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

[2006] HCATrans 196

[2006] HCATrans 196

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, 12 APRIL 2006, AT 9.45 AM

Copyright in the High Court of Australia

__________________

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

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   I appear with MR S.P. DONAGHUE for the defendant.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Yes, Mr Gleeson, this is a summons for directions, I take it?

MR GLEESON:   Yes, your Honour.

HIS HONOUR:   You filed a statement of claim of claim on Friday.

MR GLEESON:   Yes.

HIS HONOUR:   What are the directions you seek?

MR GLEESON:   We seek the directions which appear at the end of our outline of written submissions.

HIS HONOUR:   Just a second while I get those.  There is no statement of claim yet, is there?

MR GLEESON:   Your Honour, the writ of summons which was filed on 7 April has a statement of claim attached to it.

HIS HONOUR:   Do these proceedings seek to raise any point that is not already raised in the other proceedings?

MR GLEESON:   The point is not raised directly in the other proceedings.  It is related to a point.  The essential point concerns a regulation passed on 27 March and the effect that regulation has by virtue of section 16 of the Act.  Section 16 is an issue.  The State of Western Australia says that it is unconstitutional as a bare attempt to oust State laws.  The particular point in our case – your Honour should have a bundle of materials for the directions hearing filed on 10 April.  Your Honour will see from that bundle at page 2, section 12 of the Act gives the power to make regulations ‑ ‑ ‑

HIS HONOUR:   Just a moment, I do not have the bundle to which you are referring, Mr Gleeson.  What I have is a writ of summons with a statement of claim endorsed, a document entitled “Outline of submissions as to why this matter should remain in this Court and not go to the Federal Court”, a bundle of material – thank you.  I have that one.  Thank you.

MR GLEESON:   In that bundle, just to identify the point, on page 2, section 12 of the Act is a regulation‑making power which allows for regulations to the effect that the Act will not apply to certain entities.  Page 3 is section 16 which is the statement “The Act is intended to apply to the exclusion of all” State laws on certain subject matters.  The offending regulation commences at page 5.  It was passed on 17 March 2006.

Your Honour will see on page 6 that we seek to attack one regulation, regulation 1.1, which has the effect that every provision of the Act except for section 16 shall not apply to foreign crew and foreign ships where a permit is in force under the Navigation Act.  So the effect of the point is to say the Act will not apply to anyone in that category but then, by virtue of section 16, the States cannot make laws in respect to that area of activity.

The reason it concerns my clients and the issue of urgency is that at the moment, pursuant to the decision of this Court in CSL Pacific, they are currently pursuing awards under the Workplace Relations Act under the federal scheme.  Their right to do so expires in six months time.  If this section is valid, not only can they not pursue the federal award but their related unions cannot pursue a State award so that they are deprived of any activity.

HIS HONOUR:   That might be an interesting question.  We will just have to deal with it in due course.

MR GLEESON:   Could I just emphasise the connection with the main case is this, that the State of Western Australia has made submissions that section 16 should be struck down under Wenn’s Case, the Melbourne Corporation Case and not being sufficiently connected to a head of power.  They raise that point in the general context of a federal scheme which purports to regulate industrial relations in Australia.  What our case raises is that issue in a far more discrete and concrete area where the Parliament has gone further and said we will not regulate the matter.

HIS HONOUR:   That is interesting.  We have set aside a certain amount of time for the hearing of the other cases and that time is fully occupied.  Indeed, it is more than fully occupied.

MR GLEESON:   Yes.

HIS HONOUR:   That does not mean that we will not have to deal with your case and perhaps if it is appropriate, deal with it expeditiously.  We do not have a response from the Commonwealth, for example.  What is your position, Mr Solicitor, in relation to this matter?

MR BENNETT:   Your Honour, we oppose it being heard at the same time.

HIS HONOUR:   At the moment I am very disinclined to disturb the careful arrangements that have been made in relation to the hearing dates and allocation of time, but equally, I have no particular disposition at the moment to remit the matter to the Federal Court.

MR GLEESON:   Yes.

HIS HONOUR:   My present inclination, subject to anything that counsel might say on either side, would be to have a look at the matter again once the Commonwealth has pleaded, or pleaded and demurred to your statement of claim, and perhaps a convenient time to do that would be some time during the week commencing 15 May.

MR GLEESON:   Your Honour, we accept the difficulties of the case management point.  The only alternative suggestion I could put to your Honour for consideration would be that if your Honour considered our point was sufficiently discrete, important and potentially related to the main matter, your Honour might make in the directions that we seek in paragraph 3 of the outline of submissions, your Honour might make the directions down to direction (x) which would have the matter ready - our submissions are only going to be ten pages – and then list the matter for directions in case time becomes available in the main case.

HIS HONOUR:   I certainly am not inclined to disturb the plan for hearing that we have of the main case which is very delicately balanced.

MR GLEESON:   If your Honour pleases.

HIS HONOUR:   In terms of the future progress of this matter remittal to the Federal Court and things like that, I am inclined to do nothing at the moment but to wait and see what the Commonwealth does in terms of pleading and/or demurring to your statement of claim and in the second week of the May sittings, having heard full argument in the other cases, we should have a very good appreciation of whether the matter should stay in this Court or whether it should go to the Federal Court and whether or not it should be given a measure of expedition.

MR GLEESON:   Yes.  If your Honour would appoint a directions date in that week, we would be very grateful.

HIS HONOUR:   What about 9.30 on Wednesday, 17 May?

MR GLEESON:   If your Honour pleases.

HIS HONOUR:   In the meantime, Mr Solicitor for the Commonwealth, you plead and/or demur to the statement of claim, is that so, unless there is some pleading summons?

MR BENNETT:   We will endeavour to do that but, your Honour, in my submission, bearing in mind the needs of the other matter, in my respectful submission, that timetable may be a little tight but if it is ‑ ‑ ‑

HIS HONOUR:   Judges used to always bang on about what they called the resources of the Commonwealth, Mr Solicitor.  It was a constant source of irritation to barristers appearing for them, appearing for the Commonwealth.

MR BENNETT:   Yes.

HIS HONOUR:   But I do not think it is beyond the capacity of the Commonwealth to plead to the statement of claim between now and 17 May.

MR BENNETT:   Yes, your Honour.

HIS HONOUR:  I have every confidence in your ability to do that.

MR BENNETT:   Yes, your Honour, 17 May would be – yes, that we could do.

HIS HONOUR:   All right.  Well, I will simply, in this matter of the Seamans’ Union, stand the summons for directions over until 9.30 on Wednesday, 17 May.  Anything else that I need to do?  Very well, then I will adjourn.

AT 9.56 AM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 17 MAY 2006