R v Foster; Ex Parte Eastern and Australian Steamship Co Ltd

[1959] HCA 10

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ.

THE QUEEN v. FOSTER; Ex parte EASTERN AND AUSTRALIAN STEAMSHIP CO. LTD.

(1959) 103 CLR 256

12 March 1959

Constitutional Law (Cth)

Constitutional Law (Cth)—Commonwealth powers—Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State—Trade and commerce with other countries and among the States—Scope of conciliation and arbitration power—Whether necessary that dispute should relate to industrial services to be rendered in Australia—Statutory provision that commission empowered to prevent etc. industrial disputes by conciliation and arbitration—Scope of provision—Extra-territorial operation of Commonwealth statutes—Whether any presumption against such an operation since Statute of Westminster—To hear etc. industrial matters submitted to it in so far etc. as they relate to trade and commerce with other countries etc.—Validity—Scope—Meaning of "submitted"—Dispute as to working conditions of certain employees engaged in Australia on ships registered in England trading between Australia and Japan—Ships articles opened and signed in Hong Kong—Applicability of statutory provisions to dispute—The Constitution (63 &64 Vict. c. 12), covering cl. 5, ss. 51 (i.) (xxxv.), 98—Statute of Westminster 1931 (22 Geo. V. c. 4) ss. 3, 9—Conciliation and Arbitration Act 1904-1958 (Cth), s. 72 (No. 13 of 1904—No. 30 of 1958).

Decisions

1959, March 12.
The following written judgments were delivered: -
DIXON C.J. The Merchant Service Guild of Australasia and the Australian Institute of Marine and Power Engineers delivered to a large number of shipowners and others employing members of those respective bodies logs of claims or demands relating to the terms and conditions of employment. Included among the employers to whom the respective logs were delivered is the Eastern and Australian Steamship Company. That company is the prosecutor in the order nisi for a writ of prohibition now before us. The demands contained in the logs covered the salaries and the working conditions at sea or in port of the various descriptions of employees represented by the two bodies. In the one case the description was limited to a master or mate or an engineer being a member of the Merchant Service Guild. In the other case the log dealt in effect with ships' engineers but the definition extended to any member of the Institute of Marine and Power Engineers employed by employers upon whom the log was served. One may suppose that the ships of the greater number of the employers served are engaged in inter-State trade upon the Australian coast. But that is not true of the Eastern and Australian Steamship Company. That company has four vessels which trade via ports between Adelaide and Kobe in Japan. The ships are registered in London but in every case the ship's articles are opened and signed in Hong Kong. Apart from the master, deck officers (usually four in number) and the engineer officers (usually eleven) the crew reside in Hong Kong or China. The master, deck officers and engineer officers are engaged or discharged in Sydney and reside in Australia. (at p265)

2. The company did not comply with the demands made in the logs or with any of them. Doubtless this was true too of many others of the shipowners concerned and both the guild and the institute claimed that an industrial dispute extending beyond the limits of one State had been created. Notifications were sent accordingly to the Commonwealth Conciliation and Arbitration Commission as under s. 28 of the Conciliation and Arbitration Act 1904-1956. The Eastern and Australian Steamship Company objected that no dispute affecting that company had come into existence which would give the commission authority to make an award binding upon it and that the matter lay outside the jurisdiction of the commission. For this contention reliance was placed upon the decision given in 1920 by this Court concerning the same shipping company, namely, that reported as Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 C.L.R. 495 a decision founded, at all events in some degree, upon Merchant Service Guild of Australasia v. Archibald Currie &Co. Pty. Ltd. (1908) 5 CLR 737 The contention was rejected by the learned presidential commissioner (Foster J.). His Honour's reasons for rejecting it included the effect of the Statute of Westminster, which was not in operation at the date of the decision. His Honour said: "I propose to retain the Eastern and Australian Steamship Co. Ltd. as respondents to these proceedings and if necessary to make an award binding that company in the dispute created by the log of demands already referred to". The purpose of the writ of prohibition for which the company has obtained the order nisi is to restrain the commission from acting in accordance with this statement. (at p266)

3. It will be noticed that the learned commissioner spoke in terms appropriate to an industrial dispute. His Honour was however sitting to exercise the power conferred upon the commission by s. 72 of the Conciliation and Arbitration Act 1904-1958. That provision purports to confer a double power; a power which as to one part is dependent upon s. 51 (i.) and as to the other part upon s. 51 (xxxv.) of the Constitution. It is desirable to give the text of s. 72, which is as follows: "The Commission is empowered - (a) to prevent or settle industrial disputes by conciliation and arbitration; (b) to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or amont the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters". (at p266)

4. In par. (a) of this provision "industrial dispute" means an industrial dispute as to industrial matters extending beyond the limits of any one State. The expression "industrial matters" carries the same meaning as it does in the sufficiently familiar definition contained in s. 4 (1) except that the references to "employees" are to be read as references to seamen, a word comprising masters and every other person employed or engaged in any capacity on board a ship except apprentices and persons temporarily on the ship in port. The word also includes pilots. These meanings are the result of the definitions of "industrial matters" and of "seaman" inserted in s. 71 by the Conciliation and Arbitration Act 1958 (No. 30 of 1958) and incorporating the definition of "master" and of "seaman" in s. 6 of the Navigation Act 1912-1956. Perhaps it should be added that the order nisi was granted some days before the Act of 1958 was assented to and took effect, but we are of course concerned with the power or authority belonging to the Conciliation and Arbitration Commission now, when the question must be decided whether for the commission to proceed in the matter would mean an excess of its existing authority. Sections 71 and 72 are contained in Div. 2 of Pt. III of the Conciliation and Arbitration Act 1904-1958, a division headed "Industrial Matters - Maritime Industries" and extending to s. 75. Section 73 provides that excepting references and appeals the powers of the commission in respect of an industrial question under that division shall be exercisable by the commission constituted by a presidential member assigned by the president for the purpose and not otherwise. The expression "industrial question" is defined to cover both an industrial dispute and an industrial matter - s. 71. (at p266)

5. If the power or authority of the Conciliation and Arbitration Commission over the "industrial question" raised by the logs depended upon the interpretation of s. 72 according to the natural meaning of terms perhaps little ground could be discovered for contesting it. No one denies that the logs and the failure by the Eastern and Australian Steamship Co. Ltd. to comply provide sufficient prima facie evidence of a dispute about the subjects of the demands contained in the log. It would be difficult to deny that for the most part, at all events, the subjects of the demands bring them within the natural meaning of the words of the definition of industrial matters. (at p267)

6. No question is raised as to the inter-State character of the alleged disputes. Presumably it is taken for granted that the whole of each dispute to which other shipowners as well as the Eastern and Australian Steamship Co. Ltd. on the one side and the organization of employees on the other side are parties must be inter-State, that is to say, necessarily extends from one State into another. No doubt it strikes the mind that an award or an order prescribing the duties of masters, officers and engineers at sea would purport to operate beyond the territorial jurisdiction of the Commonwealth but since the Statute of Westminster that would not go to the validity of the award or order. It may not be a "law" but if it is regarded as a "factum" the operation of which to impose obligations is the result of the Act as a law of the Commonwealth, that is enough. It cannot be invalid for extra-territoriality; for s. 3 of the Statute of Westminster declares and enacts that the Parliament of a Dominion has full power to make laws having an extra-territorial operation. Since the adoption of the Statute of Westminster by Act No. 56 of 1942 it can be no objection to the validity of a law of the Commonwealth that it purports to operate outside Australia. The result may be an enlargement of federal power, but it is not an enlargement against which s. 9 (1) of the Statute of Westminster can have anything to say. That sub-section provides that nothing in the Act shall be deemed to authorize the Parliament of the Commonwealth of Australia to make laws on any matter within the authority of the States of Australia not being a matter within the authority of the Parliament or Government of the Commonwealth of Australia. Section 9 (1) cannot have anything to say against it because it is obvious that before the Statute, if and where on the ground of extra-territoriality the Commonwealth lacked power, there also the States lacked power on the same ground. If the natural meaning of the terms employed in s. 72 (a) and (b) is to be restrained by reason of territorial considerations, it must be because of some more general presumption, not one resting on territorial limitations of power. (at p268)

7. The case therefore would involve few or no difficulties if it were governed by the words of s. 72 in their natural meaning. But perhaps there is one rather puzzling phrase contained in par. (b) of s. 72. What does "submitted to it" mean in the expression "to hear and determine industrial matters submitted to it"? Who does the submitting of the matter and how? It cannot mean that the parties to a matter must combine in submitting it; for seldom could you be sure how many "parties" would be affected and if you did ascertain that accurately, it would still be unlikely that you would get them all to agree in submitting the matter to the commission. No one seems to know what the legislature contemplated by the words "submitted to it"; yet these words seem to contain a necessary condition of jurisdiction or authority. The words appear in s. 77 (b) in Div. 3 relating to industrial matters in the Snowy Mountains Area, and in s. 82 (b) in Div. 4 relating to industrial matters in the stevedoring industry. Apparently the form of words in question was first adopted in the amendments made by s. 7 of the Snowy Mountains Hydro-electric Power Act 1951 (No. 47). That section introduced Pt. IVA into the Snowy Mountains Hydro-electric Power Act 1949 (No. 25) and s. 24C (1), a provision of Pt. IVA, is obviously the source of s. 78 (2) of the Conciliation and Arbitration Act 1904-1956. The form of this s. 24C (1) seems to have been adopted in s. 405D of the Navigation Act 1912-1952, a provision introduced into that statute by the Navigation Act 1952. That is the source of s. 72 of the Conciliation and Arbitration Act 1904-1956. Section 82 seems to have been framed in 1956 on the same model: see No. 44 of 1956, s. 7 (introducing s. 16BT) and No. 53 of 1956, s. 5. In the case of all three provisions (scil. s. 72 (b), s. 77 (b) and s. 82 (b)) the words "submitted to it" suggest that the legislature intended that the tribunal should not of its own motion exercise the specific power or authority conferred by the paragraph. But there is no indication by whom or by what means the "matter" must be "submitted". The best that a court of construction can do is to say that it must be submitted by somebody possessing an interest and by whatever procedure is in use by or in reference to the commission. In the present case we are told that the guild and the institute gave notifications of disputes to the commission purporting to do so in pursuance of s. 28 of the Act, cf. reg. 16 of the Conciliation and Arbitration Regulations. This would seem to be enough to "submit" the matters involved to the commission. (at p268)

8. Adopting that view, there is nothing in the natural meaning of the words used in s. 72 to prevent that section in both branches from applying to the dispute or the industrial matter or matters to which the demands contained in the logs give rise or from empowering the commission to deal with them. (at p269)

9. The whole case, in other words, must depend upon the existence of reasons for denying validity to the provision or else for limiting its meaning and application by construction based upon considerations going outside or beyond the natural meaning of the words in which it is expressed. (at p269)

10. So far as par. (a) of s. 72 goes, what must be admitted to be a strong prima facie reason exists in decisions of this Court for "construing down" the provision so as to exclude this case. In Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 C.L.R. 495 on facts relating to the Eastern and Australian Steamship Co. Ltd. almost identical with those of the present case, this Court decided that there was no jurisdiction in the Court of Conciliation and Arbitration to make an award as to the company with respect to industrial conditions to be observed on its ships. The ships traded in the manner that has already been described with reference to the company's ships of today. The question did not come before the Court on prohibition as the present case does. A summons had issued under the now repealed s. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1918 for a decision of a judge on the question whether an alleged industrial dispute extending etc. existed between the Merchant Service Guild and certain ship-owners, including the company. The summons came before Higgins J. The company objected "to being included in the decision as being parties to the dispute" (1920) 28 CLR, at p 496 Higgins J then stated a case for the Full Court in which he said that he was prepared to find that the company was a party to the dispute in fact, and submitted the question whether it was proper for him as a Justice of the High Court to include the company (among other respondents) "in any decision as being parties to an industrial dispute within the meaning of s. 51 (XXXV.) of the Constitution" (1920) 28 CLR, at p 498 Knox C.J., Isaacs, Rich and Starke JJ. in a joint judgment gave reasons for the conclusion that the objection was well founded. Higgins J. said that on the authority of Currie's Case (1908) 5 CLR 737, he concurred in the view that the Court of Conciliation and Arbitration had no jurisdiction to deal with the dispute so far as regards the company. The learned judge ended his judgment by saying that the question asked was in substance the following, viz - treating the respondent as party to the dispute in fact (along with hundreds of other respondents) is the Court of Conciliation and Arbitration competent to entertain the claims as between the guild and the respondent, the operations being carried out mainly outside Australia? (1920) 28 CLR, at p 506 Doubtless Higgins J. gave this explanation of the question because Gavan Duffy J. in the reasons he had prepared expressed doubt as to what point was submitted for the determination of the Court (1920) 28 CLR, at p 507 That learned judge expressed his conclusion in an alternative. His Honour said, "For practical purposes it will probably be sufficient to say that, if the learned Judge wishes to know whether a dispute within the meaning of s. 51 (XXXV.) of the Constitution can exist with respect to industrial operations conducted outside the territorial limits of the Commonwealth, I adhere to what was said by my brother Rich and myself in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (1913) 16 CLR 664, and I answer Yes. If he wishes to know whether such a dispute exists in the present case, I answer that I am unable to say on the facts stated, though the learned Judge may, of course, do so by ascertaining whether the facts which were then declared to be necessary to constitute an industrial dispute with reference to extra-territorial operations are to be found here" (1920) 28 CLR, at p 507 The question was answered in the negative. Now in the case of Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (1913) 16 CLR 664, at pp 702, 703 to which Gavan Duffy J. refers, certain questions had been submitted to the High Court by the President of the Court of Conciliation and Arbitration relating to alleged industrial disputes involving two ships. One of them ran between Sydney, Fiji and Auckland but without any regular itinerary. The other carried phosphate from Ocean Island. She usually cleared from an Australian port to Ocean Island with cargo on the return journey for Sydney Heads for orders. In each case the ship's officers were engaged in Australia and the dispute was about their terms and conditions of service. The judges in the High Court were not agreed on their decision upon the case stated and it is evident that during the argument difficulties arose out of the form of the questions submitted which were ultimately reframed but even as amended they were not answered in full or categorically. For the purpose of explaining the significance of Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 CLR 495 and more particularly the significance of the observations therein of Gavan Duffy J. already quoted, it will suffice to set out the answers to the first and third questions in the earlier case. The second question was not answered. The answers are as follows: " (1913) 16 CLR, at p 704 The dispute is not the less a dispute extending beyond the limits of any one State merely because some of the operations in respect of which the dispute exists are performed beyond the territorial limits of the Commonwealth . . . (3) The Court has power to require that any of the terms and conditions which it lawfully determined should be in operation between the organization and the respondents to the plaint, including those represented on the argument of the special case, shall be incorporated in a written agreement between them" (1913) 16 CLR, at p 704 Now a close reading of the reasons of the learned judges will show that these answers were the result of the concurrence of Isaacs, Higgins, Gavan Duffy and Rich JJ. But Isaacs J. and apparently Higgins J. too, justified the propositions which the answers embody by reference to the provisions of s. 5 of the covering clauses of the Commonwealth of Australia Constitution Act which says that the laws of the Commonwealth shall be in force on British ships whose first port of clearance and whose port of destination is within the Commonwealth, while in their joint judgment Gavan Duffy and Rich JJ. took wider ground. It will be necessary to return to the reasons contained in the joint judgment of their Honours, but the foregoing explanation makes it possible to take up again the decision of the majority of this Court in Merchant Service Guild v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 C.L.R. 495. In that case it is evident that Gavan Duffy J. in his dissent was treating the answers to the questions in the earlier case as constituting a governing authority. And so they might have been, if they were read without the reasons at all events of two of the learned judges forming the majority. For it was only by their reliance upon s. 5 of the covering clauses that their Honours were led to concur in the answers. In the later case Knox C.J., Isaacs, Rich and Starke JJ. said (1920) 28 CLR, at p 502: "As none of the ships now under consideration come within the description given by (s. 5) that provision may be disregarded and the only question is how far does s. 51 (XXXV.) on its own construction unextended by the covering s. V apply to the industrial disputes with which" they were then concerned. Their Honours then proceed to say: "We interpret the enactment" (scil. par. (XXXV.) of s. 51) "according to the well-recognized standards of interpretation. One of those principles is that, prima facie, jurisdiction is territorial; and covering s. V strengthens the view, in relation to the present case, that the language itself of sub-s. (XXXV.) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth. The expression 'industrial dispute' in sub-s (XXXV.) does not mean simply a dispute as to an agreement to perform work anywhere in the world. It does not, for instance, mean a dispute in Australia between shipowners of various nations and their crews of their respective nationalities as to the terms on which employment should proceed in the various countries represented. If so, there is no jurisdiction in the present case" (1920) 28 CLR, at pp 502, 503 Then their Honours conclude: "We think that sub-s. (XXXV.) of s. 51, on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore the term 'industrial disputes' in that sub-section, unextended by covering s. V, means disputes as to the terms and conditions of industrial operations in Australia only. Currie's Case (1908) 5 CLR 737 was decided in conformity with the opinions we have expressed, and in some respects was an a fortiori case" (1920) 28 CLR, at p 503 Currie's Case (1908) 5 CLR 737 thus referred to concerned ships engaged in trade between Australian ports and English ports whose articles were opened in Calcutta but whose officers were engaged in Australia. The decision was against the jurisdiction of the Court of Conciliation and Arbitration over a dispute between the shipowners and the officers. The ships were not within s. 5 of the covering clauses. It is clear from the opening sentence of the judgment of O'Connor J. that he treated the question of jurisdiction as depending upon competence to make an award the provisions of which would operate on the high seas to impose duties and obligations. Section 5 at that time appeared to his Honour to express the only extension of the territorial limitation of legislative power so that on a ship not embraced in that covering clause an award could not operate. That view appears really to have formed the basis of the decision of the Court, which consisted of Griffith C.J., O'Connor, Isaacs and Higgins JJ. It is a view which could only obtain before the adoption of the Statute of Westminster. It is not the same view as that expressed in the passages quoted from Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 CLR 495, at pp 502, 503 The view expressed in that case depended not on placing a territorial limitation on the power to settle an industrial dispute because an award would not run outside the jurisdiction; but on adopting a conception of an industrial dispute which limited it to industrial services geographically within Australia. The reference to territorial limits upon jurisdiction is to the jurisdiction not of the legislature to provide for the enforcement of an award but that of the Arbitration Court to make one. Perhaps more strictly it should be described as a limit upon the power to conciliate and arbitrate in the dispute. It is not perhaps a cardinal matter but it may be suggested that their Honours' statement that one of the principles of interpretation is that prima facie jurisdiction is territorial is introductive of a misleading analogy. For after all in English law jurisdiction at common law in transitory actions depended on nothing but service upon the defendant within the jurisdiction of the writ of summons or other process and in equity upon the power to act upon him in personam. But the limitation which the decision may seem to fasten upon par. (XXXV.) of s. 51 is of different description. It goes to the subject matter of the legislative power and limits it to disputes as to the terms and conditions of industrial operations in Australia or aboard a ship within covering cl. 5. This involves a very drastic and, as events have developed, a most serious restriction. If the restriction be literally applied it means that once an Australian aircraft is well over Bass Strait the terms and conditions of employment of the crew are outside the operation of the power of the Conciliation and Arbitration Commission or of the constitutional power whence it derives. It means that in the countless enterprises which nowadays involve Australians whose work takes them abroad in the course of their employment, whether for a term or for an occasion, an industrial dispute in Australia as to the terms and conditions of their employment falls outside the legislative power conferred by s. 51 (XXXV.). It is a question independent of the Statute of Westminster because the limitation which the joint judgment expresses does not appear to arise from the then territorial limitation upon the possible operation or validity of all laws of the Commonwealth considered as a Dominion, but rather to depend upon the nature of the industrial dispute to which s. 51 (XXXV.) can or does apply. No doubt it is easy to see in the reasons that the one conception influenced the other. (at p273)

11. Notwithstanding the considerations referred to the Court must hesitate in departing from a construction of s. 51 (XXXV.) particularly one so deliberately adopted and so long ago. But the words emphasized, "industrial operations in Australia" (1920) 28 CLR, at p 503, impose a limitation which, if accepted literally, seems to involve an unreasonable restriction of legislative power and to have nothing to support it either in the text or in previous authority. It is in opposition to the view expressed by Gavan Duffy and Rich JJ. in the earlier case, a view which Gavan Duffy J. regarded, though perhaps incautiously, as actually embodied in the Court's answers to the questions submitted. Their Honours in their reasons expounded that view as follows: "Let us assume that the expression 'industrial disputes' in s. 51 (XXXV.) of the Constitution means industrial disputes existing within the Commonwealth. When does such a dispute exist within the Commonwealth? We think it exists within the Commonwealth when the disputants reside, the demands and the refusal are made, and the dissidence, dissatisfaction and unrest prevail within the Commonwealth, although the dispute itself may have relation, as in this case, to labour to be performed outside the territorial limits by the employees who are parties to the dispute. If the Court of Conciliation and Arbitration can have cognizance of such a dispute, it can, of course, control the parties to the dispute so far as their conduct within the territorial limits of the Commonwealth is concerned; but can it control their conduct in places outside these limits? We think it can" (1913) 16 CLR, at pp 702, 703. Their Honours proceed to refer to the question which now the Statute of Westminster removes from consideration, namely, whether the legislative power implied an authority to make and enforce awards operating extra-territorially. The learned judges reach a tentative answer in the affirmative, agreeing however that for the purpose of the answers given by the Court a sufficient justification would exist in covering cl. 5. With all respect to the judgment of the majority of the Court the above statement set out textually from the judgment of Gavan Duffy and Rich JJ. seems to me clearly to be correct. It is not, of course, exhaustive nor was it so intended. The connexion of an industrial dispute with Australia may take various forms. At this date, however, I think that the statement of Gavan Duffy and Rich JJ. so far as it goes should be adopted as expressing correct principle: for in the first place the Statute of Westminster has deprived the majority judgment of some of the ground assigned for the conclusion; in the second place the development of Australian activities in and with other countries has revealed the inadequacy of that reasoning and made it particularly inappropriate; and thirdly, the statement of Gavan Duffy and Rich JJ. carries conviction as a matter of interpretation. It is necessary to add that the statement of Gavan Duffy and Rich JJ. is expressed hypothetically. It begins "Let us assume that the expression 'industrial dispute' in s. 51 (XXXV.) means industrial disputes existing within the Commonwealth" (1913) 16 CLR, at p 702 (at p275)

12. The exact meaning or the validity of this assumption need not be examined at present. Doubtless s. 51 (XXXV.) is speaking of industrial disputes connected with the Commonwealth; by definition they must extend beyond the limits of one State. What is important is the positive statement of what will satisfy the necessity of a connexion with Australia. Perhaps less will do so. But in the present case the elements are sufficient. The disputants are for the most part connected by residence or the like with Australia and the demands were made here with respect to employment for which the masters, officers and engineers are engaged here. In all these circumstances there seems no sufficient reason why the case should not fall within par. (a) of s. 72. (at p275)

13. That conclusion means that the attack on the commission's jurisdiction has not been sustained. But even if we were prepared to follow Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 CLR 495 literally and so exclude the application of par. (a) of s. 72, I think that the power of the commission under par. (b) would attach. The words of par. (b) are both wide and vague and probably they should be subjected to what may be called a restrictive construction. It does not follow from the adoption of the Statute of Westminster that Commonwealth legislation should be construed as if there were no territorial considerations affecting its interpretation. Indeed it may be fairly said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation. That is a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers. It may well be correct that par. (b) ought not to be interpreted as extending to ships which are governed entirely by the laws of other countries and bring themselves into relation with Australia only as carriers of goods or passengers which are shipped or unshipped at our ports. See Lauritzen v. Larsen (1952) 345 US 571, particularly at pp 577-583 (97 Law Ed 1254, at pp 1265- 1268.) But in the present case we have a practice of engaging masters, deck officers and engineers in Australia. The shipowners in other words employ Australian personnel for their officers. There is no presumption that would authorize a construction of s. 72 (b) resulting in the exclusion of such a case. But is par. (b) valid? It is framed in a form that is always calculated to arouse doubts. The power being to make laws with respect to trade and commerce with other countries and among the States, par. (b) does not pick out a matter inherently possessing the characteristics of such trade or commerce and legislate with respect to that matter. On the contrary at a first reading it seems almost to pick out something else as the subject "with respect to" which the law is made, namely the determination of industrial matters, and then to go on to limit the subject by the words "so far as they relate to trade and commerce" etc. Unless "industrial matters" on closer examination were revealed as in themselves possessing a sufficient connexion with oversea and inter-State commerce to belong to the subject of the power, this form of legislation might be regarded as doing no more than taking the subject of the legislative power as a peg to hang the provision upon and not as really providing anything "with respect to" the subject matter of the power. The same observation might no doubt be made concerning s. 83 (b) but it is more immediately met by the inherent character of stevedoring operations, which, because they centre upon the loading and discharge of ships go to something necessarily possessing the characteristics of oversea and inter-State trade and commerce. But a careful scrutiny of the definitions on which s. 72 (b) depends for its meaning and application shows that the same kind of reasoning really applies to support the validity of that provision. If you take the definition of "industrial matters" you will find that the definition relates entirely to the terms and conditions of employment of persons whose work is identified with oversea or inter-State trade and commerce. It probably makes no real difference as to validity but it is that definition contained in the amendment made by Act No. 30 of 1958 that concerns this order nisi. The expression "seamen" means every person employed or engaged in any capacity on board a ship, except masters, pilots and apprentices and persons temporarily employed on the ship in port: s. 6 Navigation Act 1912-1956. "Master" means any person having command or charge of a ship: ibid. "Pilot" means any person appointed or licensed as such under the Navigation Act and not belonging to a ship who has the conduct thereof: ibid. Section 71 of the Conciliation and Arbitration Act, as the result of the amendments made by s. 13 of Act No. 30 of 1958, defines "seaman" to include master, pilot and seamen (using each of these words in the defined sense). But it proceeds to extend the application of the meaning by including those whose usual occupation is that of master, pilot and seamen. Then s. 71 as so amended makes the words "industrial matters" apply in the case of masters, pilots and seamen to the long string of things relating to employment set out in the definition of the term in s. 4 (1) of the Conciliation and Arbitration Act 1904-1958. Now, apart from the possible effect of the extension of the definition to those whose usual occupation is that of master, pilot or seamen, the consequence would be that you are dealing with questions affecting the employment of persons in ships. In the long list of particulars comprised in pars. (a) to (q) in the definition of industrial matters there are references inappropriate to employment in ships. There may also be paragraphs which in whole or in part go further than legislative power permits. But they are severable and it is no less true that the subject matter is the employment of persons to serve or who usually serve aboard ship. If there were no further limitation the indefinite inclusion of those whose usual occupation is that of "seamen" might cause doubt and uncertainty. One may suppose that the reason for this inclusion is simply to avoid in advance the point that a man is not a seaman within the definition of the Navigation Act until he signs on or otherwise is engaged or is employed on board the ship. Nevertheless it might cover temporary employment on shore work. However, there is a further limitation, namely that contained in s. 72 (b) in the words "so far as those matters relate to trade and commerce with other countries and among the States." Although these words might not themselves have supplied the necessary subject matter, yet when you find that the main subject is the employment of masters, pilots and seamen they suffice to prevent the inclusion of those usually occupied as such from extending the provision to irrelevant employments. (at p277)

14. Nevertheless, if it were not for s. 98 of the Constitution the direct relation to ships might not have been enough to bring the subject into trade and commerce. Section 98 provides that the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping. This does much more than enable the legislature to deal with trade and commerce when conducted by means of ships. "It says in effect that the power to make laws with respect to trade and commerce shall include a power to make laws with respect to navigation and shipping as ancillary to such trade and commerce. It authorizes Parliament to make laws with respect to shipping, and the conduct and management of ships as instrumentalities of trade and commerce, and to regulate the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce, both among themselves and in relation to their employers on whose behalf the navigation is conducted". This passage from the judgment of Gavan Duffy and Rich JJ. in Australian Steamships Ltd. v. Malcolm (1914) 19 CLR 298, at p 335 expresses the point of the decision of the Court. See too Joyce v. Australasian United Steam Navigation Co. Ltd. (1939) 62 CLR 160, at pp 167, 170, 174-176, 177; Morgan v. The Commonwealth (1947) 74 CLR 421, at pp 454, 455 (at p278)

15. In my opinion par. (b) of s. 72 is a valid law of the Commonwealth and for the reasons I have given I think that it covers this case. It is desirable however to repeat that it does not follow that as a matter of interpretation s. 72 (b) is applicable to ships governed by other laws which do no more than carry goods to or from this country. It may be assumed that the wide general language used by the legislature was not intended to refer to the shipping of other countries possessing no distinct industrial connexion with Australia. But that is not the position in the present case. (at p278)

16. In my opinion the order nisi should be discharged. (at p278)

MCTIERNAN J. The first question which was argued is that the prosecutor is not a party to an industrial dispute which the commission has jurisdiction to prevent or settle under s. 72 (a) of the Act. Industrial disputes are raised by the logs of claims served by the claimant organizations. So far as the prosecutor is concerned these logs of claims apply to masters, deck officers and engineers employed on certain ships only. They are ships registered in London under the Merchant Shipping Acts. The ships do not make voyages within covering s. 5. Their ports of clearance and destination are respectively Adelaide and Kobe, and vice versa. Passengers are embarked and disembarked and goods are loaded and discharged at Australian ports but not in the course of trade and commerce among the States. The ships engage in trade and commerce between Australia and Japan and between countries north of Australia. The masters, deck officers and engineers are Australian residents and the prosecutor engages and discharges them at Sydney. The articles are opened and signed at Hong Kong. (at p278)

2. It follows from these facts that Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 CLR 495 is a clear authority in favour of the prosecutor as regards the question whether it is included in the alleged industrial disputes. The decision was criticized in argument on the ground that it is an error to confine the term "industrial dispute" in s. 51 (xxxv.) of the Constitution to employment in Australia only, except employment on ships within covering s. V. The present question, however, is what is the meaning of the term "industrial dispute" in s. 72 (a). It is plain that Parliament employed the term in its constitutional sense. In my opinion it is right to presume that Parliament employed the term in conformity with the judicial connotation that it then had. In view of the decision cited above it is hardly conceivable that Parliament intended to give the commission jurisdiction to deal with industrial disputes as to the term and conditions of navigating and operating ships beyond the territorial limits of Australia even though they are not ships within covering s. V. (at p279)

3. The construction which the Court placed on "industrial dispute" proceeded upon the view that the object of s. 51 (xxxv.) is "uninterrupted industrial services to the people of the Commonwealth" (1920) 28 CLR, at p 503 It seems to me that the primary object of the power is industrial peace within the Commonwealth. There is nothing in the verbiage of the power that prevents it extending to an industrial dispute within Australia as to the terms and conditions of employment in industrial operations beyond the territorial limits of Australia. Such an industrial dispute may no less than one confined to employment within Australia affect its industrial peace. The objections based on territorial limits of jurisdiction to giving this wider construction to the term "industrial dispute" are not now tenable, having regard to the Statute of Westminster. (at p279)

4. But in my opinion the decision in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (1920) 28 CLR 495 should not be reviewed until the Parliament sees fit to pass legislation under s. 51 (xxxv.) evincing the intention to give jurisdiction extending to industrial disputes arising in Australia and ramifying beyond territorial limits. While s. 72 (a) stands as it is, the only industrial disputes which Parliament can be presumed to have intended to give jurisdiction to the commission to prevent or settle are those corresponding to the connotation of the term "industrial dispute" laid down in the decision mentioned above. It seems to me that it would be contrary to the intention of Parliament to hold that the term "industrial dispute" in s. 72 (a) includes an industrial dispute as to the terms and conditions of employment on the prosecutor's ships while they are on the high seas or in foreign ports. The other questions which were argued relate to s. 72 (b). One of the questions is whether or not that provision is valid. It is an exercise of the legislative power under ss. 51 (i.) and 98 of the Constitution. The argument against its validity is that it is a law with respect to employment hung, as it were, on the subjects of trade and commerce with foreign countries and navigation. The verbiage of the description of "industrial dispute" in s. 71 is relied upon to support the argument. I have considered the argument and I think that the pith and substance of the verbiage really makes s. 72 (a) a law on the subject matters of trade and commerce and navigation. Those terms mark the outlines of powers and according to right rules of construction must be given an ample meaning. It must be borne in mind that the instrument which is being construed is a Constitution. I do not undertake a survey of the authorities. The last of them is Reg. v. Wright; Ex Parte Waterside Workers' Federation of Australia (1955) 93 CLR 528 It is too late to argue successfully that it is not within constitutional power to entrust to the commission the jurisdiction conferred by s. 72 (b). It was also argued that "submitted" means a procedure in which all the parties interested join and as that procedure was not followed the commission cannot act under s. 72 (b). The meaning of "submitted" is rather obscure. It imposes a condition on the jurisdiction of the commission. Probably the condition is directed against its acting on its own initiative. I think that it is in accordance with the ordinary meaning of the word "submitted" to hold that it refers to an act done by a party interested. It may be a condition that the Attorney-General acting for the Commonwealth in the public interest could fulfil. The word "submitted" is rather a loose one as indicative of a procedure. In my opinion the notification under s. 28 whereby the claimant organizations brought the fact that the employers including the prosecutor had not complied with the logs of claims satisfies the word "submitted". In my opinion the commission has jurisdiction to proceed under s. 72 (b) against the prosecutor but not under s. 72 (a). I would discharge the order nisi. (at p280)

FULLAGAR J. I have had the advantage of reading the judgment of the Chief Justice in this case. I agree with it, and there is nothing that I wish to add to what his Honour has said. (at p280)

KITTO J. As regards s. 72 (a) of the Conciliation and Arbitration Act 1904-1958 (Cth), I agree in the judgment of the Chief Justice and have nothing to add. (at p280)

2. As regards s. 72 (b), I agree in his Honour's reasons for holding the provision to be a valid law of the Commonwealth. I have a difficulty, however, as to the meaning of the word "submitted" in the expression "industrial matters submitted to it" i.e. to the commission. It is evident that s. 72 (b) is not just another provision for compulsory arbitration, for whatever "submitted to it" may mean at least its use has the effect of excluding a normal feature of compulsory industrial arbitration systems, namely the power of the arbitral tribunal to intervene of its own motion in a dispute which comes to its notice, whatever may be the source of its information. If the commission is to have power to determine a matter so as to bind by its decision a party or parties who have not invoked and may not desire its intervention, what considerations of policy can there be for making this power conditional upon the receipt of an invitation from another party? It seems to me difficult to suppose that the Legislature intended a system half-way between compulsory arbitration and arbitration by consent, namely arbitration at the request of one or some of the parties, without the consent and even against the will of the other or others. But in any case, in such a context as is found in s. 72 (b) the word "submitted" seems to me apt only to refer to the result of joint action by all the interested parties, that is to say joint action bringing a stranger, as adjudicator, into a matter in which prima facie he has no business to interfere, and subjecting all the parties to his determination of that matter. It is true that in many "industrial matters" there is such a multiplicity of parties that this interpretation of the word would make the provision difficult to use; but there would still be, I should think, many such "matters" in which a submission by consent of all parties would be practicable. In my opinion, the dispute in the present case has not been "submitted" to the commission, and for that reason I do not feel able to rely upon s. 72 (b) as a ground of decision. (at p281)

3. I would discharge the order nisi. (at p281)

TAYLOR J. The questions raised by this application to make absolute a rule nisi for prohibition are concerned with the authority of a presidential member of the Commonwealth Conciliation and Arbitration Commission to make awards prescribing conditions of employment with respect to deck and engineer officers serving upon four specified vessels of the prosecutor. The respondent organizations, which seek such awards, contend that such conditions may be prescribed pursuant to Div. 2 of Pt. III of the Conciliation and Arbitration Act 1904-1958 either in the settlement of industrial disputes created by the rejection of logs of claims delivered to the prosecutor and others, or, in the determination of industrial matters as defined by the Act. (at p281)

2. It will be seen from the statement of facts upon which the parties agreed before the commission that the prosecutor is the owner of four vessels each of about 10,000 tons which are registered in the United Kingdom and which are and have for some time been engaged in the cargo trade and, to a lesser extent, in the passenger trade, between Australia and Japan and also between intervening ports and between those ports and Japanese ports. But its vessels are not ships whose first port of clearnace and port of destination are within the Commonwealth (Commonwealth of Australia Constitution Act, s. 5). Nor, are the ships' officers engaged only for the trade in which these vessels are actually employed for, by the articles to which they have subscribed, the limits within which they may be required to serve are specified as "a voyage or voyages from Hong Kong to North China and/or Japan and/or the U.S.S.R. returning therefrom to Hong Kong and thence proceeding to any port or ports within the limits of 75 degrees north and 60 degrees south latitude in any rotation as may be required by the Master carrying passengers or cargo of all kinds for a period not exceeding two years or the first return of the vessel to Hong Kong". It will be observed that it is agreed that the ships' articles are opened and signed in Hong Kong though "All the masters, deck officers and engineer officers of the said vessels reside in Australia and are actually engaged and discharged in Sydney". (at p282)

3. By s. 72 of the Conciliation and Arbitration Act 1904-1958 the commission is empowered - "(a) to prevent or settle industrial disputes by conciliation or arbitration; and (b) to hear and determine industrial matters submitted to it in so far as those matters relate to trade and commerce with other countries or among the States or in a Territory of the Commonwealth, whether or not an industrial dispute exists in relation to those matters". For the purposes of this section an industrial dispute means a dispute as to industrial matters which extends beyond the limits of any one State and "industrial matters" mean such matters as would be industrial matters within the definition of that term in sub-s. (1) of s. 4 of the Act if the references in that definition to employees were references to seamen only. Finally, "seaman" means a person who is, or whose usual occupation is that of, a master as defined in s. 6 of the Navigation Act 1912-1956, a seaman as so defined or a pilot as so defined. In the result, therefore, industrial matters mean all matters pertaining to the relations of employers and seamen and, without limiting the generality of this expression, include matters of the description particularly specified in the body of s. 4. (at p282)

4. Clearly enough, the provisions of s. 72 (a) were intended to constitute an exercise of the legislative power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. On the other hand, s. 72 (b) is a purported exercise of the power to make laws with respect to trade and commerce with other countries and among the States. But according to the argument for the prosecutor neither sub-section confers authority upon the commission to prescribe conditions of employment with respect to officers serving upon its vessels for, it is said, no dispute of the character necessary to invoke the power conferred by the former sub-section can arise in relation to conditions of employment former sub-section can arise in relation to conditions of employment upon its vessels and, so far as the second sub-section is concerned, it is impossible to observe any material relationship between such conditions and "trade and commerce with other countries and among the States". In any event, it is, however, contended that it is not competent for the Parliament of the Commonwealth to make legislative provision for the prescription of conditions binding the prosecutor in relation to the employment of officers on its vessels either through the medium of arbitration or, directly, by a law made under the trade and commerce power. In view of the way in which the argument on the appeal developed it is convenient at this stage to discuss the question of constitutional power and to consider at once how far, if at all, awards of the character sought by the respondent organizations may be authorized under the power to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes. (at p283)

5. In advancing its contentions on this point the respondent organizations were immediately faced with the decisions of this Court in Merchant Service Guild of Australasia v. Archibald Currie &Co. Pty. Ltd. (1908) 5 CLR 737 and Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No. 3) (1920) 28 CLR 495 which explicitly decided that, subject only to the provisions of covering cl. 5 of the Constitution, Commonwealth legislative power under this placitum extends only to disputes concerning conditions of employment in industries carried on within the Commonwealth. This conclusion was based expressly upon the view that - "sub-s. (XXXV.) of s. 51 (of the Constitution), on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore (that) the term 'industrial disputes' in that sub-section, unextended by covering s. V, .means disputes as to the terms and conditions of industrial operations in Australia only" (1920) 28 CLR, at p 503 According to the respondents' argument this view rested upon the notion, now outmoded, that the legislative powers of the Commonwealth were, except where otherwise expressly provided, subject to restrictions arising from the concept that the laws of the Commonwealth had, apart from covering cl. 5, no operation beyond its territorial limits. It is true that this notion was expressed in their Honours' reasons for they said: "the only question is how far does s. 51 (XXXV.) on its own construction, unextended by the covering s. V., apply to the industrial disputes with which the three above-named respondents are concerned. We construe that sub-section for the purposes of this case on the same principles as were recently applied in the case of Amalgamated Society of Engineers v. Adelaide Steamship Co. (1920) 28 CLR 129 That is to say, we interpret the enactment according to the well-recognized standards of interpretation. One of those principles is that, prima facie, jurisdiction is territorial; and covering s. V. strengthens the view, in relation to the present case, that the language itself of sub-s. (XXXV.) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502 (at p284)

6. It would, however, be a mistake to treat the case as one in which their Honours purported to deal with the not unfamiliar question whether a particular law should or should not, upon its true construction, be accorded an extra-territorial operation or, indeed, merely with the problem whether a given expression could, in the abstract, be regarded as sufficiently wide to authorize legislation having extra-territorial effect. The problem, as their Honours saw it, required examination of the relevant expression in the constitutional instrument in order to see whether the Imperial Parliament had manifested an intention to invest the Parliament of the Commonwealth with authority to deal with disputes which, for their prevention or settlement, required the promulgation of rules of conduct having an extra-territorial operation. It was, therefore, a problem concerned essentially with the definition of the legislative subject matter. On this basis it was not out of place to have regard to the circumstance that the various heads of power specified in s. 51 were conferred upon the Commonwealth Parliament to make laws for the peace order and good government of the Commonwealth and to conclude that the expressions employed to denote generally stated heads of power should, prima facie, be understood as referring to persons, things and activities within the Commonwealth. That being so there seems to be little force in the submission which was made when the case was first argued that the provisions of s. 3 of the Statute of Westminster have now displaced the foundation upon which these decisions rest. Indeed, ultimately this was virtually conceded by the respondents as also was the proposition that, whatever effect the declaration contained in s. 3 may have in relation to the extra-territorial operation of Dominion laws validly made, it in no way operated to expand or enlarge the various subject matters by reference to which the legislative powers of the Commonwealth were and are defined. Yet, for reasons which I shall endeavour to state it seems to me that when regard is had to more recent views concerning the essential character of industrial disputes these decisions appear to express a view of the extent of the constitutional power which is too narrow and which cannot now be justified. (at p285)

7. In considering the character of the subject matter described by the words of placitum (XXXV.) it is, of course, impossible to put aside the notion that it was intended as the definition of a power designed to permit Parliament to deal in a specified manner with problems of domestic industrial unrest. The relevant power is a power to make laws for the peace order and good government of the Commonwealth with respect to that subject matter and the circumstance that it is restricted to industrial disputes which have, so to speak, spilled over State borders provides support for the argument that, prima facie at least, it was intended to deal with industrial unrest within the Commonwealth (see per Griffith C.J. and Isaacs J. in Federated Saw Mill etc. Employes of Australasia v. James Moore &Sons Pty. Ltd. (1909) 8 CLR 465, at pp 487, 526) Likewise, in the case of many of the heads of power in s. 51 which are defined in general terms it would seem beyond question that, in ascertaining their content, regard must be had to the obvious and overriding circumstance that they are intended to define the power of Parliament to make laws for the peace order and good government of the Commonwealth. In some cases the necessary restriction is obvious. For instance, the power to make laws with respect to immigration must mean immigration into the Commonwealth. And the power to make laws with respect to currency, coinage and legal tender relates to the currency, coinage and legal tender of the Commonwealth. Again, it could not be suggested that Parliament may, under its power to make laws with respect to marriage, prescribe the requisites for a valid marriage between United States' citizens in Utah or, under its power to make laws with respect to old age pensions, legislate for the provision of old age pensions for the inhabitants of Tibet. In other cases the restrictions may not be so readily capable of precise definition but it is clear that the power conferred by placitum (XXXV.) is conferred for the purpose of permitting the Parliament to deal, in some measure, with what may be called widespread industrial unrest within the Commonwealth. (at p286)

8. But the particular form of industrial unrest with which placitum (XXXV.) deals is "industrial disputes extending beyond the limits of any one State" and not industrial unrest generally or the consequences of industrial disputes. The distinction between these concepts is clearly shown by the decisions of this Court in Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) (1930) 42 CLR 527 and Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 CLR 614 The distinction was not, however, always so clearly recognized with the result that it now seems that on some occasions when it has been necessary to examine the content of the power its central point has received insufficient attention. R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild (1912) 15 CLR 586 was, it seems to me, such a case. There, in dealing with the question whether an industrial dispute within the meaning of placitum (XXXV.) had arisen Griffith C.J. said: "In the Saw-Millers' Case (1909) 8 CLR 465, at pp 488, 489 I expressed the opinion, which I now repeat judicially, that 'The term "industrial dispute" connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more. We have not to deal with technicalities, such as the meaning of the term "conversion" in the old action of trover, in which a demand and refusal were sufficient evidence of conversion. In considering industrial disputes we are concerned with real facts, not words or word-spinning'" (1912) 15 CLR, at p 594 (at p286)

9. Much the same view was expressed by Barton J. when he said: "That the jurisdiction must be founded on something more than a mere claim is, to my mind, quite apparent. That something is not easy to define. But it must be enough to take the whole position above or beyond mere naked demand and refusal. Before the federal power can be invoked there must, as the Court has repeatedly pointed out, be a dispute actually existing. It cannot be created by the mere paper demand. If however, there is accompanying evidence that the demand, whether written or not, is the culmination of a sense of wrong or injustice, made known or become known to the other party, that it is the expression of 'a real and substantial difference having some element of persistency' (see per Griffith C.J. in the Saw Millers' Case (1909) 8 CLR, 465, at p 488, and is not the outcome of caprice or of a mere desire to extort, then whichever side is the promovent, there is an industrial dispute within the meaning of the Constitution" (1912) 15 CLR, at p 605 The views expressed in these passages appear to me to indicate the underlying foundation for the conclusion of the majority in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) (1920) 28 C.L.R. 495. The problem, as their Honours then saw it, was to ascertain what legislative steps were authorized under a power to deal with "industrial unrest" in such a way as "to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth" (1920) 28 CLR, at p 503 And, according to the majority, the power, "being territorial", meant that "the 'industrial disputes extending beyond the limits of any one State' so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502 But in the intervening years the notion of what constitutes the essential character of an "industrial dispute" has changed substantially, Dixon J. (as he then was) being led in 1930 to observe: "Much of the argument addressed to us by counsel for the Commonwealth depended upon the proposition that once a real industrial dispute extending beyond the limits of one State existed, it was not material to inquire into its genesis, and in particular it was nothing to the point that it arose by reason of the desire of one party to obtain an award of the Court. While this may be so, yet when the existence of a genuine dispute is in question the purpose and object with which paper demands were delivered may be decisive. Again much of the same argument was founded upon the view that the Federation and its members intended to press for a code to be formulated by the Court's award or by an agreement having the force of an award which would regulate future conditions. This contention illustrates some of the confusion which attends a jurisdiction which can be exercised when and only when, an inter-State dispute exists, but when it does arise enables the arbitrator in some measure to regulate industry. The two-State dispute must exist between the parties antecedently to the award or agreement which composes it, and the dispute must arise out of their disagreement about the manner in which they shall regulate their own industrial relations. Experience has shown that the desire for an award regulating industrial relations has been the cause of the creation and extension of industrial disputes which the Arbitration Court exists to prevent and settle. But in such cases the jurisdiction arises because of the existence of a two-State dispute, and in spite of, and not because of, the motives which generate that dispute". (Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 2) (1930) 42 CLR 558, at pp 579, 580. (at p288)

10. It is unnecessary to review the cases which have led to the recognition, as such, of industrial disputes created by the making and rejection of demands relating to conditions of employment and which have formulated "the doctrine that the essential quality of an industrial dispute is not the suspension of industrial relations but disagreement, difference, or dissidence". (See per Dixon J. in Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387, at p 429) Such a disagreement may, as was then said, "cause a strike, a lockout, and a disturbance and dislocation of industry; but these are the consequences of the industrial dispute, and not the industrial dispute itself, which lies in the disagreement". It is, I think, sufficient to say that the doctrine which is now so firmly established must be borne in mind when the character of the legislative power conferred by placitum (XXXV.) is examined. (at p288)

11. When this is done it is seen that the power is directly and immediately concerned with industrial disputes so understood. This is at the very heart of the power and laws may be made with respect to conciliation and arbitration for their prevention and settlement. But it would be wrong to seek to limit the power by first ascribing territorial limits to the rules of conduct which may be made in settlement of industrial disputes and, thereafter, to exclude from the power industrial disputes in the settlement of which legislation having an extra-territorial operation will or may be necessary. This may not be thought to be an illogical process if an industrial dispute means no more and no less than industrial unrest or turmoil. But upon the currently accepted view of what constitutes an industrial dispute the conclusion is inevitable that the reference in placitum (XXXV.) is to all industrial disputes which exhibit the necessary attribute, that is to say, an extension beyond the limits of any one State. This is of the essence of the subject matter of the power and it is not to be limited by the circumstance that in the settlement of some of such disputes legislation or rules of conduct having an extra-territorial operation may be necessary. This is not to say that the power is absolute and not subject to restrictions or qualifications of any kind. Indeed, restrictions are to be found in the language of the placitum itself which justify the assertion that the power is concerned with disputes which, in a broad sense, are substantially Australian industrial disputes. First of all, in order that a dispute shall fall within the ambit of the power, it is necessary that it should extend beyond the limits of any one State. No doubt the locality of the dispute will, in the main, be synonymous with the place where the disputants are to be found so that the power is concerned with disputes in this country which are industrial disputes. The expression "industrial disputes" connotes a further limitation for it is not every dispute concerning industrial matters which constitutes an industrial dispute of the requisite character. As is shown by the decision in Reg. v. Portus; Ex parte Australian Air Pilots' Association (1953) 90 CLR 320 and Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317 it is essential that the disputants should have a legitimate industrial interest in the subject matter of the dispute. Beyond this, in my view, no further limitation is possible. (at p289)

12. I consider that the order nisi should be discharged. (at p313)

Orders

Order that the order nisi for a writ of prohibition be discharged with costs.