CSL Pacific Shipping Inc, Ex parte Re Munro & Ors

[2003] HCATrans 685

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry         
  Sydney  No S391 of 2002

In the matter of -

An application for Writs of Prohibition and Certiorari against THE HONOURABLE JUSTICE PAUL MUNRO, THE HONOURABLE SENIOR DEPUTY PRESIDENT ANNE HARRISON and COMMISSIONER FRANCIS RAFFAELLI, members of the Australian Industrial Relations Commission

First Respondents

THE MARITIME UNION OF AUSTRALIA, THE AUSTRALIAN INSTITUTE OF MARINE & POWER ENGINEERS AND THE AUSTRALIAN MARITIME OFFICERS’ UNION

Second Respondents

Ex parte –

CSL PACIFIC SHIPPING INC

Applicant/Prosecutor

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 MAY 2003, AT 10.17 AM

(Continued from 6/5/03)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Jackson.

MR JACKSON:   Thank you, your Honours.  May I deal with two aspects.  First, to go immediately to the question of service and then, secondly, to deal very briefly with a number of other aspects of the case.  Your Honours, turning to the question of service, the prosecutor’s contention is that the Commission had no jurisdiction because service cannot be effected outside Australia.  That perhaps puts together, in short terms, a couple of notions.  But in dealing with this aspect one does need to bear in mind, in our submission, two matters.

The first is that the powers being exercised by the Commission are not powers deriving from, if I could use that expression, section 51(xxxv) of the Constitution. There is no need for there to be a dispute of any kind before the Commission can enter upon such a matter. That is the first thing, your Honours. The second thing is that the Commission is not a court; it is a body exercising delegated legislative power. In relation to the absence of need for a pre‑existing dispute, one sees from section 5(3) that all that is required for an industrial issue to exist is that there be a matter:

pertaining to the relationship between employers and maritime employees –

in a relevant species of trade and commerce.  Now, for there to be such a matter there needs to be no more than a claim that that relationship should be governed by certain rules.  Your Honours, once that claim is made, in our submission, the Commission then has jurisdiction to deal with it.

Of course, there has to be notice to a person, such as the employer, whose interests may be affected by the manner of resolution of the industrial issue, but that, in the end, in our submission, is a matter of procedural fairness and something that might prevent the Commission making a final order, if not complied with, rather than something which says that the existence of the Commission’s jurisdiction is founded on a “proper” service. 

Your Honours, could I go first of all to the provisions of the Act and then to the Rules of the Commission, which appear to be potentially germane. In that regard, could I go first to section 113 of the Workplace Relations Act, and one does need to read the provisions bearing in mind the conversion that has to be made in language, because of section 5(2). If one goes to section 113(4), it says:

This Act applies in relation to applications, and proceedings in relation to applications, for the setting aside or variation of awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute. 

The reference to notification takes one to section 99.  Your Honours, section 99(1) says that:

As soon as an organisation or an employer becomes aware of the existence of an alleged industrial dispute –

and, again, one needs to convert the language –

affecting the organisation or its members or affecting the employer, as the case may be, the organisation or employer shall notify the relevant Presidential Member or a Registrar.

Your Honours will see that that then brings into operation a series of provisions such as section 100 and then your Honours will see that in section 101(1)(a) one of the things that has to be determined by the Commission is to:

determine the parties to the industrial dispute and the matters in dispute –

Your Honours, provision of that kind is one which makes it difficult, in our submission, to adopt the notion that service is an element going to the existence of jurisdiction, because the parties have not been determined, or have not necessarily been determined, at that point.

Your Honours, from there one goes, for example, to section 104, which provides for arbitration, but which would be, in the particular case, the hearing and determination of the applications, and then to section 110.  Section 110 gives the Commission broad powers in relation to the way it conducts itself.

Now, your Honours, if I could pause at that point and go for a moment to some of the Rules of the Commission.  Could I go first to Rule 15?  If your Honours are using this book, it is at page 37,034.  What your Honours will see in Rule 15 is that it sets out some procedural matters in relation to disputes, and Rule 15(1):

notification of an industrial dispute . . . may be given orally, in writing, by facsimile transmission or other similar means.

Then what the notification is to contain.  That is sub‑rule (2).  Your Honours will see then, if one goes to Rule 16, the Registrar is to give notice as the Commission directs to:

each person alleged to be a party to the dispute.

Then, your Honours, one sees Rule 22(3), a rule replied on by the prosecutor.  The difficulty with reliance upon it, your Honours, is that it says that:

The applicant must serve a copy of the application . . . on the other parties to the award.

But, of course, in this case, they were not a party to the award.  That was the object of the application, to make them one.  So I mention that in passing, your Honours, reliance on Rule 22(3) seems inapposite.

Now, your Honours, if I could back then to the terms of the Act itself.  Your Honours will see section 111, which is a provision which deals with the courses that might be taken by the Commission when dealing with matters under the previous division, that is, the Conciliation and Arbitration hearing and determination.  Your Honours will see that it refers to a number of powers which the Commission has in section 111(1) and then one goes in particular to section 111(1)(h), which says that it may:

hear and determine the industrial dispute in the absence of a party who has been summoned or served with notice to appear.

Now, your Honours, I will not take time over it, but there may well be difficulties in applying that provision literally to section 5(3) cases because of the definition of “party” and the definition ‑ your Honours will see the word “party” used – the definition of “party” which takes one to “industrial situation”, and the definition of that term.  But if one leaves that aside and assumes that it does apply, it simply means that the Commission cannot proceed to hear and determine the matter in the absence of a party until that party has been summoned or given notice to appear.

If I could go back then to the Rules of the Commission and to Rule 7, which is page 37,031.  It enables the Commission to give directions as to any matter of formal procedure, and your Honours will see:

7(2)  [Commencement of proceedings]  A proceeding commenced in accordance with a direction of the Commission is well commenced.
7(3)  [Sufficiency of direction]  A step taken in accordance with a direction of the Commission is regular and sufficient.

That is a prefatory rule as it were.  One comes then to Rule 72 which deals with the manner of service particularly.  Your Honours will see the words of Rule 72(1):

Except as otherwise provided by these Rules, or as directed by the Commission, a party must serve a document lodged under these Rules.

The manner of service is provided for by Rule 72(2), and could I refer in particular to Rule 72(2)(d)(ii).  I invite your Honours to note that this in fact was done.  You will see the letter in volume 2 of the application books at page 260 - sorry, your Honours, you will see the affidavit of Mr Keats setting out the letter that he sent, and the letter appears at page 263.

KIRBY J:   Would one normally read that rule as being in and of Australia?

MR JACKSON:   Well, your Honour, if one looks for example at the definition in Rule 72(3), it says:

“secretary”, in the case of a body corporate that is a body corporate established under a law of the Commonwealth or of a State or Territory of the Commonwealth, means ‑

et cetera, but it does not exhaustively define it.  Your Honours, the point I am seeking ultimately to make is this ‑ ‑ ‑

KIRBY J:   That seems to indicate that they are Australian corporations.

MR JACKSON:   Well, they most frequently will be, your Honour, but it does not define the term exhaustively.  What I was going to say, your Honour, was this, that if one is dealing with the jurisdiction that derives from section 5, and in particular section 5(3)(b), it is inherent in the nature of the jurisdiction, particularly 5(3)(b)(i), that persons who are employers in relation to the crews of ships, maritime employees, engaged in trade and commerce between Australia and other places, are likely to be - not always, but are likely to be - frequently persons who are outside Australia.  In those circumstances it is hardly surprising if one sees in relation to the exercise of the jurisdiction of the Commission that it does require notification to be given to persons outside Australia.  May I come back to that, your Honours?

I was going to say that in the literal terms of Rule 72(2)(d)(ii) there was service, you will see a reference in Rule 72 - I am sorry, your Honour.  You will see a reference to “posting” in paragraph (d) to “by registered post”.  At the top of page 263 you will see the notification which is what there is for registered post for international mail.

Now, your Honours, the second thing I was going to say was that one sees also Rule 73, and Rule 73 provides for there to be substituted service which can be by letter and so on.  In fact, such an order was made in this case.  You will see that in volume 1 of the application books at page 210.

KIRBY J:   Which page?

MR JACKSON:   Page 210, your Honour.  Now, the manner of service provided for was by service sending sealed copies of the application, the order, and the notification of hearing by prepaid express post at the addresses listed in the attachment which appears at page 211.  You will see the second‑last entry, “CSL Pacific Shipping Inc” in Glasgow.

Now, your Honours, that in fact was done.  The record is slightly defective in that it does not include the affidavit which was before the Commission which deposed to that having happened.  May I refer your Honours to the affidavit of service in that regard being a further affidavit of Mr Nathan Keats of 20 February 2002.  Your Honours will see, in fact, a handwritten exhibit marking – I think it means McNally 7 – at the top of the first page of that document.  That deposes to compliance with that order.

Your Honour will see it referred to and made an exhibit at page 20 at paragraph PN135 of the transcript which is an exhibit to the affidavit of Mr Seck of 2 May 2003.  Leaving aside that verification aspect of it, if I may, one then has a situation that there is provision made by the Rules for substituted service.  If one looks at the types of situation contemplated by section 5(3)(b) and, as I submitted a moment ago, particularly trade and commerce between Australia and places outside of Australia, it is very likely there will be employers outside Australia and on the prosecutor’s argument the Commission would be impotent in relation to them unless they consented to the exercise of its jurisdiction, and that seems, with respect, a very unlikely result.

Could I turn then to Gosper v Sawyer (1985) 160 CLR 548 on which reliance is placed by the prosecutor. The underlying doctrine that was the subject of that case is referred to at page 564 in the joint reasons of Justices Mason and Deane. Your Honours will see in the first new paragraph on that page a reference to:

The general doctrine of the common law is that, in the absence of a submission to the jurisdiction by a defendant, civil jurisdiction is territorial, that is to say, related to the territory . . . the ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court’s territory –

and the passage goes on through the remainder of that paragraph.  Now, the Industrial Commission was, relevantly, a court.  Your Honours will see, for example, that referred to in the actual order at page 570 in the second paragraph of the italicised part where it is “referred to the commission in court session”, that expression indicating that it was a court.  That is why, in our submission, the doctrine being applied is the doctrine one sees referred to at page 564.  This is very different.  One has a situation where a vessel is trading in Australian waters.  An application is made to the Commission in relation to persons employed on the vessel trading in Australian ‑ ‑ ‑

GUMMOW J:   Justice Hayne draws attention to page 551, about 10 lines from the bottom of the page:

An appeal was brought to the High Court, by special leave, from the judgments of the Commission ‑ ‑ ‑

MR JACKSON:   Yes, that is so, your Honour.  Yes, it would have to be a court exercising federal jurisdiction.  Thank you, your Honour.

GUMMOW J:   A section 77(iii) court.

MR JACKSON:   Yes, your Honour.  It is one of the unusual cases where that can be done, notwithstanding the privative clause in relation to that body and its successors ‑ ‑ ‑

GUMMOW J:   Exactly.

MR JACKSON:   Without success on the occasions I have endeavoured to do so.  Your Honours, could I say that this is very different – vessels trading in Australian waters.  If one speaks by way of analogy for just a moment and goes back to page 564, one sees the language being used about point 6 on the page: 

the ordinary basis of territorial jurisdiction is the personal presence of the defendant within the court’s territory –

One is not speaking, of course, about determining what is the position in relation to events which have happened in the past.  What is being sought to do is to say in respect of a vessel which comes to Australian ports, travels between Australian ports and travels at least a significant part of the time in Australian waters – in relation to a vessel of that kind, an application is made to the Commission to regulate the conduct of persons in relation to that vessel.  The application having been made, the owner, who will be affected, is notified at its address and notified at a number of its addresses.  Your Honours, in our submission, what more should be required in order to enable the Commission to proceed to hear and determine the application? 

One is speaking, of course, about delegated powers.  We are not talking about a court.  All that is required for the exercise of powers by the government of the nation, in our submission, is that persons, wherever they may be, whose interests may be affected by them should be notified of them.  Statutory provision may make different results, of course, but absent something that compels a different result, in our submission, there is no notion that they should be dealt with in some other way. 

KIRBY J:   I think the question is not whether there should be a means of service, but whether there is, in the Rules and in the terms of the Act. 

MR JACKSON:   Well, your Honour, there is no doubt that there has been service, a service which complies with the terms of the Rules of the Commission.  The question is whether, I suppose, the question which the prosecutor would put is in some way they should be read down, so that persons who are in some respects most likely to be the persons whose activities or inactivity will attract the jurisdiction of the Commission pursuant to section 5(3) cannot be dealt with by the Commission unless they consent.  Your Honours, that is ‑ ‑ ‑

KIRBY J:   Is there any indication of who these V ships – are they an associated company, or is that a different company involved in similar activities on the coast? 

MR JACKSON:   Before I answer that, may I just check one aspect?  They are managers of the vessels who have been excused from the proceedings.  Your Honours, we have referred in our written submissions in paragraph 64 to the fact that what one has is the Commission acting in a quasi‑legislative role, prescribing – to use the language in R v Kelly – rules of conduct for the future in respect of the disputing parties, rather than determining existing rights and duties. 

KIRBY J:   Why does that affect the question of jurisdiction, especially given (a) the history of this Commission, (b) its court‑like functions, (c) its complete independence of the Executive Government and (d) the equivalence of its high officeholders to federal judges?  All of these rather suggest that the legislature expected it would act in a quasi‑judicial fashion. 

MR JACKSON:   Your Honour, could I start by saying that there is a significant difference, both in relation to constitutional classification, of course, because of Chapter III on the one hand, but also in fact – and when I say “in fact” I mean by reference to the functions that Parliament has committed to them, because the significant difference is that Parliament itself might have legislated to do exactly what could be done either by an award – Parliament would not need to have an award, Parliament could simply make a prescription in relation to any of these aspects of trade and commerce. 

Now, what has been done has been to say the power may be exercised by this body in this way.  It is different, your Honour, in very significant measure from the activities of a court, because it is not saying this is what happened in the past; it is saying this is what is to happen in the future.  When one is speaking about to whom it is to happen and where it is to apply and the subject matter ‑ ‑ ‑

KIRBY J:   I take the force of everything you have said, but I am just trying to get clear in my mind, why does it matter that the classification is non‑judicial for the relevance of the contention that in the making of an award which is not judicial but is inter partes you do not need to have a proper method for service on an overseas body.

MR JACKSON:   Your Honour, you do have a proper method for service.  The proper method is one that has been at least utilised by the compliance with the provision for substituted service, but the argument for the other side is not – we accept entirely that one does need to give notice before a determination is made, but if one is speaking about jurisdiction, the contention of the other side is that you can give as much notice as you like, but it is impossible to give efficacious notice to a body which is outside Australia, even though it participates in, for example, trade within a territory.  Your Honours, that is, with respect, a little bizarre.

The power under section 51(i) or external affairs power or the territories power which has been given, they are in relevant respects very important powers and it seems extraordinary that the Commission could not in respect of, for example, ships carrying cement from Adelaide to Brisbane regulate the terms of employment of persons engaged on it because the owner chose to have an address in Barbados.

KIRBY J:   It would be extraordinary, but, as I understand, the argument is that court rules make provision for service on bodies outside the jurisdiction and this is just a lapse on the part of the rule‑maker in respect of this particular independent tribunal.

MR JACKSON:   Your Honour, what it requires to say there is a lapse is to say that if one looks at the Act and at the rulemaking power and at the rules that have been made, the result is that despite the fact that what is done by the rules is perfectly apt to apply in the way in which we submit it should apply, yet somehow one should read it down to say that there is no way to effect service in a case of this kind.

GLEESON CJ:   Would the argument on either side be any different if all the employees were Australian citizens and were employed under contracts made in Australia?

MR JACKSON:   Your Honour, it would be difficult to see why it would be different in relation to the question of service because the contention on the other side is that no matter what physical connection there might be with Australia, physical or identifiable connection, no matter that it might be at the heart of it, then you cannot serve.  Your Honour, that would seem to apply equally to persons who were the overseas employers of waterside workers and, again, that would seem a curious thing.

GUMMOW J:   And no matter even if the central management of control of this foreign corporation was in Australia, which seems quite possibly the case.

MR JACKSON:   Indeed, your Honour, yes.

McHUGH J:   Mr Jackson, the Court assumed in Gosper that the Industrial Commission was a court, no argument seems to have been taken about it, and I know that the old section 14 of that Act said it was a superior court of record, but it is a question, is it not, whether it is a court ‑ ‑ ‑

MR JACKSON:   Well, it is a question your Honour has raised on a number of occasions in this Court and the New South Wales Court of Appeal.  Your Honour, it is no doubt a matter of interest, at least to your Honour, with respect, but so far as the resolution of this case is concerned, it does not, with respect, require resolution.

McHUGH J:   But in Tana’s Case Justice Brennan expressly reserved the question as to whether or not the New South Wales Industrial Commission was a court for the purpose of the Constitution.

MR JACKSON:   Well, your Honour, if Gosper v Sawyer appears to have been resolved, as your Honour Justice Hayne mentioned, on the fundamental jurisdictional assumption so far as this Court was concerned, that it was a court exercising federal jurisdiction.  Well, your Honour, the correctness of that issue is not raised by anyone and, that being so, that is the approach that should be adopted, in our submission.

GLEESON CJ:   Does that cover what you want to say on the matter of service?

MR JACKSON:   I just wanted to give one reference, your Honour, and that reference is that, as your Honours will have seen from the decision of the Commission, they relied particularly on what was said in an earlier decision of the Commission – I just want to give your Honours the reference to it.  It is International Ship Management Ltd (of Hong Kong) v Australian Maritime Officers’ Union (2001) 106 IR 333. The relevant passage is at page 339, about line 25, through to the next page 340, about line 27.

GLEESON CJ:   Thank you.

MR JACKSON:   Your Honour, that is all I wanted to say on that issue.  May I move on to the other matters with which I wish to deal.  The first, your Honours, concerns the expression “real and substantial” that one sees in a passage your Honour the Chief Justice mentioned to me yesterday in Foster 103 CLR 311, and there Justice Windeyer had used the expression:

direct, real and substantial connexion with Australia.

Your Honours, no doubt, if such a test were satisfied, as he held it was in the particular case because he said there was “a direct, real and substantial connexion”, so, too, would section 5(3)(b).  But, your Honours, that is not, with respect, the way in which the provision in question here is framed.  The Court noted in John Pfeiffer v Rogerson (2000) 203 CLR 538 in paragraphs 78 to 79, a different context, of course, but the undesirability, in effect, of adopting a rule of that kind. Now, your Honours will see particularly a discussion in paragraph 78 and then in paragraph 79, the second sentence, and so on.

Now, the point I would seek to make about that, your Honours, is that if one is to adopt some “real and substantial – I leave aside the need for “real”, of course – but “real and substantial”, it is a very unsatisfactory test in relation to the existence of jurisdiction.

HAYNE J:   More fundamentally, what more could the addition of epithets of that kind add to a conclusion that sufficed to bring the law within power?  If the law is within power, that is a law “for the peace, order, and good government”, et cetera, is there not a sufficient connection established with Australia, and what is the purpose that is being served by injecting further epithets like “real”, “substantial”, “significant”, “great”, “large”, et cetera?

MR JACKSON:   There is none, your Honour.  Your Honour, that that is so, in our submission, is made apparent by – if I give your Honours a reference to the way in which it was put by the court in Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492, paragraph 16, where the Court set out in a convenient form the tests apposite to the existence of constitutional power under section 51 in relation to particular legislation.

Now, could I say that your Honours will see the words “sufficient connection” used there twice, but what is meant by the expression “sufficient connection” where there used appears from the cases referred to in the footnote, in particular Re Dingjan and Leask v The Commonwealth.  If one goes to those cases – I will only take your Honours to one reference in Leask v The Commonwealth 187 CLR 579 at 601 to 602.

Members of the Court pick up what your Honour Justice McHugh said in Re Dingjan, the last paragraph on page 601 and then, your Honours, at the top of page 602, and in particular your Honour had said at the bottom of page 601:

If a connection exists between the law and a s 51 head of power, the law will be ‘with respect to’ that head of power unless ‑

and this is what the “sufficient” means ‑

the connection is, in the words of Dixon J –

in Melbourne Corporation –

‘so insubstantial, tenuous or distant’ that it cannot sensibly be described as a law ‘with respect to’ the head of power.

Now, your Honours, it is in that negative aspect of it in a sense that any question of substantiality arises.  It can be seen, for example, in Re Dingjan where what was sought to be done, and it was held by the majority of the Court, was in effect simply to take the fact that a corporation was involved in some way as being the peg, to use the expression, on which the exercise of power, if there had been exercise of power, was to be hung, but at the same time the law had no effect in relation to the corporation.  That was what was meant by “insignificant”, et cetera.

Your Honours, could I deal very briefly with three things.  The first is the observation of Justice Windeyer, again in Foster, in relation to the inappropriateness of conferring wide jurisdiction on a subordinate legislative body.  That is at page 311.  No other member of the Court adopted that approach.

The second thing, your Honours, is this.  There was reference made to a flag of convenience.  Could we just say this is a company which has its registered office in Barbados.  The ship carries the flag of the Bahamas - and that appears in volume 2, page 168 in the agreed facts, paragraphs 4.3 and 6.

Then, your Honours, the third thing is that the company does appear to be one which is based in Boston.  You will see in volume 2 at page 307 there is the commencement of information about the company, or parent company, and in the second paragraph:

Located in the Boston area CSLI ‑

originally comes from a Canadian shipping company ‑

has affiliated offices in Australia (CSL Australia) ‑

et cetera, and you will see, your Honours, when one goes towards the end of the document, page 320, it lists the offices worldwide.  Not a lot about Barbados and the Bahamas there, but perhaps they are keen on cricket.

Your Honours, if Parliament wanted to exclude ships of other flags from the operation of any part of section 5(3)(b) it knew how to do it.  It had simply to adopt an approach similar to that which it adopted in relation to the definition of “flight crew officers’ employer” in Schedule 1.

Your Honours, the final thing I wish to say is that we refer the Court of course to the arguments in both of our sets of written submissions and to the orders there sought.

GLEESON CJ:   Thank you, Mr Jackson.  Yes, Dr Jessup.

MR JESSUP:   May it please, your Honours, we will do three things in reply.  The first is to refer your Honours without further elaboration to the written reply which was filed before the hearing commenced.  The second is to hand up to your Honours a written reply which is current as of the close of proceedings yesterday, and we will say nothing further about that.

GLEESON CJ:   Thank you.

KIRBY J:   Whilst that is being done, Dr Jessup, has there been any commentary on this case in the industrial relations literature, or do any of the academic journals discuss this case?

MR JESSUP:   Commentary on what, your Honour?

KIRBY J:   On this case and on the issues in this case.

MR JESSUP:   On this litigation.

KIRBY J:   We do not require the authors to be dead, now.

MR JESSUP:   Not that those of us at the Bar table are immediately aware of, your Honour.

KIRBY J:   Yes, thank you.

MR JESSUP:   The third thing we wish to do is to respond to my learned friend’s submissions this morning.  In relation to the service matter, my learned friend pointed out that there is no need under section 5(3)(b) for the existence of a dispute.  However, relevantly to the service point as the provisions to which he referred demonstrate, an industrial issue is dealt with within the Commission at the point at which the Commission assumes jurisdiction, at the point at which the parties are served or notified of proceedings and, subsequently, as though it were an industrial dispute which means that the parties have to be identified, they have to be notified and the matter is then dealt with adjudicatively, as it were.

KIRBY J:   There is some point in Mr Jackson’s suggestion that it is counter‑intuitive to say that if you come into our waters and do trade on our coastline and go from one port to another that you cannot be served as a party to proceedings.  It just seems counter‑intuitive to suggest that.

MR JESSUP:   Your Honour, it is counter‑intuitive because one tends to assimilate the presence of the ship within the jurisdiction to the presence of the owner of the ship.  As far as service relevantly to the Commission’s jurisdiction is concerned, it is the owner of the ship rather than the ship which is relevant.  It is as though a tourist operator in Melbourne or Sydney went to London and said, “To have a bit of a novelty we would like to hire one of your black taxis, complete with driver, and operate it in Melbourne and Sydney.”

If anyone wished to create a dispute or an issue – it would have to be a dispute, presumably – they would need to find some way of serving the employer of the taxidriver in London.  That, of course, is a rather bizarre example but it does make the distinction which, in our submission, crystallises the fallacy of saying, simply because the ship is here then the ship owner is amenable to service.

If this were a court, your Honour, then you would need to have provisions.  If it were in this Court, for example, you would need to get – to rely upon the extraterritorial service provisions, either the Rules of Court or in the Service and Execution of Process Act and it would not be any answer to say the ship is within the jurisdiction.  Of course, if you took proceedings in rem against the ship that is an entirely different matter, but these proceedings are not in that category or analogous to them.

GUMMOW J:   I am sorry, what was that last sentence you just said?  Analogous to what?

MR JESSUP:   The proceedings in the Commission, your Honour, are not in the nature of or analogous to proceedings against the ship in rem.

GUMMOW J:   I see.

HAYNE J:   If you conclude, contrary to your principal submission, that the Commission’s powers under 5(3) extend to making norms having – I abbreviate it – relevant extraterritorial effect, why would one approach the Rules about service on an assumption that they did not have like extraterritorial operation? 

MR JESSUP:   Your Honour, because there is nowhere in the legislation authorising the making of those Rules and nowhere in the Rules themselves any assertion of Australian sovereignty over persons who are not within Australian territory.  We say that is a jurisdictional defect in relation to the Commission at the threshold, as it were.  Now, my learned friend referred your Honours to some of the Rules of the Commission.  There must, in our respectful submission, be a distinction between notifications which are either a notification in the nature of a service of a log of claims by which the dispute is set up, or a notification by a party under section 99 to the Commission of a dispute. 

Those are not exercises under which the Commission asserts its jurisdiction over anyone else said to be a party to the dispute.  It is at the point when someone has to be notified or served that there is a dispute which has been brought to the Commission and that the Commission is going to deal with it that the arguments which we seek to agitate in this case become relevant.  My learned friend said that necessarily persons who might become subject to the Commission’s jurisdiction by the extended operation under section 5(3)(b) were likely, at least in some cases, to be overseas companies or organisations without a presence in Australia.

That intuitive approach, in our submission, is not a very satisfactory one.  I think, to give the example that your Honour the Chief Justice put to my learned friend, if a company employed a lot of Australians and engaged them here in Australia, the prospect is that it would not only be but also be obliged to be registered because of carrying on business in Australia.  Of course, the problem would then disappear because the company would be served in Australia.

KIRBY J:   Am I wrong in understanding that your contention is that it may have been the purpose of Parliament in some parts of 5(3)(b) to envisage proceedings against an international corporation that owns a ship that comes into our waters, but there has just been a gap in the procedural law that has omitted to give the power of this Commission in its procedures to bring the company before it.  Is it a gap that you are asserting, or is it something more fundamental?

MR JESSUP:   Your Honour’s initial premise of course runs contrary to other submissions which we have put.

KIRBY J:   I realise that, but if you get through ‑ ‑ ‑

MR JESSUP:   If we get to the service point, yes.

KIRBY J:   You are on the service point.

MR JESSUP:   It is not simply a gap in the procedural rules; it is a gap in the legislation which authorises those procedural rules.  It is not for the rulemaking authority, which in this case is the President of the Commission ‑ ‑ ‑

KIRBY J:   I realise all this, Dr Jessup, but we are talking about the service point at the moment. You say the service point takes its colour from the statutory and perhaps the constitutional points, but just concentrating on the service point, if that is what we come down to and the Union has got through the first two barriers, is there anything more in it than that the procedural rules of the Industrial Relations Commission are defective?

MR JESSUP:   Your Honour, there is, but I thought I dealt with the matter in my response to his Honour Justice Hayne a moment ago.  We are not dealing with a case in which the Commission is empowered to make rules for extraterritorial assumption of jurisdiction, but forgot to do so; we are dealing with a case in which the Commission, or the President, as it is in this case, was not given by the legislature that power and for that reason did not exercise it.  My learned friend says in this case there was provision for substituted service, and that provision was called in aid.  We cannot give your Honour the reference to the decided cases, but we would assert that it is well established that you cannot by a mechanism of substituted service assert jurisdiction over a person who could not be personally served in the circumstances.  So, in the case of a ‑ ‑ ‑

GUMMOW J:   That is what Laurie v Carroll decides with respect to courts.

MR JESSUP:   Yes, your Honour.  Well, it is not rocket science, your Honour; it is fairly well established.  A substitute of service is simply a different means of achieving the same thing.  If you cannot achieve the same thing, then the whole thing becomes an exercise in bootstrap lifting.

GUMMOW J:   In the end, why does not all this debate just go to procedural fairness of this administrative body?

MR JESSUP:   Your Honour, it might but, in our submission, it does not.  In part we make that submission for the reasons articulated by his Honour Justice Kirby a moment ago.  In part we have anticipated that response in the written submissions which we filed with the Court originally.  We do not for a moment suggest it is as clear as if the Commission were a court with jurisdiction dependent upon the presence of the defendant within the geographical area over which it has ‑ ‑ ‑

GUMMOW J:   That is because courts adjudicate existing rights; legislatures create them.  That is what is happening here by this delegated body.  That is the theory, is it not, which ‑ ‑ ‑

MR JESSUP:   Your Honour, may we respectfully try and draw together the theory to which your Honour refers with the circumstances of this case.  If a person comes within the territory of a polity, then that person has

subjected himself or herself to the law of that place and, of course, is entitled in return to the protection of the laws of that place.  If the person has not done so, then we look for some legislative intention that the laws of that place, under which are included the laws which establish courts and the like, will nonetheless attempt to exercise some sovereignty or some control over that person in a different place.  Laws for service beyond the jurisdiction are but an example of such an exercise of political sovereignty in relation to people who do not bring themselves within the nation’s territory.  So, if you like, it is in part a reflection of the same kind of arguments that we were attempting to develop with your Honours yesterday on a non‑curial front, as it were.

The only other thing we want to deal with or to make a submission about is the observation your Honour Justice Hayne made that this whole issue might be answered by asking oneself whether this is a law for the peace, order and good government which, as a matter of power, the Federal Parliament could make under section 51(i).

The question of peace, order and good government of the Commonwealth is, as we read this Court’s judgment in Polyukhovich, essentially a political one.  This Court, as we understand it, will not, save perhaps possibly in a very extreme case, review the political judgment made by the legislature that a particular kind of regulation is for the peace, order and good government of the Commonwealth.

In the present case, the question is not whether the legislature could have given section 5(3)(b) and associated provisions the application for which my learned friend contends but, rather, whether the legislature has done so in using the perfectly general words which they have.  The opening words of section 51, in our respectful submission, your Honour, do not solve the extraterritoriality issue and all of the issues that are qualitatively in the same basket, such as the application of Australian law in relation to the internal economy of foreign‑flag vessels.  May it please the Court.

GLEESON CJ:   Thank you, Dr Jessup.  We will reserve our decision in this matter and we will adjourn to reconstitute ‑ ‑ ‑

MR JACKSON:   There is a temporal matter, your Honour.  We said yesterday – it is about line 4315 in the transcript – that we would endeavour to do something about the travaux preparatoire.  I wondered if your Honour might – could we say 14 days, your Honour, to ‑ ‑ ‑

GLEESON CJ:   Yes, thank you.

MR JACKSON:   Your Honour, a second question arises, too.  This is in relation to something at the bottom of the first page of our learned friend’s

reply.  We have a doubt, with respect, about the correctness of the statement of the statutory provisions and, your Honours, if there is anything we want to say about that, may we deal with that at the same time, and give notice, of course?

GLEESON CJ:   Yes, thank you.  We will adjourn to reconstitute in Court 2.

AT 11.13 AM THE MATTER WAS ADJOURNED