Seamens' Union of Australia NSW Branch & Ors v Commonwealth of Australia

[2006] HCATrans 237

[2006] HCATrans 237

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S104 of 2006

B e t w e e n -

THE SEAMENS’ UNION OF AUSTRALIA NEW SOUTH WALES BRANCH

First Plaintiff

AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS NEW SOUTH WALES DISTRICT

Second Plaintiff

THE MARITIME UNION OF AUSTRALIA

Third Plaintiff

THE AUSTRALIAN INSTITUTE OF MARINE AND POWER ENGINEERS

Fourth Plaintiff

and

COMMONWEALTH OF AUSTRALIA

Defendant

Summons

GLEESON CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 MAY 2006, AT 9.45 AM

(Continued from 12/4/06)

Copyright in the High Court of Australia

__________________

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR P. KULEVSKI, for the plaintiffs.  (instructed by W.G. McNally & Co)

MR H.C. BURMESTER, QC:   May it please the Court, I appear for the Commonwealth.  (instructed by Australian Government Solicitor)

MR G.J. HATCHER, SC:   May it please the Court, I appear for CSL Pacific Shipping Incorporated with my learned friend, MR C.S. WARD.  We seek, to put it neutrally, to participate in the proceedings.  (instructed by Australian Business Lawyers)

HIS HONOUR:   You want to be joined as a defendant, as I understand it.

MR HATCHER:   That is our application, yes, your Honour.

HIS HONOUR:   Which I presume is under rule 21.05?

MR HATCHER:   It is, your Honour.

HIS HONOUR:   We might as well deal with that application first.  What is your attitude to that, Mr Gleeson?

MR GLEESON:   Your Honour, our attitude is to oppose that on the ground that it is not within Part 21, rule 5, either (b) or (c).  Under (b) there is no necessity established and to that extend Australian Tape Manufacturers 94 ALR 641 remains a relevant authority - Justice Dawson. They are not necessary. The point is simply is the regulation valid or invalid?

HIS HONOUR:   Your submission would be that the suit would not have been defective for want of parties, or was not defective for want of parties when it was started?

MR GLEESON:   Exactly, your Honour.

HIS HONOUR:   Yes.  What about (c)?

MR GLEESON:   Under (c) there needs to be some additional question between the plaintiffs and Mr Hatcher’s clients which has a relevant relationship with the claim in our proceeding.  There is no additional question.  They simply seek to be heard on the claim in our proceeding.

HIS HONOUR:   Let me just have a look at these decisions.  Do these decisions touch the second point or only the first one?

MR GLEESON:   Only the first.

HIS HONOUR:   To come back then to that second point, I have read, but only briefly, the affidavits that have been filed to explain what is going on elsewhere in this matter, but let me see what Mr Hatcher has to say.

MR GLEESON:   If your Honour pleases.

HIS HONOUR:   Yes, Mr Hatcher.  Do I need to look more carefully at that evidence that you have filed in order to determine this question?

MR HATCHER:   I think, your Honour, I will be able to synthesise it rather briefly, perhaps, more conveniently than going through it all.  Your Honour will be aware that there has been some history of irritation between our learned friend, Mr Gleeson’s, clients and our client in relation to the conditions to apply to the seafarers engaged by our client.  It was the subject of proceedings before this Court.

Following on from those proceedings there was an application for an award advanced before the Australian Industrial Relations Commission and in accordance with the judgment of this Court in those proceedings our client advanced an argument under section 111(1)(g) of the Workplace Relations Act that the internal economy rule was such that it was inappropriate for an award to be made. That argument did not find favour with the Commission. However, the Commissioner went on to determine in our client’s favour the question of whether it was appropriate to bind our client to the Maritime Industry Seagoing Award. So there was a partial success in the section 111(1)(g), but not on the point material to these proceedings.

Subsequently, the award proceedings went forth and in those award proceedings the Commissioner heard further evidence and ultimately came to the conclusion that there was no jurisdiction in the Commission to make an award because of the particular circumstances of the determination of wages and conditions of our learned friend’s client’s members.  He also determined on the merits that even if he had jurisdiction he would not have made an award as a matter of discretion, or made the award that was sought.

There is an appeal brought from those proceedings, but, of course, the appeal was brought under the Act as amended in the legislation that was before the Court, I think, two weeks ago.  The amended legislation has within it a number of regulations that affect the matter.  Regulation 1.1 is one, regulation 2.9 is another.

HIS HONOUR:   Just explain to me how those regulations affect his case?

MR HATCHER:   If it please your Honour, regulation 1.1 would exclude our client from the operation of the Workplace Relations Act in respect of all members of the crew of the vessels that our client owns and operates and so it is a complete answer to the proceedings.  Regulation 2.9 of Chapter 7, the transitional regulations ‑ ‑ ‑

HIS HONOUR:   What is the section of the Act under which that regulation 1.1 is made?

MR HATCHER: Section 12 of the Act, your Honour.

HIS HONOUR:   Yes.

MR HATCHER:   Regulation 2.9 of Chapter 7 of the Act, your Honour, applies basically in respect of the particular proceedings that were before the Commission in which our client was involved and our learned friend’s client was involved.  It is in these terms: 

(1)      This regulation applies if:

(a)an application was made to the Commission for the making or variation of an award, that had the effect of setting wages and conditions of employment in relation to non‑citizen crew members on permit ships who are employed by a foreign corporation, before the reform commencement; and

(b)the Commission made or varied an award in response to the application before the reform commencement.

(2)On and from the reform commencement:

(a)the award ceases to have effect –

essentially, to the relevant parties.

HIS HONOUR:   These proceedings are only concerned with regulation 1.1, are they?

MR GLEESON:   That is the only matter we tender, your Honour.  There is no challenge to the constitutional validity of regulation 2.9 that we make.

MR HATCHER:   Your Honour, going to the proceedings before the Commission because in order for the proceedings that are presently before the Commission, which is an appeal from Commissioner Raffaelli’s decision to decline making an award, to have any effect the applicant in those proceedings, the third and fourth plaintiffs in these proceedings, needs to overcome the effect of regulation 1.1.  If regulation 1.1 be valid, it is a complete answer to that award proceeding, because any award that was made would simply not have application to our client.  So the determination of the validity or otherwise of regulation 1.1 is vital, in our respectful submission, to the disposition of those proceedings presently before the Commission.

HIS HONOUR:   Yes.

MR HATCHER:   If it please your Honour, our clients are, I should say, not committed to being joined as a defendant.  We would be equally content to be heard as an intervener, but it is clear that our client is affected by these proceedings.  When one looks through the history of the matter detailed in the affidavit of Mr Seck, one sees that there were permit ships operating on the Australian coast with ‑ ‑ ‑

HIS HONOUR:   Could I just interrupt you to say that if you are making an application for leave to intervene, I do not think I would be the appropriate person to make that application to.  The application would be made to the court dealing with the proceedings.

MR HATCHER:   I accept that, your Honour.

HIS HONOUR:   So I understand that I am here this morning dealing with an application that I make an order under rule 21.05.

MR HATCHER:   Well, your Honour, the proceedings that are directly affected by the outcome of these proceedings are the proceedings in the Industrial Relations Commission to which I have referred.  Our client’s interest ‑ ‑ ‑

HIS HONOUR:   Well, let us just concentrate on paragraph (c).  The question is whether regulation 1.1 is valid.  Is that right?

MR HATCHER:   Yes, your Honour.

HIS HONOUR:   Yes.

MR HATCHER:   So if it please your Honour, our client would seem to be in at least a position the corollary of the pastoralists and the mining companies in Mabo, a matter that was the cause of some comment in the High Court in the proceedings involving the new legislation.  Last week I think there was an exchange.

HIS HONOUR:   I thought the pastoralists and the mining companies did not, as they say, get a guernsey at Mabo.

MR HATCHER:   And I think that was the subject of some critical comment by at least his Honour Justice Callinan and I think one or two of the other Justices joined in those observations, in transcript at least, in the proceedings last week, that there can be impacts on natural justice where people who are critically affected by decisions as to the validity of legislation are not heard.

HIS HONOUR:   Well, that may go to the question of the discretion conferred by the opening words of rule 21.05, but the point that Mr Gleeson raises, whether it is good or bad, is he denies that there exists a question of the kind referred to in paragraph (c) because he says it has to be a different or a separate question apparently from – there is only one question in the proceedings between Mr Gleeson and Mr Burmester and that is the validity of regulation 1.1 and your argument, as I understand it, is that that is a question that exists between you and the unions and, indeed, that you are going to argue about in the Commission.

MR HATCHER:   Quite, your Honour.  It was argued yesterday on the question of leave, but that is not determinative of the proceedings; that is a question of just whether the proceedings continue or not.  Our client’s reliance on regulation 1.1 is – the outcome of these proceedings wholly determines the question of the ongoing appeal proceedings before the Industrial Relations Commission.  We say that is a question that is just and convenient to be heard and determined in one place and, appropriately, this place.

HIS HONOUR:   Is the justice and convenience of that affected by the consideration that it seems very improbable, subject to what happens a little later this morning, after we have dealt with your application, that this matter would be heard and determined before a decision is given in the case that was argued a couple of weeks ago?

MR HATCHER:   Well, your Honour, if the case that was argued a couple of weeks ago were to be determined on the basis that the new legislation was totally invalid – and I do not understand that that is pressed ‑ ‑ ‑

HIS HONOUR:   Pressed where?

MR HATCHER:   In those proceedings in terms of the ‑ ‑ ‑

HIS HONOUR:   Well, I think your understanding is wrong.

MR HATCHER:   I am sorry, your Honour, I saw a continuing reference to a matrix and we had inquiries made of ‑ ‑ ‑

HIS HONOUR:   Well, there are about 40‑odd issues I think that have been raised for decision, but a number of them, if decided in favour of the States and the unions in those proceedings would, according to the arguments for the plaintiffs, result in complete invalidity of the Act - including section 12; that is the point.

MR HATCHER:   Yes.

HIS HONOUR:   If you were joined in these proceedings what, if any, consequence would that have for what is going on in the Commission?

MR HATCHER:   Our joinder in these proceedings, your Honour, I do not think I could say it would have any direct impact on what goes on in the Commission.  The Commission has to proceed and has to proceed assuming the validity of the law until it is told otherwise.

HIS HONOUR:   Am I right in thinking that if you argued and lost this point in the Commission, the next thing that would happen would be that there would be proceedings for prohibition brought by you in this Court?

MR HATCHER:   That may be a very prescient view of our client’s position, your Honour.

HIS HONOUR:   All right, let me see what Mr Gleeson has to say.

MR HATCHER:   If it please your Honour.

HIS HONOUR:   Mr Gleeson, does your argument turn entirely on whether or not there is a question of the kind referred to in paragraph (c)?

MR GLEESON:   No, that is the first step and the second is even if there was, what is just and convenient.  I should clarify, your Honour, the Commission is not being asked to determine the constitutional validity of regulation 1.1.  The argument there is proceeding on the basis that that is a regulation, on our side, is not a complete answer to what is occurring there even assuming it is valid.  There are other arguments - I will not go into them. 

HIS HONOUR:   You mean there has been no argument in the Commission about the validity of regulation 1.1?

MR GLEESON:   Correct.  It is assumed, on our part, for that purpose to be a matter that is being dealt with in these proceedings.  Secondly, there is a time limit on those Commission proceedings.  They have to be heard and determined within six months from 27 March under the Act in order to have any validity.  They would just simply run their own course.

Mr Hatcher is correct in saying, if they were joined here it would have no impact on the proceedings in the Commission and there is nothing that they would be bringing to this Court by way of prohibition.  The point comes down to simply, is the regulation valid or invalid?  We accept that they have an interest in that question and other people in the community may, but when out suit is being joined between us and a proper defendant, the Commonwealth, who has demurred to our statement of claim last night and intends to defend the proceedings vigorously, either there is no additional question or there is no justice inconvenience in bringing them in or, for that matter, anyone else.

HIS HONOUR:   Let me take the first part of that. 

MR GLEESON:   Yes.

HIS HONOUR:   Mr Hatcher’s clients in the Commission are relying on regulation 1.1.  You say that in the Commission your clients are not denying the validity of regulation 1.1, but in this Court they are claiming that regulation 1.1 is invalid.

MR GLEESON:   Yes, your Honour, but could I clarify that.  It is actually regulation 2.9 that is the centrepiece of what they are seeking to do in the Commission - it is not 1.1 at all.  It is 2.9 because under 2.9, they are arguing that where there is a foreign ship, foreign crew permit situation ‑ ‑ ‑

HIS HONOUR:   We are not concerned with 2.9, are we?

MR GLEESON:   No, I am just clarifying that that is what their true reliance is on in the Commission, 2.9 not 1.1.

HIS HONOUR:   There seems to be an issue of fact between you and Mr Hatcher about that. 

MR HATCHER:   That is so, your Honour.

HIS HONOUR:   How do I resolve that?

MR HATCHER:    Your Honour, it is in the affidavit of Michael Seck, annexed as the written submissions in the proceedings.  Both the submissions – what my friend says as to his client’s position is right, they accept the validity of 1.1 for the purposes of the Commission ‑ ‑ ‑

HIS HONOUR:   Yes, but what he is now saying is that you are not relying on 1.1.

MR HATCHER:   We clearly do, it is in our written submissions.  It was relied on yesterday before the Full Bench of the Commission.  What was said in relation to it was – the President said is that not going to exact some unfairness on the applicants given that they are in proceedings in the High Court and the appeal has to run within six months.  Our answer to that was, if it does exact unfairness that is what the legislation does.  The legislation could equally have denied rights of appeal.  The Commission takes the legislation as it finds it.  Regulation 1.1 is valid on its face and is not challenged in the proceedings – you are bound to act on it.  We also rely on 2.9 and there was detailed argument about 2.9.

HIS HONOUR:   Yes, thank you.  Mr Gleeson, it does seem to be the case that in the Commission Mr Hatcher is relying on regulation 1.1 and, I must say, for the moment, I cannot imagine why he would not be relying on regulation 1.1.

MR GLEESON:   It is because regulation 2.9 is the specific regulation targeting his situation.  It is the one designed to say ‑ ‑ ‑

HIS HONOUR:   That just means he does not need, or he may not need, to rely on 1.1.

MR GLEESON:   I will say nothing further on that, your Honour.

HIS HONOUR:   Yes.

MR GLEESON:   We are down to a situation where, even if it be a relevant question, ie, the same question that they seek to join – why is it just and convenient to determine that question between us and them as well as between us and the Commonwealth?  If the Court decides the matter between us and the Commonwealth, it will do so after full argument on both sides and that will declare the law of the land for all persons who may have any interest in the matter.  Why is it just and convenient to join them or anyone else who may be a foreign ship?  There is nothing in the affidavit to suggest they have additional evidence to bring.  There is nothing to suggest at the moment they have some additional legal argument that the Commonwealth is forsaking.  It is quite unclear why it is necessary to have a second person arguing the other side of the coin on the same question.

HIS HONOUR:   Thank you.  Mr Burmester, do you have anything to say about that?

MR BURMESTER:   No, your Honour.  We would consent to them being joined – the application being agreed to – but have nothing further to add.

HIS HONOUR: These proceedings are brought by four plaintiffs seeking a declaration of the invalidity of regulation 1.1 of the Workplace Relations Regulations 2006. That regulation was made under section 12 of the Workplace Relations Act 1996 as amended by the legislation, the validity of which was challenged in proceedings that were heard in this Court quite recently. There are current proceedings, part of which were heard as recently as yesterday in the Australian Industrial Relations Commission. The nature of those proceedings is explained in a number of affidavits - can I take those affidavits as read?

MR GLEESON:    If your Honour pleases.

HIS HONOUR:   Which have been filed and read.  It is unnecessary for me to go into the detail of that.  It suffices to say that one argument that is being advanced on behalf of Mr Hatcher’s client or a related company in the proceedings in the Commission is that regulation 1.1 is a complete answer to claims that are being made by Mr Gleeson’s clients in those proceedings.  Mr Gleeson has pointed out that no argument as to the validity of regulation 1.1 is being raised by his clients in the Commission and it appears that the Commission is proceeding upon the assumption of the validity of regulation 1.1.

Nevertheless, it seems to me that since Mr Gleeson’s clients are in this Court challenging the validity of regulation 1.1 there exists between Mr Hatcher’s client and Mr Gleeson’s clients a question within the meaning of rule 21.05.1(c) of the Rules of this Court.  Furthermore, it seems to me that it is just and convenient to determine that question as between Mr Hatcher’s client and Mr Gleeson’s clients as well as between Mr Gleeson’s clients and the Commonwealth.

In that respect, Mr Gleeson has urged that it may be improbable that Mr Hatcher’s client would advance any argument different from the argument that will be advanced on behalf of the Commonwealth or to put it more brutally will make any contribution to those proceedings if joined as a party.  That may or may not be so.  Mr Hatcher has foreshadowed that if his application this morning were unsuccessful he would be here on the occasion of a hearing of the proceedings between Mr Gleeson’s clients and the Commonwealth seeking leave to intervene.  I think it can reasonably be assumed that if Mr Hatcher’s client is joined and if it appears that the time of the Court is not being fruitfully occupied by submissions made on behalf of his client that time will be truncated.  I propose to make an order as sought by Mr Hatcher’s claims. 

Now, in terms of the progress of this matter, subject to anything that anybody might want to say, at the moment I can not see anything to be gained by sending the matter to the Federal Court.  My present inclination, subject to anything that counsel would want to say, would be to see what happens in relation to what I will call the main case, that is the proceedings that we heard a couple of weeks ago and then depending on the outcome of those proceedings, if it is necessary to go ahead with the hearing the determination of these proceedings, to list them in this Court, as it were, virtually straightaway after that.

MR GLEESON:   Your Honour, we certainly seek the first part of that, namely the matter remain here.  We submit that is appropriate.  As to the second, there is obviously a balancing act.  If the States and the unions were to succeed on their main point, this case is totally unnecessary.  On the other hand, if they were to fail on their main point but arguments such as the Western Australian argument on bare exclusion of State laws became critical to the resolution of the matter, our point is in that same field.

HIS HONOUR: But we have to decide that point too. Have you seen that matrix? Mr Burmester may or may not have a copy. I am right in thinking, am I not, Mr Burmester, that even if the attack on the validity of the entire Act were to fail, there is a separate Western Australian argument that would go to the validity of section 12?

MR BURMESTER:   Your Honour, their attack is on section 16.

HIS HONOUR:   I knew that.

MR BURMESTER: It may have then implications for the resolution of this matter because this matter does raise the relationship between section 12 and section 16, but the arguments made by Western Australia do not directly address this particular issue, the relationship between section 12 and section 16. They touch on similar issues, but it does seem to me that the matters raised in this proceeding are a little different from those that have been canvassed by Western Australia.

HIS HONOUR:   It is clear, is it not, that if what I will call the main challenge by the States and the unions in the recent proceedings succeeds, these proceedings would disappear unless there were ‑ ‑ ‑

MR BURMESTER:   Yes, your Honour.  If the whole Act was to be found invalid, then clearly these proceedings would disappear.

HIS HONOUR:   I think everybody was agreed, Mr Gleeson, in the recent proceedings that if the whole Act was invalid, the consequence of that is that what was called in argument the previous Act would be still in operation.  Where does that leave you if the previous Act is still in operation?

MR GLEESON:   It leaves us in a better position in the proceedings in the Commission because the award process could continue without the impediments, one would assume, of either regulation 2.9 or 1.1.

HIS HONOUR:   It looks, does it not, as though, having regard to the time constraint that affects the Commission, the Commission is just going to have to go ahead and deal with what it has to deal with, as it were, without having an eye on the recent litigation in this Court.

MR GLEESON: Your Honour, that is probably correct. The only two matters I would like to put are these. The first is that when Mr Meadows put his attack on the bare exclusion of State laws, it seems from our review of the transcript he did not directly challenge section 12 of the Act or our regulation.

HIS HONOUR:   I think that is right.  My recollection is the same as Mr Burmester and that is that it was section 16 that he had in his sights.

MR GLEESON:   He adverted to our regulation at page 208 of the transcript as part of his contextual argument and Justice Gummow drew him back to the pleaded issues and asked what section he was attacking and he said section 16.  So, if the States win only on that alternative argument, it will not have resolved our issue directly.  The second matter is that in terms of the legal principle involved, it is the same principle of when ‑ ‑ ‑

HIS HONOUR:   There is a statement by Justice Evatt in a judgment somewhere about bare exclusion of State power.

MR GLEESON:   Yes, and we would be wanting to argue that our case raises the issue far more starkly than anything that Mr Meadows was able to put to you.  Our case put in a nutshell is that the Commonwealth has said there is a field of industrial activity, namely that between foreign ships under permit and foreign crew which we will not regulate at all.  None of the provisions of our Act, our substantive regulatory provisions, will apply to that field of industrial activity.  Then they go on to say, “And further, because we have preserved one section from the Act, section 16, the result is that no State can pass any industrial law dealing with the relations between those employers and those employees”.

So in the course of argument your Honour asked questions concerning what was the effect on State unfair dismissal laws by reason of the use of section 16 and was that a different field.  We would be wanting to put our issue raisers even more fundamentally.  The question of is it a bare exclusion when you say they are employers and employees that I do not want to touch, I do not want to regulate, but I then say to the States you may not.

Our only submission to your Honour is that a consideration of that question in its most fundamental issues might be usefully done at the same time as the Court is reserved on the main hearing.  It may not be able to be practically done, we accept that entirely, but in terms of whether it would at least be a possible outcome ‑ ‑ ‑

HIS HONOUR:   What is the position in terms of factual issues?  There is a demurrer.

MR GLEESON:   We submit there will be none, your Honour.

HIS HONOUR:   Could this be dealt with on demurrer just as conveniently as the recent proceedings were dealt with on demurrer?

MR GLEESON:   Yes, your Honour.

HIS HONOUR:   Would you agree with that?

MR BURMESTER:   We agree with that and we have demurred on the basis we felt no facts were required.

HIS HONOUR:   What about you, Mr Hatcher?  Would you propose to demur?

MR HATCHER:   Your Honour, we see the potential of it.  The way the statement of claim is pleaded at the moment, it does potentially raise some factual issues.  We had a brief discussion and we think they can be overcome.  Essentially it comes down to what the present rights of the parties are as to what the potential rights of the parties are.

MR GLEESON:   Your Honour, we see it is probably a half day case at the most.  It is an hour on our part and an hour on the other side and the only thing we would be asking your Honour to consider is whether we be given, even if provisionally or not, some date for a hearing later in the year.

HIS HONOUR:   I cannot, unfortunately, give you a date because I do not know when judgment will be delivered in the case that was heard a couple of weeks ago.  Because that case involves a challenge to the validity of the whole legislation and because, if the challenge to the validity of the whole legislation were to succeed, this point would simply disappear, then I am not minded to fix a date before judgment is given in that case.  But, on the assumption that any potential issues of fact can be made to disappear, what I have in mind is that we will keep the case in this Court, we will see what happens in the proceedings that were argued recently and if it becomes necessary to hear and determine this case, then I will list this case for further directions during the same sittings as the sittings in which judgment is given in that other case and, assuming the issues of fact have been ironed out in the meantime, then I will just fix a date for the hearing of this case.

MR GLEESON:   If your Honour pleases.  Would it assist your Honour if the parties agreed a variation to the normal directions on submissions so that the material is there and complete in any event so that there is no delay if we do need to come to a date in those sittings?

HIS HONOUR:   Yes.  Are you content with that, Mr Burmester?

MR BURMESTER:   Yes, your Honour, we are happy whether it proceeds in advance or whether it is delayed.

HIS HONOUR:   Are you content with that, Mr Hatcher?

MR HATCHER:   Yes, your Honour.

HIS HONOUR:   What I will do is ask the parties to keep in contact with the Registry and I will indicate that it is my present intention that this matter should be listed for further directions in the same sittings as the sittings in which judgment is given in the case that was argued recently.  I hope that at that directions hearing I will then be able to give a date for the hearing of this case.

MR GLEESON:   If your Honour pleases, and could we provide consent directions, perhaps to your Honour’s associate, for a submissions timetable in advance of that?

HIS HONOUR:   Yes, certainly.  Is there anything else I need to do?  I do not think I need to certify for counsel any more.  Very well then, I will adjourn the further directions hearing in this matter to a date to be fixed in accordance with the arrangements that I foreshadowed.

AT 10.11 AM THE MATTER WAS ADJOURNED