Seamen's Union of Australia v Utah Development Co

[1978] HCA 46

HIGH COURT OF AUSTRALIA

Barwick C.J., Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ.

SEAMEN'S UNION OF AUSTRALIA v. UTAH DEVELOPMENT CO.

(1978) 144 CLR 120

29 November 1978

Constitutional Law (Cth)—Trade Practices

Constitutional Law (Cth)—Grant of aid to production or export of goods—State agreement providing for assistance to be given to developers and exporters of coal—Whether aid—The Constitution (63 &64 Vict. c. 12), ss. 90, 91—Central Queensland Coal Associates Agreement Act, 1968 (Q.). Trade Practices—Trade and commerce between Australia and other countries—Commonwealth Act prohibiting persons in concert from engaging in conduct hindering or preventing supply of goods—Provision limiting Act to application it would have if confined to trade and commerce between Australia and places outside Australia—The Constitution (63 &64 Vict. c. 12), s. 51 (i.)—Trade Practices Act 1974 (Cth), ss. 6 (2), 45D.

Decisions

November 29.
The following written judgments were delivered: -
BARWICK C.J. The substance of the pleadings in this suit and of the submissions which have been made upon demurrer are fully set out in the reasons for judgment prepared by my brothers Gibbs and Mason, which I have had the advantage of reading. (at p126)

2. I agree with the conclusions there expressed, namely, that the Central Queensland Coal Associates Agreement Act, 1968 (Q.) is not beyond the legislative competence of that State by reason of the provisions of s. 91 of the Australian Constitution: and that s. 45D of the Trade Practices Act 1974 (Cth), as amended, is a valid exercise of the power vested in the Australian Parliament by s. 51 (i.) of the Constitution. Further, I agree with the reasons assigned by each of my brothers for each of these conclusions. (at p126)

3. Section 91 of the Constitution does not, in my opinion, upon its proper construction, contain any restriction upon any legislative power of a State: though it is not the source of power, its function is facultative. It enables a State legislature, notwithstanding the terms of s. 90 - which, in my opinion, is the only presently relevant limitation upon State legislative power - to grant aid to or bounty on the production or export of goods. It is, in my opinion, impossible to construct out of this concession a prohibition, not elsewhere found in the Constitution, of the grant by a State, in exercise of its residual powers, of aid to the production or export of goods. The section neither grants power nor withholds it. It merely limits the scope of the prohibition in s. 90. Thus, whatever the denotation of the word "aid" in the section, nothing in the section prevents the exercise by the State of whatever powers it has in relation to the production or export of goods. (at p126)

4. But I agree that the word "aid" is confined to the grant of financial assistance. Indeed, the doublet "aid to or bounty on" refers, in my opinion, to the same concept of granting money to assist or reward production or export of goods, either antecedently to such production or export or consequentially upon it. (at p126)

5. Therefore, I agree that the attack on the validity of the Central Queensland Coal Associates Agreement Act fails. I might add that, being of that clear opinion, I find no need to deal with the competence of the plaintiffs to maintain a suit for a declaration of that Act's invalidity. But, as at present advised, I would give no encouragement to the view that a citizen in the situation of the plaintiffs can sue for such a declaration. The clear terms of the decision of the House of Lords in relation to the lack of any right in the citizen to bring a suit for a declaration of public right as opposed to private right, with which I respectfully agree, must extend, in my opinion, to a suit for a declaration of invalidity of a statute: see Gouriet v. Attorney-General (1978) AC 435 . (at p127)

6. Once s. 45D is combined with s. 6 (2) of the Trade Practices Act and the specific limitations of the proscribed conduct are observed, there can be no doubt, in my opinion, that s. 45D, in relation to conduct occurring in the course of interstate and overseas trade and commerce is a valid exercise of the power granted to the Parliament by s. 51 (i.) of the Constitution. My brothers have extrapolated the effect of s. 6 (2) upon s. 45D and the precise nature of the conduct forbidden by s. 45D. I have no need to supplement what they have written. I agree entirely with their analysis. Consequently, I agree that the plaintiffs' attack on s. 45D fails. (at p127)

7. The demurrers should be allowed and the suit dismissed. (at p127)

GIBBS J. These are demurrers to a statement of claim by which the plaintiffs challenge the validity of (1) the Central Queensland Coal Associates Agreement Act, 1968 (Q.) ("the Agreement Act") and (2) s. 45D of the Trade Practices Act 1974 (Cth), as amended ("the Trade Practices Act") in so far as that section applies to the present case. (at p127) 2. The facts alleged in the statement of claim are as follows. The plaintiffs are the Seamen's Union of Australia ("the union"), the secretary of the union ("the second plaintiff") and a number of seamen who are members of the union ("the third plaintiffs"). The first, second, third and fourth defendants ("the companies") are companies which are associated in the mining of coal from lands in the State of Queensland, the treatment of the coal so mined, its transportation to a harbour at Hay Point in that State and its export thence from Australia. In carrying out these activities the companies are exercising rights and powers conferred by the Agreement Act and by the Agreement made thereunder. The companies have operated at Hay Point a shiphandling service for the berthing and unberthing of vessels calling at Hay Point to load the coal, and have employed tugs and lineboats for that purpose. The service has been managed by J. Fenwick and Co. (Hay Point) Pty. Ltd., which has engaged another company, J. Fenwick and Co. Pty. Ltd., as sub-contractor to engage, transfer and discharge the crews necessary to ensure the effective operation of the shiphandling service and the proper maintenance and manning of the tugs and lineboats. The third plaintiffs have been employed by J. Fenwick and Co. (Hay Point) Pty. Ltd. or J. Fenwick and Co. Pty. Ltd. as seamen upon weekly contracts of employment to man the tugs and lineboats. Certain ships which call at Hay Point to load the coal sail under the Liberian flag, and are manned by crews of Spanish seamen who are employed on terms different from and in some respects less advantageous to seamen than those recommended by the International Transport Federation. On occasions when the tugs and lineboats were to be used to assist in the berthing and unberthing at Hay Point of the ships just mentioned, the third plaintiffs have declined to work by refusing to man the tugs and lineboats. This refusal was in protest against the practice of employing in the coal export trade of Australia ships flying flags of convenience on which no Australian seamen are employed, and as a protest against the failure of one of the companies to enter into negotiations with the union in relation to the employment of Australian seamen on ships engaged in the coal export trade. (at p128)

3. Three of the companies, and the fifth defendant (the Minister of State for Business and Consumer Affairs of the Commonwealth) have applied to the Federal Court of Australia for orders calling on the plaintiffs to show cause why orders should not be made against them under ss. 45D and 80 of the Trade Practices Act. On each of these applications the Federal Court made orders:

"(a) calling on each of the Plaintiffs to show cause why they and each of them should not be restrained from engaging, in concert with any other person, in the following conduct, namely: -

'(a) conduct that hinders or prevents the supply of services by J. Fenwick &Co. Pty. Limited or J. Fenwick &Co. (Hay Point) Pty. Limited to Utah Development Company, Mitsubishi Development Pty. Ltd., Australian Mutual Provident Society and Utah Mining Australia Limited (herein called "the applicant companies") or any of them in contravention of s. 45D of the Trade Practices Act 1974;

(b) conduct that hinders or prevents the acquisition of goods by Japanese or European buyers of coal from the applicant companies, in contravention of the said section; (c) conduct that hinders or prevents the manning of tugs and lineboats to service vessels used for the purpose of carrying coal from Hay Point, Queensland, in contravention of the said section;

(d) inducing or attempting to induce any employee of J. Fenwick &Co. Pty. Limited or J. Fenwick &Co. (Hay Point) Pty. Limited to refuse to provide his services to either of such companies in respect of manning tugs or lineboats to service, berth or unberth vessels used for the purpose of carrying coal from Hay Point, in contravention of the said section.'

(b) calling on the Third Plaintiffs to show cause why they should not be restrained from engaging in the following conduct, namely: -

'withholding, in concert with any person whatever, his or their labour from J. Fenwick &Co. Pty. Limited or J. Fenwick &Co. (Hay Point) Pty. Limited or both when and to the extent that such labour is according to the ordinary course of practice required for the purpose of bringing in, berthing, or de-berthing the following vessels namely the Lake Mendocino, Lake Almanor, Lake Tahoe, Lake Shasta, Lake Arrowhead, Lake Berryessa, Orco Miner or Orco Trader, or for the purpose of manning the tugs Broadsound or Belyando or the lineboats Nebo or Sarina to enable any of the said eight vessels to be brought in, berthed, or deberthed at Hay Point, Queensland - where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the coal exporting business of the applicants Utah Development Company, Australian Mutual Provident Society Limited and Utah Mining Australia Limited except where such conduct is within the description in par. (a) or par. (b) of s. 450 (3) of the said Act.'

(c) calling on each of the plaintiffs to show cause why they should not be restrained from engaging in the following conduct, namely: -

'aiding, abetting, counselling, procuring, inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour from J. Fenwick &Co. Pty. Limited or J. Fenwick &Co. (Hay Point) Pty. Limited or both when and to the extent that such labour is according to the ordinary course of practice required for the purpose of bringing in, berthing, or deberthing the following vessels namely the Lake Mendocino, Lake Almanor, Lake Tahoe, Lake Shasta, Lake Arrowhead, Lake Berryessa, Orco Miner or Orco Trader, or for the purpose of manning the tugs Broadsound or Belyando or the lineboats Nebo or Sarina to enable any of the said eight vessels to be brought in, berthed or de-berthed at Hay Point, Queensland -

where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the coal exporting business of the applicants Utah Development Company, Australian Mutual Provident Society Limited and Utah Mining Australia Limited except where such conduct is within the description in par. (a) or par. (b) of s. 45D (3) of the said Act.'"

The Federal Court also granted interlocutory injunctions in the terms of pars. (b) and (c) of the order to show cause. The plaintiffs have brought the present proceedings against the defendants already mentioned, and against the Commonwealth and the State of Queensland, for declarations as to the invalidity of the Agreement Act, and things done under it and s. 45D of the Trade Practices Act. (at p130)

4. It is not immediately apparent that the plaintiffs have a sufficient interest to challenge the validity of the Agreement Act. Their argument is that if that Act is unlawful, the operations of the companies in producing and transporting the coal are also unlawful, and that s. 45D of the Trade Practices Act on its proper construction does not extend to forbid conduct intended or likely to cause loss or damage to an unlawful business. Sometimes it may be more convenient for the Court to decide the substantive question in issue, rather than to consider whether a party who unsuccessfully seeks to mount a challenge to the validity of a statute has the necessary standing to do so. The present is such a case. Since, as will appear, the plaintiffs' arguments that the Agreement Act is invalid cannot succeed, it is unnecessary to consider whether, if that Act had been invalid, the consequences suggested by the plaintiffs would have ensued. (at p130)

5. The plaintiffs' first submission is that the enactment of the Agreement Act, the making of the Agreement and of the variations thereto, and the performance and exercise by the State of Queensland of its duties and powers thereunder constituted the grant of an aid to the production or export of goods, within the meaning of s. 91 of the Constitution, and since neither House of the Parliament of the Commonwealth had expressed its consent by resolution to the grant of any such aid, were beyond the powers of the State. (at p130)

6. By s. 2 of the Agreement Act, the Premier of Queensland was authorized to make, for and on behalf of the State of Queensland, with the first and second defendants, the Agreement a copy of which was set out in the schedule to the Act. When made the Agreement was to have the force of law as if it were an enactment of the Act: s. 3. Provision was made for the variation of the agreement in the manner provided, and unless disallowed the variations also acquired the force of law: s. 4. The Agreement was made on 28th January 1969 and had been varied on a number of occasions. By cl. 7 of Pt I of the Agreement power was given to the first and second defendants to transfer the benefits and obligations of the Agreement in whole or in part to other companies, and this power has been exercised by transferring a share in the benefits and obligations to the third and fourth defendants, and the Agreement has been varied so that all four companies are now parties to it. (at p130)

7. The Agreement recited, inter alia, that the companies desired to bring the deposits of coal in the lands in question into large scale production for export purposes, and to provide and expend the large capital amount required, and that it is desirable that "in consideration of the Companies' entering into obligations on their part hereinafter set out the Companies should be granted the rights, titles and privileges hereinafter mentioned". The submissions advanced by the plaintiffs do not make it necessary to examine the nature of the obligations assumed by the companies under the Agreement. What is submitted is that the benefits provided by and under the Agreement were aids to the production or export of goods, irrespective of the terms on which they were granted or of the consideration given by the companies in return. It is therefore sufficient to consider what the companies got under the Agreement and its variations rather than what they promised in return. The benefits which the companies derived were no doubt considerable. They became entitled to be granted an authority to prospect for coal over a large area (Pt II, cl. 2) and to be granted special coal mining leases (Pt III, cll. 1-5, 25) in accordance with the Agreement, although under the provisions of the general legislation with respect to coal mining in Queensland the granting or refusal of authorities to prospect and coal mining leases is discretionary. The companies were absolved from the necessity to apply for and obtain a permit to enter under the Mining on Private Lands Act, 1909 (Q.), as amended, in respect of private land before entering on such land under the authority to prospect (Pt II, cl. 4). Coal produced from any special coal mining lease granted pursuant to the Agreement was to be the property of the companies (Pt III, cl. 12). The State of Queensland was required to construct and maintain lines of railway from the companies' coal mines at Goonyella, Peak Downs and Saraji to Hay Point, to provide locomotives and rolling stock and to carry the companies' coal in priority to all other shipments, and at freight rates which speaking generally were to be less than those which might be charged for any other coal which might be carried on the lines (Pts IV, IVA and IVB). The State was also obliged to constitute a harbour board, and arrange for that board to construct a harbour and habour works at Hay Point, to borrow a large sum of money for that purpose and to control, administer, manage, operate, maintain, use and regulate the use of such harbour and works (Pt V, cll. 1-4). The State was also required to provide a harbour master and all necessary pilot services (Pt V, cl. 9). The harbour may be used by other persons, but only if such use does not unduly delay or interfere with the shipment of the companies' coal (Pt V, cl. 7). The companies may manage and operate the loading of coal-carrying vessels and provide and operate tug services for vessels used in the carriage of coal (Pt V, cl. 12). The companies were given special rights in relation to the acquisition of private land and to the grant of leases of Crown lands for the purposes of the Agreement (Pt V, cll. 10 and 11; Pt VIII, cll. 3 and 5). They were given special rights to obtain water (Pt VII). The State was obliged to set up a special tribunal to determine disputes arising out of the Agreement (Pt IX, cll. 6 and 7) and to provide and maintain educational facilities and police for any town to be constructed by the companies at the site of the coal-mines on the same basis as that on which it normally provides such facilities for a town of similar size (Pt IX, cl. 8). Special protection was given to the companies against interference by municipal, governmental or semi-governmental authorities on the ground that the companies' operations are contrary to any zoning by-law or regulation (Pt IX, cl. 13). (at p132)

8. The authority to prospect and the special coal mining leases referred to in the Agreement have been granted to the companies, the lines of railway have been constructed by the State, the locomotives and rolling stock have been provided and the harbour and harbour works at Hay Point have been constructed. The companies have produced and processed large quantities of coal, and have transported it along the lines of railway to Hay Point, and have there loaded it onto ships for export from Australia. (at p132)

9. It is not in contest that the companies, in mining and treating the coal and exporting it from Australia, were engaged in the production and export of goods within s. 91 of the Constitution. The enactment of the Agreement Act, the making of the Agreement and of the variations to it and the action taken by the State of Queensland in pursuance of the Agreement and of the variations no doubt greatly assisted the companies in the production and export of the coal. The plaintiffs' submission is that when the State assisted the companies in this way it granted an aid to the production or export of goods contrary to s. 91 of the Constitution. It was not sought to argue that the assistance was a bounty within the meaning of that section. (at p132)

10. Section 91 of the Constitution provides as follows:

"Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods."

In form the section appears to be a qualification or exception to other provisions of the Constitution, and to enlarge rather than restrict the power of the States. The plain meaning of its words appears to be that a State has power to grant an aid or bounty in accordance with the section, notwithstanding that some other provision of the Constitution might otherwise have prohibited it from doing so. If no relevant prohibition is to be found elsewhere in the Constitution the section appears to have no operation. (at p133)

11. The plaintiffs however submit that s. 91 operates not only to relieve the States pro tanto from the effect of prohibitions contained elsewhere in the Constitution, but also to define the extent of the power of the States to grant bounties and aids. By expressly saying that the States are not prohibited from granting bounties and aids in specified cases, the section has the effect (so it is argued) of impliedly prohibiting the States from granting bounties and aids in other cases. Moreover the submission of the plaintiffs is that "aid" within the meaning of the section is not confined to the granting of money, but extends to any sort of assistance that a State may provide for the purposes mentioned. (at p133)

12. If this argument is correct, the powers of the States are much more restricted than has been supposed ever since federation. It has never been challenged that any State has the power, and some would say the duty, to develop its resources and its industry, subject to such limits as may be imposed by the existence of an inconsistent law of the Commonwealth, or by a specific constitutional prohibition such as that contained in s. 92, or by the grant of a power exclusively to the Commonwealth as in the case of s. 90. The argument now advanced is that a State is completely prohibited from assisting by any means whatever the production of goods (except the mining of metals) or the export of goods, without the consent of both Houses of the Parliament. Without that consent, a State could not build a dam to assist the growing of crops, or a road or railway to carry goods for export; it could not grant an agricultural lease or a lease of Crown land for use as a factory; it could not give scientific assistance to agriculturalists to enable them to produce varieties of crops resistant to drought or disease, nor could it make special arrangements to supply power to a productive industry. The powers thus denied to the States are not, as such, conferred on the Commonwealth. A power to grant bounties is expressly conferred on the Commonwealth by s. 51 (iii) of the Constitution, but there is no similar conferral of power to make laws with respect to the grant of aid to the production or export of goods. Of course in some cases the Commonwealth might directly provide assistance to the production or export of goods by the exercise of its powers under s. 51, and might do so indirectly by granting financial assistance to a State on appropriate terms and conditions under s. 96. But it would be quite unsafe to say that the Commonwealth could legislate over the whole field denied to the States by s. 91 on this suggested construction. The result would be that in some circumstances neither the Commonwealth nor a State could legislate, but the power to legislate would be exercisable only by a State with the express consent of both Houses of the Parliament. If the section is thought to be ambiguous, the inconvenience that would result from the suggested construction provides a powerful argument against its acceptance. (at p134)

13. However it is unnecessary to rely on the novelty of the construction suggested, or the inconvenience of its consequences, for the purpose of refuting this argument. I have already pointed out that the section, as expressed, appears to be intended as the relaxation of a prohibition and not as a denial of power. It would be contrary to the principles according to which the Constitution should be interpreted to imply limitations on the power of either the Commonwealth or the States when none are expressed. By s. 107 of the Constitution, every power which was possessed by the Parliament of a Colony (and the colonial Parliaments did possess the power to provide assistance to the production and export of goods) is continued in existence in the Parliament of the State unless it has been exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State. Before a provision of the Constitution can be construed as withdrawing a power from the States, a clear intention to do so must appear. No such intention appears in s. 91. That section, given its ordinary and natural meaning, does no more than preserve to the States (provided that they obtain the consent of both Houses of the Parliament where that is necessary) a power which might otherwise have been cut down by other provisions of the Constitution. (at p134)

14. It is true that a difficulty in the construction of s. 91 is caused by the fact that although the power to grant bounties is exclusively vested in the Commonwealth by s. 90, a power to grant aid to mining or to the production or export of goods is not similarly exclusively vested in the Commonwealth. Therefore it is said by the plaintiffs that there is no other provision of the Constitution which imposes a prohibition to which s. 91, so far as it deals with aid, creates an exception. One possible answer to this contention is that if s. 91 is regarded as creating an exception to the provisions of the Constitution generally, it would preserve the validity of State legislation granting an aid other than a bounty, notwithstanding that such grant would otherwise have been invalidated by s. 109 of the Constitution, assuming that an inconsistent law of the Commonwealth had been enacted. Another, and in my opinion more plausible, view of the effect of s. 91 is that it was intended to be no more than a qualification of the other provisions of the Constitution which relate to bounties, and particularly of s. 90. On this view, which is supported by the position of s. 91 in the Constitution, and was accepted by Quick and Garran in their Annotated Constitution (see pp. 558, 839, 841, 843), the words "aid to" were inserted out of an abundance of caution to illustrate or expound more fully the meaning of the word "bounty". I do not need to choose between these two views for the purpose of deciding this case. On either view the effect of s. 91 is to validate State legislation and not to invalidate it. (at p135)

15. In any case I cannot accept that "aid" in s. 91 means "assistance" in the most general sense of that term. In my opinion "aid" must take its colour from its association with the word "bounty" in the section, and from the use of the word "granting" which governs both expressions, and must be limited to monetary aid. (at p135)

16. For these reasons in my opinion the challenge to the validity of the Agreement Act, the Agreement and the variations to it and the action taken thereunder must fail. (at p135)

17. I turn then to the challenge to the validity of s. 45D of the Trade Practices Act which deals with what are called secondary boycotts. So far as is material for present purposes, that section provides as follows:

"45D. (1) Subject to this section, a person shall not, in concert with another person, engage in conduct that hinders or prevents the supply of goods or services by a third person to a corporation (not being an employer of the first-mentioned person), or the acquisition of goods or services by a third person from a corporation (not being an employer of the first-mentioned person), where the conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing - (a) substantial loss or damage to the business of the corporation or of a body corporate that is related to the corporation; or (b) a substantial lessening of competition in any market in which the corporation or a body corporate that is related to the corporation supplies or acquires goods or services. . . . (5) If two or more persons (in this sub-section referred to as the 'participants') each of whom is a member or officer of the same organization of employees (being an organization that exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests of its members in relation to their employment) engage in conduct in concert with one another, whether or not the conduct is also engaged in in concert with other persons, the organization shall be deemed for the purposes of this Act to engage in that conduct in concert with the participants, and so to engage in that conduct for the purpose or purposes for which that conduct is engaged in by the participants, unless the organization establishes that it took all reasonable steps to prevent the participants from engaging in that conduct. . . ."

Section 45D (3) excludes from the operation of the section (inter alia) conduct whose dominant purpose is substantially related to the remuneration, conditions of employment, hours of work or working conditions of the person concerned or of a fellow employee or to the fact that the employer of that person has dismissed that person or a fellow employee. By s. 4 (2) the words "engaging in conduct" and "conduct" are given an extended meaning; a person who refuses to do, or refrains (otherwise than inadvertently) from doing, an act engages in conduct within the section. Other expressions used in the section are defined by s. 4 (1) but it is unnecessary to discuss the effect of those definitions. The applications to the Federal Court obviously are based on the contention that the refusal of any one of the third plaintiffs, in concert with another, to man a tug or lineboat for the purpose, and with the likely effect, of causing substantial loss or damage to one of the companies would amount to a contravention of s. 45D, and that in those circumstances the union would also be deemed to contravene the section unless it established that it took all reasonable steps to prevent the third plaintiffs from engaging in the conduct. The Federal Court has power to grant an injunction restraining, inter alia, a contravention of the section: s. 80. (at p136)

18. Section 45D is given a special application by s. 6 (2) of the Trade Practices Act. The effect of s. 6 was discussed in Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235 . In that case Mason J. (with whose judgment the other members of the Court concurred) said (1977) 136 CLR, at p 244 : "sub-sec. (2) is designed to give the provisions of the Act an operation which can be supported not merely by reference to the corporations power but by reference also to the powers contained in ss. 51 pl. (i) and 122 together with the implied power to regulate the supply of goods or services to the Commonwealth, its authorities and instrumentalities." He went on to say (1977) 136 CLR, at p 245 that the section: "gives to the Act or parts of the Act three different applications: first, an application in accordance with its terms; secondly, an application in accordance with s. 6 (2) and thirdly, an application in accordance with s. 6 (3)." The application given to s. 45D by s. 6 (2) is that which is relevant in the present case. Section 6 (2) provides (inter alia) that the Trade Practices Act, other than Pt X, has, by force of that subsection, the effect it would have if:

"(b) sections . . . 45D (and other sections) were, by express provision, confined in their operation to engaging in conduct to the extent to which the conduct takes place in the course of or in relation to - (i) trade or commerce between Australia and places outside Australia; . . . (h) . . . a reference in this Act to a corporation . . . included a reference to a person not being a corporation."

For the purpose of deciding the present case it is sufficient to consider the operation of s. 45D as confined in this way. No question arises as to whether the section, if given an operation according to its own terms, could be supported by the corporations power. The question is whether, when confined to conduct to the extent to which it takes place in the course of or in relation to trade or commerce between Australia and places outside Australia, the section is a valid enactment of the Parliament under the powers conferred by s. 51 (i.) of the Constitution. (at p137)

19. To answer this question it is necessary to consider rather more precisely the effect of s. 45D as so confined. That section makes it an offence to engage in conduct of the kind described - conduct that hinders or prevents the supply of goods or services by one person to another, or the acquisition of goods or services by one person from another - only if the offender acts in concert with another person, and the conduct takes place in the course of or in relation to overseas trade or commerce and is engaged in for the purpose, and would be likely to have the effect, of causing one or other of the results specified in pars. (a) and (b) of subs. (1). Only par. (a) is relevant to the present case, and the purpose there mentioned is to cause substantial loss or damage to the business of the person affected by the conduct. In other words, the section, in its relevant application, is designed to prohibit conduct carried out by persons in combination in the course of or in relation to overseas trade for the purpose of causing substantial injury to the business of another. What are enjoined are deliberately injurious actions done in concert in the course of or in relation to overseas trade. (at p138)

20. When the effect of the section is properly understood, it can hardly be doubted that it is a valid enactment of the Parliament. The power to make laws with respect to trade and commerce with other countries (s. 51 (i.)) is wide in its scope. It authorizes laws for the promotion of Australia's international trade: Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation (1965) 112 CLR 177, at pp 187-188 . It clearly enough extends to permit the Parliament to control acts done in the course of trade or commerce with places outside Australia. Cases such as Huddart Parker Ltd. v. The Commonwealth (1931) 44 CLR 492 and Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73 provide sufficient illustration of enactments which operated directly upon an activity or transaction forming a part of overseas commerce and were accordingly within the power. And the power also permits the Parliament to control conduct in relation to overseas trade, since the phrase "'in relation to' involves . . . that what is forbidden is directly related to . . . overseas trade or commerce so that the law is with respect to that trade or commerce": Redfern v. Dunlop Rubber Australia Ltd. (1964) 110 CLR 194, at p 219 . (at p138)

21. The plaintiffs' attack on the validity of the section was mounted on a narrow front. Their submission was that the effect of s. 45D is to compel persons not already engaged in overseas trade or commerce to take part therein, and that such a law is not one with respect to trade and commerce with other countries. It is unnecessary to consider whether the Parliament might validly conscript persons into service for the purpose of overseas trade and commerce, because as has already been shown s. 45D does not have that effect. The section, whether alone or in conjunction with s. 80, does not prevent a person who is employed in or in connexion with overseas trade or commerce from giving up his employment if his purpose is to seek other work, or go for a holiday, or give up working altogether. It does not prevent a person from refusing to accept employment in overseas trade or commerce if he does not wish to engage in employment of that kind. The section only applies to an employee who refuses to work or refrains from working in the course of or in relation to overseas trade or commerce if he does so in concert with another, and for the purpose of causing substantial injury to a business. Once the true effect of s. 45D (1) (a) in the application given to it by s. 6 (2) is understood, that enactment can clearly be seen to be a valid exercise of the power conferred by s. 51 (i.): it is designed to forbid a person from acting in the course of, or in relation to, overseas trade or commerce in concert with another for the purpose of causing deliberate injury to a business. It operates directly upon, or is directly related to, overseas trade or commerce. (at p139)

22. The plaintiffs' challenge is to the validity of s. 45D only in so far as its provisions could be applied to their conduct which has been made the subject of the proceedings in the Federal Court. That challenge fails. (at p139)

23. For these reasons I would allow the demurrers. (at p139)

STEPHEN J. This case involves two distinct questions. The first concerns s. 91 of the Constitution. That section reads:
"Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods." (at p139)

2. The plaintiffs seek to extract from this section a prohibition against any State granting any aid, meaning assistance, to the production or export of goods unless both Houses of the Parliament of the Commonwealth have, by resolution, given their consent. The State of Queensland has undoubtedly given assistance to the defendants in the mining and export of coal. It has done so by the enactment of the Central Queensland Coal Associates Agreement Act, 1968, by the making of the agreement to which the Act relates and by its observance of the terms of that agreement, and none of this has been the subject of any such resolution of the federal Parliament. If, as the plaintiffs contend, all this was done in breach of s. 91 and is accordingly unconstitutional, they seek to rely upon that fact in answer to certain orders made against them in the Federal Court of Australia in proceedings under the Trade Practices Act 1974 (Cth). (at p139)

3. Let it be assumed for present purposes that the plaintiffs have standing to seek a declaration as to the invalidity of the Queensland statute and of things done under it. They must then show both that the assistance here given by the State falls within the term "any aid" in s. 91 and that in one way or another the giving of such aid is prohibited by the Constitution. (at p140)

4. I turn first to the meaning of "any aid". The nature of the actual assistance afforded in this case by the State of Queensland has been analysed in considerable detail in other judgments. None of it involves anything in the nature of a direct financial grant such as would answer the description of a "subsidy": no more can it, in my view, be described as "any aid" as that term is used in s. 91. (at p140)

5. The word "aid" may have a very wide meaning, as when it describes assistance generally, but it also has other meanings much narrower and more specific in character. It is one of these more specific meanings which I regard as conveyed by its use in s. 91, namely the meaning of "a pecuniary grant in aid; a grant of a subsidy or tax to the king for an extraordinary purpose" (Oxford English Dictionary). In Palgrave's Dictionary of Policital Economy (1894) this is the only meaning given which has other than merely antiquarian interest: after describing the feudal aids paid by tenants to a knight, that work says, of "aid", that it is "used also in same sense as Subsidy (q.v.)", which term in turn is defined as "an aid, tax or tribute granted by parliament to the king". (at p140)

6. That "any aid" cannot, in s. 91, have its wide, non-specific meaning of "any assistance" is plain both from history and from context. One may readily reject the notion that the Australian colonies, when contemplating federation, would have accepted a federal compact which prevented their governments, without federal Parliament's consent, from giving assistance to those engaged in the production or exporation of goods. Then, as now, a chief concern of Australian governments was the development of the economies of their several communities. Much of their energies was directed towards measures to encourage local production by providing developmental facilities such as improved transportation, communications, water supply and the like, by land settlement schemes and by other assistance, direct pecuniary grants apart, in the development of primary and secondary industry. It was no part of the federal compact that this vital function of colonial governments, the development of the economies of their respective communities, should pass, on federation, to the Commonwealth. Accordingly, the Commonwealth was granted no express head of power to legislate on this subject matter. That Australia as a whole should be an area of free trade was, no doubt, one great aim of federation: hence the Commonwealth's exclusive power over customs, excise and (subject to s. 91) bounties. But the promotion of free trade between the States did not also require that the States should surrender their function of encouraging otherwise than by direct pecuniary bounties, the production and export of goods. (at p141)

7. Section 91, like many other provisions of Ch. IV of the Constitution, served to ensure free trade within the newly created Commonwealth. The qualified prohibition upon the grant of bounties which results from the interaction of s. 90 and s. 91 works to this end; without it a State might produce an economic effect upon the products of other States similar to that achieved by the old intercolonial customs duties. A bounty has been described by economists as a negative tax and it is one of the weapons in the armoury of protectionism. But general State assistance in the development of the economy of the State, as distinct from the grant of bounties upon production or export, has no such direct effect upon interstate free trade. (at p141)

8. The consequences of reading s. 91 as applying to any general State assistance in developing the economy of a State, by providing an economic and material environment conducive to the successful production or export of goods, is worth noting. The Commonwealth having no express head of power under which it may itself legislate in this area - cf. s. 51 (iii.) as to bounties, to attribute to s. 91 such an effect would very substantially impair the States' power effectively to perform this important function of government while at the same time leaving the Commonwealth relatively impotent to fill the resultant power vacuum. (at p141)

9. If "aid" in s. 91 be given a meaning similar to that of "subsidy" these consequences, so little likely to have been intended by those who framed the Constitution, are avoided. To do so involves no straining of language and gives to "aid" the only meaning capable of modern application which is assigned to it by Palgrave's work, a specialist dictionary of high authority the publication of which was closely contemporaneous with the drafting of the Constitution. The objection that to do so involves tautology in the use of both "aid" and "bounty" in s. 91 is of some weight. However, if "bounty" involves, as it appears to, the concept of some precise relationship between payments made and the units in respect of the production or export of which they are paid (e.g. being payable per head, per item, per ton, etc., as the case may be), as to which see generally the discussion of bounties in Downs v. United States (1903) 187 US 496 (47 Law Ed 275) , no similar relationship seems to be involved in the payment of an "aid". The section, in speaking of any bounty "on" the production or export of goods but of any aid "to" their production or export, marks this distinction. In the present case it is unnecessary to determine what precisely may be the differences between these two terms: that each involves the concept of a direct pecuniary grant is enough to exclude the nature of the assistance given by the State of Queensland. Accordingly I need only say that there may well prove to be some payments to which only one of these two terms is appropriate. (at p142)

10. One curiosity of s. 91 remains, its reference to "aid" as well as to "bounty" whereas elsewhere in the Constitution, and in particular in s. 90, only "bounty" is referred to. This leads me to what I have described as the second matter which the plaintiffs must show, that the giving of any aid by a State to the production or export of goods is the subject of some constitutional prohibition. The conditional alleviation which s. 91 effects is said logically to presuppose the existence of such a prohibition; since that prohibition nowhere appears expressly, the plaintiffs rely upon s. 91 as itself creating an implied prohibition. (at p142)

11. Whereas it may be that no wholly satisfying explanation exists for the presence of "aid", coupled with "bounty", only in s. 91 and not also in s. 90 or elsewhere in the Constitution, the way in which s. 91 came to be a provision apparently independent of s. 90 can readily enough be accounted for: it seems to have been no more than a matter of drafting. The relevance of this is as follows: if s. 91 operates only as a qualification upon the express prohibition which s. 90, by its exclusive grant of power, effects, than s. 91 may be seen to do no more than alleviate from that express prohibition. Despite its curious use of "aid", it cannot, then, be understood as itself independently imposing any implied prohibition such as the plaintiffs contend for. (at p142)

12. It is from the successive drafts of the document which ultimately become our Constitution that the true role of s. 91 emerges. The draft bill to constitute the Commonwealth which came before the National Australasian Convention held in Sydney in 1891, drafted by Sir Samuel Griffith and adopted by the Convention in April 1891, contained a Ch. IV entitled, like our present Constitution's Ch. IV, "Finance and Trade". In it there appeared, as cl. 4, the predecessor to the present s. 90. It granted exclusive power to the Commonwealth, upon the imposition by it of uniform duties of customs, over customs duties, duties of excise and grants of "bounties upon the production or export of goods". This exclusive grant of power was nowhere qualified, as it now is in s. 91. (at p143)

13. This remained the position throughout much of the first session of the Australasian Federal Convention, held in Adelaide in 1897. It was not until the second last day of that session that, by amendment, there was introduced into what was then numbered cl. 82, the predecessor of s. 90, a sub-clause excluding from its operation "bounties or aids to mining for gold, silver, or other metals". (at p143)

14. Then, at the third session held in Melbourne early in 1898, the clause, by then numbered 86B, was further amended by including in it a paragraph excluding from its operation "any bounty or aid granted by any state with the consent of both Houses of Parliament, expressed by resolution". This occurred on 11th March 1898 and resulted in both limbs of the present s. 91, relating respectively to mining and to the production or export of goods, appearing, substantially in their present form, in the predecessor to s. 90 and as qualifications upon the exclusiveness of Commonwealth power over, inter alia, bounties. (at p143)

15. The next day the Convention adjourned for four days, subject only to short formal sittings for the dispatch of formal business, so as to permit the drafting committee, comprised of three members, to undertake a general revision of the wording of the Bill. On 16th March the Bill, thus revised, again came before the Convention so that it might consider these drafting amendments. It was in the hands of the drafting committee that, for the first time, the two limbs of what is now s. 91 were separated out from the body of s. 90 and were combined to form the succeeding section, s. 91. This was but one of a considerable number of drafting alterations made to Ch. IV of the Constitution by the drafting committee, none of which was the subject of any debate in the Convention before their adoption on 16th March. By the end of that day the whole Bill was finally adopted and the sittings of the Convention ended on the next day. The printed Proceedings of this session of the Convention provides, at pp. 214-219, a convenient comparison of the relevant clauses of Pt IV before and after being dealt with by the drafting committee. (at p143)

16. This account, necessarily much curtailed, of the successive drafts leading to the present s. 90 and s. 91 and, in particular, of the separation out from the present s. 90 of those parts of it which now comprise s. 91, apparently effected as a matter of drafting only, does, I think, lend strong support to the view that s. 91 does no more than qualify the prohibition which results from the exclusive nature of the grant of power in s. 90. In its light, together with the fact that on their face the words of s. 91 are wholly facultative in character, the suggestion that s. 91 contains some implied prohibition not found in the express grant of exclusive power contained in s. 90 cannot be sustained. (at p144)

17. Such use as I have made of the history of the successive drafts of the Constitution is, I think, one sanctioned by authority. That judicial recourse may be had to the state of successive drafts of the Constitution "as a matter of history" is well established. The authorities in this Court countenancing this course when constitutional interpretation is in question are conveniently gathered together in Mr. D. C. Pearce's Statutory Interpretation in Australia (1974), par. 69, and are discussed in detail in Mr. Brazil's article in the University of Queensland Law Journal, vol. 4 (1961), p. 1. The precise use to which such material may be put is, however, perhaps not always clear. I have had regard to what was said in Tasmania v. The Commonwealth (1904) 1 CLR 329, at p 333 where Sir Samuel Griffith said:

"We think that as matter of history of legislation the draft bills which were prepared under the authority of the Parliaments of the several States may be referred to. That will cover the draft bills of 1891, 1897, and 1898. But the expressions of opinion of members of the Conventions should not be referred to."

also to the use made of such material by Dixon J. in the course of his reasoning in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at pp 363-366 and, earlier by Griffith C. J., Barton and O'Connor JJ. in Baxter v. Commissioners of Taxation (N.S.W.) (1907) 4 CLR 1087, at pp 1114-1115 . It is in view of these precedents that I have thought it permissible to refer to the history of the origins of s. 90 and s. 91 as casting light upon provisions whose precise effect and interaction are otherwise subject to some obscurity. In Ealing London Borough Council v. Race Relations Board (1972) AC 342, at p 361 , Lord Simon of Glaisdale has spoken of the unreliable nature of any aid likely to be gained from reference to legislative history and "preparatory works". However the considerations to which his Lordship refers do not, in large part, apply to the quite special case of the evolving form of our Constitution; in particular no "arcana imperii" supplies, and in doing so obscures, the origin and significance of these drafts. (at p144)

18. The second aspect of this case, that involving a challenge to the validity of s. 45D of the Trade Practices Act 1974 (Cth), has been dealt with very fully in the reasons for judgment of Gibbs J. and of Mason J. I do not wish to make this case the occasion for expression of any view upon the power of the Commonwealth validly to compel persons to perform services in relation to overseas or interstate trade and commerce: subject only to that reservation, I would adopt the reasons for judgment of my brothers and have nothing which I wish to add to them. (at p145)

19. I would allow the demurrers and dismiss the suit. (at p145)

MASON J. The plaintiffs in this action for declaratory relief are the Seamen's Union of Australia ("the union"), the secretary of the Union and eighteen seamen who, according to the plaintiffs' amended statement of claim, are members of the union and have been employed by J. Fenwick &Co. Pty. Ltd. upon weekly contracts of employment in manning tugs and lineboats engaged in berthing and deberthing at Hay Point in Queensland ships calling at that that port to load coal produced by the first four defendants. J. Fenwick &Co. Pty. Ltd. engages the crews for the tugs and lineboats, these vessels being operated as part of a ship-handling service conducted by the first four defendants and managed by J. Fenwick &Co. (Hay Point) Pty. Ltd. The ships in question are owned by companies which are controlled by the parent company of the first defendant, Utah Development Company ("Utah Development"). These ships sail under flags of convenience and are crewed by Spanish seamen. The eighteen seamen have since June 1977 declined to work by refusing to man the tugs and lineboats when these vessels were to be used in berthing and deberthing Utah Development's ships. According to the plaintiffs this refusal has been by way of protest against the practice of employing in the coal export trade from Australia ships flying flags of convenience on which no Australian seamen are employed and as a protest against Utah Development's failure to enter into negotiations with the union in relation to the employment of Australian seamen on ships engaged in the coal export trade. (at p145)

2. The first four defendants, Utah Development, Mitsubishi Development Pty. Ltd., Utah Mining Australia Ltd. and the Australian Mutual Provident Society, are parties to an Agreement made on 28th January 1969 with the State of Queensland, the sixth defendant. The third and fourth defendants were not initially parties to the Agreement but became so at a later stage. The Agreement was made by the Premier on behalf of the State of Queensland pursuant to the Central Queensland Coal Associates Agreement Act, 1968. The Act specifically provided that the provisions of the Agreement should have the force of law as though the agreement "were an enactment of this Act" (s. 3). The Agreement, which has been varied from time to time, related to the mining and treatment of coal to be produced by the first four defendants from deposits in central Queensland and to the transportation by rail of the coal so produced to Hay Point and to the export of the coal from Australia. The Agreement conferred certain benefits on the first four defendants to which I shall refer later in greater detail, but the plaintiffs contend (inter alia) that the provision of these benefits was invalid and that it contravened a prohibition to be discovered in s. 91 of the Constitution. The fifth defendant is the Commonwealth Minister for Business and Consumer Affairs. (at p146)

3. The amended statement of claim alleges that the Agreement came into operation; that in consequence mining leases were granted by or on behalf of the State to the first four defendants; that they have mined large quantities of coal from the deposits; that the coal so mined has been carried by the State on a railway built by it to a harbour at Hay Point constructed by the State, the railway and the harbour having been constructed by the State pursuant to an obligation imposed upon it by the agreement; and that at Hay Point the coal has been loaded into Utah Development's ships for export overseas. The pleading goes on to allege that the first, third and fourth defendants, and later the fifth defendant, made application to the Federal Court of Australia for certain orders calling upon the plaintiffs to show cause why orders should not be made against them, the effect of the orders sought being to prevent a continuation of that conduct which had resulted in interference with the berthing and deberthing of Utah Development's ships at Hay Point. (at p146)

4. The amended statement of claim further alleges that on 22nd December 1977 the Federal Court by way of interim relief restrained the eighteen seamen from "withholding, in concert with any person whatever, his or their labour from J. Fenwick &Co. Pty. Ltd. or J. Fenwick &Co. (Hay Point) Pty. Ltd. or both when and to the extent that such labour is according to the ordinary course of practice required for the purpose of bringing in, berthing, or de-berthing" Utah Development's ships or for the purpose of manning the tugs or lineboats to enable Utah Development's ships to be brought in, berthed, or deberthed at Hay Point "where such conduct is engaged in for the purpose and would have or be likely to have the effect of causing substantial loss or damage to the coal exporting business" of the first four defendants, other than the Mitsubishi company, "except where such conduct is within the description in paragraph (a) or paragraph (b) of section 45D (3)" of the Trade Practices Act 1974, as amended ("the Trade Practices Act"). (at p147)

5. The Court also restrained all the plaintiffs from "aiding, abetting, counselling, procuring, inducing or attempting to induce any person whatever to withhold, in concert with any person whatever, his or their labour from J. Fenwick - Co. Pty. Limited or J. Fenwick &Co. (Hay Point) Pty. Limited or both" in similar circumstances for the purposes mentioned in the first order, subject to the same exception. (at p147)

6. The plaintiffs seek declarations that the Central Queensland Coal Associates Agreement Act was outside the legislative powers of the State of Queensland or that the making and implementation of the Agreement, including variations which have been made to it, was outside the powers of the State and that the first four defendants and the State of Queensland are acting unlawfully in implementing the terms of the Act and the agreement. The plaintiffs also claim a declaration that the provisions of the Trade Practices Act, in so far as these provisions purport to prohibit the conduct of the plaintiffs the subject of the orders already referred to, or to confer on the Federal Court jurisdiction to make orders of the kind sought by the plaintiffs, are outside the legislative powers of the Commonwealth Parliament. (at p147)

7. Demurrers to the plaintiffs' amended statement of claim have been filed by all defendants. These demurrers put in issue the plaintiffs' claim to declaratory relief on the various grounds. (at p147)

8. The plaintiffs' case for relief, to the extent to which it relates to the Central Queensland Coal Associates Agreement Act and the Agreement for which it provides, is based on s. 91 of the Constitution. The plaintiffs seek to find in the provisions of this section an implied prohibition against the provision by a State, without the consent of both Houses of the Commonwealth Parliament, of aid to the production or export of goods. The problem is that s. 91 is not framed in terms of prohibition. A prohibition is contained in the preceding provision, s. 90, arising from its conferment upon the Commonwealth Parliament of an exclusive power to impose duties of customs and excise and an exclusive power to grant bounties on the production or export of goods. The function of s. 91 is to relax this prohibition or, as the marginal note indicates, provide "exceptions as to bounties". (at p147)

9. The words "Nothing in this Constitution" refer back primarily, if not exclusively, to s. 90 because there is no other provision in the Constitution which incorporates a relevant prohibition. The one difference in the language of the two sections, a difference which is not easily accounted for, is the use of the expression "aid to or bounty on" in s. 91. It is to be contrasted with the omission of any reference to "aid" in the preceding section. The strength of the plaintiffs' argument is that a relaxation expressed in terms of "aid" is comprehensible only if there is a prohibition which extends to "aid" and that the limitation of the prohibition so as to permit a State "with the consent of both Houses" of the Commonwealth Parliament to grant aid clearly implies that without that consent that provision of aid to the production or export of goods is beyond State power. In an instrument other than a constitution it might be possible to dismiss a qualification of a prohibition which travels beyond the scope of the prohibition as mere surplusage on the ground that it proceeded from a misconception as to the effect of the prohibition. But in the interpretation of a constitution which was debated clause by clause by delegates in conventions such an approach is unacceptable. The provision contained in s. 91, though imperfectly drawn, seems to express the notion that the States may stimulate the production or export of goods if, but only if, the two Houses consent, thereby subjecting the exercise of State power, which may reflect purely State interests, to the approval of the Commonwealth Parliament which should reflect a national and not purely parochial point of view. (at p148)

10. I am accordingly disposed to read "aid" as meaning a form of assistance which stands outside the conception of a bounty. A bounty on the production or export of goods is a payment made in respect of production or export, most commonly a payment which is quantified by reference to the volume of goods produced or exported. "Aid" signifies to my mind assistance given to, but which is less closely connected with, production or export than is a bounty on production or export, as, for example, assistance which is related to a step in the course of production or export, or - and this is debatable - assistance which is related to a matter antecedent to the commencement of production or export without which either production or export would not take place. This conclusion is, however, of little avail to the plaintiffs because it seems to me that "aid" in s. 91 signifies a money payment and that it does not include the provision of other benefits or advantages. The word is used, I think, much in the sense of a pecuniary grant-in-aid or contribution, which is one of the meanings assigned to the word by the Shorter Oxford English Dictionary. (at p148)

11. To give the word a wider meaning so as to embrace advantages or benefits not of a pecuniary kind would be to produce quite devastating consquences, consequences which could not have been intended. It is inconceivable that a section, not cast in the form of a prohibition, should be widely interpreted so as to prevent a State, without the consent of both Houses of the Commonwealth Parliament, from granting by agreement or otherwise, either with or without consideration, mining rights or mining leases, leases or proprietary interests or indeed benefits of any kind, whether proprietary or not, that might operate as an aid to production or export. It would constitute a remarkable restriction on the autonomy of a State if its power to grant proprietary rights and its power to enter into agreements providing for the carriage of a person's goods on State railways or State roads was to be subject to the consent of both Houses of the Commonwealth Parliament merely because the grant of the rights or benefits which flow from the making of the agreement assist the production or export of goods. (at p149)

12. The interpretation which I have placed upon s. 91 disposes of the plaintiffs' case so far as it relates to the Queensland statute and to the Agreement. None of the benefits to which the plaintiffs point constitutes pecuniary aid. The provisions in the Agreement which are said to constitute aid to the production or export of goods are as follows:

(1) The exemption by cl. 4 of Pt I from liability to stamp duty of the agreement and certain other documents on which stamp duty would otherwise be payable by the parties; (2) The agreement by the State to grant an authority to prospect and to grant special coal mining leases; (3) The authorization by the special coal mining leases of the extraction of 150,000,000 tons of coking coal initially and of a further 150,000,000 tons subject to certain contingencies; (4) The agreement by the State to construct a railway line from Goonyella to Hay Point for the purpose of carrying coal mined by the first four defendants, the railway line to have a carrying capacity of at least 5,000,000 tons of coal per annum; (5) The agreement by the State to provide the necessary locomotives and railway stock for the operation of the railway; (6) The agreement by the State to carry coal mined by the first four defendants up to the carrying capacity already mentioned; (7) The agreement by the State to give all shipments of coal offered by the first four defendants priority in transportation over the railway; (8) The agreement by the State not to transport on the railway coal, coke or other coal by-products for any other person except at a freight rate not less than 1 1/4 times that chargeable under the agreement; (9) The provision that the State would arrange for a Harbour Board to be constituted and that the Harbour Board would construct a harbour at Hay Point; (10) The provision that the use of the harbour by persons other than the first four defendants should be subject to the prior approval of the Treasurer and that in considering any application for approval the Treasurer should ensure that no other use would unduly delay or interfere with the shipments of the first four defendants' coal through the harbour; (11) The agreement by the State that it would provide and maintain the harbour and all necessary pilot services not later than the date on which shipments were to be made at Hay Point; (12) The provision that the first four defendants should have the right to manage and operate the loading of coal-carrying vessels which entered the harbour; (13) The provision that the first four defendants should have the right to provide and operate tug services for vessels used in the carriage of their coal; (14) The provision that the first four defendants should have the right to obtain water from any river, stream or other source within the catchment area referred to in the agreement, and that the rights granted to any other person should be so limited that the quantity of water to which the first four defendants were entitled would not be diminished; and

(15) The agreement by the State that it would provide and maintain educational facilities and police for any town to be constructed by the first four defendants at the site of the coal mine. (at p150)

13. Neither these provisions of the Agreement nor their implementation constituted an infringement of s. 91 for the reason that they did not involve or result in the provision of pecuniary aid. The plaintiffs' case for declaratory relief in relation to the Queensland statute and the agreement fails accordingly. (at p150)

14. It is not necessary to decide whether the plaintiffs have locus standi to obtain the relief sought or whether it would have been proper for the Court to grant declaratory relief whilst proceedings were pending in the Federal Court of Australia. But I find it difficult to see how the plaintiffs have any interest to attack the validity of the Queensland statute and the Agreement. It is not suggested that either the statute or the Agreement has any application to them. All that is suggested is that a relevant issue in the proceedings in the Federal Court is whether the business carried on by the first four defendants is a business which is being lawfully carried on. This is because the prohibition contained in s. 45D (1) of the Trade Practices Act requires that the prohibited conduct is engaged in for the purpose, and would have or be likely to have the effect, of causing the consequence mentioned in par. (a) or (b) of the subsection. In the instant case it is (a) that is relevant, the case presented in the Federal Court being that the individual plaintiff's conduct is causing or will cause a "substantial loss or damage to the business" of the first four defendants. For the plaintiffs it is contended that there can be no substantial loss or damage to the defendants' business if it is a business which depends for its existence on unauthorized mining of coal and an unauthorized use of State railways and State harbour facilities. I say nothing as to the outcome of this submission except to state that is a question to be determined by the Federal Court in the proceedings before it. I doubt very much that this gives the plaintiffs a locus standi to commence separate proceedings for a declaration of invalidity or that it provides a ground for the Court exercising its discretion to grant declaratory relief on the assumption that the substantive issue would be resolved in favour of the plaintiffs. (at p151)

15. The plaintiffs' case for a declaration of invalidity in respect of the Trade Practices Act was elusive, to say the least of it. The unexpressed assumption made by the plaintiffs was that the corporations power (s. 51 (xx.)) was not a relevant source of constitutional power because the plaintiffs are not corporations, or corporations of the kind mentioned in s. 51 (xx.). The plaintiffs' argument was presented on the footing that the only possible source of constitutional power for an application of the Trade Practices Act to the present case was s. 51 (i.) in so far as it relates to trade and commerce between Australia and other countries. (at p151)

16. The Trade Practices Act is so framed that it is not a mere exercise of the corporations power. The statute is given an extended operation by s. 5 and an additional operation by s. 6, as to which see Reg. v. Australian Industrial Court; Ex parte C.L.M. Holdings Pty. Ltd. (1977) 136 CLR 235 . For relevant purposes s. 45D (1) is given an operation by s. 6 (2) (b) which confines it to "engaging in conduct to the extent to which the conduct takes place in the course of or in relation to - (i) trade or commerce between Australia and places outside Australia; . . . ". Section 45D (1) is therefore to be read as if it prohibited a person "in concert with another person" from engaging "in conduct that hinders or prevents the supply of goods or services by a third person to a corporation (not being an employer of the first-mentioned person)" (to the extent to which the conduct takes place in the course of or in relation to trade or commerce between Australia and places outside Australia) "where the conduct is engaged in for the purpose, and would have or would be likely to have the effect, of causing - (a) a substantial loss or damage to the business of the corporation or of a body corporate that is related to the corporation; . . .". It is the words in square brackets which are introduced by s. 6 (2) (b). (at p152)

17. It is conceded that the activities in which the individual plaintiffs are employed, manning tugs and lineboats which berth and deberth vessels engaged in overseas trade and commerce, form part of that trade and commerce. This concession was correctly made. There can be no doubt that the trade and commerce power extends to the provision of services in berthing and deberthing ships travelling between foreign ports and Australian ports and to the employment of workers in the provision of those services, just as the power extends to stevedoring operations and to the employment of waterside workers in such operations in connexion with such ships: see O'Sullivan v. Noarlunga Meat Ltd. (1954) 92 CLR 565, at p 598 ; Airlines of New South Wales Pty. Ltd. v. New South Wales (No. 2) (1965) 113 CLR 54, at pp 78, 92, 149, 166 ; Logan Downs Pty. Ltd. v. Federal Commissioner of Taxation (1965) 112 CLR 177, esp at p 187 ; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan (1931) 46 CLR 73, at p 103 , and Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia (1955) 93 CLR 528, at p 543 . (at p152)

18. Although it was conceded that in the exercise of the trade and commerce power the Parliament can validly regulate the conduct of persons employed in those activities which form part of overseas trade and commerce, it was submitted that in the regulation of such conduct Parliament cannot validly compel persons to take up or continue in employment in activities which form part of that trade and commerce. The plaintiffs therefore focussed their attention on s. 4 (2) of the Trade Practices Act which deals with the meaning of the expression "engaging in conduct". The sub-section is in these terms:
"In this Act -
(a) a reference to engaging in conduct shall be read as a reference to doing or refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (b) a reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), shall be read as a reference to the doing of or the refusing to do any act, including the making of, or the giving effect to a provision of, a contract or arrangement, the arriving at, or the giving effect to a provision of, an understanding or the requiring of the giving of, or the giving of, a covenant; (c) a reference to refusing to do an act includes a reference to - (i) refraining (otherwise than inadvertently) from doing that act; or (ii) making it known that that act will not be done; . . . " The plaintiffs submitted that by virtue of this provision a termination by an employee of his employment or a refusal by a person to continue his employment or a refusal to take up employment in activities forming part of overseas trade and commerce constitutes "engaging in conduct" that is prohibited according to the terms of s. 45D (1). This, so the argument proceeds, exceeds the boundaries of the legislative power with respect to trade and commerce between Australia and other countries with the consequence that s. 45D (1) is invalid. (at p153)

19. In support of, or more accurately, by way of illustration of, this argument the plaintiffs pointed to the interim orders made by the Federal Court. These orders, it was submitted, have the effect of requiring the individual plaintiffs to refrain from giving notice of termination of their employment and of compelling these plaintiffs to remain in the employment of J. Fenwick &Co. Pty. Ltd. or J. Fenwick &Co. (Hay Point) Pty. Ltd. It was contended that a law which authorized the making of such orders was not a law with respect to trade and commerce but a law with respect to employment. (at p153)

20. As it was expressed this argument suffered from two defects. The first is that the provision contained in s. 4 (2), when read in conjunction with s. 45D (1), should not be read as extending the prohibition contained in the latter section to termination of employment, refusal to continue in employment or refusal to take up employment. No doubt the expression "engage in conduct" is apt to inhibit a refusal of services by a person whilst he continues in the relevant employment. But in my view it should not be understood to restrict a person's freedom of choice to remain as an employee or to cease to be an employee. The interim orders should be read in a similar fashion so as to restrain the individual plaintiffs whilst they continue in their employment from engaging in the conduct which has been enjoined. It is not readily to be supposed that his Honour intended to order indefinite continuation of contracts of personal service. So read the interim orders conform with s. 45D (1) and s. 4 (2) of the Trade Practices Act. (at p154)

21. The second defect in the plaintiffs' argument is that even if the Act is to be read as authorizing the making of orders compelling persons to perform contracts of personal service it would not for this reason stand outside the trade and commerce power. It is well accepted that a statute may constitute a law with respect to more than one subject matter or topic. So long as it is a law with respect to a permitted subject matter it is not to the point that it is also a law on a subject matter with respect to which there is no grant of legislative power. A law with respect to overseas trade and commerce is a valid law and it does not cease to be valid because it can also be characterized as a law with respect to employment. There is nothing inherent in employment as a subject matter which takes it outside the reach of a legislative power with respect to trade and commerce between Australia and other countries. In the exercise of that power the Parliament may not only regulate the employment of those whose activities form part of the relevant trade and commerce; in my opinion it may also impose obligations on employers to employ certain persons and it may likewise require employees to continue in their existing employment and to take up new employment in activities which form part of that trade and commerce. (at p154)

22. For these reasons I would allow the demurrers and dismiss the suit. (at p154)

JACOBS J. I agree with the reasons which have been expressed by Mason J. and with his conclusion that the demurrers should be allowed and the suit dismissed. (at p154)

MURPHY J. The plaintiffs, the Seamen's Union of Australia, the Secretary of the union, and eighteen seamen who are members of the union, have challenged the validity of s. 45D of the Trade Practices Act 1974 (inserted by amendment No. 81 of 1977) and of the Central Queensland Coal Associates Agreement Act, 1968 (Q.). The defendants demurred, asserting the validity of the legislation. Facts stated in the demurrer book disclose that the plaintiff seamen refused to man certain ships owned by companies controlled by the parent company of the first defendant, Utah Development Company. These ships sail under Liberian flags of convenience and are crewed by Spanish seamen employed on terms different from, and in some respects more disadvantageous to seamen than, those recommended by the International Transport Federation. This action is, among other things, in protest against the practice of employing in coal export trade from Australia ships flying flags of convenience on which no Australian seamen are employed and against Utah's failure to enter into meaningful negotiations with the union in relation to the employment of Australian seamen on ships engaged in the coal export trade. (at p155)

2. The expression, "flags of convenience", in the statement of claim refers to a system which has been widely criticized because of the consequences of absence of social control (see Convention Concerning Minimum Standards in Merchant Ships, Geneva 1976, International Labour Conference; Economic Consequences of the Existence or Lack of a Genuine Link between Vessel and Flag of Registry Report by the Secretariat, United Nations Conference on Trade and Development, 10th March 1977; Rowan and Northrup, "International Enforcement of Union Standards in Ocean Transport", British Journal of Industrial Relations, vol. 25, p. 388). (at p155)

3. A flag of convenience is a "flag of any country allowing the registration of foreign-owned and foreign-controlled vessels under conditions which, for whatever the reasons, are convenient and opportune for the persons who are registering the vessels" (Lawrence L. Herman, "Flags of Convenience - New Dimensions to an Old Problem", McGill Law Journal, vol. 24, (1978), p. 1, citing Boczek, Flags of Convenience (1962)). Often the vessel is referred to as a flag of convenience; in this sense, a "flag of convenience" is a vessel which has no genuine link with the country of its flag of registry. "Crews of convenience" has a similar meaning and they are generally associated with flags of convenience. Most of Australia's exports and imports are carried by flags of convenience manned by crews of convenience. Flags of convenience have been known for centuries, but their growth, which is largely a post-World War II phenomenon has been dramatic, causing an equally dramatic decline of the national shipping systems. (at p155)

4. In the Federal Court of Australia, Utah Development Company invoked the 1977 amendments to the Trade Practices Act to claim an injunction against the Seamen's Union on the basis that an attempt to curb the use of flags of convenience is an attempt to injure Australia's trade and commerce with other countries. Section 45D applies anti-trust laws to trade unions by prohibiting the use of secondary boycotts in certain circumstances and providing for liability in a union for any loss or damage caused by actions of individual members or officers in concert. Section 6 extends the operation of various provisions of the Act beyond corporations to other spheres including trade and commerce. When s. 45D (1) is read with s. 6 (2) (b), the result is that a person shall not engage in concert with another in the conduct referred to in s. 45D (1) in the course of or in relation to trade or commerce between Australia and places outside Australia, among the States, with a Territory, between a State and a Territory, or between two Territories. Part IV of the Act provides for injunctions, actions for damages and other orders. An injunction might be applied for by the Minister, the Trade Practices Commission or any other person (s. 80). (at p156)

5. To succeed, the plaintiffs had to demonstrate that s. 45D was not authorized by either the trade or commerce power (s. 51 (1))or the corporations power (s. 51 (20)) as the section could draw constitutional support from both powers. However, they presented no argument in relation to the corporations power. (at p156)

6. Section 45D (3) relaxes the effect of sub-s. (1) if the dominant purpose for which the conduct is engaged in is substantially related to remuneration, conditions of employment, hours of work or working conditions of employees. The sub-section, in referring to remuneration and conditions of employees, no doubt reflects the view adopted in Metal Trades Employers Association v. Amalgamated Engineering Union (1935) 54 CLR 387 that a union and its members have a legitimate interest in the remuneration and conditions of employees who are not members of the union; it discloses a legislative intention to involve the judiciary in the determination of the purpose of the conduct referred to. This may be contrasted with the United States of America legislation where Congress has seen the dangers (including the danger to the judicial system) in involving courts in inquiries into the purpose and motive of participants in industrial struggles and has severely limited the involvement of the judiciary in these areas, (see Meat Cutters Union v. Jewel Tea Co. (1965) 381 US 676 (14 Law Ed 2d 640) , especially the judgment of Goldberg J.). (at p156)

7. The plaintiffs conceded that they were engaged in trade and commerce within s. 51 (i.) of the Constitution. The trade and commerce power is very wide; the protection of trade and commerce with other countries and among the States is undoubtedly within it. In my view, s. 45D is (with the possible exception of s. 45D (5)) clearly a law with respect to trade and commerce with other countries and among the States. Sub-section (5) presents some difficulty. It provides for the fastening of liability on the union for acts in concert of members or officers unless the union took all reasonable steps to prevent the participants from engaging in that conduct. It is not necessary that the union should participate knowingly, or even indirectly, in the conduct. The fact that the legislature has made the conduct of a member of an organization the occasion for subjecting the organization to liability without proof that it was involved in the conduct of the member was not discussed in this case, but it seems to me to be of some importance. This is the converse of the legislation considered in the Australian Communist Party v. The Commonwealth (1951) 83 CLR 1 , in which persons who belonged to an association were penalized by the legislature which debarred them from holding certain civil or political offices. In s. 45D (5), the union is made liable if its members or officers commit the designated conduct. However, no argument was put that this part of the section was outside the constitutional power. (at p157)

8. Although counsel for the plaintiffs referred to s. 4 which deals with the meaning of engaging in conduct and contended that refusal to continue in employment or to take up employment would, by reason of s. 4, be subject to proceeding under s. 45D, yet the challenge was not extended to embrace s. 4 but was confined to s. 45D. Parliament is not authorized under the trade and commerce power to introduce or enforce some form of serfdom. The trade and commerce power (s. 51 (i.)) is, by the opening words of s. 51, made subject to the Constitution. The Constitution is a framework for a free society. No doubt in some circumstances a law (federal or State) can validly place persons in a role inconsistent with the status of a free person. But these circumstances must be very limited. Examples are infancy, unsoundness of mind, administration of the ordinary criminal law and quarantine. No substantial argument was addressed to this aspect. Indeed, only fleeting argument was put in regard to s. 45D. Questions which may arise in relation to enforced employment are better left until they can be considered in the light of substantial legal argument. The question whether the interim order made by the Federal Court (which enjoined withholding of labour) was partly beyond power does not arise. (at p158)

9. The effect of allowance of the demurrer is that the relevant paragraphs of the statement of claim which assert that s. 45D is invalid should be struck out. In view of the almost entire lack of argument against the validity of s. 45D, I would allow the demurrer. This reflects the opinion that even if a substantial argument could be advanced against parts of the legislative scheme which included s. 45D, none was advanced here. (at p158)

10. The plaintiffs also claim that the Central Queensland Coal Associates Agreement Act is invalid and its implementation unlawful on the ground that this State Act infringes s. 91 of the Constitution. I doubt whether the plaintiffs have any standing to challenge the validity of the State Act, and therefore will state my conclusions briefly. (at p158)

11. Section 91 which is in Ch. VI of the Constitution headed "Finance and Trade" states:

"Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods."

It must be read in connexion with s. 90 and should be read in the context of the surrounding sections. Section 90 provides:

"On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise."

Therefore, a State may grant "any aid to or bounty on mining for gold, silver, or other metals"; with the consent of both Houses expressed by resolution, a State may grant "any aid to or bounty on the production or export of goods"; otherwise, the power to grant bounties on the production or export of goods is exclusively in the Federal Parliament. The natural meaning of ss. 90 and 91 is that a State has no power to grant any aid to production or export of goods except if this is aid "to mining for gold, silver, or other metals" or if it is with the consent of both Houses of the Federal Parliament. (at p159)

12. If the word, "aid", in s. 91 is given a wide meaning which would embrace all kinds of assistance, this would have an extremely crippling effect on the economic role of the States. No rationale was suggested for the inclusion of such a provision in the Constitution. This meaning should not be given to "aid" if there is another meaning without such adverse consequences. There is another meaning free of these consequences. The sections surrounding ss. 90 and 91, that is, ss. 86, 87, 88, 89, 92, 93, 94 and 95, are all concerned with finance. They are in Ch. VI, headed, "Finance and Trade". With the exception of s. 92, the others are obviously concerned with finance. In my opinion, expressed in Buck v. Bavone (1976) 135 CLR 110 and later cases, s. 92 is also concerned with finance. Similarly, s. 91 should be read as concerned with finance. Section 92 applies to fiscal imposts or burdens, and s. 91 applies to fiscal aids. (at p159)

13. Section 92 does not apply to non-fiscal burdens and s. 91 does not apply to non-fiscal aids. The restriction of aid in s. 91 to fiscal aid is also consistent with the long parliamentary use of the expression, "aids and bounties". (at p159)

14. The plaintiffs have pointed to a number of ways in which the Act assists the respondent, Utah Development Company. Most are obviously not fiscal; some might prove on a proper examination to be fiscal. However, the plaintiffs have not demonstrated that any is fiscal; their attack being based on the view that all assistance, fiscal or non-fiscal, is forbidden by s. 91. The State Act should, in these proceedings, be held valid. In my opinion, as the interest of the plaintiffs, if it exists, is slight, and the possibility of its standing to challenge the legislation and its application is tenuous, this is not the case for any definition of what amounts to aid within s. 91, other than that it is restricted to fiscal aid. On this aspect the demurrer should be allowed. (at p159)

15. The suit should be dismissed. (at p159)

AICKIN J. I have had the advantage of reading the reasons for judgment of Gibbs J. and of Mason J., and am in agreement with them. I would therefore allow the demurrers and dismiss the suit. (at p159)

Orders

Demurrers allowed with costs.

Action dismissed with costs.