she has as an ordinary member
of the publlc. "
In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 at 70 Brennan J., referring to the words "whose interests are affected by the decision", appearing in the Administrative Appeals Tribunal Act (Cth) 1975, said:
"The relevant 'interests' do not have to be pecuniarv interests or even specific lesal interests: cf. Bilbao v ~ar&har (1974j 1 NSWLR 377 at 380 Der Hutlev JA. Restrlctions of that kin8 are incompatible with the variety of decisions whlch are subject to review - some decisions affecting legal rights, others being unlikely to do so ...
However, a decision which affects Interests of one person directly may affect the interests of others indirectly. Across the pool of sundry interest, the ripples of affection may widely extend. The problem which is inherent in the language of the statute is the determination of the point beyond which the affection of interests by a decision should be regarded as too remote."
That passage was quoted by Davies, Wilcox and Gummow JJ. in the United States Tobacco Company v Minlster for Consumer
Affairs (unreported judgment - delivered 15 September 1988.
Senior counsel for the Ansett companies and counsel for Australian Airlines sought to rely upon the decision of Gummow J. in Australian Institute of Marlne and Power Engineers v Secretary, Department of Transport (1986) 13 FCR
124 but in my opinion that declslon is not inconsistent with the passages whlch I have quoted from Tooheys Case. I also consider that the decision in Australian Foremen Stevedores Association & Ors. v W. P. Crone and Anor. (unreported judgment - delivered 8 February 1989) is not inconsistent with the passage quoted from the judgment of Ellicott J. in Tooheys Case; it may be noted that in Crone's Case Pincus J. (at p. 6") sald:
"Since there is no doubt that a sufficient economic effect, caused by the decislon attacked, is a satisfactory basis for an applicatlon under the Administrative Decisions (Judicial Revlew) Act, the auestion in the case mav be said to be one of fact rather than principle."
(b) The Federation's claim that it has standing.
In the present case the applicatlon, in claiming that the Federation has standing, states:-
"The applicant is aggrieved by the decisions because it is an industrial association which, by virtue of its rules and its membership and by virtue of its registration under-the 1nd;strialRelations Act 1988, represents the interests of the vast majority of those Australian citizens and permanent residents who are qualified to be domestic airline pilots and because the effect of the decisions (unless set aside) will be to -
(a) eliminate, wholly or substantially, the prospects of the members of the applicant of obtaining or regaining employment as domestic airllne pilots in Australia; (b) injure the financial and Industrial interests of the applicant and its members permanently and in relation to a particular current industrial dispute between the applicant and its members (on the one hand) and the fourth, fifth, sixth and seventh respondents (on the other hand)."
(C) The Federation's rules - protecting members'
Interests.
The Federation is an organisation of employees registered under the provisions of the Industrial Relations Act (Cth) 1988. The objects of that Act include "(f) to encourage the organisation of representative bodies of employers and employees and their reglstration under this Act". The Federation is a body which is "representative" of air pilots. As a registered organisation it is required, by S. 194(1) of that Act, to have rules. Paragraph 3A of Rule 1 of the Federation's rules provides that the "industry in
connection with which the Federation is formed is the
industry of the employment of Air Pilots".
The Federation's rules include the following
provlsions. Under Rule 1 - General:-
"3. Objects
The principal objects for which the
Federation is establlshed are:
(a)
To protect and further the interests of the professlon of Air Pilots . . . and to safeguard and improve the interests and rights of Members of the Federation.
(b)
To secure the elevation of the Profession of Commercial Air Pilots, and to improve the terms and conditions of their employment.
.... (d)
To afford legal protection for its Members in industrial matters, or other matters specifically authorised by the Executlve Committee.
. . . . (f) To publish a Journal.
. . . S
(r)
TO do all such acts and things as are incidental or conducive to the establishment of the above objects.
.... 18. Contracts of Employment
(a)
Prior to the Annual Convention in each year the Executlve Committee shall prepare suggested employment contract variations for negotiations durlng the ensulng year.
.... (d)
The President and such persons [sic] the President may nomlnate from time to time shall be the authorised officers to sign employment contracts on behalf of the membershlp, and such signature shall be bindlng on the membershlp concerned in such employment contract."
(a) The Federation's principal oblects include "to secure preference of employment".
The principal objects of the Federation, which include sub-paragraphs 3(a) and (b) (set out above), appear to be relevant to the question whether it is aggrieved by decisions which may affect the employment prospects of some of the Federation's members. Those objects include the following specific principal object, namely, "(k) to secure preference of employment for its Members". That object appears to have a particular relevance to the questlon whether the Federation is a person who is aggrieved by the decisions.
(e) Whether the airllnes are likely to re-employ former pilots.
Later in these reasons, in relation to the question of the balance of convenience, I deal with certain submissions that were advanced by the respondent alrlines as to whether the airlines would be likely to re-employ members of the Federation formerly employed by them. Reference is there made to certain letters written by, and to certain advertisements inserted on behalf of, the Ansett companies and Australian Airlines; that part of these reasons should be read as if it were also incorporated at this stage in dealing wlth the question of standing.
(f) The Federation's rules - the obligations of members.
Under Rule 2 - Membership contalns the following
provisions:-
"5. Acceptance
The Secretary of the appropriate Branch Committee shall where possible arrange an interview for the applicant . . . he shall be acquainted wlth the procedures of his prospective representative body.
Each applicant, by becoming a Member of the Federation, agrees, subscribes and is obligated without reservation to all the provisions, conditions and stipulations in the Rules currently in effect or as they may be added to, repealed or amended from time to time as specified in the Rules.
7. Resignations
(a)
Any Member may resign his membership of the Federation should he cease to be employed in the industry of the Federation ..."
Under Rule 3 - Subscriptions & Levies:-
"2. Rate - Full Members
(a)
The annual subscriptlon payable by a member shall be assessed as 1% of his gross salary ..."
under Rule 7 - Conventions, paragraph 2(a)(viii)
empowers the Convention to impose "any levy subscriptlon or
to exceed one percent of full yearly salary". fee to be paid by members, such levy, subscription or fee not(h) The role of a registered organisation of employees
The role of such an organisation was explained by Dixon CJ., Webb, Fulagar, Kitto and Taylor JJ. in -
R v Dunlop
Rubber (Australia) Ltd. (1957) 97 CLR 71 at 81-82:
"We begln here with the doctrlne forming the basis of the decislon in Burwood Cinema Ltd. v Australian Theatrical and Amusement Employeesf Associatlon (1925) 35 CLR 528 that a demand by an organisatlon upon employers who employ at the time none of ~ t s members may put those employers in dispute with the or&nisatlon as to the wages and conditions of its members if and when they are employed. It is the basls, too, of the further decision that a like dispute may be raised as to the wages and
conditions which such employers pay to - -
non-members (Metal ~rades- Employers Association amalgamated Engineeringunion (1935) 54 CLR 387). That basls is that not only need no present relation of employer and employee exist but that the organisatlon making the demand does not act merely as an agent for its members. It acts in an independent capacity and it does so because it represents not definite or t h e n a s c e r t a i n a b l e d u a l s but a qroup or class the actual membership of which ii subject to constant change, a group or class formed by reference to an industrial relationship, usually depending upon an industry or calling. (emphasis added)
The Burwood Cinema Case formed a turning point in the law and it is perhaps desirable to dwell a little upon it. But both the substance of the decision and the resulting state of the law have recently been summarised in a judgment of six members of the Court and it is best to begin by repeating that summary (Federated Ironworkersr Assoclation of Australia v The
Commonwealth (1951) 84 CLR 265 [at
279-2801):-
I . . . In Burwood Cinema Ltd. v
Australian Theatrical and Amusement Employees' Assoclatlon (supra) ... starke J. [at p. 5511 . . . adopted the view that an organization registered under the Arbitration Act is not a mere agent of its members, but it stands in their place and acts on thelr account and is representative of the class associated together in the organization. Thus it can make demands on their behalf, ... it is now an accepted constitutional principle that associations of employees may, in the exercise of the power conferred by S. 5l(xxxv), be established, registered and incorporated so that in the formulation of demands and the settlement of industrial disputes classes of men in an industry or a group of industries may be represented'. "
In Ex parte Kirsch (1938) 60 CLR 507 at 537 Dixon J. referred to "the interest which an organization of employees possesses in the establishment or maintenance of industrial
conditions for its members ... " - a passage adopted in a
unanimous judgment of six justices of the High Court in - R v
Kelly; Ex parte State of Victoria (1950) 81 CLR 64 at 82. The passage was quoted in the Graziers' Casg (1956) 96 CLR 317 at 335 by Fullagar J., who also said: "The union's primary reason for existence as a registered organisation is to represent its members and protect their interests."
It may be added that the Department's policy referred
to unions as being able to give "specialist assistance" to
Economic Policy Branch of the Department, Canberra, was the officers of the Department and as being able to give "expert advice" to employers. Mr. Hoffman, the Assistant Secretary, State Director of the Department in Vlctoria until 21 February 1990 and made decisions under the Employer Nomination Scheme (which will be referred to later) on 1 November 1989, 9 January 1990 and 14 February 1990 - decisions which the Federation seeks to review. He said in
~ L S affidavit (paragraph 3) that prior "to 19 December 1989 the procedure for handling applications under the [Employer ~omination Scheme1 was contained in the policy set out in the
... Handbook". He exhibited (NCJH 1) a chapter of the Handbook, headed "Economic Migration", which contained the
followlng provision:-
10.3.22 Assessing officers should be aware that there is an established system of over award payments in some occupations covered by awards. The market rate of pay may be substantially above the award rate. In such a situation, the assessing officer should use the market rate of pay as a gulde. Market rates of pay will vary between industries and regions. Specialist assistance on awards and market rates of pay is available from :
. . .
. Relevant industry/employer association
and unlons.... 10.3.24 If a nomination satisfies all criteria except for the salary/conditions test, processing should be suspended and the employer advised by letter to reconsider the rate of pay. Assessing officers must not advlse employers of the
appropriate rate of pay for the nominated position. Instead, employers should be referred to the followlng for expert
advice:
.
the employer or industry association representing the employer's company
. the trade union/professional association covering the occupation"
On the materlal it appears to me to be qulte possible that, if those foreign pilois who have arrlved in Australia for the purpose of employment, pursuant to the decisions which the Federation contends were unlawfully made, remain in employment as air pilots in Australia, the Federation's annual income will be reduced by some thousands of dollars. A significant number of the members of the Federation may resign their membership if they do not succeed in regaining employment as air pilots; as to the effect of such possible resignations upon the Federation's income the rules (set out earlier in these reasons) provide that the annual subscription for a Full Member is 1% of his gross salary (Rule 3 paragraph 2 ( a ) ) and also that a levy may be imposed, "not to exceed 1% of full yearly salary" (Rule 7 paragraph (a)(viii)).
For the purpose of determining the application for interlocutory orders, I have formed the opinion, based upon all the material before the court at thls stage, that the Federation has the necessary standing to make the application cf. Brennan J. in Onus v Alcoa of Australia Ltd. (1981) 149 CLR 27 at 76.
Whether there is a serious question to be tried
The primary challenge by the Federation is to group approvals under the Employer Nomination Scheme ("the ENS"), made by the second-named respondent, Mr. Hoffmann on 1 November 1989, 9 January 1990 and 14 February 1990. Mr. Heath, the third-named respondent, who replaced the second-named respondent as State Dlrector of the Department of Immigration Local Government and Ethnic Affairs ("the Department") in Victoria on 21 February 1990, in his first affidavit, sworn 5 April 1990, set out the dates on which the approvals were granted and to whlch of the respondent airlines they were granted. He stated that:
"10. Under the Employer Nomination approved on 1 November 1989 for Ansett Airlines for fifty places . . . the files and records of the Department indicate that Ansett Airllnes nominated a total of 47 individual pilots. From these 47 nominees the Department has received 44 individual applications (38 were received prior to 19 December 1989) and approved 36 migrant entry vlsas and 1 conditional mlgrant entry visa. The remaining applications (7) are still being processed. Port of entry records show that 27 of the visa holders have arrlved in Australia and have been granted permanent entry.
11. Under the Employer Nomlnation approved on 1 November 1989 for Australian Airllnes for fifty places ... the files and records of the Department indlcate that Australian Airlines nominated a total of 47 individual pilots. From these 47 nominees the Department has received 40 individual
appllcatlons (10 were recelved prlor to 19 December 1989) and approved 26 migrant
entry visas and 4 condltlonal migrant entry visas. The 10 remaining appllcatlons are still belng processed. Port of entry records show that 18 of the vlsa holders have arrived in Australia and have been granted permanent entry.
12. Under the Employer Nomlnation approved on 14 February 1990 for Australian Airlines for fifty places (50) (Departmental Reference ME90/36) the f lles and records of the Department indicate that Australian Alrlines nominated a total of 29 individual pilots. From these 29 nominees the Department received 2 0 individual applications and approved 4 mlgrant entry visas and 3 conditional migrant entry visas. The rernainlng 13 appllcatlons are still being processed. Port of entry records show that 1 of the visa holders has arrived in Australia and have been granted permanent entry.
14. Under the Employer Nomination approved
on 9 January 1990 for East-West Airlines for 6 places ... the files and records of the Department indicate that East-West Airlines nominated 5 individual pilots. From these 5 nominees the Department received 2 applications and approved 1 migrant entry visa. The remaining applicatlon is still being processed."
The Federation also seeks to challenge the grant of any visa or entry permit pursuant to an Employer Nomination approval. As to whether the decisions to grant such visas or entry permits were dependent upon a pre-exlsting Employer Nomination approval, Mr. Hoffmann in his affidavit states:
"22. Once the group nominations under ENS [Employer Nomination Scheme] for both airlines were approved by me, the central regional office of the Department was designated as the point of reference for future processing of the individual pilots'
places. Thls means that the central applications as agalnst the approved ENS regional offlce CO-ordlnated the individual applications with the overseas posts as described in the earlier part of my
affidavit.23. The applications were subsequently made by the nominated pilots to the overseas posts for migrant visas (whether for permanent or temporary entry) and were in all respects processed by the overseas posts at which they were lodged. Each decision to grant a migrant vlsa was made
-by the authorised officer at the overseas posts and not by the central regional
office of the Department.
There were substantial amendments to the Migration Act and to the regulations thereunder, which came into operation on 19 December, 1989. In these reasons I deal separately with the matter of whether there is a serious question to be tried as to the decisions before and after that date.
The decisions before 19 December 1989.
Prior to 19 December 1989 the procedure for handling applications under the ENS was contained in the policy in the Department's Migrant Entry Handbook, Chapter 10 (exhibit NCJH 1). That policy was lengthy and it is convenient to set out only some parts of it.
"10.3 Employer Nomination Scheme (ENS)
10.3.1 Purpose of the Employer Nomination Scheme (ENS):
The ENS is designed to enable Australian employers to seek highly skilled workers
market or through their own training from overseas when they have been unable to fill their needs from the Australian labour efforts. . . - . 10.3.3 Summary of essential requirements: General conditions for the approval of employer nominations are as follows:
.
the nomination form M785 must be fully completed and accompanied by appropriate documentary evidence of labour market testing (see 10.3.13-16)
.
the nomination must be signed by the actual employer
.
the nominated vacancy must be for an occupation which is highly skilled (see 10.3.7 for skill definition)
.
terms and conditions of the employment offered must comply w ~ t h Australian awards and standards for the occupation concerned (see 10.3.20-24)
.
the nominee should be requlred to fill the vacancy on a permanent full-time basls
.
the employer must have a satisfactory training record (see 10.3.17-19)
.
the nominee's qualifications and experience must match the requirements of the vacancy
.
the employer must be able to demonstrate that labour market testlng has yielded no suitable local applicants for the vacancy (see 10.3.13-16)
.
the nominator must be a genulne employer and the existence of the vacancy not in doubt.
. . . . 10.3.7 Definition of highly skilled occu ation An occupat~on may e &: highly skilled when it is normally expected that a person will require the following in order to reach an average level of competence in that
occupation:
.
either 3-5 years' formal trainlng or 3-5 years on-the-lob training
AND . a minimum of 3 yearsr work experience . . . . 10.3.12 Nominees must have qual~f~cations
and experience which meet the requirements
of the nominated position. W h ~ l e it 1s the
responsibility of the overseas post to
assess the nominee's eligibility, whenever
possible the Australia processing office
should determine whether the nomlnee is
llkely to meet these requirements.10.3.13 Labour Market Test: Except when the circumstances outlined in paragraphs 10.3.15-16 apply, the employer is required to provide documentary evidence of having tested the labour market without success.
10.3.14 Advertisements of the vacancy must accurately reflect the salary range, employment and other benefits offered as detailed ~n the nomination form. Advertisements should be prominent in order to attract maximum response.
.... 10.3.20 Terms and conditions of em 10 ment- The terms and conditions o
for nominated positions must occupation in the Australian labour market.
com~lv with awards and standards for the 10.3.21 An employer who offers rates of pay substantially below the prevailing rate In the local labour market has llttle chance of attracting suitable Australian applicants and retaining any nominated overseas workers. On these grounds, the nomination may be relected.
. .,
[10.3.22 and 10.3.24 are substantially set out in these reasons earlier in dealing with the question whether the Federation is a "person who is aggrieved"]
. . . . 10.3.29 The role of DIR and DEET in the administration of ENS is to provide advice
on industrial relations, tralning and labour market issues. Decision making
remains with DILGEA..... 10.3.32 Incomplete nominations: When an incomplete nomination is recelved the Australian processing office is to:
. suspend processing
.
advise the employer in wrltlng of the suspension and of deficiencies in the nomination
.
invite the employer to provide additional information to redress deficiencies (see suggested standard letter at Attachment 1).
If the additional materlal still falls to meet the requirements, the nomination should be refused and the employer advised.
.... 10.3.35 Group Nominations: Employers may lodqe a nomination for a qroup of vacancies within the same occupation- on a single form. Nominations lodged for a group of ten or more vacancies should be referred to DEET in full. All other normal ENS requirements apply to group nominations."
Senior counsel for the Federation argued that any applications made prior to 19 December, 1989 were to be determined in accordance wlth the provisions of the Act and
regulations as they exlsted on and after that date. The
respondents relied upon S. 6(4) of the Migration Legislation
Amendment Act 1989 which provided as follows:-
"(4) In spite of the repeal effected by
subsection (l), the provisions of the Principal Act relating to the granting of visas and entry permits as in force immediately before the commencment of this
applications for visas or entry permits commencement for the purposes of section continue to have effect after that made before that commencement."
I accept the respondentsr submission as to that sub-section. On the evidence presently before the court it is not possible to conclude, as the Federation suggests, that all of the relevant pllots arrlved in Australia on or after 19 December
1989. I make no comment on regulation 42(6). The Federation has submitted (see its Outline of
submissions, dated 19 April 1990) that, even if such
applications were to be assessed in accordance with the law as it stood before 19 December, 1989, there is a serious question to be tried as to whether the decisions were:-
"(a) not authorised by the enactment in pursuance of which they were purported to be made, in that the Migration Act 1958 (in its then form) did not authorise the granting of approvals, vlsas or entry permlts in respect of an alleged shortage of particular skilled labour in Australia when there was manifestly no such shortage, as was the case. The Act did not authorise the making of any decision in relation to which relevant matters were left out of account. Here, the Minister's delegate left out of account the abundance of
qualified local pilots and the deliberate
policy of the Airllnes to discourage local pilots from applying for any advertised vacancies by imposing condltlons known to be unacceptable to the local pilots;
(b) made for an Improper purpose, namely in order to lessen or brlng an end to the industrial disruption in the airline ~ndustry.
(C) made unreasonably, in that the decisions were purportedly made to overcome
Australia when there was manifestly no such a shortage of particular skilled labour in shortage, or alternatively, in that certain of the decisions allowed the entry of foreign pilots on a permanent basis when there was manifestly no shortage of pllots of a long term nature and the Airllnes had not shown, or even asserted, that it was necessary for them to offer permanent employment to some foreign pilots in order to attract sufficient foreign pllots to Australia.
(d) made in breach of the rules of natural
justice. "
The first matter put ((a) above) was that there is a serious question to be trled as to whether the Migration Act (in its form before 19 December 1989) authorised the grant of approvals for visas or entry permits in circumstances when there was no shortage of skilled labour. Senior counsel for the Federation submitted that the Act did not permit permanent entry to be granted in respect of a short-term industrial dispute but was confined to ensuring the supply of skilled employees in the community. He said that there was no shortage of suitable applicants because there was no lack of persons with the necessary employment skills.
In support of this argument the Federation pointed to the terms of an internal departmental document which formed part of a bundle of documents received by the Federation pursuant to its Freedom of Information request. That document, dated 9 October 1989, recorded the following query from a Mr. Carter (whose position within the department is
unknown and not disclosed by the ev~dence) to Mr. Hoffmann :
down to her today and wondered if we were "Prue Marks received an ENS case you sent now approving pilots for migration? up to now of course we have been expediting them under t/r. The problem with ENS and pilots of course is that there is no shortage of them in Australia. Can you advise please.
On the same date Mr. Hoffmann replied in the following terms:
"Both airlines have indicated that they want to consider brlnging in some pilots on a permanent basis. I had the same reaction as you initially and discussed the situation wlth Mark Lynch and Tom Havas. We have agreed that ENS requirements relate to the availablllty of pllots in Australia. Clearly the airlines have advertised for pilots and have not been able to satisfy their current demand. Of course the situation is very much short term and I think we need to be vlgllant in relation to the number they seek to introduce - a handful is not going to cause any [major] problem. Tom Havas has advised DIR.
Norman . "
The Federation's senior counsel claimed that thls correspondence was of some significance because it showed that Mr. Hoffmann had some doubts as to the applicability of Employer Nomination approvals in these circumstances. Although the matter is fat from clear, I have come to the conclusion that there is a serlous question to be tried as to whether the decisions before 19 December 1989 were authorised by the enactment.
Two other comments should be made in relation to (a) above. The first is that the clalm that the "Act did not authorise ... any decision... [where] relevant matters were left out" appears to be a different ground. The second comment is that there is no evidence at all before the court that there was a "deliberate policy of the Airlines to discourage local pilots from applying ... by imposing conditions known to be unacceptable ..."
The second matter advanced by the Federation ((b) above) was that there is a serlous question to be tried as to whether the decisions were made for an improper purpose, namely to lessen or bring to an end the Industrial disruption in the airline industry. Senior counsel for the Federation submitted that the purpose of the decisions was revealed in the following letter from Mr. Hoffmann, dated 7 December 1989, in reply to a letter from the Federation. It read as follows:
"The requirement which exlsts for the introduction of overseas pilots both temporarily under the Skills Transfer Scheme and permanently under the Employer Nomination Scheme is that the employers should have tried unsuccessfully to recruit qualified Australian residents. It appears to me that these requirements are currently being met and that as long as ~ustralian
pilots are not applying for positions with the airllne companies, they will continue to be met.
As I have advised the airlines, the Department is only able to approve nominations under these provisions until such time as adequate numbers of qualified pilots become available."
On the material before the court, I am not persuaded
that there is a serious questlon to be tried as to whether
the decisions were made for an Improper purpose.
The third matter advanced by the Federation ((c) above) was that there 1s a serious questlon to be tried as to whether the declslons were "made unreasonably". Senior counsel submitted that it was unreasonable for Mr. Hoffmann to have concluded on 1 November 1989 that Australian pilots "would not be available to the alrlines in the reasonably foreseeable future". On the material before the court I doubt whether there is any real substance in this argument. However it is not necessary to form any concluded view on that matter in view of the oplnlon already expressed that there is a serious questlon to be trled.
The fourth matter put ((d) above) was that there is a serious question to be tried as to whether the decisions were made in breach of the rules of natural justice. Senlor Counsel for the Federation submitted that there was an obligation to give notice and to give a hearing. He referred to the fact that the Federation is a registered organization, to its object to "further and protect" the interests of pilots, its role in acting on behalf of its members in the direct negotiation of contracts of employment, and to the fact that, at the date of the resignation of the pilots
employed by the airlines, the Federation represented them. In general the matters referred to were similar to those dealt with earlier in these reasons in considering whether the Federation "is a person aggrieved". Those matters are relevant to the question what is the proper role of the Federation but they do not necessarily establish that there was any duty on the decision-maker to give the Federation "notice and a hearing". However, again it is not necessary for me to form any concluded view on this contention by the Federation.
The decisions on or after 19 December Mr. Hoffmann in his affidavit stated that the "purpose of the scheme [ENS] after 19 December 1989 is precisely the same as it existed before that date" but that after that date visas under the scheme are "issued in accordance with the prescribed criterla set out in regulation 51 of the new Migration Regulations".
The Federation relied on four matters as ralsing a serious question to be tried in relation to the decisions made to grant to the respondent airlines ENS approvals on 9 January 1990 and 24 February 1990. Flrst, that the decisions were not authorized by the enactment under which they were made; second, that they were made for an improper purpose; thlrd, that they were so unreasonable that no reasonable man
could have made them, and fourth, that the Federation was denied natural justice in that the Commonwealth respondents failed to notify, consult and hear the Federation prior to
the maklng of the decisions.It is convenient at thls point to set out some of the more relevant provisions of the Act and regulations which governed the making of these decisions.
A "visa" is defined in S. 4(1) of the Migration Act 1958 (as amended 19 December 1989) as meanlng "permission to travel to Australia".
A "valid visa" is defined to mean a visa that:
"(a) was granted under this Act, whether
before or after the commencement ofsection 4 of the M~gration Legislation
Amendment Act 1 9 8 9
(b) ... and
(C) has not expired, or otherwise stopped
belng in force, under thls ~ c t or the regulations"
Regulatlon 34A provides:
"34A. Unless these Regulations otherwise provide, an applicant for a vlsa or an entry permit must satisfy the prescribed criteria in relation to the relevant class of visas or entry permlts (other than public interest criteria and prescribed health criteria) at the tlme of application and as applicable at that tlme."
i.e. before the Employer Nomination approvals on 9 January Statutory Rule No. 1 of 1990 to operate from 19 December 1989 It should be pointed out that this regulation was amended by 1990 and 14 February 1990 however its amendment is not significant for present purposes.
Regulatlon 51 provides:
"51.(1) The additional criteria in relation to an employer nomination vlsa are the following criteria:
(a) the applicant is nominated, in accordance with the approved form, by an employer operating in Australia, for a specifled position, or a position in a group of specified positions, sought to be filled by that employer, being: (i) a position that is to be filled on a permanent, full-time basls; and
(ii) a position in respect of a highly skilled occupation;
(b) the qualifications and experience of the applicant are suitable for the position;
(C) the employer satisfies the Minister that the employer has an acceptable record in the training of employees and is committed to the further training of local employees;
(d) the employer satisfies the Mlnister that it has not been possible to find a sultable applicant for the position in Australia; (e) unless exceptional clrcumstances apply, the applicant has not turned 55 at the time of application.
(2) In this regulation:
"highly skilled occupation" means an occupation requiring
(a) formal training, or equivalent experience, relatlng to that occupation, for a period of not less
than 3 years; and
(b)
an appropriate record of employment in that occupation."
The Federation's counsel submitted that Mr. Hoffmann made decisions intended to be acted upon by the Department's officers at overseas posts in deallng with individual applications received by them from foreign pilots for visas pursuant to the ENS group approvals i.e. that they should treat Mr. Hoffrnann's decisions as having decided that the additional criteria specified in regulation 51 had been established. Paragraphs 22 and 23 of Mr. Hoffmann's affidavit have been set out earlier in this section of the reasons.
The Federation's argument on this point was expressed
in this way:-
"Once the approval was given in Australia, once the Department here had determined compliance with regulation 51 . .. in relation to applications made after 19 December, ... it notlfied overseas officers of the fact ... and the overseas officers processed the individual applications ... on the basis that they had a pre-existing decision of compliance with regulation 51."
paragraph 20 of Mr. ~eath's affidavit which referred to a In support of this argument reference was made to cable transmission, dated 3 April 1990, from him which was to be regarded as "the Central office instruction to all overseas posts of the Department." The relevant parts of it are as follows:-
"Posts should note that when deciding individual applications from nominees for
visa issue that the conditions of regulation 51 must be met at the tlme of the visa application. FOK vlsa applications recelved prior to this telex, the prior receipt in your office of notification that a group ENS had been approved and that named individuals had been nominated by the relevant airline, enabled you to be satisfied regarding the crlteria of Regulation 51 relating to employer nomination (51(l)(a)), the training record of the employer, (51(l)(c)) and the labour market testlng.
The effect of this telex is that if posts accept further applications from pilots, posts cannot rely on the above-mentioned ENS approvals and will now have to satisfy themselves after enquiries at the relevant
APO that an ENS nomination is held, and
that the employer can still satisfy the
training and labour market tests."
The Federation submitted that regulatlon 34A, properly construed, prohibited the giving of that instruction, namely, that "prior receipt" of an ENS group approval enabled overseas posts to be satisfied as to compliance with regulatlon 51(l)(a), (c) and (d).
Senior counsel for the Ansett companies sought to draw a distinction between the application of regulations 34A and
51. He submitted that regulation 3 4 A "only applies to matters whlch the applicant [for such a visa] must satisfy the Mlnister in respect of and not to matters which others have to satisfy in respect of". The "other matters" referred to were the "additional criteria" specifled in regulation 51(l)(a), (b), (c), (d) and (e) some of which had to be satisfied by the employer and- some of which had to be
satisfied by the applicant. He submitted that the language of each of sub-regulation (c) and (d) In terms relates to a past situation and to past events; further that they are not matters which are to be satisfied on the day upon which an application for a visa is to be decided. Australian Airlines' counsel put a similar submission.
The Ansett companies' counsel submitted that parts of the "additional criteria" contained in regulation 51, namely, sub-regulation (l) (c) and (l) (d) "are thlngs which have to be satisfied in the abstract by the tlme that the decision has to be made, but they are not things which in their terms have to be satisfied by the applicant himself, they only have to be objectively satisfied and the applicant is not the person who has to do it." He, and counsel for the other respondents, submitted to the court that the person upon whom this obligation falls is the employer and that obligation may be satisfied at a point in time earller than the date of the application by an individual for a visa of this class.
He also submitted that an applicant for a visa of this particular class could not "in practice" himself satisfy "additional criteria" (l)(c) and (d) of regulation 51 as at the date of hls appllcatlon because "he is normally overseas or would almost inevitably be overseas and would not know what the labour market situation was" and that "both linguistic and practical matters lead to the conclusion that the employer may satisfy the Mlnlster in advance that the labour testing criteria are satisfied".
The Federation's counsel submitted that, if the
respondents' contention as to the construction of regulation
51 is correct, an employer could, upon being granted an
approval to bring into Australia persons to be employed in a highly skilled occupation at a time when the employer could not find a suitable applicant for the position in Australia, seek to use that approval at a considerably later time; and that at that tlme it might no longer be the fact that a suitable applicant for the position could not be found from within Australia. The Ansett companies' submission on that was :
"Providing there is no evidence of an change In circumstances the normal presumption of continuance of this sort of
situation would allow the Minister to
continue to be satisfied at relevant times. It may be of course that so much time goes by that no such presumption could be made, but in the case where there is not a large amount of delay between the nomination and
well be satisfied that the situation is a the application then the Mlnlster could continuing one."
Having considered the submlsslons I conslder that there is a serious questlon to be trled as to the proper construction of regulation 34A in relatlon to the tlme at which the "addltlonal criteria" referred to in regulation 51 must be satisfied.
The question of the proper construction of sub-regulation 51(l)(d) arose during the hearing. It provides :
"51(1) The additional criteria in relation to an employer nomination visa are the following criteria:
. . . .
(d) the employer satisfies the Minister that it has not been possible to find a suitable applicant for the position in Australia;
Broadly speaking the position of the parties on the construction of the sub-regulation may be summarised as follows. The Federation contended that under sub-regulation 51(l)(d), the employer cannot, as a matter of law, satisfy "the Minister that it has not been posslble to find a suitable applicant for the posltion in Australia" In circumstances where, at the relevant time, there is in Australia a pool of appropriately qualified labour. It
by the employer. On the other hand the respondents contended contended that this is so even if the members of that pool of labour are refusing to accept employment on the terms offered that, as a matter of law, the employer can so satlsfy the Minister where the members of the pool of labour refuse to accept employment on the terms offered by the employer, provided that those terms are no less favourable than those prescribed by the relevant award (Criterion N).
In answer to questions from the court as to the meaning, and the effect of the sub-regulation in hypothetical circumstances there were some differences in the way in which the submissions were put by counsel for each respondents; it was contended by some that an employer could satlsfy the Minister "that it has not been possible to find a suitable applicant", even if the employer had offered potential employees contractual terms which included a term which the employer knew would result, or would be llkely to result, in a substantial proportion of the members of the pool of labour refusing to accept employment on that basis.
Senior counsel for the Commonwealth respondents initially submitted that the language of the regulation belng general and not descending to anything particular, could in particular circumstances allow of such a consequence if the Minister formed a judgment that such an employer had been unable to find a suitable applicant. Later Mr. Shaw altered the answer that he had given but his submission seemed to
admit of the same possible consequence in a hypothetical set of circumstances. He sald:
"The question is a question about the position which exists and, in our submission, the only question is: can you find an applicant who is sultable for the position which exists, which means for the position which is vacant whlch has to be filled and is to be fllled on the terms and conditions whlchthe employer advertises or says are available in relation to it.
In our submission to take the step of redefining the position, or altering the position, or alterlng the terms and conditions, is slmply to do something which the regulation does not permit. All that your Honour has put to me is that, if the airlines had offered different conditions from what they did, then it might be that people who did not apply as it turned out would have applied. No doubt that is so, but, in our submission, that is simply not the question.
The question relates to the posltion which 1s sought to be filled by the employer. ~t is not the position which the employer ought, if he was a decent, clean-living Australian be seeking to have filled. It is simply the position which in fact he wants filled. If your Honour goes gack to regulation 51(l)(a), it is for a specified posltion, or a position in a group of specified positlns sought to be filled by that employer and, in our submission, that leaves no room for doing anything but accept the posltion which the employer is proferring, and one simply has to say, "Well, this is the position. It has been defined by the employer", as he is entitled to do, and then one asks a number of questions about it, and one of the questions is: has the employer satisfied the Minister that it has not been possible to find a suitable applicant for, it says, your Honour, the position.
"The position" goes back to a specified position or a posltion in a group of
simply left with the positlon where one has that employer. In our submission one is specified positions sought to be filled by actual vacancies, as one did here, and those vacancies came about by reason of resignation. When one has an employer seeking to fill specified positions, or a group of specified positions, as clearly they were, and if one has no one wllling to accept those positions, that is to say, jobs on the terms offered, then, in our submission, one has regulation 51(l)(b) satisfied.
His Honour: I think I understand your submission, Mr. Shaw, but it does seem to
me that on that submission it necessarily follows that any employer, by deliberately advertising vacancies in an area where there is a strike situation, can readily and deliberately arrange a situation in which the lobs will not be applied for, therefore there will be vacanies, and therefore he simply goes to the Minister, and the Minister is enabled by the regulation put into force last December to give the necessary permission to import strike breakers into Australia.
Now, it seems to me that that is the necessary ... consequence of the submission you have just put to me.
Mr. Shaw: Your Honour, that may be so. If it is so, it follows from the words and, as I said to your Honour when I started rather belatedly to say something this afternoon, this regulation was drawn up at a time when this very thing was happening, and what is being suggested - - -
.... it would be a remarkable thing if those drafting the terms - not impossible of course - but a remarkable thing if those drafting these regulations had managed to draft them in a way which rendered something, which was then currently in course in the department, a breach of the regulations."
Those submissions were made on 11 April. It should be
said that on 20 April, counsel for the Commonwealth
the address by Mr. Dowling Q.C.: respondents said, by way of intervention during the course of "Mr. Bell [counsel for the Commonwealth respondents]: . . . The Commonwealth does not submit that the clause is capable of that application. That submission was made by him, that is my learned leader Mr. Shaw, on the morning that he was making his submissions but he changed his answer in the afternoon.
.... [at 6021
Mr. Bell: . .. Our case is that that is not
the case here but the clear answer to the
clear question that your Honour has asked
is no so far as the Commonwealth is
concerned.His Honour: The answer is no? Mr. Bell: Is no. His Honour: You give the opposite answer
to Mr. Dowllng on this, is that right?Mr. Bell: Yes, we do, your Honour. . . . . I am informing your Honour the position of Commonwealth is that the provision cannot be used - as your Honour has put the question rather baldly calls for a bald answer on our part - to break a strike."
Senior counsel for the Ansett companies, when offered time to give consideration to a similar hypothetical question, stated :
"I do not need to take any time, the answer is the words are clear and they allow to happen what the words say can happen. What that means is this; somebody is by law entitled to a migration permit where he satisfies the criteria and that is all that
need be shown." At a later stage he gave the following answer:
"His Honour: Therefore you can use them [the regulations] to break a strike, is that right?
Mr. Uren: That must follow. But this is a law not relating to employment but a law relating to migration, and the Commonwealth Government does not have any general
employment powers. "
Counsel for Australian Airlines submitted that in the hypothetical case posed by the court, an employer could correctly contend that he had been unable to find a suitable applicant.
Senior counsel for the 14 forelgn pilots accepted without qualification that (on what was called his primary submission as to the meaning of the regulation) the sub-regulation permitted an employer to obtain approval to bring in employees from overseas to replace Australian employees who had been dismissed for being on strike.
Having considered all these submissions I consider that there is a serious question to be tried as to the proper construction of sub-regulation 51(l)(d).
The Federation in its application contended that the
decisions were not authorized by the enactment in pursuance
of which they were purported to be made (S. 5(l)(d) of the
Judicial Review Act). In particular it claimed that the
Migration Act and regulations did not permit permanent entry to be granted in respect of a short term industrial dispute but instead is confined to ensuring the supply of skilled employees in the community. Senior counsel for the Federation submitted that there :
"was no shortage of sultable applicants because there was no lack of persons with the necessary employment skills. What there was was a dispute between suitable applicants and their employers."
In relation to each approval to import foreign pilots, Mr. Hoffmann stated in his affidavit that, in addition to receiving advice from the Department of Employment Education and Tralning (DEET) and the Department of Industrial Relations (DIR) confirming labour shortages within the airlines industry, he had regard to the following: substantial advertising for pilots by the respondent airlines in Australia, to assurances from the respondent airlines that it had been unable to recruit suitable pilots as a result of the advertisements and to media reports of the mass resignation of pilots from their positions with the respondent alrlines thereby creating the vacancies which needed to be filled.
On a number of occasions Mr. Hoffman appeared to express his understanding as to the appropriate test to be applied before he could be satisfied under regulation
51(l)(d). He stated (paragraph 17) that on 20 October 1989
he wrote to Mr. Geraghty, Operations Administration Manager
of Australian Airlines and stated:
"That Scheme [ENS] provides that an employer who has tried without success to obtain necessary skilled personnel in Australia may recruit them from overseas. In other words, for as long as.you are able to demonstrate that you are unable to hire suitable people locally we will be able to process migrant applications. That means, of course, that those ENS arrangements can only continue for as long as the present dlspute lasts."
On 7 December 1989, in response to a letter from the Federation, Mr. Hoffmann stated:
"The requirement which exists for the introduction of overseas pilots both temporarily under the Skills Transfer Scheme and permanently under the Employer Nomination Scheme is that the employers should have tried unsuccessfully to ;ec;uit
qualified Australian residents. It appears
to me that these requirements are cur;ently
being met and that as long as Australian
pilots are not applying for positions with
the alrline companies, they will continueto be met." (emphasis added)
Those passages may be relevant to the question whether Mr. Hoffmann may have miscontrued regulation 51(l)(d) as to whether he had a duty to enquire before being "satisfied" that the employer was "unable to find applicants"; if he did misconstrue the sub-regulation as to his duty he may have failed to take into account a relevant consideration, for
example, failing to inquire from the airlines as to whether
they were aware of any reason why an insufficient number of
Australian pilots were responding to the advertisements placed by the airlines seeking to recruit pilots. It appears to be arguable that he could not be "satisfied" under sub-regulation 51(l)(d) without making some inquiries as to the reason for the absence of a greater response to the advertisements.
A brlef reference to the principles relating to the balance of convenience and the grant of interlocutory injunctions may be appropriate. In Faingold v Zammit (1984)
1 FCR 87 the Full Court said, at 91-92 :
"His Honour . . . thought that the a ~ ~ r o ~ r i a t e test was that recentlv
p;bpo;nded by Gibbs CJ. in The ~ustralian Coarse Grain Pool Pty. Ltd. v The Barle
ALJR 425. His Honour there decided, Marketing Board of Queensland ( 983 7 l - d notwithstanding what was said in Beecham
Ltd v Bristol Laboratories Pty. Ltd.8 1-CLR 618, that the proper approach when considering whether an interlocutory injunction should be granted is to enquire whether there is a serious question to be tried, and then to determine the matter of the balance of convenience: see p. 425.
Applying thls test, the learned primary judge, after analysing the submissions made to him, expressed substantial doubt as to whether there was a serlous question to be tried. If there was, he was of the view that the balance of convenience required the refusal of the rellef which was sought.
.... In the submission of counsel for the appellants the appropriate test was whether the court considered that reasons or
that the court should make the order circumstances existed whlch made it just sought. .. . In our opinion it wlll be difficult for an applicant to show that reasons or circumstances exlst whlch make it just that the court should make an order sought unless it is demonstrated that the applicant has a point of substance to argue which, if successful, wlll result in judgment in his favour. In thls respect it does not appear to us that the two tests are, in practical terms, very different."
It is convenient to quote from the outllne of submissions as to the balance of convenience advanced by senlor counsel for the Federation and in dealing with them to augment it by reference to his oral submissions:
"Balance of Convenience
17. It is relevant to the question of balance of convenience that the Federation has made out a strongly arguable case of unlawful behaviour on the part of the Department.
18. The Alrlines are unlikely to suffer
any harm by the interlocutory orders sought, especially given the offer by large numbers of Federation members to return to work on a conditional basls if so desired. If anything the Alrllnes will be better off financlally if it accepts the offers than they would have been by proceeding with the importation of the foreign pilots.
19. Only a relatively small number of foreign pilots will suffer any significant inconvenience. The evidence of such inconvenience is scanty and unsatisfactory. In any event, the foreign pllots were on notice at all material times that the Federation would do all it would to ensure the dismissal of any pllots who were engaged without its approval during the
industrial action.
hardship for many months by reason of the 20. The local pilots have suffered intense inavailability of thelr jobs. To the extent that this was facilitated by arguably unlawful conduct on the part of the Department, it is just and equitable that orders be made which may have the effect of removing an Impediment to the re-employment of the Australian pilots and thus alleviating their hardship, at least for the tlme being."
The Full Court of the Federal Court in Aboriginal Development Commission v Ralkon Agricultural Co. Pty. Ltd.
(1987) 74 ALR 505 at 509-510 said:
"However, applying the "serious question" test, it is clear that the enquiry whether there is a serious question to be tried must be answered with reference to the circumstances of the case. . . . ~t the opposite extreme there may be cases in which the applicant has had little opportunity to ascertain the facts and to adduce evidence but there is some material to suggest an entitlement to relief. upon further investigation that material may turn out to be capable of ready refutation or explanation but, in the meantime, it may be appropriate for the court to intervene. Everything must depend upon the circumstances of the case, including the extent to which the applicant has had an opportunity to present the facts to the court and the consequences of granting or refusing relief. This was what was meant by Woodward J. when, in Bullock 5 FCR 464 at 472 and in Jungpradit v Hurford (21 August 1985, unreported) he spoke of considering together the two tests of "serious question" and "balance of convenience". The overriding principle is that referred to by Dawson J. in Hayden 56 ALR 73 at 79 "that a court ought not to be misled by an overstrict application of verbal formulae to depart from its primary duty to do complete justice in the cause."
As to the second matter (paragraph 18 above) advanced by the Federation, counsel for Australian Airlines relied on the following statements contained in the affidavit of Mr. P. R. Edwards, the Schedules Planning and Control Manager of Australian Airlines Limited:
"3. In the event that any of tlie foreign pilots now engaged by Australian were
prevented from entering Australia or commencing their employment activities, Australian would suffer very substantial revenue losses. Those losses would be significantly exacerbated by the termination of the charters referred to in paragraph 12 of Wlltshirers sald affidavit. Such losses are measured by reference to crew revenue productivity. The revenue produced by an air crew per month is dependent upon four measurement criteria, namely:
(a)
Alrcraft productivity rates by type, that is the capacity generated by each aircraft by hour of flying. (expressed as CSKs per hour).
(b)
The available hours per month of crew members (expressed as Crew HRS per
MTH ) . (C) Average load factor to convert CSKs to
passenger kilometres per crew(expressed as PKNS per CREW per NTH).
(d) Average earning rate (expressed as Cents per PKM). The actual productlvlty and earning rates used in calculating revenue losses to Australian are commercially confidential and it would be detrimental to the interests of ~ustralian to disclose those flgures. I have calculated monthly revenue losses which would be suffered by Australian on two alternative bases. The first is calculated on the basis of those overseas captains who (as at 20 March 1990)
had not arrived in Australia being prevented from their taking up employment. The second is calculated on the basis of all foreign captains engaged by Australian ceaslng their employment. Those calculations are set out in tables 1 and 2 in the document now produced and shown to me and marked "PRE1". The dollar value of revenue earned per crew per month is produced by multiplying the productivity rate by the hours per crew, load factors and earning rates."
However, senior counsel for the Federation relied upon statements in the affldavlt of Mr. J. Raby, a vice-president of the Federation as to the requirements imposed by Clvll Aviatlon Authority for the licensing of airline pilots. Mr. Raby stated (paragraph 5 and 6):
"5. .... ~ v e n if a forelgn pilot had completed all study required for the Australian examinations whilst overseas I estimate that the minimum tme required for him to acquire a first class Australian Transport Pilot llcence after arrival in Australia would be 14 days and in some cases the period would be significantly
greater. . . . 6. By contrast I would generally agree
with the statement of Thomas David Wiltshire in paragraph 17 of hls affidavit herein, sworn 4 April 1990, that it would take a period of approximately 6 days before each of the local pllots who resigned in August 1989, could be ready to resume flying. SIX days would generally be the maximum time required."
The Federation submitted that, in light of these statements in Mr. Raby's affidavit, "on the balance of convenience we say for Australian on this point, it would be more convenient for them to utilize those local pilots whose training period is less than half than foreigners whose training period is more than double . . . There would have been
other scenario." 14 days training per man wasted rather than six days on the The Federation also relied on the following statements
by Mr. Raby:
"8 . At about noon on 6 April 1990, pursuant to a suggestion from Counsel, I instructed one Robert Upham, a member of the Applicant to endeavour to contact as many as posslble of the Applicant's
Victorian members who resigned their
employment with the Respondent airlines on or about 24 August 1989 and who were not known to have returned to work in the aviation field in Australian or overseas. I asked him to concentrate (though not exclusively) on former Australian Airlines 721 and 737 captains who he considered would likely be willing and able to resume work immediately. I further instructed him to ask each member contacted whether he was prepared to return to work immediately on the condition that should the Applicant fail on the final hearing and determination in this matter the alrlines as employers would be entitled, if they so chose to determine the contract of employment in favour of one of the forelgn pilots whose status is in question in this application for interlocutory rellef. Shortly after speaking to Mr. Upham I gave the same set of instructions to one Kerry Houston, a member of the applicant in its Brisbane offlce in relation to Queensland based members of the Applicant.9. The said Upham Informs me and I verily
believe that he attempted to telephone approximately 200 pllots between noon and 5.30 pm on 6 April 1990. In approximately 160 cases he was unable to contact the pilots. In 40 cases the pilot stated that he was prepared to return to work immediately on the said condition. In 3 cases the pilots sald that they would not accept the sald condition. The sald Mr
Houston Informs me and I verily believe
that 30 of the Queensland pilots whom he
was able to contact by 5.30 pm on 6 April 1990 told him that they would be prepared to return to work immediately on the said condition. On the basis of my general knowledge of the situation and on the basis of the said information given to me by Messrs. Upham and Houston I have no doubt that a far greater number than 70 of the local pilots who reslgned their employment on 24 August 1989 would be prepared to return to work immediately on the said condition."
The Federation's senior counsel submitted that:
' l . . . the Federation and its members have
taken the step out of a sense, we submit of reasonableness, that in order to hold the status quo the pilots who are prepared to start immediately for Australian are prepared to do so on the basis that they will give Australian the option of terminating their contract in the event that this application is lost, terminating their contract in favour of a foreign pilot whose rights will have been settled ..."
Counsel made plain later in the hearing that this offer was intended to be taken as extending to Ansett.
In reply counsel for Australian Airlines referred the court to paragraphs 25, 26, 27, 30 and 31 of its "outline of submissions". It is convenient to set out those paragraphs in full:
"25. In respect of Australian the AFAP
submits that by offering to return to work "on condition" that it suffers no inconvenience by its inability to employ the foreign pilots.
26. There is an assumption by the AFAP not supported by any evidence that if the foreign pilots are restrained from enterlng Australia, a commensurate number of local pilots will be employed by Australlan to replace them.
27. The proposal to return to work "on condition" is, it is submitted, totally unreasonable. Australian has "re-built" its airline and is entitled to employ persons of its own choice.
. . . . 3 0 . As to the revenue losses deposed to by Messrs. Wiltshire and Edwards, it is clear that they are calculated upon the assumption that local pilots are not re-employed in place of forelgn pilots if an injunction were granted.
31. Again, the assumption is that Australian should and wlll re-employ local
pllots if an injunction is granted."
During the course of argument counsel submitted that the offer to return to work "on condition", referred to in the affidavit of Hr. Raby, was based upon "an assumption that
. . . if your Honour stops these forelgn pilots coming in, your
Honour in some way is creating jobs for local pilots. There is not any evidence that supports that conclusion .. . and, in our submission, your Honour ought not approach it on that basis, notwithstanding ... that according to the evidence ... if forelgn pilots are not allowed to enter the country, and they are not in some way replaced, there would be substantial losses of revenue".
It may be relevant to the balance of convenience that
there is evidence before the court that the respondent
Airlines did seek to re-employ pilots who had resigned in
August 1989. As to Australian Airllnes, Hr. T. D. Wiltshire, its Assistant General Manager, Flight Operatlons, exhibited [paragraph 6) an advertisement which had been placed in the major Australian newspapers on 21 September L989 by Australian Airlines. It was headed "An offer to
ex-Australian Airllnes pilots" and lncluded the statement "Australian would like to re-remploy as many of its former
pilots as possible".There is no evldence that the attitude there expressed by Australian Alrlines either is or is not its present attitude. Mr. Wiltshire stated (paragraph 9) "Throughout the period December 1989 to February 1990 former Australian Airlines First Officers who reslgned in August 1989 were sent a letter lnvitlng them to apply for employment . . .". The letter (annexure TDW6) dated 15 December, 1989, and the letters sent in January and February 1990 each included the following passage:
"The purpose of this letter is to let you know that Australian has always had a clear preference for rebuilding wlth a significant number of its former pilots. If you want to be part of Australian's future, you should make a decision very soon.
Mr. G. M. Young, the Superintendent, Human Resources, of Ansett Transport Industries (Operations) Pty. Limlted deposed that:
1989 Ansett placed advertisements in "13. On numerous occasions since 26 August newspapers wlth Australian circulation seeklng recruitment of Australian pilots. [Exhibited - "GMY: 9" l . . . Ansett would have preferred to employ its former pilots in particular (as they were famillar with its equipment) and Australian pilots generally as this would involve substantial cost savings in terms of relocation and training expenses.
14. In order to invite its former employees to return to employment with Ansett, its Chalrman and General Manager,
wrote to pllots who are members of AFAP on a number of occasions in an effort to encourage its former employee pilots to return to Ansett . . ."
A letter wrltten by its Jolnt Managlng Director, Slr Peter Abeles, and dated 1 September 1989 invited its former employees to return to help restore the airline. He wrote another letter to the former employees dated 5 September 1989 which included the following paragraph:-
"The Ansett Group, which had the finest body of pilots, has only one cholce; to rebuild with the support of those who have already returned, those who will reconsider and return, together wlth new applicants who wlll be jolnlng thls company."
On 19 September, Sir Peter Abeles again wrote to former employees and stated:
"As we rebuild the airline the number of places available are progressively being filled by Ansett pilots who have returned or by people who have not formerly been our employees. As a result, the number of vacancies for former employees is decreasing. We regret this because we
Senior counsel for the Federation submitted that Australian Airlines' balance of convenience should be vlewed In llght of the fact that it only has 3 pilots overseas. In reply, counsel for Australian Airlines pointed out that the 3 pilots referred to by Mr. North were persons who hold
would genuinely prefer to have our own former pilots back."
permanent entry vlsas but that Australian's convenience should be looked at in light of 11 other persons still overseas. I accept Mr. Sutherland's submission. The order sought by the Federation does not seek to distinguish between the holders of permanent entry visas and others, but seeks to halt any further processing of foreign pilots by the Commonwealth respondents.
The evidence relating to the circumstances of individual foreign pilots contracted to Australian Airlines shows the disadvantages to foreign pilots as a result oftheir entry into Australia being impeded. The Federation contended that the grant of an interlocutory injunction would save individual foreign pilots from further disruption by preventing them from arriving in Australia. I do not accept that this would be a proper basis upon which to approach the question of whether to grant an interlocutory injunction. I accept the submission by senlor counsel for the Ansett companies that it would not be a proper exercise of the court's discretion to grant an injunction in an endeavour to
protect foreign pilots from adverse consequences that might flow from their own decisions to travel to Australia. Whilst the numbers of persons affected by the making of a mandatory order of the type sought by the Federation are relatively few, the hardship and inconvenience caused to those foreign pilots by such an order would be significant, and, in my opinlon, outweighs any beneflt to the Federation from the making of such an order.
Senior counsel for the Federation submitted that Ansett would not be inconvenienced because it would be open to it to employ Federation members during the period of any lnterlocutory injunction. He placed particular reliance on an affidavit of Mr. N. Holt:
"3. I am informed by Phillip Roberts, Chairman of the Western Australian branch of the Australian Federation of Air Pllots and verlly believe that 56 Perth based pllots have applied for positions with Ansett WA. Most have been advised by Ansett WA that there are no jobs available. Many of the pilots (both Captains and First Officers) are BAE 146 type endorsed and were flying that aircraft up until 24 August 1989. Ansett WA is a subsidlary of Ansett Transport Industries (Operations) Pty Ltd as is East West Airlines (Operations) Pty Ltd."
Senior counsel for the Ansett companies relied on the fact that East-West, though a subsidiary of Ansett, was a separate corporate entity and the availability of pilots to a subsidiary should not be regarded as equivalent to the availability of pilots to it. However, the availability of
qualified pilots for employment wlth a subsidlary of a parent company cannot be ignored in considering the competing claims as to balance of convenience As to the question of hardship and Inconvenience to the foreign pilots, the Federatlon claimed that they were on notice that the Federation would do all it could to ensure the dismissal of any pilots who were engaged without its approval durlng the industrial action. In the latter half of
1989 the Federation caused to be published in various internatlonal publications a document headed "WARNING" (Doc. 31) and sub-titled "RECRUITMENT AND TRAINING BAN", below which appeared five circles each containing within, the name of each airline through which a llne has been passed. Underneath those circles was a text which read:
"These Airlines are in dispute with the Australian Federation of Alr Pilots representing all domestic alrllne pilots in Australia.
These Airlines may offer employment to pilots on a contract basls in an endeavour to pressure thelr own crews to accept reductions in pay and conditions.
Any pilot accepting employment wlth these airlines will be considered to be acting as a STRIKE BREAKER. Terms of settlement of this dispute wlll include provisions for the Immediate cancellation of any contracts with strike breaking pilots.
The Internatlonal Federation of Air Pilots Association has extended mutual assistance to AFAP a member assoclation. This assistance includes a recruitment and
mlleage. training ban and a non-extension of route
Authorised: Capt. Brlan McCarthy President
Australian ~ederation of Air Pilots
Ph: (8133) 699 4200
Fax: (8133) 699 8199"
I accept the submission by senior counsel for the Commonwealth respondents that, even if it could be assumed that each of the overseas pilots affected by the making of any order had seen the warning, those pilots would not have been alerted to the likelihood of the Federation instituting legal proceedings to challenge the validity of decisions enabling them to travel to Australia and take up employment wlth the airlines. At its strongest, from the Federation's standpoint, the warning made plain that:
1. any foreign pllot taking up employment with the airlines would be regarded as a strlke-breaker; and
2. terms of settlement of the dispute would include an immediate cancellation of contracts entered into.
On balance, I do not consider that the Federation's third matter (paragraph 19 above) glves it any real support on the question of balance of convenience. I have given consideration to the matter of hardship to the "local pllots", referred to in the Federatlonls fourth matter
senior counsel for the Ansett companies that the grant of an (paragraph 20 above). I have taken into account the submission made by injunction would render it unable to meet its contractual obligations to foreign pilots employed by it and expose it to actions for damages. I find myself, however, unable to accept such a submission first,-because Ansett contracts are
expressed to be "terminable" on 7 days' notice and second, because the contracts are condltlonal on the satisfaction of licensing requirements. It may be noted that, as to a similar argument advanced by Australian Airlines, counsel conceded that on the evidence the court could not be satisfied that his client would be exposed to any action for breach of contract.
I have also taken lnto account a submission put by counsel for Australian Airllnes that the making of an order which prohibited any change of status for those foreign pilots who are currently in Australia and have less than permanent entry permits or permanent entry visas, would prevent them from bringing their spouses to ~ustralia.
The evidence referred to by counsel for Australian Airllnes in support of thls submission is contained in material exhibited to two affidavits of Mr. I. Posthumus.
In those affidavits, Hr. Posthumus refers to two temporary residence status. Mr. D. Carsonss wife and two
foreign pilots employed by Australian Airlines who hold
children remain in the United States awaltlng immigration clearances to enable them to travel to Australia. Hr. J. Parker's wife is in the united States, waiting to join him in Australia. The making of an interlocutory order may cause these men and their familles very deep concern but it may be open to their wives and dependents to apply for temporary entry permits.
Having considered all the competing submissions advanced by the Federation and the respondents, I have formed the opinion that thls is an appropriate case for the granting of an interlocutory order that will preserve the status quo by preventing those foreign pilots, who have not yet been granted permission to travel to or enter Australia, from being given such permission; further it will prevent those foreign pilots who are already in Australia from obtaining any change in their current status. It will not prevent the travel to or entry into Australia of those foreign pilots who have already been granted visas, entry visas or entry permits.
Submission in respect of Mr. A. J. Turner. The court heard considerable argument on the question
whether the above-named foreign pllot should be "exempted"
become a party to the proceedings but both evidence and from the existing interim order. Mr. Turner did not apply to submissions in respect of his position were advanced by counsel for Australian Airlines. Since the declsion was reserved on 7 May, I have considered that evidence and the submissions of Australian Airlines and of the Federation on the question. However, it is not necessary to determine the question because my associate has been informed by the solicitors for Australian Airlines that it no longer seeks a decision on that question.
Whether the Minister has power to vary or to cancel vlsas. This question was argued at some length but it is not necessary to decide it as the court has decided not to make an interlocutory order requiring the Minister to vary or cancel visas, entry visas or entry permits.
Whether S. 15(l) (a) of the Judicial Review Act confers power upon the court to "suspend" the operation of the relevant visas, entry visas and entry permits.
During the hearing various questions were raised as to the effect of the interim orders. Submissions were heard from the parties as to the appropriate form of the interim orders, including submissions as to the powers of the Minlster to cancel visas or to vary them. On 30 April (the
that the matter would be adjourned until 7 May, the 12th day of the hearing), the parties having had prior notice Federation was directed to serve upon the respondents and lodge in the court any alternative form of interim order which it Intended to place before the court. On 2 May the Federation served and lodged a draft Interim order, which was stated by it, in an explanatory memorandum, to be put forward not as an "alternative form" but as the Federation's "preferred form of order"; its senlor counsel s a ~ d that the same form of order was sought by way of interlocutory order.
Paragraph 1 of that draft order was different from earlier proposals in that, instead of direct~ng the Minister to exercise his powers under the Migration Act 1958, it proposed that, until the hearing and determination of the application for interlocutory orders, the operation of each (relevant) visa, entry visa or entry permit "be suspended". Reliance was placed upon S. 15(l)(a) of the Judicial Review Act. On 7 May 1990 all of the respondents other than the Ansett companies submitted that the court had no power to make the order sought under that sub-section.
In the light of my conclus~on that the 3rd and 8th
respondents should not be bound by a mandatory order pending the determination of the substantive application, it has not been necessary for me to form any concluded opinion on this question.
Delay by the Federation in filing the Application. Each respondent, other than the 14 foreign pllots, submitted that the Federation was gu~lty
of such delay that
it was not entitled to the rellef sought. The decls~ons
sought to be reviewed include decisions by the second-named
respondent on 1 November 1989 and 9 January 1990 and 14
February 1990. The court did not have before it the dates of
the grant of individual visas, other than the dates of 11
visas granted to foreign pllots nominated by Australian
Airlines pursuant to the second ENS group of approvals made
on 9 January 1990.
The Federation's senior counsel submitted that in order for a party to be denled rellef the delay of which he is guilty must amount to "acquiescence" and that the conduct of the Federation should not be so regarded. He referred to the following facts. (1) on 28 December 1989, the Federation lodged an application pursuant to the provisions of the Freedom of Information Act (Clth) 1982 but it was not until 2 February 1990 that a partial response was forthcoming; (2) on
26 February 1990 the Federation flled a notice of motion, in
proceeding VG 58 of 1990, seeking preliminary discovery pursuant to Order 15A of the Federal Court Rules; (3) on 26 February 1990 it made a request for a statement of reasons pursuant to S. 13 of the Judicial Review Act but no statement
of reasons had been furnished to it.
Counsel for the Commonwealth respondents informed the court on 26 April 1990 that at that time no decision had been taken as to whether to supply to the Federation a statement of reasons for the decisions under challenge in these proceedings. He said that he had been "instructed to inform [the court] as to why;" he continued :
"The reason is that, as your Honour knows, the Commonwealth is of the vlew that the Federation is not a person aggrieved. Secondly, as has been submitted to your Honour, the request for reasons in relation to visas is expressly precluded from the operation of section 13 by a schedule
[Schedule 2(d)(ii)] to the Act - - -
That does not mean that the Commonwealth might not give reasons in relation to decisions at large because it has the capacity to provide reasons in accordance with the Act whether a person is entitled to them or not, so that it might do so voluntarily."
It may be added that on 19 December 1989 substantial amendments to the Migration Act came into force. On that date there also came into operation a very substantial set of new regulations which altered the relevant procedures - replacing the Departmental policies which had applied to one of the decisions sought to be challenged by the Federation. Of that set of new regulations, some of those cited to the court in the present proceedings have themselves been amended in January, February and March 1990.
The Federation's senior counsel submitted that the steps taken by the Federation, prior to the commencement of these proceedings on 21 March 1990, were prudent steps intended to obtain more information as to the decisions before decidlng whether an application should be made to review them.
It was common ground that the Federation knew as at 6
December 1989 that foreign pllots were entering Australia.
Senior counsel for the Commonwealth respondents submitted that the Federation could have brought an application shortly after that time seeking review of the first decision, made in November 1989. Senior counsel for the Ansett companies submitted that delay, in the absence of reasonable excuse, was of itself decisive in considering whether to refuse the relief sought by the Federation, cltlng the decision of Bowen CJ., Beaumont and Foster JJ. in Carlton & United Breweries v Bond (1987) 76 ALR 633 at 638-639. He also contended that there was no "reasonable excuse" for the delay and no affidavit material giving reasons for the delay.
Counsel for Australian Airlines advanced the same submissions as the other respondents but also pointed out that, because of the Federatlonrs delay in bringing these proceedings, foreign pilots have made arrangements for the transfer of their possessions and made commitments to a new life in Australia to their obvlous detriment.
Having considered the submissions by the parties and court at this stage, I am not prepared to uphold the
the factual situation as revealed by the evidence before the
submissions that the Federation has been guilty of such delay
as to warrant the refusal of rellef. The submissions as to ostensible bias. Senior counsel for the 14 foreign pilots, shortly after commencing his address on the seventh day of the hearing, said:
"We Intend to examine the comments, the discussion, the observations, questions which your Honour has put on thls score over the past six days. It wlll be our submission that taken together these wlll be llkely to convey to a reasonable and intelligent lay observer an impression of bias. It will be seen that your Honour from time to time dld say, as your Honour was saying this morning, that your Honour has not reached a decision, has not reached a conclusion. From time to time your Honour has said that the matter is to be looked at from a hypothetical point of view. We will contend that in view of the nature, extent, character of the observations, a fair mlnded observer would have had a reasonable apprehension of
bias. "
He referred to observations by Toohey J. in Vakauta V Kelly (1989) 63 ALJR 610 at 618 and later made it clear that he was not asking that the court should disqualify itself from completing the hearing and deciding the application for interlocutory orders. However, he submitted that it should not hear the substantive application, which 1s listed for 20 June 1990.
620-622, 629-633 and 643-644. They were supported by in the transcript at pages 581-588, 596-599, 603-617, His submissions in support of that contention appear submissions from senior counsel for the Ansett companies, whose submissions, whlch were Interrupted by argument on other matters, appear at pages 879-891, 913-941 and 972-1003. The submissions of both senior counsel were "adopted" by counsel for Australian Airlines. Counsel for the Commonwealth respondents dld not make any submission on the
question. I have considered the submissions in the light of recent authoritative statements of principle by the High Court. In Grassby v R (1989) 63 ALJR 630 at 638, Dawson J. with whose reasons for judgment Mason CJ., Brennan and Toohey JJ. agreed, said :
"The test which is to be applled when bias is raised has been clearly laid down. It is whether in all the circumstances the parties or the public might entertain a reasonable apprehension that the judge might not brlng an impartial and unprejudiced mind to the resolution of the matter before hlm ... If so, then the judge ought not to proceed to hear the matter. Of course, as Gibbs CJ polnted out in R v Simpson; Ex parte Morrlson (1984) 154-CLR 101 at 104, the mere expression of the apprehension of bias does not establish that it is reasonably held; that is a matter which must be determined objectively."
Earlier, in - R v Watson; Ex parte Armstronq (1976) 136
CLR 248, Barwlck CJ., Gibbs, Stephen and Mason JJ. said (at
264) :
"The remarks on which the wife's submission was founded were made during argument in an interlocutory proceeding. One must be careful not to exaggerate the importance of remarks of that kind. Durlng the course of argument a judge will often follow the common, and sometimes necessary, course of formulating propositions for the purpose of enabling thelr correctness to be tested, and as a general rule anything that a judge says in the course of argument will be merely tentative and exploratory."
In considering the submissions I have borne in mind
the statement by the present Chlef Justice of the High Court
as to the duty of judicial officers to sit. In Re J.R.L.; Ex
parte C.J.L. (1986) 161 CLR 342 at 352 hls Honour said:
"It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 CLR 248 and Livesey ( 1 9 8 3 l C ~ ~ 288 has led to an Increase in the frequency of
applications by litigants that judicial
officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct durlng the litlgatlon. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer wlll not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ...
Although it is important that justice must be seen to be done, it is equally Important that judicial officers discharge their duty to sit ..."
Since this decision was reserved I have read carefully the whole of the transcript of the submissions on this matter and the transcript of each of the passages upon which they relied. I have also read carefully the context in which each of those earlier passages appeared. In my opinion neither the parties nor the publlc could rationally have entertained
- "a reasonable apprehension that the [court] might not bring
an impartial and unpreludiced mlnd" to the hearlng and
determination of the substantive matter.
Because the submissions placed substantial reliance upon two matters, it may be appropriate to refer to them briefly. The first matter related to the admissibility of evidence. Mr. Dowling Q.C.said (transcript 583) "... your Honour mentions on a number of occasions the material, we finally identify that material as being none other for the most part [than] these Go-Arounds and some newspaper articles, plainly none of this is admissible evidence." The material which he said was plainly not admissible evidence was contained in an exhlbit ("GMY 8") to the affidavit of Mr. G. M. Young, the Superintendent, Human Resources, of Ansett Transport Industries (Operations) Pty. Limited, sworn on 29 March 1990, which was part of the evidence relied upon by senior counsel for the Ansett companies. That material was also put in evidence by Australian Airlines; its Assistant General Manager, Fllght Operations, MC. T. D. Wiltshire, in his affidavit sworn 4 April 1990 (paragraph 18) adopted both
the relevant parts of Mr. Young's affidavit and exhibit "GMY 8". In those circumstances it is not readily apparent that the respondent airlinesr own material, placed in evldence without oblection by any party, was "plainly" not admissible
- see Walker v Walker (1937) 57 CLR 630 at 634-635 per Latham CJ., at 636 (per Dixon J.) and at 637 (per Evatt J.). As Owen, Brereton and Colllns JJ. said in Stunzi Sons Ltd. v House of Youth Pty. Ltd. I19601 SR(NSW) 220 at 225-226:
"It is clear that the letter in question would not have been admissible had it been tendered by the plaintiff ... But the fact is that the letter was tendered by the defendant as part of the evidence in the case. By so doing the defendant removed the barrier to the admissibility of the evidence and once it was in evidence it was for the trial judge, and is now for us, to consider what probative value should be glven to the statements in it."
See also the reasons for ludgment of Smith J. in Re Lilley
[l9531 VLR 98 at 101-102.
The second matter relates to the claim that the court at times "searched" for evidence. That claim related to occasions on which the respondents' counsel had said that there was no evidence on a matter and the court had sald it had an impression that there was some evidence on the point, somewhere in the material; as the respondents1 counsel
would try to find the material. It may be added that, before
appeared to be unaware of its existence, it said that it
the present hearing began, the court raised with counsel for the parties the question of how much of the very large amount of material flled was necessary readlng for interlocutory purposes. Counsel for the respondents made it clear that they wished the court to read all the affidavits and exhiblts
filed on behalf of their clients - with the exception of the transcripts of various hearings in the Industrial Relations Commission. I certify that this and the preceding 72 pages are true copy of the Reasons for Judgment herein of his Honour Mr. Justice Keely delivered on 31 May, 1990.
s s o a t : PJ: 9 1 ~ ~ Date: 31 May, 1990.
Dates of Hearing 5, 9, 10, 11, 12, 18, 19, 20, 23, 24, 26, 27, 30 April
and 7 May, 1990Date of Judgment 31 May, 1990 Solicitors for Applicant Messrs. Mahoney & Galvin Counsel for Applicant Mr. A. M. North Q.C. and Mr. A. L. Cavanough Solicitors for the first,
second, third and Australian Government eighth Respondents Solicitor
Counsel for the first,
second, third and Mr. B. J. Shaw Q.C. and Mr. eighth Respondents K. H. Bell
Solicitors for the fourth,
fifth and sixth
Respondents Freehill Hollingdale & Page
Counsel for the fourth,
fifth and sixth Mr. A. G. Uren P.C. and Mr. Respondents J. G. Judd
Solicitors for seventh
Respondent Messrs. Phillips Fox
Counsel for seventh
Respondent Mr. I. G. Sutherland
Solicitors for ninth to
twenty-second
Respondents
Counsel for ninth to
twenty-second Mr. M. J. Dowling Q.C. and
Respondents Mr. T. J. Ginnane
0
18
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