Union Steamship Company of Australia v King

[1988] HCATrans 159

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No SSO of 1988

B e t w e e n -

UNION STEAMSHIP COMPANY OF

AUSTRALIA

Appellant

and

SYDNEY FRANCIS KING

Respondent

MASON CJ

WILSON J

BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRONJ

Union(2)

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 AUGUST 1988, AT 10.19 AM

Copyright in the High Court of Australia

ClTl/1/RB 1 11/8/88

MR B.W. RAYMENT, QC:  May it please Your Honours, I appear with

my learned friend, MR P.R. GARLING for the appellant.

(instructed by Ebsworth and Ebsworth)

MR J.W. SHAW, QC:  May it please the Court, I appear with my

learned friend, MR R. COGSWELL for the respondent.

(instructed by Turner Freeman)

MR K. MASON, QC, Solicitor-General for New South Wales:

May it please the Court, I appear with my learned

friend, MR R. F. MARGO' for the Attorney-General

for New South Wales. We seek to intervene

on the section 109 point and if the Court

takes the view that leave is needed to put submissions

on the question of the New South Wales Parliament's

power to legislate extraterritorially, we seek

that leave to put those submissions. (instructed by

the Crown Solicitor for New South Wales)

MASON CJ:  Yes. Well, Mr Solicitor, if it is necessary for

you to have leave to argue the question of power

apart from the question of inconsistency, you have it.

MR MASON: If the Court pleases.

MASON CJ:  Mr Rayment.

MR RAYMENT: Your Honours, I hand up copies of our outline of

argument.

MASON CJ:	Thank you.
MR RAYMENT:	Now, Your Honours, the facts of the case are within a narrow compass and they are all common ground.
There was an engagement of the respondent on
29 June 1981 by the appellant, a New South Wales company, to serve on board the "Seaway Princess" which
they owned, which was then engaged in trade and
commerce among the States.  He was discharged a month
later and alleged in the Workers' Compensation Commission of New South Wales that he was then
suffering from the condition of boilermaker's
deafness, but not so as to incapacitate him with
respect to his earning capacity at all, within the language of the federal statute, "not so as to disable
him from earning full wages."

He claimed in the Commission a lump sum under

section 16 of the WORKERS' COMPENSATION ACT for a

partial loss of hearing to both ears.

(Continued on page 3)

ClTl/2/VH	2	11/8/88
Union(2)

MR RAYMENT (continuing):  Your Honours, we submit first

of all that section 16 of the WORKERS' COMPENSATION

ACT is inconsistent with the provisions of the

SEAMEN'S COMPENSATION ACT 1911 of the Commonwealth,

and in particular sections SB and SC thereof,

and we put the inconsistency argument in two

ways. First of all, we suggest there is direct

inconsistency between sections SB and SC on

the one hand, and section 16 of the State Act

and any provisions of the State Act attracting

it to the circumstances of the case. Secondly,

we wish to put a cover-the-field submission.

Can I go to the direct inconsistency point

first. Do Your Honours have the WORKERS'

COMPENSATION ACT as it stood at the time relevant to this appeal, that is the 1926 Act, for example,

in its version reprinted on 24 September 1986?

MASON CJ:  I have not, but no doubt I can obtain it. I have

it up to 1 July 1985.

MR RAYMENT:	I think that will be quite sufficient, Your Honour.
MASON CJ:	Would that be satisfactory?

MR RAYMENT:  Yes, Your Honour. Your Honours, this was a

boilermaker's deafness claim. Would Your Honours

go to section 7(4B) first of all - perhaps

section 7(4BB) first. That provides that:

the condition known as "boilermaker's

deafness" and any deafness of a like

origin shall, for the purposes of

subsection (4B), be deemed to be
losses of hearing which are of such
a nature as to be caused by a gradual

process.

Then (4B) enables a person suffering from that
condition - and I go to subsection (4B).	I

should read, perhaps, the opening words of (4B):

(Continued on page 4)

ClT2/l/HS	3	11/8/88
Union(2)
MR RAYMENT· (continuing):

Where the injury is a loss, or further

loss, of hearing which is of such a nature

as to be caused by a gradual process .....

the following provisions have effect:

(a) subject to paragraph (a) of the proviso

of section 53(1), notice of the injury shall

be given in the prescribed manner and shall

contain such particulars as are prescribed;

(b) for the purposes of this Act the injury

shall be deemed to have happened -

(i) where the worker was, at the time when he gave notice of the injury in accordance with paragraph (a), employed in an employment

to the nature of which the injury was due -

at the time when the notice was given

so there is a deemed time if you have, as it

were, a noise-generating employer at the time,

at the time at which you are deemed to have suffered

from the boilermaker's deafness is the time

of giving the notice. And then:

(ii) where the worker was not so employed

at the time when he gave notice of the injury

- on the last day on which he was ~mployed

in an employment to the nature of :hich

the injury was due before he gave :he notice;

(d) compensation shall be payable by -

(i) where the worker was employed by an employer in an employment to the nature

of which the injury was due at the time

he gave notice of the injury - that employer

so that would be how the case would be put here since

Union Steamship Company conducted a ship which would be productive of noise.

(ii) where the worker was not so employed -

the last employer

in effect, noisy employment. Then, subparagraph (e) gives a right of contribution to a person sued under the section against former employers.

C1T3/1/SDL	4	11/8/88
Union(2)

MR RAYMENT (continuing): It provides that:

an employer ..... shall be liable to make to an

employer referred to in paragraph (d)(i) or (ii)

a contribution which bears to the amount of

compensation payable the same proportion as

the period of that employment during the

relevant period bears to the total period of

employment of that worker in an employment to

the nature of which the injury was due during

the relevant period.

And then "the relevant period" is defined in (f),

where he has not had a prior injury, for example,

it is a period of five years. But presumably the

right of recovery would only be against those

employers within New South Wales.

Then, section 16(1) enabled the worker

to make this claim, whether or not he suffered

any incapacity. Section 16 provided that:

A worker who has received an injury

mentioned in the first column of the table

hereunder set forth shall be entitled to receive

from his employer by way of compensation for

that injury, in addition to any other

compensation prescribed by this Act, the amount

indicated in respect of that injury in the second

column of that table.

May I go straight to subsection (5) before the table? That provided that:

For the purpose of the said table the expression "loss of" also includes the "permanent loss of the efficient use of" but in such case a percentage of the prescribed

amount payable, equal to the percentage

of the diminution of the full efficient use,

may be awarded in lieu of the full amount.

Then, when one goes to the table, it has provision

for loss of hearing of both ears and loss of hearing

of one ear. So that if a man suffers a 10 per cent

loss in the efficient use of both ears, but which

does not incapacitate him from earning under the

New South Wales Act, he would be entitled to

10 per cent of the amount in the table to section 16.

(Continued on page 6)

CIT4/l/JM	5	11/8/88
Union(2)

MR RAYMENT (continuing):  By contrast with that, Your Honours,

can I go to the federal statute, dealing with

the same kind of worker - and I have assumed
that, one way or another the State Act covers

seamen who are subject to the federal Act.

Section SB of the SEAMEN'S COMPENSATION ACT 1911 -

and, Your Honours, I have an amendment up to

30 September 1980 which is sufficient for present

purposes. Your Honours, that provides that:

where a seaman sustains, by accident arising

out of or in the course of his employment,

any of the injuries specified in Part I
of Schedule 3, the compensation payable

under this Act shall, when the injury results

in incapacity other than total and permanent
incapacity for work, be the amount of $28,000

or such higher amount as is prescribed.

Then there are some other provisions relevant

to the schedule. Then section SC provides that:

(1) Where -

(a) a seaman is suffering from a disease

and is thereby incapacitated for work -

so that there must be incapacity for work -

and the disease is due to the nature of
the employment in which the seaman was engaged,
the employer shall, subject to this Act,
be liable to pay compensation in accordance

with this Act as if the disease were a personal

injury by accident arising out of or in

the course of the seaman's employment.

And when one goes to the schedule there is to

be found in there provision for loss of hearing -

total loss of hearing is one of the provisions.

(Continued on page 7)

ClTS/1/ND	6	11/8/88
Union(2)

MR RAYMENT (continuing):  Se~tion 5B(5), I should have

mentioned, provided that:

Where a seaman sustains an injury which

causes partial and permanent loss of the

efficient use, in and for the purposes of

his employment at the date of the injury,

of a part of the body (other than an eye)

specified in Schedule 3, there shall be

payable an amount of compensation equivalent

to such percentage of the amount of

compensation payable under this section

in respect of the loss -

et cetera, so that one has the same kind of

provisions as is in the New South Wales' statute.

So there is, Your Honours, this regime: if you

have a seaman whose degree of loss of efficient

use of his ears is such that he may still earn

full wages, that he has a claim only under the

State Act, but the moment that loss of efficient

use worsens or affects his earning capacity, then

the federal Act contains a provision providing for

the payment of a different sum of money. So that

one would have - if you had, for example, a man

working in the boiler room who had to be able to

hear orders given to him, who lost 50 per cent
of the use of his hearing and could not properly
hear his orders, thereby was demoted, he would
become, on the view against us, for the first time,
subject to the federal statute, whereas until the

hearing is so impaired that there is incapacity,

he is subject only to the State Act.

Now, in our respectful submission, that kind of result cannot have been intended by the legislature.

The fact that the Commonwealth benefit may be less generous may not depend upon incapacity does not

mean that the provision is not intended to be

exhaustive.

BRENNAN J: Does that deny the prospect of a cumulative right

to take under both Acts?

(Continued on page 8)

ClT6/l/SH	7	11/8/88
Union(2)

MR RAYMENT:  It does. You get to all kinds of difficulties

like that, Your Honour. What happens if he has

already made a claim under the State Act and then
his hearing deteriorates further and he becomes

subject to the Commonwealth Act, has he lost his

right under the Commonwealth Act, or what is to
occur? It is just, in our respectful submission,
not - you do not need to find the precise

circumstances covered by both statutes before you

have relevantly direct inconsistency, in our

submission.

WILSON J:  Are there not provisions preventing double

recovery, Mr Rayment?

MR RAYMENT:  Yes. There are some provisions, Your Honour, which I want to come to in just a moment. If I

could deal with them in the course of the next

submission about the intention to cover the field,

I think it will be most convenient, Your Honour.
Your Honours, in our submission, the scope of the

Commonwealth Act is comprehensive and for that I

would invite Your Honour's attention to the

statute. What we have done, Your Honours, is to

prepare a schedule which compares the SEAMEN'S

COMPENSATION ACT and its subject-matters with

all of the States Acts, and I hand up seven copies

of that. Your Honours, the expression "seamen"

is defined in the federal statute in the

definition section, section 3, so as to in effect

include all employees on a ship. Section 4

defines the employment to which the Act relates:

This Act applies in relation to -

(a) the employment of seamen on a ship

registered in Australia -

(i) that is engaged in trade and commerce

with other countries or among the States -

that is subparagraph (i), or -	(ii) that is within the territorial
waters of a Territory forming part of the
Commonwealth, or whose first port of
clearance and whose port of destination are within such a territory;
(b) the employment, under articles of agreement entered into in Australia, of
seamen on a ship not registered in Australia
that is engaged in trade and commerce among
the States, or between a State and a
Territory forming part of the Commonwealth,
in pursuance of a licence granted under
Part VI of the NAVIGATION ACT -

ClT7/l/HS	8	11/8/88
Union(2)

that is a licence in the coastal trade, and -

(c) the employment of seamen for the

purposes of a delivery voyage of a ship .....

being seamen engaged in Australia ..... upon

terms entitling them to, or to payment in

respect of the cost of, transport from or
to Australia for the purpose of joining

the ship, or after leaving the ship.

There is then a reference to territoriality. in section 5. Your Honours will note proviso (2)(a)

evinces States or Commonwealth legislative intention

that there will be no compensation under the

statute unless the seaman is disabled from earning

full wages as a result of the injury; but, of

course, $1 a week would attract the Act. Then

section SAA makes provision in familiar terms for

journeying claims:

Where personal injury by accident 1s caused to a seaman -

(a) while he is travelling to or

from his employment -

et cetera -

his employer shall, subject to this Act,

be liable to pay compensation in

accordance with this Act as if the accident

were an accident arising out of or in the

course of his employment.

(Continued on page 10)

ClT7/2/HS 9 11/8/88

Union(2)

MR RAYMENT (continuing):  For example, Your Honours, it

was held under that provision in DAVEY V UNION

STEAMSHIP CO OF NEW ZEALAND LTD. We have not

given Your Honours a reference to it as I just
want to refer to the principle in it but the

reference to it is given in the written submissions,

(1953) SASR 35. It was held that a cook on a

ship which was in port taking in cargo, who went
ashore in the evening to post a letter to his

home, was outside that section because the accident

did not happen while he was travelling to his

place of employment within the meaning of section SAA.

That kind of excusable absence would be, for

example, within the New South Wales provision

for journeying claims, which is set forth in

section 7(1)(e) of the New South Wales Act, for

example.

So, in other words, while the same subject-

matter of journeying claims is dealt with in

the Commonwealth statute one finds, as one would

expect, differences of degree and detail as to

the scope of the legislative provision.

The table shows that each of the statutes

in the States makes some provision, except in

Tasmania, for what was to happen if the worker

was employed in the jurisdiction but the injury

is out of the jurisdiction. You could, in fact,

add that section 4 of the federal statute makes

limited provision to the same effect because

if a ship registered in Australia is engaged

in trade and commerce with other countries then the

Commonwealth statute applies.

The topic of liability to pay compensation

where the injury is a disease contracted by a gradual

process is dealt with, for example, in the federal

statute in the section we have looked at, in

section SC and the table shows the corresponding

provisions of some of the State statutes making

similar provision.

Your Honours, there is limited provision

for what is to occur if there is no incapacity

for work in section SA of the Commonwealth statute.

That provides that:

Where any compensation is payable by

the employer under this Act to, or in respect

of, a seaman, or where a seaman suffers

injury or disease in circumstances in which

compensation would be payable under this

Act but for the fact that the seaman is

not rendered incapable of earning full wages
..... the employer shall pay the cost of

such medical treatment and ambulance services -

and the like -

C1T8/l/SDL	10	11/8/88
Union(2)

as are, in the opinion of the Minister,

reasonably necessary -

so there is limited provision for that - SA.

BRENNAN J:  I take it that a like obligation is imposed on an

employer under the New South Wales Act with respect

to medical treatment and ambulance services?

MR RAYMENT:	Yes, Your Honour. There is, by section 5C(3), given to employers who need to pay compensation
under that section, a right of recovery against prior employers in the circumstances mentioned
in the section. And the courts to which this
Act directs applicants are different from the
courts of the States administering workers compensation
in general. The district court, for example,
in New South Wales, the county court in Victoria, hears cases under the SEAMEN'S COMPENSATION ACT.

(Continued on page 12)

ClT8/2/SDL	11	11/8/88
Union(2)

MR RAYMENT (continuing):  The only way in which boilermaker's

deafness is dealt with is effectively, to the extent to which it is an injury, in SB, to the

extent to which it is a disease, in SC. There

is no particular provision of the federal statute

dealing with boilermaker's deafness as there

is in New South Wales but not, interestingly,

in the other States. It is just dealt with along

with other diseases of gradual onset.

Then, Your Honours, the table shows the

extent to which provision is made for deaf claims,

total incapacity, partial incapacity for

work and the like. The rates have always been

different, as between the Commonwealth and the

States. I do not mean to say that every single

rate was always different but there has been

no uniformity as between any of the States and

the Commonwealth nor has there been uniformity
as between the States with respect to the rates
of payment provided by the statutes.

The Commonwealth Act makes no provision for the redemption of benefits but provision

is made in some of the States for that to occur.

No incapacity is required except in

the Commonwealth, for a lump sum payment. Then

varying rates for the lump sum for loss of hearing

are provided for, Your Honours, in the table.

Your Honours, there is no compulsory insurance

provision in the federal statute which may be

explained by the fact that shipowners generally

insure with protection and indemnity clubs which

would cover workers compensation payments as

well. There is no need, for example, under the

federal statute, if you are only in interstate

trade to have more than your protection and indemnity

cover in order to comply with the Commonwealth

statute.

However, if the various State statutes apply,

at the option of workers on board the vessel,
then a shipowner would have to insure in accordance

with the compulsory insurance provisions in New

South Wales, South Australia, Western Australia,

Queensland and Tasmania and the work care provision

would apply in Victoria. But if one reads through

the SEAMEN'S COMPENSATION ACT, it makes some

provision for the usual kinds of matters dealt

with in workers compensation legislation, as

the table shows.

We next refer to the express terms of the

Commonwealth Act and, Your Honours, I will need

to take Your Honours through a little history

of the Commonwealth Act for this purpose. When

ClT9/l/ND	12	11/8/88
Union(2)

the 1911 Act was first enacted, there was included

in the statute a provision which Your Honours

will find is repealed in the current statute.

Section 5(2)(b) which was in these terms -

section 5(2)(b) provided - 5 (1) was in, I think,

the current terms. Can I hand up copies,

Your Honours, of the 1911 Act and also, Your Honours,

of the 1949 Amendment Act to which I will come

in a moment.

(Continued on page 14)

ClT9/2/ND	13	11/8/88
Union(2)

MR RAYMENT (continuing):  The 1949 Act was the Act which took

out 5(2)(b) and substituted a new section.

DEANE J:	Mr Rayment, while you are handing legislation, have you available the form section l0A of the SEAMEN'S ACT
took before the 1976 amendment?

MR RAYMENT: Yes, I do, that is the 1949 Act.

DEANE J: That is what we are getting, is it?

MR RAYMENT:  Yes, that is what Your Honour is about to receive in moment. That is the next matter of history I

want to take Your Honours to. So, Your Honours,

5(2)(b), as Your Honours will see. in rhe original

form contained the following proviso:

Provided that .....

(b) a seaman shall not be entitled to recover

compensation both independently of and also under

this Act; but subject to this paragraph this Act

shall not affect any civil liability of an

employer under any other law.

Now, Your Honours, those words were looked at in this

Court in a case of JOYCE; it is a Commonwealth Law

Report case which is not on our list of authorities, but

I think Your Honours may be able to - i_t is on the other side's

list - JOYCE V AUSTRALASIAN UNITED STEAM NAVIGATION

COMPANY LIMITED,62 CLR 160. The

question there was whether 5(2)(b) was within power

under the CONSTITUTION, but some remarks were made by

some of Their Honours about the effect of 5(2)(b) as

it then stood, For example, Mr Justice Rich, at page 168,

made this observation, two-thirds of the way down the

page:

If, as is established, the power conferred by

section 98 of the CONSTITUTION extends to a

seamen's compensation law, that law must deal

with the question, one way or another, whether

the statutory compensation is alternative or

cumulative, concurrent or mutually exclusive with

other rights to compensation or damages. However,

the legislature dealt with that question, its power

to cover it by the compensation law must exist

if the power to pass a compensation law exists.

It is an incidental or ancillary provision

forming a necessary part of the scheme.

His Honour apparently thought that 5(2) (b) was such a

provision. Now, 5(2)(b) was then repealed by Act No 7

of 1949 and at the same time there was inserted in the

Act section l0A which Your Honours will find in the photostat. The form of l0A - it was repealed by

section 4 of the Act, then by section 10. Anew

section l0A was inserted. Section l0A then provided:

ClTl0/1/VH	14	11/8/88
Union(2)

Except as provided by this Act, a seaman shall

not be entitled, in respect of personal injury by accident arising out of or in the course of

his employment, to receive compensation or any
payment by way of compensation from the

employer both independently of and also under

this Act.

Then (2) provided that:

Where personal injury is caused to a seaman in circumstances which create, or appear to create, a

legal liability in the employer to pay damages in

respect of the injury and the seaman has received

compensation under this Act, the seaman shall not
be entitled to take proceedings against the

employer to recover damages unless he commences

those proceedings within twelve months after the

date upon which he received payment, or the first

payment, of compensation under this Act.

(Continued on page 16)

ClTl0/2/VH	15	11/8/88
Union (2)
MR RAYMENT (continuing):

(3) A seaman who recovers damages from an

employer in respect of an injury shall not be

entitled to compensation or any payment

under this Act in respect of the same

injury and any sum received by him under this

Act in respect of that injury prior to the

award of the damages shall be deducted from

the amount of the damages recoverable from

the employer.

Your Honours will note there is not preserved

in the legislative provisions as enacted in 1949

the words which appeared in the old 5(2)(b): this Act shall not affect any civil liability

of an employer under any other law.

Now, there is, of course, as I have indicated, Your Honours,

in section 4 a declaration of the employment to which

the Act applies and it is described as an Act

relating to compensation to seamen for injuries suffered in the course of their employment. We

submit that whether or not it was the case before

1949 that the SEAMEN'S COMPENSATION ACT was

intended to cover the field, which would depend

upon perhaps a view taken of 5(2)(b), in its old

form dfter Act No 7 of 1949, at any rate, there

was evinced by the Federal Parliament an intention

to deal exclusively with its subject matter.

Now, Your Honours, in the next place, we

submit that if that were not so, and this would be

known to the legislature, much inconvenience,

including, for example, the need for multi-State
insurance by shipowners and confusion in the courts

in the community would arise if both statutes applied.

A good example of that is the present case. If Mr King

found that later, when employed again in interstate

trade, his hearing diminished to the point where he

was not able to earn full wages, then subject to
section lOA,	he would be entitled to make a
further claim.

Now, l0A_ only talks of injuries, personal injury by

accident, and not disease~- just as- an example of the

kind of perplexing position that would arise. And another

good example, in our submission, is the journeying

provision which in the case, for example, of the

New South Wales Act is much wider than the

Commonwealth Act. Do you come under the New South

Wales Act when the journeying provision of the

Federal Act is exhausted; crossing the threshold

and changing courts?

BRENNAN J:  I do not follow the section l0A(l) argument. Why

is it that in relation to a disease caused injury

CITll/1/JM	16	11/8/88
Union(2)

that there is not simply a cumulative statutory

right?

MR RAYMENT:	One is getting compensation for a progressive loss of hearing. For example, you have 10 per cent
loss of hearing which might be compensated for
under the State statute . If you cannot set that
off against, for example, a 50 per cent loss when your hearing deteriorates further, then you are
receiving double payment.

BRENNAN J: Quite so, but how does that give rise to an

inconsistency?

MR RAYMENT:  Well, it suggests - in our respectful submission,

it is to do with the nature of the subject-matter

dealt with the statute. It suggests, in our

submission, that the subject-matter is such that

one would conclude that there was an intention to

cover the field.

DEANE J:	But even if that be so, why does not l0A(l) evince
an intention not to apply unless you can recover compensation under this Act? Otherwise, what
function do the words "both" and "and also" serve at the end of l0A(l)?

(Continued on page 18)

C2Tll/2/JM	17	11/8/88
Union( 2)

MR RAYMENT:  Oh no, I accept that, Your Honour. Section l0A(l) -

it is really the repeal of those words in 5(2)(b)

that I rely upon rather than the express terms of

l0A(l).

DEANE J: But if you look at l0A(l), would it not indicate

that this case is not within the Act or is not

within the exclusion because here the worker cannot

obtain compensation under this Act.

MR RAYMENT: Well, he can if his hearing deteriorates further.

DEANE J:	But what that section is concerned with is double compensation.
MR RAYMENT:	Yes.

DEANE J: Well, here he cannot obtain - - -

MR RAYMENT:	Not yet.
DEANE J: No.
MR RAYMENT:	Not yet but if his hearing gets worse - - -

DEANE J: Well, that might be a different question but, at

this stage, we are concerned with a worker who can
only obtain compensation under some other Act and

cannot obtain it under this Act so he is not

within l0A(l).

MR RAYMENT: No, that is so, Your Honour. No, I was not putting

that - the contrary of that.

DEANE J: But what I was suggesting to you is the fact that he

is not within l0A(l) may be relevant in ascertaining

the legislative intent.

MR RAYMENT: Yes, well, I accept that too, Your Honour. It

must be relevant. But you could say the samA, for
New South Wales' Act but outside the Cormnonwealth	example, of the journeying claim that is inside the
Act. Is there a need to obtain insurance under
the New South Wales' Act for those journeying claims
which fall under the New South Wales' Act. In our submission, it is unworkable to have these two statutes applicable and, Your Honour, under secti,)n 11(1) and (2) of the State Act, in New South
Wales, for example, partial incapacity is deemed to
be total, for certain purposes and the like.

DE.\NE J: Yes, all I was really putting to you, Mr Rayment,

was that even if one accepted your answer to Mr Justice Brennan, there would still be the

question whether there was relevant inconsistency
only to the extent of double entitlement and

ClT12/l/SH	18	11/8/88
Union( 2)

on that, it seemed to me that l0A(l) might be an

important guide as to legislative intent.

MR RAYMENT: Yes, but l0A(l) does not cover diseases. It

only covers personal injury so it is a very limited

provision.

WILSON J:  But is there any - your submission is that if the

consequence of the two statutes was that an employer

should have to insure against liability under both,

that does not necessarily get you home, of course,

does it?

MR RAYMENT:	No, no, it is only a -
WILSON J:	You would say it is a straw.
MR RAYMENT:	Yes, Your Honour.

WILSON J: Or perhaps a little stronger.

MR RAYMENT: It is a plank , perhaps, Your Honour. It is

a straw as long as it breaks the camel's back,

Your Honour.

Well, Your Honours, it is very much, of course,

always a question of impression and can I turn from

it to questions arising about the State Act in

relation to this case. Can I go, first of all, to

section 46 of the State Act.

(Continued on page 20)

C1Tl2/2/SH	19	11/8/88
Union(2)

MR RAYMENT· (continuing):  The section declares that:

This Act applies in respect of an injury

to a worker who is a seaman employed on

a New South Wales ship or a ship whose first

port of clearance and whose destination

are in New South Wales.

Then there is the following definition of "New

South Wales ship".

any ship which is -

(a) registered in this State; or

(b) owned by a body corporate established

under the laws of this State or having its

principal office or place of business in

this State or is in the possession of any

such body corporate by virtue of a charter.

Stopping with the registration, Your Honours,

that reference formerly caught registration under

the MERCHANT SHIPPING ACT until 1981. In each

of the capital cities of Australia there was

a registry kept under the MERCHANT SHIPPING ACT

which was, in 1981, replaced by the SHIPPING

REGISTRATION ACT of the Commonwealth so that

thereafter branch registers have been kept in

each of the States pursuant to that Act and

registration in the State of New South Wales

is presumably now a reference to "registered

in the court of Sydney'under the Australian statute,

SHIPPING REGISTRATION ACT 1981.

Having defined "ship" in the way it did:

(a) registered in this State; or

(b) owned -

within the State -

(c) owned by any person or bodf corporate

whose chief place or place of business in
respect of the management of such a ship
is in this State, or is in the possession

of any such person or body corporate by

virtue of a charter; or

(d) owned by the Crown in respect of the

Government of this State, or is in the possession of the Crown in that respect by virtue of

a charter. ·

C1Tl3/l/SDL	20	11/8/88
Union(2)

Neither (c) not (d) had any application to the 1 facts of the present case if section 46 is the

right section to look at and the case fell within

section 46(2)(a) or (b). Subsection (3) provides

that:

The applicaton of this Act in respect of

injuries to seamen, as provided by this

section, shall be subject to the following

modifications:

(a) the notice of injury and the claim for

compensation may .... be served on the master

of the ship -

that is facultative -

(b) in, the case of the death of the seaman

the claim for compensation shall be made
within six months after the news of the

death has been received by the claimant.

Stopping there, Your Honours, the general provision

of the statute is that death claims need to be
made within six months but there is an extensive
power to extend that time where the failure resulted
from ignorance, or mistake, and the like. That
power to extend does not appear to be referred

to in section 46(3). (c) refers to what is to

occur if an injured seaman is discharged in a

British.possession; it provides for depositions

to be taken respecting the circumstances and

nature of the injury.	(d)·makes provision about
burial expenses;	(e) provides:that:

the weekly payment shall not be payable
in respect of the period during which the
owner of the ship is, under any law in force
in this State, liable to defray the expenses

of maintenance of the injured seaman.

That would be a reference, presumably, to section 127

in the NAVIGATION ACT - that is the right section

which requires ship owners to maintain injured

seamen in certain circumstances.

(Continued on page 22)

C1T13/2/SDL	21	11/8/88
Union(2)

MR RAYMENT (continuing):

(f) any sum payable by way of compensation

shall be paid in full notwithstanding any

limitation of liability in any other law -

and then there is a reference for deemed loss.

Then (h) provides that:

where a claim is made for compensation under

this Act in respect of any injury to a seaman,

and it appears that the claimant is or may

be entitled to claim compensation in respect

of such injury under the SEAMEN'S COMPENSATION

ACT 1911 of the Commonwealth, or any Act

amending it, proceedings for compensation
under this Act shall be stayed until the

claimant has given to the person from whom

he claims such compensation a sufficient

undertaking not to institute or continue

any proceedings under the said Act or Acts

of the Commonwealth.

Now, Your Honours, if, going back to subsection (2),

you have a ship registered in New South Wales

or owned by a New South Wales bank under some

financing arrangement and the subject of a bare

boat charter to a company trading anywhere in

the world, if the vessel plies anywhere in the

world between Europe, let us say, and South America,

and there is a person injured on board the vessel,

this statute would purport to apply to the contract

of employment although entered into by foreign

nationals with foreign nationals and, although

the injury may have occurred on the high seas
or on foreign shores, and, in our respectful

submission, such a law could not be a law for

the peace, order and good government of New

South Wales.

You need a better nexus, in our submission, than mere ownership of the vessel in New South

Wales or mere registration of the vessel in New

South Wales, which might after all be done for

convenience by foreigners.

MASON CJ:  Why? Why is not registration or ownership of

a vessel in New South Wales a sufficient nexus?

MR RAYMENT:	For that reason that I put, Your Honour.
MASON CJ:	Does it matter that it is merely a convenience

for foreigners?

MR RAYMENT:  No, but if you have a bare boat charter to

a foreign shipowner who then gives a time charter

ClT14/l/ND	22	11/8/88
Union(2)

to another foreign shipowner or user of the ship

and he then plies between one foreign company

and another, this statute would purport to apply.

That, in our respectful submission, cannot be

for the peace, order and good government of

New South Wales. What the workers compensation

legislation has always fastened on, Your Honour,
is employment. If the employment is New South

Wales employment then, of course, the situation

is completely different or if the employer is

a New South Wales employer, the situation is

completely different. But if it is merely a

ship which can travel across the seas, we would

submit, and be the subject of numerous transactions

of charter, by demise or time charter - giving

at any rate the demise charter the power to

enter into contracts of employment anywhere in

the world and ply anywhere in the world, then

the law could not have a sufficient nexus with

New South Wales, in our submission.

DEANE J:  Would it be for the peace, order and good

government of the Commonwealth? What flag would

the ship be carrying?

MR RAYMENT:  I am not sure whether registration entails

local flag.

DEANE J: That is really what I was asking you.

MR RAYMENT:  Yes, it is an Australian flag under the

SHIPPING REGISTRATION ACT, Your Honour.

DEANE J: Then would it be for the peace, order and good

government of Australia?

MR RAYMENT: It may be that different questions arise,

Your Honour. I am not sure under the federal

statute. As to extraterritoriality, then, in

the case of New South Wales -

DEANE J: If it is Australian by reason of registration

in New South Wales, you then have to have a strange

notion of the Commonwealth which excludes New

South Wales if it is not going to be for the

peace, order and good government of both the

Commonwealth and New South Wales.

(Continued on page 24)

ClT14/2/ND	23	11/8/88
Union(2)

MR RAYMENT:  Yes. Your Honour, I have not troubled myself with

any questions of challenge to Commonwealth statute

because we have heard of none. If there were, then

presumably notices would have to go out again. There

never has been a point taken in this case with respect

to the Commonwealth statute so far, at any rate.

BRENNAN J:  Does a seaman have any right of recourse against

the vessel for his wages?

MR RAYMENT:  He has, he has rights in admiralty with respect

to his wages.

BRENNAN J:  Even though the employer is not the owner of the vessel?

MR RAYMENT:  Yes. Well, yes, Your Honour, it is a right in rem.

DEANE CJ:  The Solicitor should probably support this argument,

Mr Rayment, because it would make New South Wales a

very popular place for registering ships.

MR RAYMENT:  Yes, Your Honour. Yes, there is power in the

SEAMEN'S COMPENSATION ACT under section 13 to order

detention of the ship with respect to a compensation

order, too, Your Honour. I should mention that. Now,

Your Honours, a similar question was looked at by

Mr Justice Hanger in Queensland, with respect to the

old Queensland Statute which has since been amended,

in the case of JOHN BURKE LTD V INSURANCE COMMISSIONER

which I hand up copies. Your Honours have copies. The Queensland equivalent of section 46 is set out

on page 595 of the report~. Section 11 provided:

This Act applies in respect of an accident

happening to a seaman employed on a Queensland

ship, if the accident arises in the course of

his employment, and happens while the ship is

in port within Queensland or is within the

territorial waters of Queensland.

Then "Queensland ship" is defined in a certain way,

so that you had by section 11 the nexus problem in
Queensland solved.	But there was discussion about

the definition of "Queensland ship" in so far as it

might impose a liability upon foreigners to contribute

to a fund. At 602, Mr Justice Hanger says this - I

read from about line 8:

The definition of Queensland ship has already

been set out. It consists of five heads which

are largely distinct from one another. The first

refers to a ship registered in Queensland under

the MERCHANT SHIPPING ACT. That Act is an

Imperial Statute, and no particular advantage

is given by registration at a port in Queensland

as distinct from registration at a port in

New South Wales. No doubt it may be more

convenient for an owner to be registered in

one port rather than in another. The objects and policy of registration under the Act have

C1T15/l/VH	24	11/8/88
Union(2)

been stated to be (a) the interests of the
nation at large as to who shall be entitled to
the privileges of the British flag and (b)
the proper evidence of title in those who deal

with the property in question: ..... The mere

registration of a ship at a registry in a port

in Queensland established under this Imperial

Act does not seem to me a very strong nexus with

Queensland to base legislation about the ship,

if, apart from any question of extra-territoriality,

such power be conceded. But assuming a territorial

nexus, does the Act under consideration legislate

in respect of that nexus? The Act requires

a contribution from an employer of labour in that

capacity wherever he lives, wherever his

employees live, wherever the work is done,

wherever the contract of employment is made. of the nexus.

(Continued on page 26)

ClTlS/2/VH	25	11/8/88
Union(2)

MR RAYMENT (continuing):  He says at the foot of the page:

The second head of the definition of

Queensland Ship, "(b)", refers to a

ship (1) owned by a body corporate

established under the laws of Queensland

or having its principal office or place

of business in Queensland; or (2) in

the possession of any such body corporate

by virtue of a charter.

At page 603 His Honour says that:

As to the second part of this head,

my impression is that if a ship is in

the possession of a person by virtue
of a charter, that person will generally

be the employer of labour on the ship.

The conclusion that His Honour reaches on page 603

is this, that in his opinion:

the Queensland Legislature has no power

to require every employer of labour as

such on a ship

(1) registered in Queensland; or

(2) owned by a body corporate established
under the laws of Queensland or having its

office or place of business in Queesland

..... to contribute to the State Government

Insurance Fund.

MASON CJ:  How much of that are you relying on, Mr Rayment?

Are you suggesting that the State legislative power

is limited to legislation with respect to the nexus?

MR RAYMENT:  No, Your Honour.

DEANE J:  The Chief Justice is ahead of me. I do not know

what that means.

MR RAYMENT:  There has to be a nexus before there can be

legislation, in our respectful submission, not

legislation only with respect to the nexus.

MASON CJ:  Yes.

GAUDRON J:  Mr Rayment, I really do not follow the purpose of this. Assuming you were right that in the case

of a bare boat charter, et cetera, there were no

sufficient nexus, is not the relevant question in the

light of the reading dm,1n provisions of the ACTS

INTERPRETATION ACT whether or not there is a nexus

in this particular case?

ClT16/l/HS	26	11/8/88
Union(2)

MR RAYMENT:  Your Honour, if I have a reading down

argument to meet, in my respectful submission,

a reading of section 46 commends no possible

view of it, but there certainly is a nexus in this

case. Let me first of all concede that, Your Honour,

because the employer was a New South Wales employer.

The nexus was not attracted, so far as section 46

is concerned, by reason of his being the employer

of the person. He was only joined on the basis

that the ship was owned by him, whether he was the

employer or not, and the kind of surgery that

would need to be done under the reading down

provisions, in our submission, simply cannot

save section 46. There is no blue pencil or

other way of reading down section 46 which would

save it, we would submit.

MASON CJ:  Mr Rayment, I have not quite gathered from you

what you took from this Queensland decision.	What
do you get out of it?

MR RAYMENT:  Your Honour, he looked at a similar kind of

legislative regime for a different purpose, reached

the conclusion for which we contend here, namely

that it would not be a law for the peace, order and

good government of Queensland to legislate with

respect to workers compensation matters on a ship

merely because that ship happened to be owned in

Queensland, for example.

MASON CJ:  But I understood you to disclaim the reasoning

that supported the conclusion.	On that footing
what do you get out of it?

(Continued on page 28)

ClT17/2/HS	27	11/8/88
Union(2)

MR RAYMENT:  Perhaps I ought to clarify what I was seeking

to put about this case, Your Honour. In our

submission the reasoning in that case is right.

The sole matter chosen by the New South Wales

Parliament as a nexus is something which cannot, in our respectful submission, constitute a

sufficient nexus to enable it to be said that

the law is for the peace, order and good government

of New South Wales.

MASON CJ:  So, you amend the reasoning? You say, His Honour

should have said "no sufficient nexus", instead

of starting off with a proposition, "There wasn't

a very strong nexus"?

MR RAYMENT: .Yes, Your Honour. Your Honours, the way in which

this case was dealt with below was to say,

"Now, it is not necessary to consider either the

constitutional point, or the section 46 point,

because section 7 covers the point." That was

no answer to the cover the field submission

and it is no answer to the inconsistency submission
which we have made.

But, Your Honours, can I go to the point on which the Court of Appeal decided the matter in

relation to section 7, and it is a narrow point

about section 7. Your Honours, section 7(4B)(b)(i)

gives rise to a parliamentary fiction that the

injury, being the boilermaker's deafness,happens -

and only the word "happens" is referred to -

at a time when notice of the injury was given.

Now, the word used in section 7(1)(a) and section 7(1A) is not "happened",but "received"

and that difference, albeit a verbal difference,

appears to be assumed not to be there in the

reasoning below.	In other words, you deem .something
to have happened.	It does not follow that in fact

it was received by the worker, in our submission.

So that we would submit that the wa:y :in mich the Court of Appeal

sought to dispose of this case runs foul of-that

fact. If something is deemed to have happened

and therefore is received, then that submission is

wrong. That would involve extending the deeming

effect of the statute to conclude as did the

Court of Appeal that section 7 covers this case.

Setion 7, in our submission, is about workers

who actually receive injuries, not about injuries
which are deemed to have happened. And, if it

is about, as we put, workers who actually receive

injuries, then the reasoning of the Court of

Appeal goes.	It would follow then that the only
to the vices that I have referred. to. Those are my	section was section 46, which is, we- submit, subject
submissions, if Your Honours please.

MASON CJ: Yes, thank you, Mr Rayment. Yes, Mr Shaw?

CIT17/l/JM	28	11/8/88
Union(2)

MR SHAW:	If the Court pleases. Could I deal firstly,
Your Honours, with the section 109 point? I will
hand up my outline, if I might?

Your Honours, the tests governing th~ application

of section 109 of the CONSTITUTION have quite

recently been distilled in FLAHERTY V GIRGIS.

Could I cite that case just briefly in order

to crystallize the propositions applicable to

section 109?

MASON CJ: Yes.

MR SHAW: It is (1986-1987) 162 CLR 574 in the joint judgment

of Your Honour the Chief Justice, Your Honour

Mr Justice Wilson and Your Honour Mr Justice Dawson,

at page 588.

(Continued on page 30)

CIT17/2/JM	29	11/8/88
Union(2)

MR SHAW (continuing):  The joint judgment said this:

Section 109 is concerned with inconsistency

between laws and not powers. Of course,

where both Commonwealth and State legislation

confer concurrent or parallel powers in

relation to the same matter or thing, an

inconsistency may arise in their practical

application, which is to be resolved by

giving supremacy to the Commonwealth

legislation in the particular situation.

However, inconsistency of that sort is not

alleged in this case, it being apparent

that the relevant provisions of the federal

Act and Supreme Court Rules may operate

without any conflict arising in practice.

In speaking of the Supreme Court Rules,

it may be observed that the law of the State

which is alleged to be inconsistent with

the SERVICE AND EXECUTION OF PROCESS ACT

is ultimately s 122 of the SUPREME COURT

ACT which authorizes the rules, but the

inconsistency is to be found initially in

a comparison of the federal Act with the
rules to the extent to which they purport
to deal with extraterritorial service within

the Commonwealth.

Inconsistency is said to arise because

the -

Commonwealth Act -

is intended to cover the field of

extraterritorial service of civil process

within the Commonwealth so that the operation

of the federal law would be impaired if

State law were allowed to regulate that

subject-matter at all. It has long been

recognized that inconsistency of that kind

with the effect of rendering the State law is encompassed bys 109 of the CONSTITUTION	inoperative. Whether inconsistency in this
sense exists "depends upon the intention of the paramount Legislature to express
by its enactment, completely, exhaustively,
or exclusively, what shall be the law governing the particular conduct or matter to which
its attention is directed".

We emphasize, of course, Your Honours, the proposition

that there can be concurrent and parallel powers

in relation to the same matter without section 109

inconsistency necessarily arising.

We would draw attention to and respectfully

adopt what His Honour Judge Freeman said about

ClT18/l/ND	30	11/8/88
Union(2)

this matter in the Worker~ Compensation Commission

between pages 49 and 55 of the appeal book.

I will only need to go to two short passages

in that judgment but His Honour does consider,

with some thoroughness and, we submit, care,
the section 109 arguments which were directed

to him. In particular, His Honour concluded,

as we would contend, that there is no direct

collision between the federal law and the relevant

provisions of the WORKERS' COMPENSATION ACT because,

as has been pointed out by the appellant, the

Commonwealth law only provides compensation in

the event of proved incapacity for work whereas
the WORKERS' COMPENSATION ACT provides a table

setting out compensatory payments for particular

injurie~ including boilermaker's deafness, without

the necessity to prove loss of earnings.

The judge, at first instance, pointed out the separate operation of these two Acts in the

instant case, at page 52 of the appeal book.

At line 10 on page 52, His Honour said this:

(Continued on page 32)

C1Tl8/2/ND	31	11/8/88
Union(2)

MR SHAW (continuing):

In the present case there is no such

head-on conflict. The Commonwealth Act

deals with compensation payable where
there is incapacity and is silent on the

circumstances which can give rise to

compensation oeing payaole in the absence

of incapacity. Ic is possible, cherefore,

to obey ootn laws wnicn is the other method

of testing for d~rect conflicc.

And, at line JO, His Honour said:

But here Lhe LWO Acts deal, in my vi~w, with

ditferenc situations. An anology mignt be

maae with che granting of an add.tiona~ beHefit not covered oy tne Cummunw1::alc..h

Act as was tne case with long service leave
deal1.. wiLh iu COLLINS V CHARLES MARSHALL

PTY LTD, (1955) 92 CLR 529.

So, there is no direcc collision in the instant

case but, perhaps more importantly, Your Honours, is the point to which the appellant has addressed

some attention because, in our submission, the

Commonwealth legislation shows on its face an

intention not to exhaustively state the law in

respect to compensation to seamen but, on the

contrary, we submit, the Commonwealth law shows

an intention to allow the operation of State law.

It contemplates that there will be compensation

given to seamen who may be injured or suffer

diseases other than pursuant to the Commonwealth

Act and the word "compensationl', we submit, includes

not only common law damages but also compensation

payable pursuant to some State statute such as the

WORKERS COMPENSATION ACT.

friend has paid some attention to section l0A but There are two relevant sections. Our learned also relevant - - -

DEANE J:	Mr Shaw, am I right that you are, in effect,
conceding that the Court of Appeal somehow overlooked
the inconsistency point?
MR SHAW:	Yes, I think it might be said formally, Your Honour,
that the only attack in relation to inconsistency
before that court was directed to section 46 and it may understandably be thought that that court
took the view that if section 7 could be relied
upon then the constitutional point did not arise but this Court having granted special leave and the relevant notices having gone out, we accept

ClT19/l/SH	32	11/8/88
Union(2)

that there is before this Court a constitutional attack wider than section 46 so we accept that -

DEANE J:	But the Court of Appeal seemed to think it was
before them because they referred expressly to
section 109.
MR SHAW:	Yes.
DEANE J:	But it somehow then just disappeared.
MR SHAW:	Yes, I think if one were to look at the written
submissions which are, in fact, not before this
Court but defining the issues, the present
appellant's attack really was directed to section 46 and it may be that the court took the view that no such attack arose in respect of
section 7.  I must say, if the Court pleases,
that the reliance upon section 7 by both our
side of the record and by the Solicitor-General arose fairly late in the piece and it may,
therefore, have been understandable that no formal attack directed to section 7 was before that court.
DEANE J:	Thank you.  You have answered my question.
MR SHAW:	Yes, thank you, Your Honour.  We would, in addition
to section l0A direct attention to section 5(2)(e) of the SEAM.ENS COMPENSATION ACT.

(Continued on page 34)

ClT19/2/SH	33	11/8/88
Union(2)

MR SHAW· (continuing): That subsection begins by saying -

sorry, perhaps I could refer to subsection (1):

If personal injury by accident arising out of or in the course of the employment is

caused to a seaman, his employer shall,

subject to this Act, be liable to pay·

compensation in accordance with Schedule 1.

(2) Provided that -

and I refer in passing to (d):

in the case of the death of a seaman leaving

no dependants, no compensation shall be

payable under this Act if the owner of the

ship is under any Act, Imperial Act or State

Act liable to pay the expenses of burial;

(e) if it appears that the claimant has

a claim for compensation for the injury
under any law of the United Kingdom or of

any other part of the King's Dominions or

of any foreign country, compensation under

this Act shall only be allowed upon the

claimant undertaking not to claim compensation

for the injury under any such law.

That provision was there from 1911 onwards and,

in our submission, that provision also evinces

an intention not to cover the field by the enactment

of the 1911 statute. It uses the word "compensation"

just as section 10A and the question, of course,

is whether the laws of New South Wales are laws

of "another part of the King's dominions". We

will submit that the relevant New South Wales

laws meet that test.

MASON J: Is that not a question that is discussed in the

context of other statutes?

MR ·SHAW:  We have not been able to find any clear authority

on that point, Your Honour. It may be but not

so far as our search has revealed so far.

MASON J:	I see.
MR SHAW:	In terms of what is a dominion and whether New

South Wales is part of the King's dominions,

we propose to refer to the definition of "dominion"

in the Macquarie dictionary. May we hand up

copies of the relevant page, page 540 of that

dictionary, if the Court pleases.

MASON J:  Thank you.

ClT20/l/SDL	34	11/8/88
Union(2)

MR SHAW:  We thought that definition 5 is probably the most

relevant one:

a territory constituting a self-governing commonwealth and being one of a number of such territories united in a community

of nations, or empire (formerly applied

to self-governing divisions of the British

Empire, as Canada, New Zealand, etc.)

Although there are, of course, more general

definitions, we would submit that if Australia

was, at all material times, one of the King's

dominions, then New South Wales was a part of

that dominion in 1911 and remained such as part

of the British Commonwealth of Nations under

the Crown. If that is so then it is clear that
this Commonwealth statute contemplates that a

worker might have a claim for compensation both

under a New South Wales law and under the Commonwealth

Act and the procedural requirement of an undertaking

is imposed in order to prevent duplication of

the litigation.

We draw attention to section 5(4) which

provides that:

Any undertaking given in pursuance of

paragraph (e) of sub~section (2) of this

section shall have effect as a contract

between the claimant and the person from

whom the compensation is claimed.

Coming to section lOA, if the Court pleases,

as our learned friend has pointed out, that was

inserted in 1949 by the same piece of legislation

which deleted the provisions in section 5(2)(b)

and, in our .submission, section lOA effectively

does the same work as was achieved by the former

section 5(2)(b).

(Continued on page 36)

C1T20/2/SDL	35	11/8/88
Union(2)

MR SHAW (continuing): In other words, both of those provisions

indicated that the federal law was non-exclusive or

non-exhaustive and provided a method whereby double

counting or double dipping was to be avoided.

Our learned friend suggested that section l0A

was deficient in that it did not include disease but only

included personal injury. It seems to us, if the Court

pleases, that by virtue of section 3(3)

of this Act one would read the reference to "personal injury" in section l0A as including a disease because

section 3(3) provides:

In the application of the provisions of this

Act to and in relation to a seaman to whom

section SC applies, any reference in those

provisions to a personal injury by accident

arising out of or in the course of a seaman's

employment shall be read as including a

reference to a disease due to the nature of
the employment in which the seaman was engaged.

So, at least, for that purpose, the injury includes the disease. But even if that be not so, we submit that

simply because a provision avoiding double dipping does

not cover all contingencies does not fundamentally detract

from the proposition that this is a real indicator of the

non-exhaustive nature of the federal law.

Our learned friend has not submitted, as we

understand it, that the word "compensation" appearing in

both of the provisions to which I will direct your attention

would not include workers compensation. We submit,

plainly, it would on its ordinary meaning. There is no

reason to read down the word "compensation" so as to apply

only to connnon law damages or some other form of payment

apart from payment pursuant to workers compensation

legislation.

Mr Rayment did contend that the 1949 amendments

made some critical difference,that even if,between

1911 and 1949, this Act was non-exhaustive, that is, did

not cover the field, then the position changed in 1949. the deletion of certain words especially when the

positive words that we have been discussing in section l0A(l)

and section 5(2)(e) remained in the Act or, indeed, in the

case of section l0A, were positively inserted in the Act

by the 1949 amendments. We submit it is just impossible

to see the 1949 amendments as making the critical distinction

for which the appellant contends.

In JOYCE's case this Court certainly assumed

that payments by way of workers· compensation under State

law might be made to a seaman notwithstanding the existence

of the Commonwealth law. Could I just go back to JOYCE's

case and draw attention to a couple of particular passages. It i

JOYCE V AUSTRALASIAN UNITED STEAM NAVIGATION CO LIMITED,

(1939) 62 CLR 160. In that case, if Your Honours please,

ClT21/l/PLC	36	11/8/88
Union(2)

it was argued that the term "compensation" in section 5

of the Act did not include damages but only meant workers

compensation payments. The argument that Mr Dwyer put

to that effect is at page 162. He argued that:

The word "compensation" in sec. 5(2)(b) of the

SEAMEN'S COMPENSATION ACT 1911 should be

construed as referring only to moneys payable

under a workers'-compensation scheme of a

State or any other country whatsoever by reason of an injury arising out of or in the course of

employment. It does not purport to mean, and

should not be construed as meaning, damages in

the wider sense.

Now, the Court held that the word "compensation" did include damages but, in our submission, contemplated

that it also included workers compensation payments

under State law. And the two passages we desire to refer

to are, firstly, the passage beginning at the bottom of

page 164 in the judgment of the Chief Justice Sir John Latham.

At the bottom of page 164 His Honour quotes the proviso in

subsection (2)(b) as it then was and the opening words of

that section are, of course, repeated in the present

section l0A, namely:

(Continued on page 38)

ClT21/2/PLC	37	11/8/88
Union(2)

MR SHAW, QC (continuing):

A seaman shall not be entitled to recover

compensation both independently of and also

under this Act.

It is true that those next words which were then in section 5(2)(b) were not repeated in lOA.

His Honour continued.

The contention of the plaintiff is that, on the

true construction of this provision, it does
not deprive any person of any rights under

State statutes or under the conunon law except

rights which are rights in the nature of

worker's compensation as distinct from rights
to damages, as, for example, at conunon law
negligence. Secondly, the plaintiff contends

that, if the section does operate to deprive

seamen of such rights, it is invalid because

it deals with a matter which is not within the

power of the Conunonwealth Parliament but is

within the exclusive power of the State

Parliament.

Then, going to the middle of the page, His Honour

continues:

The areas of Conunonwealth and State constitutional power will be contracted or expanded in relation

to each other according to the answer given to

the question.

And in the next paragraph:

The first contention of the plaintiff is that

the word "compensation" in section 5(2)(b) refers

only to compensation in the sense of worker's

compensation, that is, to a pecuniary remedy
awarded irrespective of any default in the

employer.	The provision is of a character which
is conunon in workers'-compensation Acts in both
Australia and in England.	The provision assumes

various forms, but it is directed towards the

protection of an employer against double

proceedings or double recoveries in respect of

the same injury of an employee. In a State

statute there is hardly any room for doubt that

the word "compensation'' would be construed as

covering a remedy in damages in respect of an

injury suffered by a worker. I can see no reason

for limiting the meaning of the term in a Federal

statute. The word is wide enough in its ordinary

significance to include compensation by way of

damages for the injury suffered by the seaman,

whether or not some default by the employer is

part of the seaman's cause of action.

ClT22/l/VH	38	11/8/88
Union(2)

The second part of the provision supports this

view. The words are: "but subject to thiE

paragraph this Act shall not affect any civil

liability of an employer under any other law." civil liability of an employer in respect of an

injury for which a workman may be entitle•i to

compensation under the Act. The general propcsition

that other civil liability of an employer

shall.not be affected is subject to the

qualification that a seaman shall not be entitled

to recover compensation both independently and

also under the Act. Upon the natural construction

of the provision this qualification is intended

to operate within the area of other civil

liability and it, therefore, should be interpreted

as applying to all such liability and therefore

to common law claims for damages as well as to

claims under a State workers'-compensation Act.

The other passage is in the judgment of Mr Justice Evatt
at page 175 where the policy intention of these

provisions against double counting is adverted to.

At about point 3 on the page, page 175, His Honour said

this:

(Continued on page 40)

C1T22/2/VH	39	11/8/88
Union(2)
MR SHAW (continuing):

If fault can be proved an action for

damages may still be brought by the

seaman in the appropriate form in order

to enforce rights given by the laws

of the States. But the Commonwealth

insists that the seaman who pursues

the Commonwealth remedy and does so

successfully cannot recover twice over

by invoking the laws of the States. described as an attempt to interfere with

a right given by State law, but as a

provision protecting the employer engaged

in inter-State or overseas trade from

being twice vexed by claims in respect

to the same injury to the same seaman where

that injury has been occasioned while the

seaman was performing an act sufficiently

related to inter-State and overseas trade.

So regarded, sec. 5(2)(b) is merely a

relevant and incidental portion of a

scheme for the better regulation of

inter-State and overseas trade. While not

compelling any particular choice by the

seaman it declares that when his first

choice is followed by recovery he shall

be bound.

So, Your Honours, for many years it has been thought

that there was an element of election in this

1911 Act when read against the background of

various State statutes and, in our submission, the

1949 amendments were wholly insufficient to change

that situation.

Now, Mr Rayment has referred to the

Queensland judgment of Mr Justice Hanger in

JOHN BURKE and he did so in the context of the
argument about State constitutional law.	We simply

note, if the Court pleases, that Mr Justice Hanger

was not persuaded in that case that the SEAMEN'S

COMPENSATION ACT 1911 covered the field so as to

oust the effect of the Queensland workers

compensation legislation. The reference we give

is to (1963) Qd R 587, in particular at pages 607

to 610. We do accept, however, that His Honour

thought that certain industrial awards were the

critical provisions in that argument; but His fk:mour

does consider and deal with the SEAMEN'S

COMPENSATION ACT as well, and he did not accept

the section 109 point, altho~gh, as our friend

has pointed out, he did accept the other point

based upon the capacity of the State parliament.

That concludes what we desire to say about

the section 109 point, and, if we are correct

about that, Your Honours, we would support and
adopt the reasoning of the Court of Appeal

CIT23/l/JM	40	11/8/88
Union(2)

to the effect that this claim can be found

properly within section 7 of the WORKERS'

COMPENSATION ACT and that one does not need to

look at section 46. If that is so, it seems to

us that the State constitutional point does

not arise. If this claim is granted within

section 7 of the Act, the special provisions about

seamen and the like do not need to be examined

as to the capacity of the New South Wales

Parliament to enact them.

The reasoning of the Court of Appeal is

to be found essentially at pages 16 and 17 of the

appeal book in the judgment of Mr Justice Samuels, adopted by the other two members of the Court. We adopt that reasoning, with respect, and submit

that one can readily fit this case within section 7

of the WORKERS' COMPENSATION ACT.

Our learned friend has not sought to challenge

in his argument today WEIR's case, which is

referred to by Mr Justice Samuels and which was

decided by an unanimous court in 1980, which held

that section 46 was not the code, that is, that

seamen, notwithstanding that they might fit within section 46, could also rely upon the general provisions of section 7. That judgment,

as I have said, has not been challenged and it

was accepted and adopted by the Court in this
case. The Court explained, in a way which we

would adopt, how this case fits within section 7

and therefore how the need to go to section 46 is

obviated.

(Continued on page 42)

CIT23/2/JM	41	11/8/88
Union(2)

MR SHAW (continuing): If, however, contrary to that argument,

one does need to go to section 46 of the WORKERS'

COMPENSATION ACT then we would put submissions

to this Court in support of the constitutional

validity of section 46 of the WORKERS' COMPENSATION

ACT and submit to this Court that there is sufficient

nexus between the State law and the "peace, order
and good government" of the State of New South

Wales for that to be a constitutionally valid provision of the New South Wales Parliament.

Our friend has referred to the definition

of "New South Wales ship" in section 46(2) of

the WORKERS' COMPENSATION ACT and it is true

that the first two elements of that definition

are the two elements applicable here: first,

that the ship was registered in the State of

New South Wales; and, secondly, that the ship

was owned by a body corporate established under

the laws of the State of New South Wales. And

our submission is that that constitutes sufficient

nexus so as to uphold validity.

Your Honours, as indicated in our outline,

we have put our argument on this point in a series

of propositions. We first of all submit that

those words, "the peace, order and good government"
of New South Wales, confer the plenary power

of the sovereign parliament upon the Parliament

of New South Wales. We give just a passing reference

without opening the book to IBRALEBBE V REG,

(1964) AC 900, at 923. We next say that the

reference to the State of New South Wales is not a reference to a geographical entity but

to a polity and we refer, if we might, to what

Sir Laurence Street quite recently said about

those words in the BUILDERS LABOURERS FEDERATION

case, that is, THE BLF V MINISTER FOR INDUSTRIAL

RELATIONS, (1986) 7 NSWLR 372. This was a challenge

to the constitutional validity of certain New

South Wales legislation deregistering a trade	union alleging that it amounted to a usurpation
of judicial power and the short passage in the
judgment of the Chief Justice to which we would refer is at page 382, point 5, where His Honour
said this:

In my view the words "peace, welfare,

and good government" do prescribe and confine

the scope of the legislative field open

to the New South Wales Parliament.

The reference ins 5 to "New South

Wales" is conceptual. · It does not mean

the geographic area of the State. Nor does

it mean the people within that geographic

area. It means the body politic known

ClT24/l/ND	42	11/8/88
Union(2)

as New South Wales. The High Court has

described it as both a territory and a

people of that territory "considered as

a political organism".

Next we submit that contrary to some of the

earlier cases it is not necessary that a territorial

nexus be established before the law can be held

for the "peace and good government" of the political

state. Could we refer to what Your Honour

the present Chief Justice said in WACANDO V

COMMONWEALTH, (1981) 148 CLR 1, at 20.

(Continued on page 44)

ClT24/2/ND	43	11/8/88
Union(2)

MR SHAW (continuing):  At page 20, point 2, Your Honour

referred to a report of certain law officers

concerning the particular islands which were in

issue in that case and at point 5 on page 20

Your Honour said this:

The two propositions on which the report

of 25 August 1894 was based were:  (1) that

as the laws made by a colonial legislature
did not have an extra-territorial operation
they could not bring about an annexation;

at most they evidenced colonial assent to

an annexation.

Then Your Honour, at the top of page 21, considered

that first proposition and said:

The course of recent decisions in this

Court denies the validity of the first

proposition -

the cases then cited -

now demonstrate that the colonies could

in the nineteenth century make laws which

had an extra-territorial operation.

The contrary view was founded not so much

on judicial decision as on doctrines which

gained currency in the opinions of the

Imperial law officers and reflected

Great Britain's Imperial maritime and trading

interests. The strength and persistence of

the traditional view is attested by the

declaration in s.3 of the STATUTE OF

WESTMINISTER 1931 (Imp) that the Dominions

(but not the States or Provinces) had

we can now enunciate the law in terms

power to enact extra-territorial legislation.

diametrically opposed to informed legal

thinking in the nineteenth and early part

of this century. Our ability to do so rests

on a clearer perception of what essentially

was involved in the grant of power to make

laws for the peace and good government of a

colony, uninfluenced by restrictive

considerations not expressed in the grant

of power itself.

We submit, Your Honours, that the connection, or nexus, should not be stated in territorial terms, but rather more general terms requiring sufficient

connection with the State of New South Wales.	We
give a reference to EX PARTE ISKRA: EX PARTE
MERCANTILE TRANSPORT (1963) 63 SR(NSW) 538 at
page 552.	At that page Mr Justice Brereton posed

the test as whether the subject-matter was sufficiently

connected with the State of New South Wales.

ClT25/l/HS	44	11/8/88
Union(2)

We submit that represents the modern test,

rather than a test which focuses upon questions
of territory or geography, and we submit that the

two aspects of the definition of a New South Wales

ship which are relevant here satisfy the test and

represent a real and not tenuous connection with

the State of New South Wales. The first of those,

of course, is that the ship is registered in the

State of New South Wales.	That is a matter of choice
by the shipowner.

If the shipowner desires to register the ship in a port within New South Wales, then under the

provisions of the SHIPPING REGISTRATION ACT 1981

it may apply to do so and the ship may be granted

registration in respect of that particular home

port. We give, in our outline, a reference to

regulation 35 made under that 1981 statute which

makes it clear that this question of registration

is a matter of choice for the shipowners and
confers various benefits by way of transfer or

transmission of the ship pursuant to the provisions

of the SHIPPING REGISTRATION ACT 1981.

(Continued on page 46)

ClT25/2/HS	45	11/8/88
Union(2)

MR SHAW (continuing):  We also submit that the second part

of the definition provides a sufficient nexus
between the law in the State of New South Wales

in that the ship is owned by a body corporate

established under the laws of New South Wales.

It is connnon ground that the appellant is a

New South Wales' company and, in our submission, incorporation under New South Wales' laws

constitutes a sufficient connection to impose

liability wherever the conduct of the business

of a corporation might take place.

We refer, if the Court pleases, to the

judgment of the Supreme Court of New South Wales

in MYER EMPORIUM V COMMISSIONER OF STAMP DUTIES,

(1967) 68 SR(NSW) 220 at 227, in the judgment of

Sir Gordon Wallace. That case concerned whether

the law imposing stamp duties was sustainable on

the basis that the relevant company was registered

in New South Wales and, at the top of page 227,
His Honour said:

In my opinion the act of incorporation of a company in this State is a "fact,

circumstance, occurrence or thing in or

connected with the territory''which justifies

the imposition of stamp duty on any transfers
of shares in the capital of such a company

and I am further of opinion that a transferee

of a share in such a company is "a person

concerned" even though (a) the share in

question is on a branch register situate

in a territory outsi.de this State and

therefore, in accordance with well-known

cases, deemed to be situate therein for

certain purposes, and (b) the transferee

is himself or itself a resident outside the

State and executes the· transfer as transferee

outside the State. A contrast can at once be drawn with

the facts of and the decision in COMMISSIONER

OF STAMP DUTIES (NSW) V MILLAR, where the

nexus with this State was held to be

insufficient and where the company in

question was incorporated out of and had

no share register within New South Wales.

Moreover, in our submission, the registered owner

of the ship can be considered to have control over

that ship and the fact that control over the vessel

lies with a resident of the State of New South Wales

is also sufficient to constitute the requisite nexus.

We give a reference as to the significance of control of the vessel or in the case I will cite, the vehicle

to COX V TOMAT, (1971) 126 CLR 105 and we refer,

ClT26/l/SH	46	11/8/88
Union(2)

in particular, to pages 110 and 111 in the judgment

of the then Chief Justice, Sir Garfield Barwick. to the next one we mention in our outline because,

in our submission, with respect, it provides a

useful distillation of the approach to the

~onstitutional nexus by Mr Justice Gibbs and we

conclude our submission by submitting that the test

or the tests referred to by Mr Justice Gibbs are

satisfied in this case. The authority we desire

to refer to is PEARCE V FLORENCA, (1976) 135 CLR 507,

a case, as many of these cases do, concerning the

relevant area of sea under the jurisdiction of a

particular State.

(Continued on page 48)

ClT26/2/SH	47	11/8/88
Union(2)

MR SHAW·(continuing):  At page Sr6, Mr Justice Gibbs draws

together what we submit are the relevant authorities

in this field. His Honour refers, at about point 7

on the page, to a 1948 Privy Council decision,

WALLACE BROTHERS V ·COMMISSIONER. OF INCOME TAX,

BOMBAY, saying.

There is no rule of law that the territorial

limits of a subordinate legislature define

the possible scope of its legislative enactments

or mark .the field open to its vision.

In CROFT V DUNPHY .....

"Once it is found that a particular topic

of legislation is among those upon which

the Dominion Parliament may competently

legislate as being for the peace, order

and good government of Canada or as being

one of the specific subjects enumerated

in s.91 of the BRITISH NORTH AMERICAN ACT,

their Lordships see no reason to restrict

the permitted scope of such legislation

by any other consideration than is applicable

to the legislation of a fully Sovereign

State."

In accordance with those reasons, it

is now often said that the test of validity

of a State statute is simply whether it

is legislation for the peace, order and

good government of the State ..... and that

no additional restriction placed upon mere

territorial considerations should be placed

upon the constitutional powers of a State .....

However, the test whether a law is one for

the peace, order and good government of
the State is, as so stated, exceedingly

vague and imprecise, and a rather more specific

test has been adopted; it has become settled

that a law is valid if it is connected,

not too remotely, with the State which enacted
it, or, in other words, if it operates on

some circumstance which really appertains

to the State.

Then the decision of the Privy Council in JOHNSON

and THOMPSON is cited which incorporates the

well known and oft cited observation of

Sir Owen Dixon in BROKEN HILL V COMMISSIONER

OF TAXATION, a case which will be too well known

to Your Honours to really cite but we draw attention

to it as set out in that part of the judgment.

Then, at page 518 point 2, Mr Justice Gibbs,

after considering all of these authorities, said:

ClT27/2/SDL	48	11/8/88
Union(2)

For that reason it is obviously in the

public interest that the test should be liberally applied, and that legislation

should be held valid if there is any real

connexion - even a remote or general connexion -

between the subject matter of the legislation

and the State. And it has been established

by a series of well-known decisibns that

within their limits the legislatures of

the States have powers "as plenary and as

ample" as those of the Imperial Legislature

itself. It would seem anomalous and unfitting

that the enactments of such a legislature

should be held invalid on narrow or technical
grounds.

At the bottom of page 518 His Honour refers with approval to what Your Honour Mr Justice Mason

said in the SEAS AND SUBMERGED LANDS case:

that the power ..... was large enough to .....

apply to off-shore waters. The same is

true now of State legislatures.

In our submission, those do represent the modern

test and they are satisfied by the definition

of '·'New South Wales ship" in section 46. If

the Court pleases, those are the submissions

we desire to put.

MASON J:  Thank you, Mr Shaw. Yes, Mr Solicitor?

MR MASON:  I have the ten copies of our outlines.

(Continued on page 50)

ClT27/2/SDL	49	11/8/88
Union(2)

MASON CJ:	Yes.
MR MASON:	Your Honours, in paragraph 2 of our submission

we address the case of direct inconsistency and

apart from the reference to the South Australian

Full Court decision in AMALGAMATED WIRELESS which

makes plain the scope of the federal statute,

that it is disability from earning full wages

as a seaman that is involved, I think the point

has already been made that this case involves

a claim that could not be made under the federal

Act.

Turning then to the broader question of

inconsistency, may I direct Your Honours' attention

to page 40 of the appeal book and to portions

of the speeches in the 1909 parliament. Your Honours

may remember, in 1909 the Commonwealth first

passed a SEAMEN'S COMPENSATION ACT. It was held

to be invalid by this Court in the KALIBIA case

on the ground that it was not confined in its

scope to interstate trade and that it intruded

into intrastate trade in a way that did not permit

of severability.

In 1911 the legislation was re-enacted in

identical form save for the scope being confined

to interstate trade in section 4. When the matter

was introduced in 1911 the speeches indicated

merely that this is a re-presentation of the 1909

Act fixing up the problems that occurred.

(Continued on page 51)

ClT28/l/ND	50	11/8/88
Union(2)

MR MA.SON (continuing): Accordingly, we would seek to rely

upon two portions of what was said in 1909 as

relevant to the scope of the 1911 legislation.

At page 40 line 55 in the left-hand column, in

the speech of Senator Millen, who was moving the

second reading, there is reference to various State

Acts and Queensland being the first to bring

forward a measure that extended to seamen. I

will be handing up the State Acts in a minute.
At page 44, the only other passage I wish to

refer to, in the left-hand column about half-way

down:

Senator MILLEN - The provision is that, if

the incapacity lasts less than two weeks,

no compensation will be payable with respect

to the first week. Another provision - and he is clearly talking about section 5(l)(b) -

Another provision says that compensation shall not be recoverable under this Act,

and also under any other Act. There are

several Acts under which a workman can
proceed for compensation. For instance,

he can proceed at common law, under the

EMPLOYERS' LIABILITY ACT, under various State

Acts, and in certain cases, I think, even

under the MERCHANT SHIPPING ACT. But this

Bill contains a stipulation, founded upon common sense and equity

and that is, in effect, about double dipping.

Your Honours, may I hand up copies of the

workers' compensation statutes of South Australia,
Western Australia and Queensland that were in

operation in 1911 and which extended in their

scope to seamen and injuries to seamen. I do not

wish to refer to them in any more detail than that.

Given that this matter was expressly adverted

to by those who introduced the legislation and that

the Commonwealth Act expresses no intention to cut
down the existing State laws or to occupy the field

which they covered, let alone to do it exhaustively

and exclusively, we submit that a case based on

covering the field in consistency is not made out.

(Continued on page 52)

ClT29/l/SH	51	11/8/88
Union(2)

11R MASON (continuing):  Your Honours, reference has already been made

quite extensively to sections 5(2)(e) - that is a

typographical error, I am sorry, in the first line

of paragraph 4 of our submissions - and l0A of

the Commonwealth Act. Perhaps one should also

add 5(2)(d), to which attention has been drawn this

morning, and in section SA, the second paragraph of
that section in the Commonwealth Act, a reference to

recovery independently of recovery rights ,given by

SA of the Commonwealth section. We submit that those

provisions expressly recognize the concurrent

operation of State laws creating rights to compensation

and resolve and avoid any issue of inconsistency by

precluding double dipping.

May I just add a reference, not in our written

submissions, to passages in the CREDIT TRIBUNAL case?

REG V CREDIT TRIBUNAL; EX PARTE GMAC, (1977) 137 CLR 545

at 552,. 562 and 563. Your Honours, looking at

5(2)(e), we submit that New South Wales law is a

law of another part of the King's dominions, being other than the United Kingdom within that section.

I do not know if this was the case Your Honour the

Chief Justice had in mind when you asked the question

about the use of this expression in other Acts, but

in JOHN SHARPE & SONS LTD V THE KATHERINE MACKALL,

34 CLR, there is a statement to the effect that in

legislation similar to this New South Wales is part

of the King's dominions. It is a very short passage

at the bottom of 425, in the judgment of the

Chief Justice and Justice Gavan Duffy:

By sub-sec 2 of sec. 18 of the Imperial

INTERPRETATION ACT 1880 the expression

"British possession" is defined as meaning
"any part of Her Majesty's dominions exclusive

of the United Kingdom, and where parts of such

dominions are under both a central and local

legislature, all parts of the central

legislature shall, for the purpose of the

definition, be deemed to be one British

possession." If the first part of the
definition stood alone, there could, we think,

be no doubt that each Australian State, and the Commonwealth as a whole would be a "part of Her

Majesty's dominions,"

MASON CJ: Well, it was that passage and the passage or passages

in FROST V STEPHENSON to the same effect that

I had in mind.

MR MASON:  Yes, thank you.

ClT30/l/VH	52	11/8/88
Union(2)
MR MASON:	Thank you.	The expression "King's dominions"

is used in a large number of Commonwealth and

State statutes and apart from having identified

them in a CLIRS search we have not tracked through

each of them. If it was of any assistance to

the Court I could provide the Court with a copy

of the CLIRS search which shows all of the statutes

in which that expression is used.

MASON CJ:  I doubt if it would assist us very much, would

it, Mr Solicitor? More likely to confuse us,

I should have thought.

MR MASON:  If Your Honour pleases. We would submit that

alternatively, even if Australia were the only

relevant part of the King's dominions referred

to in section 5(2)(e), the New South Wales Act

is a law of that part and that, in our submission,

may be drawn from the passages of the majority

judgments in KIRMANI's case that have been identified.

Compensation in both 5(2)(e) and lOA extends,
in our submission, to any form of civil liability.

We have given reference to passages in JOYCE's case and some cases in addition to those which were read by my learned friend, Mr Shaw, but

it is not proposed to read those passages.

In JOYCE's case, before the Full Court of

New South Wales, Sir Frederick Jordan, speaking

for the Court, at 39 SR 84, at 88, said that:

By section 5(2)(b), it is evidently intended

that the right to recover compensation

independently of the Act, and the right

to recover it under the Act, shall be

alternatives.

In our submission, the re-enactment of the relevant

portion of section 5(2)(b), in section lOA, which

occurred in 1949 should be taken to be an endorsement

of that judicial interpretation of section 5(2)(b)

which lOA was replacing.and it would be unlikely,

in our submission, that lOA, which was directed

at issJes other than those of concern to this

Court - that section lOA would have slipped in

in 1949 as a means of restricting the rights

of workers to make claims independently of the

Commonwealth statute.

(Continued on page 54)

ClT31/l/ND	53	11/8/88
Union(2)

MR MASON (continuing):  The Commonwealth statute does not

take away common law rights. It simply confers

a statutory entitlement, and it does so, in our

submission, by way of an alternative right given to a worker who is injured. My learned friend,

Mr Rayment, said that if the combined operation of

both the Commonwealth and State Acts were permitted

this would create an unworkable situation for

employers who happened to be operating ships.

We would not agree with that, but we would say that

in one s~nse that is just looking down his client's

end of the telescope. If one looked at the

accident that fell within the State Act but not	situation of a worker who was injured in a journeying
within the Commonwealth Act, then that person
might justly think that a contrary interpretation
was not a workable or fair interpretation and
asked why it would not be appropriate to reach out for whichever form of compensation was offered.

If I may then turn to the question of the

validity of section 46 of the State Act and put

the submission that it is a valid law for the peace,

welfare and good government of New South Wales,

or at least should be regarded as such by the

courts administering the law of New South Wales.

The basic point of the primary submission we wish

to put to the Court is that whatever may have

been the position in the 19th century, the

expression "peace, order and good government" when

used in the Commonwealth CONSTITUTION and in the

respective State Constitutions should not be seen

in any way as a limitation upon legislative power.

It should be seen as a means of conferring

upon the legislature that is created the plenary

powers which the Imperial Parliament had and that

whatever may have been the extent of recognition

in England of an Act passed by the New South

Wales Colonial Parliament the intention was that,

New South Wales Parliament should be placed in the	so far as New South Wales law was concerned, that	same position as the Imperial Parliament, and that
the Diceyan theory that it was not for the courts
to question the validity of a plenary grant of
power on the ground of appropriateness should now be taken to be the relevant principle.

(Continued on page 55)

ClT32/l/HS	54	11/8/88
Union(2)

MR MASON·(continuing):  The passage that was read from the

judgment of Your Honour the Chief Justice in
WACANDO we would adopt as suggesting that whatever

may have been the theory against which the State Constitutions and the Commonwealth CONSTITUTION may have been judged in 1856 or 1900, it should

be judged against what is now the appropriate

legal theory.

We submit that the question Your Honour

Mr Justice Deane asked of my learned friend,

in effect: was he saying that the Commonwealth

Parliament would lack the power, does put one's finger upon a relevant question because if there

is a restriction upon extraterritorial scope

then there is no reason why it should apply to

the States .but not the Commonwealth. The Commonwealth

has, indeed, perhaps a more restricted position
in that its legislation must be categorized by

reference to one of the heads of power under

section 51 and, within that process of characterization

there may, per force, be a need to say that that

just is too far away from POSTAL AND TELEGRAPH

SERVICE, for example, to say that that has anything

to do with a passage of law with respect to that

matter.

But the State Parliaments have power to

legislate in all cases whatsoever subject, of

course, to 109 and other sections of the federal

CONSTITUTION.

Your Honours, we submit that the line of

cases which commenced with BROKEN HILL SOUTH
and included THOMPSON's case which, in the one

breath, stressed a doctrine of plenary power

but in the other breath said - and belatedly accepted

an idea that there could be extraterritorial

legislation - but in the same breath said, "But

that plenary power is limited when one gets into

extraterritorial scope by a need to find an

objective and real nexus", we say that that

line of cases ought not to be followed and should

be overruled. They operate as an unwarranted

gloss upon the plenary grant of power and if,

as constitutional theory would have it, the Imperial

Parliament may make it an offence for a Frenchman

to smoke upon the streets of Paris, to give the

traditional example, so may the State Parliament,

if it politically chose to do so.

ClT33/l/SDL	55	11/8/88
Union(2)

MR MASON (continuing):  Now, that is not to say that that

Act would be enforceable in a French court. But,

it has been said several times that it is irrelevant

that other jurisdictions may decline to recognize

and to give effect to the statute. May I give

Your Honours two references to that principle:

BARCELO V ELECTROLYTIC ZINC in 48 CLR, 391 at 409-410,

the judgment of Mr Justice Starke. and MYER EMPORIUM V

COM1:1ISSIONER OF STAMP DUTIES in 68 SR (NSW), 220 at 236,

a judgment of Mr Justice Walsh in the Court of Appeal.

BRENNAN J:  How do you marry that proposition with section 118

of the CONSTITUTION?

MR MASON:  We say that section 118 is a mechanism and, indeed,

the prime mechanism for resolving questions of

interaction between the statutory law of different

States. This was a matter, as Your Honour knows, that

was explored in GOTTELMAN's case and in the

appendix to our written submissions we have replicated

some submissions that were put to the Court then

about how the American law,which discusses the

full faith and credit clause there, does address

the question of overlapping operations of

State statutes. There are doctrines that have

been worked out there whereby, in effect, if it comes

to a question of a clash between two legislatures,

each addressing a particular topi~ then it may

be necessary to decide which has the closest

connection with the subject-matter of the dispute.

As part of those rules, there may well be the

need to say that a Court in one jurisdiction is

obliged to have regard to the statutory law of that

jurisdiction, at least so far as it qualifies the

cotmnon law, including the cotmnon law rules of

private international law. If full faith and

credit properly applied said that a New South Wales

court had to apply a Queensland statute and the

New South Wales Parliament said in express terms,

"Thou shalt not apfilY and give effect to that

Queensland statute', then there certainly would

need to be some mechanism or rule for deciding

full faith and credit as to what. We say that

American law has addressed that and if it came

to a direct clash then it is a question of which legislature has the, as it were, the prior claim

to the factual situation.

(Continued on page 57)

CIT34/l/JM	56	11/8/88
Union( 2)

MASON CJ: Is this "no need for a nexus" submission consistent

with the Court of Appeal decision in BLF, to which

you refer in connection with an earlier proposition?

MR MASON:  The BLF case - there were five judgments and may

I give Your Honours the page references to the

relevant passages. The Chief Justice at pages382 to

385 said clearly that peace, order and good government

was limited and that the courts could determine

whether or not a law was, in truth, for the peace,

order and good government of a State.

Mr Justice Kirby, at 395 to 397 and 402 to 406 took the opposite view and we would primarily rely upon

his reasoning that, for historical reasons, and

applying the principle adopted in the English courts

with respect to the constitutional validity of Acts

of the English Parliament, that was not an issue

which was justiciable in a court.

Mr Justice Mahoney was of a similar view to

Mr Justice Kirby and his judgment deals with this

at pages 408 to 410 and 412 to 413.

Mr Justice Priestley said he did not have to deal

with the matter but he inclined to the view similar

to that of Mr Justice Street. At 420 to 422,

His Honour said - well, I was going to say "in effect" -

His Honour said in terms that if Parliament ordered

the killing of blue-eyed babies, then he would not

enforce such a law, and Mr Justice Glass, at 407, said
he did not have to decide the issue.

Now, we primarily - or we would rely upon the reasoning of the presi~ent and Mr Justice Mahoney but may I say that each of them, at 397E and 408E,

stated the universal proposition that immediately

qualified it with respect to extraterritorial scope.

Our submission is that in principle, there cannot

be such a distinction; that if Parliament within

New South Wales may, as a matter of constitutional

theory, pass a law though it be seen in the eyes

of the judiciary to go beyond, way beyond, that

which is a reasonable or proper response to a

particular issue and the judiciary takes the stance

that it will give effect to the will of Parliament,

and that the political processes and common sense

are the way in which that issue shall be determined,

it is illogical, in our submission, that there should

be a different rule with respect to Parliament reaching

out beyond its area.and that if Parliament should be
the judge in that area as it is with respect to the

subject-matter of its legislation.

ClT35/l/SH	57	11/8/88
Union(2)

MR MASON (continuing):  Your Honours, the closest on our

understanding that anyone has got in this Court
to discussing these issues is in the judgment

of Mr Justice Evatt in TRUSTEES EXECUTORS & AGENCY

CO V FEDERAL COMMISSIONER, 49 CLR 220, and it is

virtually the whole of His Honour's judgment

from 230 to 240 and in the judgment of

Mr Justice Gibbs in PEARCE V FLORENCA, in the

passage that is referred to in paragraph (c)

at the top of page 4 of our written submissions.

Mr Justice Gibbs would appear to have gone

further than Mr Justice Evatt. His Honour questioned

the reason for having an extraterritorial limitation.

He suggested, at page 519 of 135 CLR, that perhaps

it had a continuing justification in the need

to avoid conflict with other rules of law applicable

in a particular area. Save for that suggestion,

His Honour, in that long passage which I do not

read, 514 to 520 - save for that possible

justification His Honour did not appear to consider

that there was any modern justification for the

rule.

But having stated doubts as to whether there

really was any principle of extraterritorial

incompetence, His Honour then restated, on page 517,

the traditional test which started in BROKEN

HILL SOUTH by Mr Justice Dixon in which ultimately

there had to be some objective nexus for there

to be a valid law. We would, really, adopt

as much of His Honour's judgment as says there

seems to be little reason any more to have the

restraint. If we have to, as an alternative

submission, so much of His Honour's judgment

as says:

that legislation should be held valid if
there any real connexion - even a remote

or general connexion -

that is at page 518. But we would, with respect,

say that His Honour just did not go that last

step to which his reasoning logically drove him,

to say that there should be no longer any objective

nexus requirement in respect of the words,. "peace,

order and good government", either in the Commonwealth

or the State constitutional sense.

(Continued on page 59)

C1T36/l/ND	58	11/8/88
Union(2)

MASON CJ:	But His Honour really was not considering that question, was he? He was accepting a principle enunciated
in terms of a nexus and denying a proposition that there was an absence of legislative power extra territorially.

MR MASON: · Ye5.

MASON CJ:	That is what His Honour was directing his argument
to?
MR MASON:	Yes, and he did not need to go any further than
that. I accept that. Therefore, our first approach
is to seek to take a high ground and say that it does not matter; our second broad approach
is that referred to in paragraph (f) on page 5
and to draw attention to a provision of the
COLONIAL LAWS VALIDITY ACT which gives to every
representative legislature in the passage that is set out there:

in respect to the Colony under its

Jurisdiction ..... full power to make laws

respecting the Constitution ..... of such

legislature.

The words "peace, order and good government"

are in the New South Wales CONSTITUTION ACT of 1902

which was an Act amending an earlier CONSTITUTION

ACT which had been a schedule to an Imperial

statute which is referred to also in our written

submissions.

The COLONIAL LAWS VALIDITY ACT, being a

later statute, conferred upon the New South Wales
legislature power to amend its own constitution

and thereby implicitly power to repeal it, either

expressly or impliedly. If section 46 of the

WORKERS COMPENSATION ACT does transgress the

requirement that there be an objective nexus

of peace, order and good government, so be it.

The 1926 Act is the latest statute and therefore

there is an implied repeal.

That argument is adopted entirely from the

passage in the article by Mr Trindade to which

reference is given and there is some reference to the same sort of consideration in PEARCE V

FLORENCA at page 515 in the judgment of

Mr Justice Gibbs.

(Continued on page 60)

C1T37/1/SDL	59	11/8/88
Union(2)

MR MASON (continuing):  We then, as our third main approach,

say that if the traditional tests have to be

satisfied, they are satisfied in the present case.

I think most of what we would wish to say has

already been said on this. May I just say something

about something my learned friend, Mr Rayment, said?

He said that if there New South Wales contact, it

is done for the convenience of foreigners and that a

foreigner may, as a matter of convenience, resort to

New South Wales to have the owning company

incorporated there or to have the ship incorporated

there.

The idea of a flag of convenience conjures up a

rather negative image and it is fair to say, in our

submission, that countries like Panama may suffer

in their standing in the nations because they are prepared to give a flag of convenience and not to impose proper standards upon ships that are allowed

to fly their flag. In our submission, it is skin off

New South Wales' nose if seamen, in ships which have

a real connection with New South Wales through the

ownership and the caoacity to control that that gives,

go inj~d- wtthout compensation. That "skin"

off the nose'' factor does create, if needed, in our

submission, a right to say that a law addressing that

issue is a law with respect to the peace, order and

good government of this State.

Your Honours, may I just add to paragraph (c)

a reference to a New Zealand case we came across just
this morning where there is some discussion of the _

same principles RE THE AWARD OF THE WELLINGTON COOKS' AND STEWARDS' UNION, (1906) 36 NZLR 891;- L1terestly

enough, a case where my learned friend, Mr Rayment's

client, was being prosecuted for breach of some award

in New Zealand and the point was taken that the award

was invalid because the injury or the breach occurred

outside of the territorial waters of New Zealand.

Union Steamship said, "Sure, we are the owner of the

ship, but the New Zealand Parliament's power to

legislate with respect to peace, order and good

government, does not go so far as to legislate for

injuries occurring" - and in words that were similar

to, I think, one of the analogies my learned friend said,

they said something like, "It could be that this same

ship is plying between two ports in Northern Europe

when the injury occurs."

(Continued on page 61)

ClT38/l/VH	60	11/8/88
Union(2)

MR MASON (continuing): In the judgment of the Chief Justice

at 404, he said:

If our Parliament and our courts cannot

control the acts of New Zealand's subjects,

which are done outside our territorial

limits, then can the peace, order and

good government of New Zealand be secured?

I do not think so.

MASON CJ:	I thought you told us earlier it was at 891?
MR MASON:	I did.  I am sorry, it is 394, quite different,

thank you.

We submit that the JOHN BURKE decision~is

wrong and should not be followed. I will give

Your Honour a reference to two academic discussions

of it which are critical of it. In the present case,

the appellanb was self-insured. That appears from

page 2 of the appeal book where an assertion to

that effect was made in the application for

determination and that assertion was not denied

by the appellant.

Section 18(1A) of the WORKERS' COMPENSATION ACT

provides for self-insured persons to be relieved

from the obligation to take out insurance and,

therefore, there is a real point of distinction

and it does, also, mean that the nexus has to be

Here, the only question is whether this particular	addressed with respect to the particular injury.
injury suffered by this worker who was engaged in
Sydney and discharged in Sydney in circumstances
where there were these other acts of nexus, such
as ownership, registration, et cetera, whether
those factors were enough to give rise to a
liability. The question of whether there is an
obligation to pay into a general fund to cover
ships does not arise and, finally, with respect to
liability to all the workers that may be on those
a matter that fell from Your Honour Justice Gaudron, we would if need be rely upon section 31 of the
New South Wales INTERPRETATION ACT OF 1987 which
is the provision that says that one may save the
legislation by reading it down if need be.

In the BURKE case there was, I am reminded,

some discussion about the existence of an industrial

award. On page 51 of our appeal book, it is plain

that there is no evidence concerning an industry

award covering the employment of the applicant. If

the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Rayment, how long will

your reply take?

ClT39/l/SH	61	11/8/88
Union(2)

MR RAYMENT:	Ten or fifteen minutes, I would think, Your Honour.
MASON CJ:	I think we will proceed with your reply now,

Mr Rayment.

MR RAYMENT:  May it please Your Honour.

MASON CJ: If that is convenient to you?

MR RAYMENT:  Yes, I will deal with it, Your Honour. Your Honours,

in the first place, may I accept a submission made by

my learned friend, Mr Shaw, about section 3(3) of

the Conunonwealth Act which appears to cater for
the proposition which I advanced about section l0A

of the Conunonwealth Act.

(Continued on page 63)

ClT39/2/SH	62	11/8/88
Union(2)

MR RAYMENT (continuing):  Your Honours, it was put by both

the Solicitor-General and by my learned friend

Mr Shaw that the reference in the Connnonwealth Act

to any part of the King's dominions was an apt

reference to the States of Australia. In our

respectful submission, bearing in mind whose
statute this is, that is less than an apt way to

refer to the States of Australia. Indeed, I

think the submission of both of them was that the

Parliament meant to refer to Australia itself by the expression "the King's dominions". In

our submission that is not the language one

would expect to find in a Connnonwealth statute

so as to refer to the States of this country.

What is being referred to, in our respectful

submission, are parts of the King's dominion

outside this country.

Your Honours, the consequence of that

submission ought to be observed. It would mean

that there was some kind of invitation in the

Connnonwealth statute to go forum shopping as between the States and the Connnonwealth. It would mean that if a rate of $250 a week were provided

under a State statute and $240 a week under the

Connnonwealth statute for the same injury to the same worker in the same employment, he could

choose and go to the State court as long as he undertook not to go to the Connnonwealth court

under the State Act, or, if the rate

were higher in the Connnonwealth, give an

undertaking about the State Act and proceed

in the federal sphere, which would just produce

the greatest uncertainty. In other words, it

would abolish any notion of direct inconsistency

at all in this statute and that, in our respectful

submission, can never have been the intention.

Now, Your Honours, in construing 5(2)(e),

and also, in our submission, in construing l0A,

it is important, we submit, to bear in mind that

this statute is intending to cater not only for the interrelationship of State and federal law,

but for the interrelationship between this law

and the laws of various foreign countries. It is

the purpose of section SE to deal with that matter

in a reasonable way with respect to foreign countries .

If you have a right under the law of a foreign country

including a part of the King's dominions, then you

must undertake not to prosecute that right before

being entitled to compensation under this statute.

Similarly, in our submission, when l0A refers to

having received compensation,· it is no indication

that the f'ederal Parliament is envisaging the receipt

of compensation for a matter otherwise within this

s·tatute under State law. It is utterly consistent

with the compensation referred to having been payable

and received under foreign law because the staute is

designed to be a world-wide statute.

CIT40/l/JM	63	11/8/88
Union(2)

MR RAYMENT (continuing):  Your Honours' attention was

directed to the fact that we did not, in our

submissions, challenge WEIR's case. The decision

of the Court of Appeal in COMPAGNIE DE CHARGEURS

CALEDONIENS V WEIR, (1980) 1 NSWLR 573,decided that section 46 was

not a code arid that resort might be had to other
provisions in the statute covering the same field.

We had included, Your Honours, in the notice of appeal,

a paragraph specifically dealing with that matter

and concede, Your Honours, that it was neither

necessary for our submissions nor for Your Honours'

decision in this case to decide whether this case

be correct or not because one way or another

Your Honours would need to look at both section 46 and section 7 in order to resolve the questions

of State law.

If it matters, Your Honours, we would draw

to Your Honours' attention that a number of parts

of section 46(3) do not appear to have been examined

by the Court of Appeal in WEIR's case. In particular,

they do not appear to have examined that part of

section 46 which provides a different time limit

for a death claim in respect of a seaman and that

provided for by the balance of the statute and the

like. There a number of facultative provisions

in section 46(3) and a number of mandatory provisions

and the mandatory provisions are such as would suggest,

in our submission, that 46 was intended to be a code. But, in our respectful submission it is not necessary

to resolve that issue for the purposes of this case

so we have addressed no submissions to it. We do

not wish to be taken to be conceding that it is

correct though for any purpose.

Your Honours, can I revert to a question

asked of me in-chief. Sections 29 and 30 of the

SHIPPING REGISTRATION ACT do provide that a ship

registered under that Act will be an Australian flagship. Your Honours, it was assumed in the

submissions of my learned friends that in so far

as section 46 speaks of registration in Australia, the reference was to the Australian statute, ~he

SHIPPING REGISTRATION ACT. That Act did not commence

at a relevant date for the purposes of this case,

it commenced on 26 January 1982, which is after the

discharge of Mr King. The relevant Act at the time

of events giving rise to this case was the MERCHANT

SHIPPING ACT, so that the same considerations do

not arise in our submission.

(Continued on page 65)

ClT41/l/MB	64	11/8/88
Union(2)

MR RAYMENT (continuing):  Your Honours, pursuant to

the MERCHANT SHIPPING ACT, Part I, section 4(f),

Orders in Counsel could establish at a port of

registry registrars of British ships

and that power was exercised with respect of

ports in Australia, then Part I was ultimately

repealed by the SHIPPING REGISTRATION ACT 1981,

section 3, with effect from 1982.

WILSON J:  Nothing turns on that point if in fact

it was registered in Sydney?

MR RAYMENT:  No, I think that is right, Your Honour, but in case it does I have referred to it. Your Honours,

the cases about the power of New South Wales to

regulate the affairs of companies incorporated in

New South Wales, in our respectful submission, have

nothing to do with this case. The question is:

is it a sufficient nexus to regulate employment

upon ships which happen to be owned in New South

Wales wherever the employer may reside?

Your Honours, we would seek to do no more than

rely upon the train of authority in this Court

on the question of the need for a sufficient nexus

for legislation of New South Wales in general answer

to the submissions of my learned friend the

Solicitor-General. Can I go to two particular

submissions that the Solicitor-General put. In

the first place, we did not submit what my learned

friend, I think, attributed to us about the question

of flags of convenience, and the like. All we put

about that was that mere registration of a ship

would not entail more than - would certainly cater

for the registration by foreigners.

Your Honours, in the next place, a reference

was made to insurance. For the purposes of the

WORKERS' COMPENSATION ACT, the P and I Club

which insures the present appellant was not

a licensed insurer, I think I might say, so that

whether for purposes of New South Wales law it is
a self-insurer, or not, in our respectful submission

has - that is not part of the facts of this case.

It is, in our respectful submission, simply a matter
of notoriety that shipowners utilize P and I Club

insurance. Almost 90 per cent of world tonnage is

written with P and I Clubs and 100 per cent of tonnage

in Australian waters is written with P and I Clubs.

(Continued on page 66)

ClT42/l/HS	65	11/8/88
Union(2)

MR RAYMENT (continuing):  Those clubs are, by and large,

not insurers under the various State statutes
and the effect of this case is of great importance

in the shipping industry for that reason - or

partly for that reason. And it would be necessary

for shipowners coming here and plying in the

coastal trade, if the view against us be right,

to obtain insurance under a number of State Acts
as set forth in the table which we handed up

to Your Honours, some of which registration will

be at cost, not directly related to the number

of employees in the State but to the number of

employees in the area. May it please Your Honours,

those are the matters in reply.

MASON CJ:  Thank you, Mr Rayment. The Court will reserve

its decision in this matter and will adjourn.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

ClT43/l/ND	66	11/8/88
Union(2)