R v Foster; Ex parte Eastern & Australian Steamship Co Ltd [1959] HCA 10; (1959) 103 CLR 256 (12 March 1959)

HIGH COURT OF AUSTRALIA

THE QUEEN v. FOSTER; Ex parte EASTERN AND AUSTRALIAN STEAMSHIP CO. LTD. [1959] HCA 10; (1959) 103 CLR 256

Constitutional Law (Cth)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Fullagar(3), Kitto(4), Taylor(5), Menzies(6) and Windeyer(7) JJ.

CATCHWORDS

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

HEARING

Melbourne, 1958, October 13, 14, 15, 16; 1959, March 12. 12:3:1959
PROHIBITION.

DECISION

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

2. The company did not comply with the demands made in the logs or with any of them. Doubtless this was true too of many others of the shipowners concerned and both the guild and the institute claimed that an industrial dispute extending beyond the limits of one State had been created. Notifications were sent accordingly to the Commonwealth Conciliation and Arbitration Commission as under s. 28 of the Conciliation and Arbitration Act 1904-1956. The Eastern and Australian Steamship Company objected that no dispute affecting that company had come into existence which would give the commission authority to make an award binding upon it and that the matter lay outside the jurisdiction of the commission. For this contention reliance was placed upon the decision given in 1920 by this Court concerning the same shipping company, namely, that reported as Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495 a decision founded, at all events in some degree, upon Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. (1908) 5 CLR 737 The contention was rejected by the learned presidential commissioner (Foster J.). His Honour's reasons for rejecting it included the effect of the Statute of Westminster, which was not in operation at the date of the decision. His Honour said: "I propose to retain the Eastern and Australian Steamship Co. Ltd. as respondents to these proceedings and if necessary to make an award binding that company in the dispute created by the log of demands already referred to". The purpose of the writ of prohibition for which the company has obtained the order nisi is to restrain the commission from acting in accordance with this statement. (at p266)

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

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

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

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

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

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

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

10. So far as par. (a) of s. 72 goes, what must be admitted to be a strong prima facie reason exists in decisions of this Court for "construing down" the provision so as to exclude this case. In Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495 on facts relating to the Eastern and Australian Steamship Co. Ltd. almost identical with those of the present case, this Court decided that there was no jurisdiction in the Court of Conciliation and Arbitration to make an award as to the company with respect to industrial conditions to be observed on its ships. The ships traded in the manner that has already been described with reference to the company's ships of today. The question did not come before the Court on prohibition as the present case does. A summons had issued under the now repealed s. 21AA of the Commonwealth Conciliation and Arbitration Act 1904-1918 for a decision of a judge on the question whether an alleged industrial dispute extending etc. existed between the Merchant Service Guild and certain ship-owners, including the company. The summons came before Higgins J. The company objected "to being included in the decision as being parties to the dispute" (1920) 28 CLR, at p 496 Higgins J then stated a case for the Full Court in which he said that he was prepared to find that the company was a party to the dispute in fact, and submitted the question whether it was proper for him as a Justice of the High Court to include the company (among other respondents) "in any decision as being parties to an industrial dispute within the meaning of s. 51 (XXXV.) of the Constitution" (1920) 28 CLR, at p 498 Knox C.J., Isaacs, Rich and Starke JJ. in a joint judgment gave reasons for the conclusion that the objection was well founded. Higgins J. said that on the authority of Currie's Case [1908] HCA 89; (1908) 5 CLR 737, he concurred in the view that the Court of Conciliation and Arbitration had no jurisdiction to deal with the dispute so far as regards the company. The learned judge ended his judgment by saying that the question asked was in substance the following, viz - treating the respondent as party to the dispute in fact (along with hundreds of other respondents) is the Court of Conciliation and Arbitration competent to entertain the claims as between the guild and the respondent, the operations being carried out mainly outside Australia? (1920) 28 CLR, at p 506 Doubtless Higgins J. gave this explanation of the question because Gavan Duffy J. in the reasons he had prepared expressed doubt as to what point was submitted for the determination of the Court (1920) 28 CLR, at p 507 That learned judge expressed his conclusion in an alternative. His Honour said, "For practical purposes it will probably be sufficient to say that, if the learned Judge wishes to know whether a dispute within the meaning of s. 51 (XXXV.) of the Constitution can exist with respect to industrial operations conducted outside the territorial limits of the Commonwealth, I adhere to what was said by my brother Rich and myself in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [1913] HCA 40; (1913) 16 CLR 664, and I answer Yes. If he wishes to know whether such a dispute exists in the present case, I answer that I am unable to say on the facts stated, though the learned Judge may, of course, do so by ascertaining whether the facts which were then declared to be necessary to constitute an industrial dispute with reference to extra-territorial operations are to be found here" (1920) 28 CLR, at p 507 The question was answered in the negative. Now in the case of Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [1913] HCA 40; (1913) 16 CLR 664, at pp 702, 703 to which Gavan Duffy J. refers, certain questions had been submitted to the High Court by the President of the Court of Conciliation and Arbitration relating to alleged industrial disputes involving two ships. One of them ran between Sydney, Fiji and Auckland but without any regular itinerary. The other carried phosphate from Ocean Island. She usually cleared from an Australian port to Ocean Island with cargo on the return journey for Sydney Heads for orders. In each case the ship's officers were engaged in Australia and the dispute was about their terms and conditions of service. The judges in the High Court were not agreed on their decision upon the case stated and it is evident that during the argument difficulties arose out of the form of the questions submitted which were ultimately reframed but even as amended they were not answered in full or categorically. For the purpose of explaining the significance of Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495 and more particularly the significance of the observations therein of Gavan Duffy J. already quoted, it will suffice to set out the answers to the first and third questions in the earlier case. The second question was not answered. The answers are as follows: " (1913) 16 CLR, at p 704 The dispute is not the less a dispute extending beyond the limits of any one State merely because some of the operations in respect of which the dispute exists are performed beyond the territorial limits of the Commonwealth . . . (3) The Court has power to require that any of the terms and conditions which it lawfully determined should be in operation between the organization and the respondents to the plaint, including those represented on the argument of the special case, shall be incorporated in a written agreement between them" (1913) 16 CLR, at p 704 Now a close reading of the reasons of the learned judges will show that these answers were the result of the concurrence of Isaacs, Higgins, Gavan Duffy and Rich JJ. But Isaacs J. and apparently Higgins J. too, justified the propositions which the answers embody by reference to the provisions of s. 5 of the covering clauses of the Commonwealth of Australia Constitution Act which says that the laws of the Commonwealth shall be in force on British ships whose first port of clearance and whose port of destination is within the Commonwealth, while in their joint judgment Gavan Duffy and Rich JJ. took wider ground. It will be necessary to return to the reasons contained in the joint judgment of their Honours, but the foregoing explanation makes it possible to take up again the decision of the majority of this Court in Merchant Service Guild v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495. In that case it is evident that Gavan Duffy J. in his dissent was treating the answers to the questions in the earlier case as constituting a governing authority. And so they might have been, if they were read without the reasons at all events of two of the learned judges forming the majority. For it was only by their reliance upon s. 5 of the covering clauses that their Honours were led to concur in the answers. In the later case Knox C.J., Isaacs, Rich and Starke JJ. said (1920) 28 CLR, at p 502: "As none of the ships now under consideration come within the description given by (s. 5) that provision may be disregarded and the only question is how far does s. 51 (XXXV.) on its own construction unextended by the covering s. V apply to the industrial disputes with which" they were then concerned. Their Honours then proceed to say: "We interpret the enactment" (scil. par. (XXXV.) of s. 51) "according to the well-recognized standards of interpretation. One of those principles is that, prima facie, jurisdiction is territorial; and covering s. V strengthens the view, in relation to the present case, that the language itself of sub-s. (XXXV.) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth. The expression 'industrial dispute' in sub-s (XXXV.) does not mean simply a dispute as to an agreement to perform work anywhere in the world. It does not, for instance, mean a dispute in Australia between shipowners of various nations and their crews of their respective nationalities as to the terms on which employment should proceed in the various countries represented. If so, there is no jurisdiction in the present case" (1920) 28 CLR, at pp 502, 503 Then their Honours conclude: "We think that sub-s. (XXXV.) of s. 51, on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore the term 'industrial disputes' in that sub-section, unextended by covering s. V, means disputes as to the terms and conditions of industrial operations in Australia only. Currie's Case [1908] HCA 89; (1908) 5 CLR 737 was decided in conformity with the opinions we have expressed, and in some respects was an a fortiori case" (1920) 28 CLR, at p 503 Currie's Case [1908] HCA 89; (1908) 5 CLR 737 thus referred to concerned ships engaged in trade between Australian ports and English ports whose articles were opened in Calcutta but whose officers were engaged in Australia. The decision was against the jurisdiction of the Court of Conciliation and Arbitration over a dispute between the shipowners and the officers. The ships were not within s. 5 of the covering clauses. It is clear from the opening sentence of the judgment of O'Connor J. that he treated the question of jurisdiction as depending upon competence to make an award the provisions of which would operate on the high seas to impose duties and obligations. Section 5 at that time appeared to his Honour to express the only extension of the territorial limitation of legislative power so that on a ship not embraced in that covering clause an award could not operate. That view appears really to have formed the basis of the decision of the Court, which consisted of Griffith C.J., O'Connor, Isaacs and Higgins JJ. It is a view which could only obtain before the adoption of the Statute of Westminster. It is not the same view as that expressed in the passages quoted from Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495, at pp 502, 503 The view expressed in that case depended not on placing a territorial limitation on the power to settle an industrial dispute because an award would not run outside the jurisdiction; but on adopting a conception of an industrial dispute which limited it to industrial services geographically within Australia. The reference to territorial limits upon jurisdiction is to the jurisdiction not of the legislature to provide for the enforcement of an award but that of the Arbitration Court to make one. Perhaps more strictly it should be described as a limit upon the power to conciliate and arbitrate in the dispute. It is not perhaps a cardinal matter but it may be suggested that their Honours' statement that one of the principles of interpretation is that prima facie jurisdiction is territorial is introductive of a misleading analogy. For after all in English law jurisdiction at common law in transitory actions depended on nothing but service upon the defendant within the jurisdiction of the writ of summons or other process and in equity upon the power to act upon him in personam. But the limitation which the decision may seem to fasten upon par. (XXXV.) of s. 51 is of different description. It goes to the subject matter of the legislative power and limits it to disputes as to the terms and conditions of industrial operations in Australia or aboard a ship within covering cl. 5. This involves a very drastic and, as events have developed, a most serious restriction. If the restriction be literally applied it means that once an Australian aircraft is well over Bass Strait the terms and conditions of employment of the crew are outside the operation of the power of the Conciliation and Arbitration Commission or of the constitutional power whence it derives. It means that in the countless enterprises which nowadays involve Australians whose work takes them abroad in the course of their employment, whether for a term or for an occasion, an industrial dispute in Australia as to the terms and conditions of their employment falls outside the legislative power conferred by s. 51 (XXXV.). It is a question independent of the Statute of Westminster because the limitation which the joint judgment expresses does not appear to arise from the then territorial limitation upon the possible operation or validity of all laws of the Commonwealth considered as a Dominion, but rather to depend upon the nature of the industrial dispute to which s. 51 (XXXV.) can or does apply. No doubt it is easy to see in the reasons that the one conception influenced the other. (at p273)

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

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

13. That conclusion means that the attack on the commission's jurisdiction has not been sustained. But even if we were prepared to follow Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495 literally and so exclude the application of par. (a) of s. 72, I think that the power of the commission under par. (b) would attach. The words of par. (b) are both wide and vague and probably they should be subjected to what may be called a restrictive construction. It does not follow from the adoption of the Statute of Westminster that Commonwealth legislation should be construed as if there were no territorial considerations affecting its interpretation. Indeed it may be fairly said that when the consequence of invalidity is removed from extra-territorial legislation it becomes more important to give effect to the presumption governing the interpretation of English legislation. That is a presumption which assumes that the legislature is expressing itself only with respect to things which internationally considered are subject to its own sovereign powers. It may well be correct that par. (b) ought not to be interpreted as extending to ships which are governed entirely by the laws of other countries and bring themselves into relation with Australia only as carriers of goods or passengers which are shipped or unshipped at our ports. See Lauritzen v. Larsen [1953] USSC 62; (1952) 345 US 571, particularly at pp 577-583 [1953] USSC 62; (97 Law Ed 1254, at pp 1265- 1268.) But in the present case we have a practice of engaging masters, deck officers and engineers in Australia. The shipowners in other words employ Australian personnel for their officers. There is no presumption that would authorize a construction of s. 72 (b) resulting in the exclusion of such a case. But is par. (b) valid? It is framed in a form that is always calculated to arouse doubts. The power being to make laws with respect to trade and commerce with other countries and among the States, par. (b) does not pick out a matter inherently possessing the characteristics of such trade or commerce and legislate with respect to that matter. On the contrary at a first reading it seems almost to pick out something else as the subject "with respect to" which the law is made, namely the determination of industrial matters, and then to go on to limit the subject by the words "so far as they relate to trade and commerce" etc. Unless "industrial matters" on closer examination were revealed as in themselves possessing a sufficient connexion with oversea and inter-State commerce to belong to the subject of the power, this form of legislation might be regarded as doing no more than taking the subject of the legislative power as a peg to hang the provision upon and not as really providing anything "with respect to" the subject matter of the power. The same observation might no doubt be made concerning s. 83 (b) but it is more immediately met by the inherent character of stevedoring operations, which, because they centre upon the loading and discharge of ships go to something necessarily possessing the characteristics of oversea and inter-State trade and commerce. But a careful scrutiny of the definitions on which s. 72 (b) depends for its meaning and application shows that the same kind of reasoning really applies to support the validity of that provision. If you take the definition of "industrial matters" you will find that the definition relates entirely to the terms and conditions of employment of persons whose work is identified with oversea or inter-State trade and commerce. It probably makes no real difference as to validity but it is that definition contained in the amendment made by Act No. 30 of 1958 that concerns this order nisi. The expression "seamen" means every person employed or engaged in any capacity on board a ship, except masters, pilots and apprentices and persons temporarily employed on the ship in port: s. 6 Navigation Act 1912-1956. "Master" means any person having command or charge of a ship: ibid. "Pilot" means any person appointed or licensed as such under the Navigation Act and not belonging to a ship who has the conduct thereof: ibid. Section 71 of the Conciliation and Arbitration Act, as the result of the amendments made by s. 13 of Act No. 30 of 1958, defines "seaman" to include master, pilot and seamen (using each of these words in the defined sense). But it proceeds to extend the application of the meaning by including those whose usual occupation is that of master, pilot and seamen. Then s. 71 as so amended makes the words "industrial matters" apply in the case of masters, pilots and seamen to the long string of things relating to employment set out in the definition of the term in s. 4 (1) of the Conciliation and Arbitration Act 1904-1958. Now, apart from the possible effect of the extension of the definition to those whose usual occupation is that of master, pilot or seamen, the consequence would be that you are dealing with questions affecting the employment of persons in ships. In the long list of particulars comprised in pars. (a) to (q) in the definition of industrial matters there are references inappropriate to employment in ships. There may also be paragraphs which in whole or in part go further than legislative power permits. But they are severable and it is no less true that the subject matter is the employment of persons to serve or who usually serve aboard ship. If there were no further limitation the indefinite inclusion of those whose usual occupation is that of "seamen" might cause doubt and uncertainty. One may suppose that the reason for this inclusion is simply to avoid in advance the point that a man is not a seaman within the definition of the Navigation Act until he signs on or otherwise is engaged or is employed on board the ship. Nevertheless it might cover temporary employment on shore work. However, there is a further limitation, namely that contained in s. 72 (b) in the words "so far as those matters relate to trade and commerce with other countries and among the States." Although these words might not themselves have supplied the necessary subject matter, yet when you find that the main subject is the employment of masters, pilots and seamen they suffice to prevent the inclusion of those usually occupied as such from extending the provision to irrelevant employments. (at p277)

14. Nevertheless, if it were not for s. 98 of the Constitution the direct relation to ships might not have been enough to bring the subject into trade and commerce. Section 98 provides that the power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping. This does much more than enable the legislature to deal with trade and commerce when conducted by means of ships. "It says in effect that the power to make laws with respect to trade and commerce shall include a power to make laws with respect to navigation and shipping as ancillary to such trade and commerce. It authorizes Parliament to make laws with respect to shipping, and the conduct and management of ships as instrumentalities of trade and commerce, and to regulate the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce, both among themselves and in relation to their employers on whose behalf the navigation is conducted". This passage from the judgment of Gavan Duffy and Rich JJ. in Australian Steamships Ltd. v. Malcolm [1914] HCA 73; (1914) 19 CLR 298, at p 335 expresses the point of the decision of the Court. See too Joyce v. Australasian United Steam Navigation Co. Ltd. [1939] HCA 31; (1939) 62 CLR 160, at pp 167, 170, 174-176, 177; Morgan v. The Commonwealth [1947] HCA 6; (1947) 74 CLR 421, at pp 454, 455 (at p278)

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

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

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

2. It follows from these facts that Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495 is a clear authority in favour of the prosecutor as regards the question whether it is included in the alleged industrial disputes. The decision was criticized in argument on the ground that it is an error to confine the term "industrial dispute" in s. 51 (xxxv.) of the Constitution to employment in Australia only, except employment on ships within covering s. V. The present question, however, is what is the meaning of the term "industrial dispute" in s. 72 (a). It is plain that Parliament employed the term in its constitutional sense. In my opinion it is right to presume that Parliament employed the term in conformity with the judicial connotation that it then had. In view of the decision cited above it is hardly conceivable that Parliament intended to give the commission jurisdiction to deal with industrial disputes as to the term and conditions of navigating and operating ships beyond the territorial limits of Australia even though they are not ships within covering s. V. (at p279)

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

4. But in my opinion the decision in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association [1920] HCA 67; (1920) 28 CLR 495 should not be reviewed until the Parliament sees fit to pass legislation under s. 51 (xxxv.) evincing the intention to give jurisdiction extending to industrial disputes arising in Australia and ramifying beyond territorial limits. While s. 72 (a) stands as it is, the only industrial disputes which Parliament can be presumed to have intended to give jurisdiction to the commission to prevent or settle are those corresponding to the connotation of the term "industrial dispute" laid down in the decision mentioned above. It seems to me that it would be contrary to the intention of Parliament to hold that the term "industrial dispute" in s. 72 (a) includes an industrial dispute as to the terms and conditions of employment on the prosecutor's ships while they are on the high seas or in foreign ports. The other questions which were argued relate to s. 72 (b). One of the questions is whether or not that provision is valid. It is an exercise of the legislative power under ss. 51 (i.) and 98 of the Constitution. The argument against its validity is that it is a law with respect to employment hung, as it were, on the subjects of trade and commerce with foreign countries and navigation. The verbiage of the description of "industrial dispute" in s. 71 is relied upon to support the argument. I have considered the argument and I think that the pith and substance of the verbiage really makes s. 72 (a) a law on the subject matters of trade and commerce and navigation. Those terms mark the outlines of powers and according to right rules of construction must be given an ample meaning. It must be borne in mind that the instrument which is being construed is a Constitution. I do not undertake a survey of the authorities. The last of them is Reg. v. Wright; Ex Parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528 It is too late to argue successfully that it is not within constitutional power to entrust to the commission the jurisdiction conferred by s. 72 (b). It was also argued that "submitted" means a procedure in which all the parties interested join and as that procedure was not followed the commission cannot act under s. 72 (b). The meaning of "submitted" is rather obscure. It imposes a condition on the jurisdiction of the commission. Probably the condition is directed against its acting on its own initiative. I think that it is in accordance with the ordinary meaning of the word "submitted" to hold that it refers to an act done by a party interested. It may be a condition that the Attorney-General acting for the Commonwealth in the public interest could fulfil. The word "submitted" is rather a loose one as indicative of a procedure. In my opinion the notification under s. 28 whereby the claimant organizations brought the fact that the employers including the prosecutor had not complied with the logs of claims satisfies the word "submitted". In my opinion the commission has jurisdiction to proceed under s. 72 (b) against the prosecutor but not under s. 72 (a). I would discharge the order nisi. (at p280)

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

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

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

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

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

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

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

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

5. In advancing its contentions on this point the respondent organizations were immediately faced with the decisions of this Court in Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. [1908] HCA 89; (1908) 5 CLR 737 and Merchant Service Guild of Australasia v Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495 which explicitly decided that, subject only to the provisions of covering cl. 5 of the Constitution, Commonwealth legislative power under this placitum extends only to disputes concerning conditions of employment in industries carried on within the Commonwealth. This conclusion was based expressly upon the view that - "sub-s. (XXXV.) of s. 51 (of the Constitution), on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore (that) the term 'industrial disputes' in that sub-section, unextended by covering s. V, .means disputes as to the terms and conditions of industrial operations in Australia only" (1920) 28 CLR, at p 503 According to the respondents' argument this view rested upon the notion, now outmoded, that the legislative powers of the Commonwealth were, except where otherwise expressly provided, subject to restrictions arising from the concept that the laws of the Commonwealth had, apart from covering cl. 5, no operation beyond its territorial limits. It is true that this notion was expressed in their Honours' reasons for they said: "the only question is how far does s. 51 (XXXV.) on its own construction, unextended by the covering s. V., apply to the industrial disputes with which the three above-named respondents are concerned. We construe that sub-section for the purposes of this case on the same principles as were recently applied in the case of Amalgamated Society of Engineers v. Adelaide Steamship Co. [1920] HCA 54; (1920) 28 CLR 129 That is to say, we interpret the enactment according to the well-recognized standards of interpretation. One of those principles is that, prima facie, jurisdiction is territorial; and covering s. V. strengthens the view, in relation to the present case, that the language itself of sub-s. (XXXV.) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502 (at p284)

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

7. In considering the character of the subject matter described by the words of placitum (XXXV.) it is, of course, impossible to put aside the notion that it was intended as the definition of a power designed to permit Parliament to deal in a specified manner with problems of domestic industrial unrest. The relevant power is a power to make laws for the peace order and good government of the Commonwealth with respect to that subject matter and the circumstance that it is restricted to industrial disputes which have, so to speak, spilled over State borders provides support for the argument that, prima facie at least, it was intended to deal with industrial unrest within the Commonwealth (see per Griffith C.J. and Isaacs J. in Federated Saw Mill etc. Employes of Australasia v. James Moore & Sons Pty. Ltd. [1909] HCA 43; (1909) 8 CLR 465, at pp 487, 526) Likewise, in the case of many of the heads of power in s. 51 which are defined in general terms it would seem beyond question that, in ascertaining their content, regard must be had to the obvious and overriding circumstance that they are intended to define the power of Parliament to make laws for the peace order and good government of the Commonwealth. In some cases the necessary restriction is obvious. For instance, the power to make laws with respect to immigration must mean immigration into the Commonwealth. And the power to make laws with respect to currency, coinage and legal tender relates to the currency, coinage and legal tender of the Commonwealth. Again, it could not be suggested that Parliament may, under its power to make laws with respect to marriage, prescribe the requisites for a valid marriage between United States' citizens in Utah or, under its power to make laws with respect to old age pensions, legislate for the provision of old age pensions for the inhabitants of Tibet. In other cases the restrictions may not be so readily capable of precise definition but it is clear that the power conferred by placitum (XXXV.) is conferred for the purpose of permitting the Parliament to deal, in some measure, with what may be called widespread industrial unrest within the Commonwealth. (at p286)

8. But the particular form of industrial unrest with which placitum (XXXV.) deals is "industrial disputes extending beyond the limits of any one State" and not industrial unrest generally or the consequences of industrial disputes. The distinction between these concepts is clearly shown by the decisions of this Court in Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527 and Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association [1956] HCA 43; (1956) 94 CLR 614 The distinction was not, however, always so clearly recognized with the result that it now seems that on some occasions when it has been necessary to examine the content of the power its central point has received insufficient attention. R. v. Commonwealth Court of Conciliation and Arbitration and Merchant Service Guild [1912] HCA 85; (1912) 15 CLR 586 was, it seems to me, such a case. There, in dealing with the question whether an industrial dispute within the meaning of placitum (XXXV.) had arisen Griffith C.J. said: "In the Saw-Millers' Case (1909) 8 CLR 465, at pp 488, 489 I expressed the opinion, which I now repeat judicially, that 'The term "industrial dispute" connotes a real and substantial difference having some element of persistency, and likely, if not adjusted, to endanger the industrial peace of the community. It must be a real and genuine dispute, not fictitious or illusory. Such a dispute is not created by a mere formal demand and formal refusal without more. We have not to deal with technicalities, such as the meaning of the term "conversion" in the old action of trover, in which a demand and refusal were sufficient evidence of conversion. In considering industrial disputes we are concerned with real facts, not words or word-spinning'" (1912) 15 CLR, at p 594 (at p286)

9. Much the same view was expressed by Barton J. when he said: "That the jurisdiction must be founded on something more than a mere claim is, to my mind, quite apparent. That something is not easy to define. But it must be enough to take the whole position above or beyond mere naked demand and refusal. Before the federal power can be invoked there must, as the Court has repeatedly pointed out, be a dispute actually existing. It cannot be created by the mere paper demand. If however, there is accompanying evidence that the demand, whether written or not, is the culmination of a sense of wrong or injustice, made known or become known to the other party, that it is the expression of 'a real and substantial difference having some element of persistency' (see per Griffith C.J. in the Saw Millers' Case [1909] HCA 43; (1909) 8 CLR, 465, at p 488, and is not the outcome of caprice or of a mere desire to extort, then whichever side is the promovent, there is an industrial dispute within the meaning of the Constitution" (1912) 15 CLR, at p 605 The views expressed in these passages appear to me to indicate the underlying foundation for the conclusion of the majority in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495. The problem, as their Honours then saw it, was to ascertain what legislative steps were authorized under a power to deal with "industrial unrest" in such a way as "to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth" (1920) 28 CLR, at p 503 And, according to the majority, the power, "being territorial", meant that "the 'industrial disputes extending beyond the limits of any one State' so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth" (1920) 28 CLR, at p 502 But in the intervening years the notion of what constitutes the essential character of an "industrial dispute" has changed substantially, Dixon J. (as he then was) being led in 1930 to observe: "Much of the argument addressed to us by counsel for the Commonwealth depended upon the proposition that once a real industrial dispute extending beyond the limits of one State existed, it was not material to inquire into its genesis, and in particular it was nothing to the point that it arose by reason of the desire of one party to obtain an award of the Court. While this may be so, yet when the existence of a genuine dispute is in question the purpose and object with which paper demands were delivered may be decisive. Again much of the same argument was founded upon the view that the Federation and its members intended to press for a code to be formulated by the Court's award or by an agreement having the force of an award which would regulate future conditions. This contention illustrates some of the confusion which attends a jurisdiction which can be exercised when and only when, an inter-State dispute exists, but when it does arise enables the arbitrator in some measure to regulate industry. The two-State dispute must exist between the parties antecedently to the award or agreement which composes it, and the dispute must arise out of their disagreement about the manner in which they shall regulate their own industrial relations. Experience has shown that the desire for an award regulating industrial relations has been the cause of the creation and extension of industrial disputes which the Arbitration Court exists to prevent and settle. But in such cases the jurisdiction arises because of the existence of a two-State dispute, and in spite of, and not because of, the motives which generate that dispute". (Caledonian Collieries Ltd. v. Australasian Coal and Shale Employees' Federation (No. 2) (1930) [1930] HCA 2; 42 CLR 558, at pp 579, 580. (at p288)

10. It is unnecessary to review the cases which have led to the recognition, as such, of industrial disputes created by the making and rejection of demands relating to conditions of employment and which have formulated "the doctrine that the essential quality of an industrial dispute is not the suspension of industrial relations but disagreement, difference, or dissidence". (See per Dixon J. in Metal Trades Employers Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387, at p 429) Such a disagreement may, as was then said, "cause a strike, a lockout, and a disturbance and dislocation of industry; but these are the consequences of the industrial dispute, and not the industrial dispute itself, which lies in the disagreement". It is, I think, sufficient to say that the doctrine which is now so firmly established must be borne in mind when the character of the legislative power conferred by placitum (XXXV.) is examined. (at p288)

11. When this is done it is seen that the power is directly and immediately concerned with industrial disputes so understood. This is at the very heart of the power and laws may be made with respect to conciliation and arbitration for their prevention and settlement. But it would be wrong to seek to limit the power by first ascribing territorial limits to the rules of conduct which may be made in settlement of industrial disputes and, thereafter, to exclude from the power industrial disputes in the settlement of which legislation having an extra-territorial operation will or may be necessary. This may not be thought to be an illogical process if an industrial dispute means no more and no less than industrial unrest or turmoil. But upon the currently accepted view of what constitutes an industrial dispute the conclusion is inevitable that the reference in placitum (XXXV.) is to all industrial disputes which exhibit the necessary attribute, that is to say, an extension beyond the limits of any one State. This is of the essence of the subject matter of the power and it is not to be limited by the circumstance that in the settlement of some of such disputes legislation or rules of conduct having an extra-territorial operation may be necessary. This is not to say that the power is absolute and not subject to restrictions or qualifications of any kind. Indeed, restrictions are to be found in the language of the placitum itself which justify the assertion that the power is concerned with disputes which, in a broad sense, are substantially Australian industrial disputes. First of all, in order that a dispute shall fall within the ambit of the power, it is necessary that it should extend beyond the limits of any one State. No doubt the locality of the dispute will, in the main, be synonymous with the place where the disputants are to be found so that the power is concerned with disputes in this country which are industrial disputes. The expression "industrial disputes" connotes a further limitation for it is not every dispute concerning industrial matters which constitutes an industrial dispute of the requisite character. As is shown by the decision in Reg. v. Portus; Ex parte Australian Air Pilots' Association [1953] HCA 97; (1953) 90 CLR 320 and Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317 it is essential that the disputants should have a legitimate industrial interest in the subject matter of the dispute. Beyond this, in my view, no further limitation is possible. (at p289)

12. In the present case both the prosecutor and the respondents were present in Australia, the relevant dispute arose in Australia, the dispute was concerned with the conditions upon which masters and officers, recruited in Australia, might be employed in an industry which has a substantial connexion with Australia and, in these circumstances, there can be little doubt that each had a legitimate industrial interest in the matters in dispute. Accordingly, if the relevant dispute is one which extends beyond the limits of any one State there can, in my opinion, be no ground for supposing that the dispute is not one which falls within the scope of s. 72 (a). of the Conciliation and Arbitration Act or within the ambit of constitutional authority. In view of the prosecutor's concession that there was in existence a dispute which so extended it is, however, unnecessary for us to address our attention to this final question. Yet, it is desirable to point out that the evidence concerning the manner in which the dispute arose is scanty and, by itself, quite insufficient to establish the existence of an inter-State dispute to which the prosecutor was a party. Probably what happened is that demands were made upon a number of shipping companies and that included among their number was the respondent company and the suggestion appears to be that, although there is no inter-State dispute between the prosecutor and the respondent organizations, their dispute is but part of a wider dispute which bears that character. It is, of course, impossible for us to say at this stage whether a full examination of the relevant facts would support this conclusion and I have mentioned the matter merely for the purpose of expressly reserving the point for consideration if and when it should arise. (at p290)

13. As already appears the other question debated in the case is concerned with the power of the Commonwealth to make laws with respect to trade and commerce under s. 51 (i) of the Constitution. In particular the question is whether the legislative power of Parliament under this head of power extends to authorize the general prescribtion of conditions of employment upon vessels engaged not only in trade and commerce between Australia and other countries but also between places beyond the Commonwealth. In my opinion, this broad question should be answered in the negative and I shall state as briefly as I may my reasons for conclusion. (at p290)

14. The subject matter of the relevant power is, of course, "trade and commerce with other countries, and among the States" and, by s. 98, this power is declared to extend "to navigation and shipping". So understood the power has been held to justify legislation relating to compensation to seamen for injuries by accident arising out of and in the course of their employment (Australian Steamships Ltd. v. Malcolm [1914] HCA 73; (1914) 19 CLR 298 and Joyce v. Australasian United Steam Navigation Co. Ltd. [1939] HCA 31; (1939) 62 CLR 160), legislation prescribing who shall be preferred in the stevedoring work necessary in the loading and unloading within the Commonwealth of vessels engaged in trade and commerce of the specified character (Huddart Parker Ltd. v. The Commonwealth [1931] HCA 1; (1931) 44 CLR 492 and Victorian Stevedoring and General Contracting Company Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73) and legislation authorizing the prescription of conditions of employment in that branch of the stevedoring industry (Reg. v. Wright, Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528) General observations made in these cases may at first sight be regarded as adequate support for the proposition that pursuant to the trade and commerce power Parliament may prescribe or authorize the prescription of conditions of employment upon any vessel which carries goods or passengers to or from the Commonwealth. (See for instance per Isaacs J. and Gavan Duffy and Rich JJ. in Malcolm's Case (1914) 19 CLR, at pp 329, 335; per Latham J. and Starke J. in Joyce's Case (1939) 62 CLR, at pp 167, 170 and Wright's Case (1955) 93 CLR, at p 544 I am satisfied, however, that close examination of these cases must lead to the conclusion that they are not decisive of the broad proposition now advanced and, as at present advised, I am not prepared to subscribe to it. Even if, on the strength of the authorities it be assumed that pursuant to the commerce power it is permissible to prescribe the terms and conditions upon which persons may be employed in particular activities which form part of, or are indispensable to, inter-State trade and "trade and commerce with other countries", it does not follow that a law prescribing or authorizing the prescription of conditions upon which persons may be employed upon vessels, which, in the course and as part only of their general trading activities, carry goods or passengers to or from the Commonwealth, is a law with respect to "trade and commerce with other countries". If, in some measure, such a law can be said to relate "to trade and commerce with other countries" it would, by parity of reasoning, also reveal itself, in part, as the regulation of trade and commerce among foreign countries. Nor could such a law be regarded as a law with respect to "shipping and navigation as ancillary" to trade and commerce with other countries or as a regulation of "the relations and reciprocal rights and obligations of those conducting the navigation of ships in the course of such commerce". (cf. per Gavan Duffy and Rich JJ. in Malcolm's Case (1914) 19 CLR, at p 335) Again the contrary view would find no justification in the reasoning which lead Isaacs J. to his conclusion in that case. Indeed it would seem that the members of the Court who decided Malcolm's Case (1914) [1914] HCA 73; 19 CLR 298 were not concerned to inquire how far, if at all, the Commonwealth Parliament might legislate with respect to all ships which carry goods or passengers to or from Australia. Malcolm's Case [1914] HCA 73; (1914) 19 CLR 298 was decided only six months after the decision in Clarke v. Union Steamship Company of New Zealand [1914] HCA 29; (1914) 18 CLR 142 and in that case it was held that the Seamens Compensation Act 1911 was not in force on the respondent's vessel at the time when the appellant was injured notwithstanding that the vessel was then "engaged in trading between Sydney and San Francisco and between San Francisco and Sydney" and that the appellant had "entered into his articles in Sydney". The basis of the decision was that the vessel was not a vessel whose first port of clearance and whose port of destination was in the Commonwealth and that, therefore, at the time when the plaintiff sustained his injury, some two hundred miles off San Francisco, the ship was not "subject to the law of the Commonwealth" (Seamens Compensation Act 1911,s.4(2)). On this view it was thought unnecessary to consider the question of the validity of the Act and this question was reserved for consideration in another case (presumably Malcolm's Case [1914] HCA 73; (1914) 19 CLR 298) which was then said to be "ready for hearing" (per Isaacs J. in Clarke's Case (1914) 18 CLR, at p 149) Again, in Malcolm's Case [1914] HCA 73; (1914) 19 CLR 298, Powers J (1914) 19 CLR, at p 337 remarked that "it was not necessary" in Clarke's Case [1914] HCA 29; (1914) 18 CLR 142 "to decide the question" of the validity of the Act and it seems reasonably clear that in the later case the Court was concerned only with the question whether, in relation to ships "subject to the law of the Commonwealth", the Seamens Compensation Act was a valid enactment. The observations of the learned Justices who constituted the majority in that case were, it seems clear, made and intended to be understood and applicable only within this narrower framework. Indeed, the observations made by Isaacs J. in Malcolm's Case (1914) 19 CLR, at p 329 referring, as they do, to "the inter-State and foreign commerce of this country" and to the desirability of encouraging "the vocation of seamen in relation to that commerce", could have no application except within this narrower framework. So understood Malcolm's Case [1914] HCA 73; (1914) 19 CLR 298 is no authority for the proposition that it is permissible under the trade and commerce power to prescribe conditions of employment generally with respect to all ships, foreign or otherwise, which carry goods or passengers to or from the Commonwealth. Finally, support for the broad proposition contended for cannot be found in the decisions in the stevedoring cases which were concerned with the employment of persons in the performance in this country of specified activities which were thought to be indispensable to the conduct of inter-State trade and trade and commerce with other countries. The earlier stevedoring cases did not, of course, decide that conditions of employment might be prescribed pursuant to the trade and commerce power and the true complexion of the legislative provisions impugned in Reg. v. Wright; Ex parte Waterside Workers' Federation of Australia [1955] HCA 35; (1955) 93 CLR 528 may well be found in the reflection that the prescription of conditions of employment was but one facet of legislation designed to regulate and control the industry generally. The various Stevedoring Industry Acts, which followed upon regulations made under the National Security Act, quite plainly appear as attempts to organize a traditionally unstable industry on a more efficient basis and the prescription of conditions of employment is but part of the whole concept. But whether this is or is not the true explanation of the lastmentioned case I should be loath to accept the view - as must necessarily follow from the respondents' argument - that it is authority for the proposition that the legislative power of Parliament extends to the prescription of conditions of employment for all waterside workers who in the course of their work load or unload ships engaged in "trade and commerce with other countries" and whether they be employed and perform their work in the Commonwealth or in any other country. (at p293)

15. Accordingly I at present hold the view that, even if Parliament may under the trade and commerce power prescribe conditions of employment for any form of work by means of which trade and commerce with other countries is carried on, the respondents still must fail on this branch of the case for the prosecutor's vessels are engaged not only in trade and commerce of that description but also in trade and commerce between foreign countries. And a law prescribing the conditions of employment on those vessels would not answer the description of a law with respect to "trade and commerce with other countries" or a law with respect to matters incidental to that subject matter. Upon the initial hypothesis it would cover a wider field and would stand revealed as a law with respect to both trade and commerce with other countries and trade and commerce between foreign countries. Accordingly I am of the opinion that the legislative power of Parliament with respect to trade and commerce does not enable it to invest the commission with authority to prescribe conditions of employment upon the prosecutor's vessels. This final observation does not mean that s. 72 (b) is invalid for that sub-section does not, upon its face, purport to cover this field. The nexus between its content and the trade and commerce power is to be found, if it is to be found at all, in the somewhat obscure and indeterminate expression "in so far as those (industrial) matters relate to trade and commerce with other countries or among the States" and, upon any reasonable view of the meaning of that expression, I find it impossible to perceive any material relation between the relevant head of power and conditions of employment upon vessels engaged both in "trade and commerce with other countries" and trade and commerce between foreign countries. For the reasons given earlier, however, I am of the opinion that the order nisi should be discharged. (at p293)

MENZIES J. This was the return of an order nisi for prohibition obtained by the prosecutor ("the company") requiring the respondents show cause why prohibition should not go to The Honourable Alfred William Foster, a presidential member of the Commonwealth Conciliation and Arbitration Commission, The Merchant Service Guild of Australasia ("the guild") and The Australian Institute of Marine and Power Engineers ("the institute") prohibiting them and each of them from proceeding further against the company upon alleged industrial disputes or matters so far as the same concern the employment of masters, officers, engineers or others forming part of the complement of certain ships of the company. The relevant facts agreed to by the parties were shortly as follows. The company is a shipowner incorporated in the United Kingdom and registered as a company in New South Wales, which owns and operates four vessels registered in London under the Merchant Shipping Act which clear regularly from Adelaide for Kobe and from Kobe for Adelaide and call at intermediate ports, some in Australia, some in Japan and some from Tarakan north to Japan. The vessels carry cargo (and two of them sometimes carry passengers) between Australian ports and ports north of Tarakan. The vessels do not carry passengers or cargo from an Australian port for discharge at another Australian port. Each vessel carries a master, four deck officers, eleven engineer officers, and seventy other crew members. The ship's complement, other than the master and officers, are engaged and discharged at Hong Kong where most of them live. All the masters, deck and engineer officers live in Australia and, to use the language of the statement of agreed facts, "are actually engaged and discharged in Sydney by the company but the articles are opened and signed in Hong Kong". Some elucidation of this was attempted at the hearing and my understanding of its meaning is that all the masters and officers both join and leave the ships in Sydney; when one joins a ship in Sydney he signs articles previously opened in Hong Kong and which cover his service until the ship returns to Hong Kong when new articles are opened and signed which cover a round voyage from and back to Hong Kong. When one leaves a ship in Sydney he is, as of course, permitted to do so notwithstanding that he has signed articles for the round journey from Hong Kong. It could happen at any particular time that the master and all the officers are serving under articles signed in Hong Kong or that some of them are serving under articles opened in Hong Kong but signed in Sydney presumably on the footing that service upon the ship will be continued under fresh articles to be opened and signed in Hong Kong. (at p294)

2. Disputes arose between the guild and the institute on the one hand, and the company and other shipowners on the other, covering, as it has been agreed, the terms and conditions of the employment of masters, deck officers and engineers on the aforesaid ships of the company throughout their voyaging as described. Each dispute arose by reason of the service in Australia of a comprehensive log of claims to which the company along with other employers did not accede. When employers, including the company, did not accede to the demands of the guild and the institute the latter, pursuant to s. 28 of the Conciliation and Arbitration Act, severally notified the Commonwealth Conciliation and Arbitration Commission of the dispute and the company thereupon applied to the commission to be struck out of the list of respondents to the two disputes then before the commission as a result of the two notifications. The commission rejected the application of the company. It is to stop further proceedings against the company that prohibition is sought. (at p295)

3. Both before the commission and before this Court the proceedings, although springing out of the making and rejection of two separate logs of claims, were dealt with together, and I do not find it necessary to differentiate between them. The order nisi for prohibition raises two fundamental questions. The first is whether legislation of the Parliament of the Commonwealth under the Constitution s. 51 (xxxv.) can and does authorize the commission to settle the industrial disputes that have arisen; the second is whether legislation of the Parliament of the Commonwealth under the Constitution s. 51 (i.) can and does authorize the commission to hear and determine the industrial questions that exist between the company and its aforesaid employees. These are separate questions and it is desirable to keep them separate but before dealing with either of them it is possible to dispose of one other matter raised by the order nisi. It is common ground that the facts are not such as to attract the operation of s. 5 of the covering clauses of the Constitution because it is not the case that the first port of clearance and the port of destination of the Company's ships are in the Commonwealth. The question of the extent of the operation of Commonwealth legislation has therefore to be decided without resort to covering s. 5. (at p295)

4. The main aspect of the first question is therefore the extent of the power under the Constitution s. 51 (xxxv.) which subject to the Constitution gives Parliament power "to make laws for the peace order and good government of the Commonwealth with respect to . . . arbitration for the . . . settlement of industrial disputes extending beyond the limits of any one State". (at p295)

5. The only reason why it is claimed by the company that this power is not wide enough to settle these disputes is that part of their subject matter is the industrial relationship of the company and the masters and officers of its ships outside Australia. It has been decided that s. 51 (xxxv.) must be understood as referring to industrial disputes confined to Australia in the sense that the whole dispute must be as to terms and conditions of industrial relationships in operations within Australia; this was so decided in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) ("The Merchant Service Guild Case No. 3") [1920] HCA 67; (1920) 28 CLR 495, and if that decision is to be applied the company must succeed on this point because here it is agreed that each dispute is concerned substantially though not exclusively with the terms and conditions of employment in industrial operations outside Australia. For the guild and the institute it was argued that this decision was wrong in 1920 or alternatively that had the point arisen now for the first time it would not have been decided as it was then either because later decisions of authority such as Croft v. Dunphy (1933) AC 156 require a different approach to the question of the validity of laws having territorial operation than that which had been taken, or, because of the adoption of the Statute of Westminster 1931 which by s. 3 declares and enacts that the Parliament of a Dominion has full power to make laws with extra-territorial operation. (at p296)

6. The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 CLR 495 was the third of a series of cases of which Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. ("Currie's Case") [1908] HCA 89; (1908) 5 CLR 737 was the first and Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association ("The Merchant Service Guild Case No. 1") [1913] HCA 40; (1913) 16 C.L.R. 664 was the second. (at p296)

7. In Currie's Case [1908] HCA 89; (1908) 5 CLR 737 it was taken for granted rather than decided that the only awards which could be authorized by legislation under s. 51 (xxxv.) were awards applying in an industry carried on in Australia; see Griffith C.J. (1908) 5 CLR, at p 743, O'Connor J. (1908) 5 CLR, at p 744, Isaacs J (1908) 5 CLR, at p 747 and Higgins J (1908) 5 CLR, at p 747 On this footing the question was whether the facts attracted the operation of s. 5 of the covering clauses and it was decided that they did not. In circumstances which do not differ materially from those present in this case it was decided that the Commonwealth Court of Conciliation and Arbitration had no jurisdiction to settle the dispute. The reason why the assumption to which I have referred was made appears from the argument and was that the Commonwealth "could prescribe a rule of duty to be observed within its territory, but not beyond it", per Griffith C.J. (1908) 5 CLR, at p 740 I do not think despite what was said by Higgins J. later (1920) 28 CLR, at p 503 that the fact that the ships' articles were filled in and signed in Calcutta was treated as in any way decisive; what was regarded as negativing jurisdiction unless s. 5 of the covering clauses applied was that an award was sought "in relation to work to be done outside" Australia. The case was, I think, decided as Higgins J. himself said (1908) 5 CLR, at p 748, on the footing that "the parties were resident in Australia and the employes were engaged in Australia". (at p297)

8. The Merchant Service Guild Case (No. 1) [1913] HCA 40; (1913) 16 CLR 664 was again a case concerned with s. 5 of the covering clauses and it was having regard to that section that it was the opinion of the Court by the requisite statutory majority that: "The dispute is not the less a dispute extending beyond the limits of any one State merely because some of the operations in respect of which the dispute exists are performed beyond the territorial limits of the Commonwealth" (1913) 16 CLR, at p 704 Barton A.C.J. who dissented expressed himself upon the question that arises here as follows: "I think, then, that a dispute as to the conditions of employment outside the territorial jurisdiction of the Commonwealth is not within sub-s. (xxxv.)" (1913) 16 CLR, at p 677 Isaacs J said: "There are no-express words in sub-s. (xxxv.) by which its operation is extended beyond Australia and the three-mile limit" (1913) 16 CLR, at p 689, and after referring to the granting by the Imperial Parliament of self-governing powers he said: "But the grant of powers of self-government to a component portion of the Empire connotes, primarily, restriction of their exercise to the limits of the local territory and its adjacent sea limit as recognized universally and by Statute" (1913) 16 CLR, at p 690 Then he used these words to define the element beyond the presence of the disputants in Australia and the likelihood that the dispute would dislocate Australian industry which he considered necessary to bring a dispute within constitutional power: "the dispute must be about the terms on which the Australian industry is conducted; in other words, the subject matter of dispute is territorial, just as the dispute itself is" (1913) 16 CLR, at p 691 He then turned to s. 5 of the covering clauses and it was with its aid that he adopted the answer that I have already quoted. Higgins J. seems to have taken the same view as Isaacs J. and said: "But, assuming that the effect of s. V. has to be considered under question 1, I concur with my brother Isaacs in his conclusion with respect thereto" (1913) 16 CLR, at p 701 Gavan Duffy and Rich JJ. took a different view of what is important here, and said: "Let us assume that the expression 'industrial disputes' in s. 51 (xxxv.) of the Constitution means industrial disputes existing within the Commonwealth. When does such a dispute exist within the Commonwealth? We think it exists within the Commonwealth when the disputants reside, the demands and the refusal are made, and the dissidence, dissatisfaction and unrest prevail, within the Commonwealth, although the dispute itself may have relation, as in this case, to labour to be performed outside the territorial limits by the employes who are parties to the dispute" (1913) 16 CLR, at pp 702, 703 To meet the objection that such a reading of s. 51 (xxxv.) implies what is not expressly conferred, i.e. extra-territorial power, they said: "In English law it is not a universally true proposition that subordinate legislatures have no extra-territorial jurisdiction. The Imperial Parliament may itself assume the right to bind British subjects, or even foreigners, whether within or without the territorial limits of Great Britain, with respect to acts done in any part of the world; and may in whole or in part confer the same right on any subordinate legislature . . . . The true rule with respect to subordinate legislatures is that they will not be held to possess any extra-territorial jurisdiction unless it is conferred on them expressly or by necessary implication. We are disposed to think that the power to prevent and settle disputes with respect to labour to be perfomed outside the territorial limits, necessarily implies a power to prescribe terms and conditions with respect to such labour, for without such power it would ordinarily be impossible to either prevent or settle such disputes" (1913) 16 CLR, at p 703 It seems to me that there is no difficulty in accepting the implication stated if the power is as it was stated to be, viz. a power to settle disputes as to labour to be performed outside Australia. That is, however, the question. The actual decision of Gavan Duffy and Rich JJ., like that of Isaacs and Higgins JJ., rested upon s. 5. In so far, then, as this case supports the limiting of power under s. 51 (xxxv.) to the determination of conditions of employment within Australia it does so on the footing that unless express language or necessary implication requires differently, Commonwealth power is confined to Australia. (at p298)

9. Both Currie's Case [1908] HCA 89; (1908) 5 CLR 737 and The Merchant Service Guild Case (No. 1) [1913] HCA 40; (1913) 16 C.L.R. 664 were, as I have said, concerned principally with s. 5 of the covering clauses and statements are to be found in the judgments which suggest that the operation of that section is to extend in some way the power conferred by s. 51 (xxxv.). That is not my conception of its operation. Section 5 is not a grant of legislative power; it is concerned with the operation of Commonwealth legislation under power granted elsewhere, e.g. s. 51, and it provides with the authority of the Imperial Parliament that a valid Commonwealth law shall be in force on British ships whose first port of clearance and whose port of destination are in the Commonwealth. What I regard as a misunderstanding of the operation of s. 5 of the covering clauses was, as will be seen, carried forward into The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495 as support for the decision that the power conferred by s. 51 (xxxv.) is territorial. (at p299)

10. The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 CLR 495 was, unlike the earlier cases, an actual decision that the Arbitration Court had no jurisdiction with regard to a dispute between parties in Australia as to the terms of contracts to be entered into in Australia for employment beyond the territorial limits of Australia. From this Higgins and Gavan Duffy JJ. dissented but Rich J., departing from the opinion expressed in The Merchant Service Guild Case (No. 1) [1913] HCA 40; (1913) 16 CLR 664, was one of the majority. The ratio decidendi is to be gathered from two passages as follows: "One of those principles is that, prima facie, jurisdiction is territorial; and covering s. V strengthens the view, in relation to the present case, that the language itself of sub-s. (xxxv.) would support. But, being territorial, it means that the 'industrial disputes extending beyond the limits of any one State', so far as they are to be settled or prevented under Commonwealth law, must be confined to the Commonwealth. The expression 'industrial dispute' in sub-s. (xxxv.) does not mean simply a dispute as to an agreement to perform work anywhere in the world" (1920) 28 CLR, at p 502 . . . and "We think that sub-s. (xxxv.) of s. 51, on its proper judicial construction, is intended to secure, so far as is possible by conciliation and arbitration, uninterrupted industrial services to the people of the Commonwealth, and therefore the term 'industrial disputes' in that sub-section, unextended by covering s. V, means disputes as to the terms and conditions of industrial operations in Australia only. Currie's Case [1908] HCA 89; (1908) 5 CLR 737 was decided in conformity with the opinions we have expressed, and in some respects was an a fortiori case" (1920) 28 CLR, at p 503 Again it is clear that the decision stemmed from the principles that prima facie the Commonwealth Parliament lacks power to make laws having extra-territorial operation and such power if it exists must be found in express terms or by necessary implication. The application of these principles to s. 51 (xxxv.) led to the decision. (at p299)

11. The principles that were so applied were not, I think, the same as those stated by the Privy Council in Croft v. Dunphy (1933) AC 156, at p 163 in words which were used to dispose of an argument that the Parliament of Canada being a subordinate legislature, its power to make laws for the peace, order and good government of Canada, prima facie at least, is restricted territorially. "Once" said their Lordships, "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 America 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" (1933) AC, at p 163 This difference would probably of itself warrant the conclusion that the way in which the Court in The Merchant Service Guild Cases approached the problem of the construction of s. 51 (xxxv.) had at least become outmoded by 1931, but whether this be so or not I prefer to examine the reasoning of The Merchant Service Guild Case (No. 3) (1920) 28 CLR 495 in the light of the Statute of Westminster 1931 which was adopted in Australia with effect from 3rd September 1939. Section 3 both declares and enacts that Parliament has full power to make laws having extra-territorial operation. The section is not an amending section; it is an amplifying section directed to negativing a conception which in the course of time had perhaps come to be regarded as a misconception as to the nature of a power to legislate granted by the Imperial Parliament to a Dominion Parliament without any affirmation that the power granted extended to the making of laws with extra-territorial operation. The old conception was that such a power is at least prima facie territorial: Macleod v. Attorney-General for New South Wales (1891) AC 455; the effect of the Statute is that, prima facie at least, the grant authorizes laws with extra-territorial application. (at p300)

12. What I have said does not mean that the Statute has extended the legislative powers of Parliament beyond what is conferred by the Commonwealth Constitution. To be within power a law made under s. 51 must be "for the peace order and good government of Australia" and must be authorized by one or more of the paragraphs (i.) to (xxxix.). The Statute of Westminster does not remove any restriction stated expressly in, or to be inferred from, the language of these paragraphs. So for instance, the power under par. (x.) to legislate with respect to "Fisheries in Australian waters beyond territorial limits" is not extended to mean "Fisheries in waters beyond territorial limits" and the power under s. 51 (xx.) "Immigration and emigration" remains a power to make laws with respect to immigration into and emigration from Australian territory. What the Statute does is to require the validity of legislation with extra-territorial application to be determined in the same way as legislation the application of which is confined to Australia, and in particular, to remove the necessity for finding affirmatively either from express words or necessary implication that the power extends to the making of laws having effect beyond Australian territory. In The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495 it was said that because there are no express words authorizing legislation for the settlement of disputes covering operations beyond Australia there is prima facie no power to legislate for the settlement of such disputes. It is my view that this is no longer the correct approach and the question must always be one of the construction of a grant of power without any presumption that because there are no express words conferring extra-territorial power there is no such power. What previously had, it was thought, to be found in express words or from necessary implication in the grant of power is now supplied generally by s. 3 of the Statute in all cases except where the subject matter of the grant or the words of grant show that some territorial limitation must be observed. It seems to me, therefore, that a vital element in the reasoning behind The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 CLR 495 is no longer valid and if the decision is to stand it must be on the footing that upon its proper construction s. 51 (xxxv.) is confined not merely to what might be called Australian industrial disputes but to disputes in Australia about industrial operations carried on in Australia exclusively. (at p301)

13. The first question is whether the decision should now be reviewed. On the one hand, there is the consideration that the law was settled in 1920 after a lot of controversy and that consistency is a merit that will sometimes outweigh even the correction of error. On the other hand, the decision and the earlier decisions upon which it was in a measure based, were arrived at by a course of reasoning which depended upon the existence of a prima facie limitation of power that had by 1931 been found to be at variance with the autonomy and authority appropriate to Dominion status and was rejected by an Act of the Imperial Parliament requested by Canada, Australia, New Zealand, South Africa, the Irish Free State and Newfoundland. Secondly, the case was decided before the significance of the acceptance of the disagreement of parties in place of industrial dislocation as an element essential for the existence of an industrial dispute was fully appreciated. See Caledonian Collieries Ltd. v. Australian Coal and Shale Employees' Federation (No. 1) [1930] HCA 1; (1930) 42 CLR 527, particularly at pp 552, 553 The earlier conception of what was essential for an industrial dispute seems to me to have contributed to the decision in the case. Furthermore, it is a decision of greater importance now than it was because of the increasing extension of Australian industrial activity to places outside Australia. Finally, I have reached the conviction that the decision misconstrues s. 51 (xxxv.) and wrongly imposes a serious limitation upon Commonwealth power. Weighing these considerations I have reached the conclusion that this Court should not treat the question as concluded in favour of the Company by The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 C.L.R. 495. (at p302)

14. Once the doctrine of extra-territoriality as a limitation upon the power given by s. 51 (xxxv.) is rejected, as it must be entirely, then all that is requisite for valid legislation thereunder is that it should be "for the peace order and good government of Australia" and "with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". From this language I do not derive any requirement that the conciliation and arbitration which Parliament is authorized to provide can only be for the prevention and settlement of industrial disputes as to the terms and conditions of industrial operations in Australia. The power is to make laws with respect to conciliation and arbitration for the prevention and settlement of certain kinds of disputes, not disputes about certain kinds of industrial activity. If Commonwealth conciliation and arbitration is to be available for their prevention and settlement the disputes must (1) be industrial, and (2) exist in one State and (3) extend beyond the limits of one State. It may be that the third requirement can be satisfied only if the dispute exists elsewhere in Australia than in one State, i.e. in another State or in a territory, and that a dispute in one State extending to the high seas or to New Zealand, for instance, would not suffice, but be that as it may, the satisfaction of the second requirement does demand the existence of a dispute in Australia. It is not necessary therefore, even if the words "for the peace order and good government of the Commonwealth" do require that valid legislation must have a real connexion with Australia, to find that connexion for the purposes of legislation under s. 51 (xxxv.) in the work with which the dispute is concerned. Indeed, upon the construction of s. 51 (xxxv.) which I have adopted legislation thereunder must always have a territorial connexion with Australia because the disputes to be prevented or settled by conciliation or arbitration must be Australian disputes so that the search for territorial limitations in the industrial operations giving rise to the dispute was always a work of supererogation. The first requirement, i.e. that the dispute must be industrial, relates to the character of the dispute but not to the place where the industry in or out of which the dispute arises is carried on. (at p303)

15. I think the industrial disputes referred to in s. 51 (xxxv.) are properly to be described as Australian industrial disputes but they are not properly described as disputes in Australian industry. I find myself therefore in substantial agreement with the views of Gavan Duffy and Rich JJ. stated in the first passage which I have cited from their joint judgment in The Merchant Service Guild Case (No. 1) [1913] HCA 40; (1913) 16 C.L.R. 664. (at p303)

16. For the purposes of this case it is conceded that the company is a party to an Australian industrial dispute extending beyond the limits of one State and in my judgment the circumstance relied upon to found prohibition, namely that the dispute so far as the company is concerned relates to the terms and conditions upon which work is to be done outside Australia for the most part, is not a ground for denying that the commission has been validly empowered by s. 72 (a) of the Conciliation and Arbitration Act to prevent and settle the industrial dispute by conciliation or arbitration. On this ground the order nisi should be discharged. (at p303)

17. Having reached a conclusion against the prosecutor on one ground I refrain from expressing an opinion upon the question whether s. 72 (b) of the Conciliation and Arbitration Act is valid and would authorize a hearing and determination of the industrial matters in question. (at p303)

WINDEYER J. The facts in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (No. 3) [1920] HCA 67; (1920) 28 CLR 495 were practically identical with those of this case. But since that case was decided, in 1920, there have been great developments in the political status and constitutional law of the British Dominions and also in the industrial law of the Commonwealth. And in the two matters concerning servants of Qantas to which the learned Commissioner refers in his judgment, the Commonwealth Arbitration Court expressly held that its jurisdiction was not restricted by that decision. It must therefore be considered at the outset. A close analysis of the judgments in that case, in Merchant Service Guild of Australasia v. Archibald Currie & Co. Pty. Ltd. [1908] HCA 89; (1908) 5 CLR 737 and in Merchant Service Guild of Australasia v. Commonwealth Steamship Owners' Association (1913) 16 CLR 664 reveals dialectic difficulties and inconsistencies. The limitation, ill-defined but generally accepted, upon the power of Dominion legislatures to enact laws having an extra-territorial operation was a main ground for the judgments in the first two cases; and it clearly influenced the majority judgments in the third. Griffith C.J. in Currie's Case [1908] HCA 89; (1908) 5 CLR 737 said: "Of course, the jurisdiction of the Commonwealth Courts and the operation of the Commonwealth laws extend only to places within the Commonwealth, except so far as a larger jurisdiction or operation is given to them by law" (1908) 5 CLR, at p 743, and he went on to refer to covering cl. 5. And O'Connor J. said: "The jurisdiction of that court, (scil. the Commonwealth Court of Conciliation and Arbitration) must, of course, be confined within the territorial limits over which the laws of the Commonwealth extend, . . . " (1908) 5 CLR, at p 744 In the next case [1913] HCA 40; (1913) 16 CLR 664 which was argued three times before a decision was given, the territorial limitation upon Commonwealth legislative power was thought by some members of the Court to restrict the meaning of "disputes" in s. 51 (xxxv.) of the Constitution to disputes about work to be done in the Commonwealth. For example, Barton A.C.J. said: "Sub-s. (xxxv.) is therefore a power to the Parliament to make rules of conduct to be observed within that territory in respect of conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. As industrial disputes are disputes as to the conditions of industrial employment, the employment must be within the territorial jurisdiction of the Commonwealth" (1913) 16 CLR, at p 677 And Isaacs J said: " . . . the dispute must be about the terms on which the Australian industry is conducted; in other words, the subject matter of dispute is territorial, just as the dispute itself is" (1913) 16 CLR, at p 691 Gavan Duffy and Rich JJ. in their dissenting judgment took a different and wider view. What they said has been set out by my brother Menzies in his judgment in this case; and I need not repeat it. Then in The Merchant Service Guild Case (No. 3) (1920) 28 CLR 495, on which the prosecutor here relies, the decision of the majority expressly denied jurisdiction to the Arbitration Court to make an award on the ground that, apart from covering cl. 5, the constitutional power under s. 51 (xxxv.) extends only to disputes as to the terms and conditions of industrial operations carried on within the territorial limits of the Commonwealth. In their interpretation of the actual words of s. 51 (xxxv.) the majority were clearly influenced by the two earlier decisions and by the accepted overriding territorial limitation on the exercise of all Commonwealth legislative power. But to-day the last vestiges of the doctrine Lord Halsbury enunciated in Macleod v. Attorney-General for New South Wales (1891) AC 455 have, so far as the Commonwealth is concerned, been swept away by the adoption of the Statute of Westminster. We can consider the interpretation and application of s. 51 (xxxv.) unaffected by the influence of that doctrine. And, when this be done, I agree with the other members of the Court, whose judgments I have read, that the dissenting judgments of Higgins J. in The Merchant Service Guild Case (No. 3) [1920] HCA 67; (1920) 28 CLR 495 and of Gavan Duffy and Rich JJ in the earlier case are to be preferred to the judgments of the majority. (at p305)

2. Decisions of this Court have given the Commonwealth industrial tribunals a jurisdiction probably very much greater than those who framed par. (xxxv.) ever contemplated. Accepting, as to-day one must, these decisions and the implication of the doctrine of "paper disputes", strange results would follow if in the exercise of their large jurisdiction Commonwealth industrial tribunals could say nothing about, for example, the conditions of workers in aeroplanes flying to New Guinea or Norfolk Island once they had got more than three miles away from the coast. The development of Australian nationhood, both actually and in juristic theory, and the expansion of Australian interests, undertakings and responsibilities abroad force a reconsideration of constitutional limitations which were influenced by a doctrine always obscure and no longer compelling. Since 1920 there have been great developments in the territories of the Commonwealth beyond Australia; new territories have been acquired in the Antarctic, the Indian and Pacific Oceans; and sea and airborne traffic between the mainland of Australia and places overseas which might be vital for the welfare and security of the Australian nation has increased enormously. (at p305)

3. Counsel for the prosecutor argued firstly that it was beyond the legislative competence of the Commonwealth Parliament under either the industrial power (s. 51 (xxxv.)) or the trade and commerce power (s. 51 (i)) to confer upon the Conciliation and Arbitration Commission power to make an award binding upon the prosecutor in respect of the ships' officers and engineers it employed; and secondly that, upon its true construction, s. 72 of the Conciliation and Arbitration Act 1904-1958 did not purport to confer such a power upon the commission. (at p306)

4. In support of the first contention it was argued that as, by the Constitution, the power of the Commonwealth Parliament is expressed to be "to make laws for the peace, order, and good government of the Commonwealth" with respect to the enumerated topics, a Commonwealth Act would not be valid if it provided for matters with which the Commonwealth could have no concern. By way of emphatic illustration of this argument extravagant hypotheses were suggested, such as Australian legislation dealing with marriages of foreign people in foreign lands, or with pensions, or weights and measures in foreign places, and so forth. But any Commonwealth statute if it be a law in respect of one of the subjects mentioned in s. 51 is constitutionally valid. If it purported to affect the internal affairs of another country it might be unenforceable, ineffectual and contrary to the comity of nations. It would be ultra vires, in the sense in which Dicey used the expression for the purposes of private international law (Conflict of Laws 5th ed. (1932) 20). But it would not be ultra vires the Commonwealth Parliament in a constitutional sense. A statute in general terms is always construed as prima facie affecting things and persons within the territory of the country which enacts it, and as not affecting things elsewhere. Even where some extra-territorial application is clearly intended, this application will often be restricted to persons and things with which the country of the legislature has some direct relation or concern, for example, its nationals and their property. This is simply a rule of construction, the corollary of the principle that sovereignty is, by the law of all countries that have inherited the common law, regarded as territorial; because territorial boundaries ordinarily mark the limits of the effective enforcement of municipal law. Territoriality (as an element in domicile, residence or presence) rather than political allegiance has by our law been recognized as the ordinary foundation of curial jurisdiction. But legislative competence is different. If the Commonwealth Parliament were to legislate gratuitously in respect of foreign persons in foreign territory, in one of the ways fancifully suggested in argument, an Australian court could not hold the legislation was invalid - provided, always, that it was in respect of one of the matters in s. 51. Vis-a-vis the States, the competence of the Commonwealth Parliament remains limited and the Statute of Westminster does not affect this. But in respect of the matters set out in s. 51 the Parliament is now in reality fully sovereign, except perhaps in a theoretical unrealistic sense satisfying to convinced Austinians who see the Statute of Westminster as a repealable enactment of the Imperial Parliament. Whatever limitations international comity may impose are the consequences of considerations of political propriety and of the limitations of political power, not of legal capacity. The Privy Council summed the whole matter up: "Their Lordships would point out that what is here in issue is the extent of the legislative power of a Dominion legislature having regard to the language of the Statute of Westminster. This is not the same question as the question whether legislative power is so used as to extend beyond what will prove to be effective. A legislature which passes a law having extra-territorial operation may find that what it has enacted cannot be directly enforced, but the Act is not invalid on that account, and the courts of its country must enforce the law with the machinery available to them" (British Columbia Electric Railway Co., Ltd. v. The King (1946) AC 527, at p 542 Where the Statute of Westminster does not apply - for example, in relation to enactments of a State legislature (especially fiscal legislation) affecting things outside the territory of the legislature - words such as "peace, order, and good government" in a constitutional instrument may still be of cardinal importance. But this is only because they have become the accepted touchstone of whatever territorial limitations still exist upon the powers of subordinate legislatures in British dependencies (see Johnson v. Commissioner of Stamp Duties (1956) AC 331; (1957) SR (NSW) 313 and cases there referred to). That the requirements of peace, order, and good government provide the only limitation of the validity of any extra-territorial legislation otherwise within power has been accepted by this Court since Croft v. Dunphy (1933) AC 156 (e.g. Trustees Executors and Agency Co. Ltd. v. Federal Commissioner of Taxation [1933] HCA 32; (1933) 49 CLR 220, per Evatt J (1933) 49 CLR, at pp 228-241; Crowe v. The Commonwealth [1935] HCA 63; (1935) 54 CLR 69, per Starke J (1935) 54 CLR, at p 85) The words "peace, order, and good government" or the similar expression "peace, welfare, and good government" are, it has now been said, words of very wide import giving a wide discretion to any legislature empowered to pass laws for such purposes (Attorney-General for Saskatchewan v. Canadian Pacific Railway Co. (1953) AC 594, at pp 613, 614) Their significance in relation to territorial limitations upon colonial legislatures was foreshadowed in Ashbury v. Ellis (1893) AC 339 and the view which now prevails of their effect in this context is, in substance, that which Sir John Salmond put forward (1917) 33 LQR 117 He urged it upon the Supreme Court of New Zealand in R. v. Lander (1919) NZLR 305; but it then gained the assent only of Stout C.J. But although the requirements of "peace, order and good government", rather than any purely geographical consideration, are now the measure of the territorial limitation upon legislative competence, where that limitation still applies, it is, I think, a mistake to regard the phrase as the origin of the prohibition of extra-territorial legislation by colonial legislatures. Indeed the origin and extent of that much discussed doctrine are obscure. Professor W. Harrison Moore said of the words "peace, order, and good government" in s. 51 of the Commonwealth Constitution: "They do not in themselves confer any substantive power, nor do they, it is submitted, warrant the view that the matters enumerated are merely means towards an end. They simply express the fact that in 'a general and remote sense the purpose and design of every law is to promote the welfare of the community'." (Commonwealth of Australia 2nd ed. (1910) pp. 274, 275). They or similar phrases such as "peace, welfare and good government" have long been a common form in instruments conferring legislative power in British dependencies. A list of statutes in which they appear going back to 1774 (14 Geo. III c. 83) appears in Quick & Garran on The Constitution (1901) p. 511. But they were in use before 1774. In Stokes Constitution of the British Colonies in America, published in 1783, the common form of a colonial governor's commission in the American colonies before the Declaration of Independence is set out. It contains the following: "And you the said A. B. by and with the consent of our said Council and Assembly, or the major part of them respectively, shall have full power and authority to make constitute and ordain laws, statutes and ordinances for the public peace, welfare and good government of our said Province, and of the people and inhabitants thereof, and such others as shall resort thereto and for the benefit of us our heirs and successors; which said laws statutes and ordinances are not to be repugnant, but as near as may be agreeable to the law and statutes of this our Kingdom of Great Britain". I do not know when this form was first used; but it very closely follows the words of the commission which Charles II issued to Sir Jonathan Atkins as Governor of Barbados in 1673 (see Labaree, Royal Instructions to Colonial Governors). So far as the Commonwealth is concerned, it is now for Parliament alone to judge whether a measure in respect of any topic on which it has power to legislate is in fact for the peace order and good government of the Commonwealth (cf. Riel v. The Queen (1885) 10 App Cas 675, at p 678). (at p308)

5. Covering cl. 5 was referred to in argument. But the prosecutor's ships are not within it; and it seems to me to have little bearing on the matter we have to decide. Before the Statute of Westminster the doctrine that the Commonwealth Parliament could not give its legislation an extra-territorial operation (whatever the extent of that doctrine) was not qualified by covering cl. 5, except in the sense that ships there referred to were, for the purposes of the doctrine, to be treated as part of the territory of Australia. To-day the only result of covering cl. 5 is that, as a matter of construction, any valid Commonwealth legislation prima facie applies in such ships, whereas prima facie it does not apply elsewhere outside the territorial limits of the Commonwealth. (at p309)

6. The two heads of power relied upon by the respondents and by the Commonwealth in this case are the industrial power (s. 51 (XXXV.)) and the trade and commerce power (s. 51 (i.)). Although the Commonwealth Parliament is not now restrained by any overriding territorial limitations, each of these powers is - unlike some others of the enumerated powers - by its terms confined to matters having some connexion with Australia. But I do not think that power in respect of conciliation and arbitration postulates a capacity for direct supervision or effective control of all matters which may be the subject matter of an award. The possibility of effectual enforcement may be helpful in construing the scope of any exercise of a power, but it does not determine the legal scope of the power itself. In Waterside Workers' Federation of Australia v. J. W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434, Isaacs and Rich JJ. (in a passage quoted by the Privy Council in Attorney-General of the Commonwealth of Australia v. The Queen (1957) AC 288, at p 310; (1957) 95 CLR 529, at p 535 said: " . . . the function of the arbitral power in relation to industrial disputes is to ascertain and declare, but not enforce, what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other" (1918) 25 CLR, at p 463 (at p309)

7. As to the trade and commerce power, the necessary connexion with Australia is obvious from its words "trade and commerce with other countries and among the States". But when this connexion exists the full implications of the decisions in Australian Steamships Ltd. v. Malcolm [1914] HCA 73; (1914) 19 CLR 298 and Huddart Parker Ltd v. The Commonwealth [1931] HCA 1; (1931) 44 CLR 492 should, I think, be accepted without hesitation It seems to me that prima facie Parliament could regulate the conditions of work of persons engaged in any activity in respect of which it has express power to legislate. Constitutional interpretation has moved far since 1906, when it was said that "the general conditions of employment" were not within the ambit of the trade and commerce power: The Federated Amalgamated Government Railway and Tramway Association v. The New South Wales Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488, at p 545 Nevertheless, in our Constitution the scope of the power in respect of trade and commerce is not necessarily to be measured by the scope which modern American decisions have given to the commerce clause in the Amercian Constitution. General statements in Gibbons v. Ogden [1824] USSC 18; (1824) 9 Wheat 1; 22 US 1 (6 Law Ed 23) may be accepted without viewing our s. 51 (i.) through later American cases, which seem to see the horizon of the commerce power ever receding and the persons and things within it ever increasing, as, for example, 10 East 40th Street Building, Incorporated v. Callus [1945] USSC 106; (1944) 325 US 578 (89 Law Ed 1806) In the course of a passage which echoes the eloquence of Marshall C.J. in Gibbons v. Ogden [1824] USSC 18; (1824) 9 Wheat 1; 22 US 1 (6 Law Ed 23), Story said of the commerce clause: "The subject to be regulated is commerce. Is that limited to traffic, to buying and selling, or the interchange of commodities? Or does it comprehend navigation and intercourse? If the former construction is adopted, then a general term applicable to many objects is restricted to one of its significations. If the latter, then a general term is retained in its general sense . . . Commerce undoubtedly is traffic; but it is something more. It is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches; and is regulated by prescribing rules for carrying on that intercourse". (Commentaries on the Constitution Vol. II, par. 1061, pp. 3, 4). In our Constitution the trade and commerce power is extended to navigation and shipping by s. 98 (Newcastle and Hunter River Steamship Co. Ltd. v. Attorney-General for the Commonwealth [1921] HCA 31; (1921) 29 CLR 357; Morgan v. The Commonwealth [1947] HCA 6; (1947) 74 CLR 421, at p 455 This puts the matters to which Story referred beyond argument. But this express extension into one field is, in my view, one of the circumstances that prevents the extension of the Commonwealth power over trade and commerce to all the matters which it is now said the commerce clause in America tacitly comprehends. (at p310)

8. Bearing in mind the recommendation of the Chief Justice - that "In dealing with the trade and commerce power, it is peculiarly desirable to consider each case which arises without entering more largely upon the interpretations of the Constitution than is necessary for the decision of the particular case" (1931) 44 CLR, at p 514 - I say no more than that a law defining the conditions of service of the master and other mariners in a merchant vessel is, in my view, a law with respect to navigation and shipping; and, if the vessel be engaged in regular voyages to and from Australian ports from and to places beyond Australia for the purposes of trade, then such a law is a law with respect to trade and commerce with other countries, and is a valid exercise of the constitutional power under s. 51 (i) and s. 98. A merchant vessel coming to Australia with passengers and cargo, or for passengers and cargo, is not, I think, from the point of view of Australia, any the less engaged in trade and commerce with other countries because in the course of her voyage she may also, as ships commonly do, load and discharge cargo and embark and disembark passengers at ports in other countries. (at p311)

9. It is, however, one thing to say that the Commonwealth Parliament has a constitutional power to make a law having a wide extra-territorial operation. It is quite another thing to say that it has confided the exercise of such a power to a subordinate law-making authority. The Parliament might, as a matter of law, exercise its powers in defiance of international comity and heedless of whether or not its laws could be enforced. It does not follow that it has authorized its industrial tribunals to do so. Prima facie Commonwealth statutes ought not to be so construed as authorizing any subordinate law-making body to deal with matters which have no real and substantial connexion with Australia or to make any rules except such as can be directly or indirectly enforced by the authority of Australian courts. (at p311)

10. Turning therefore to the jurisdiction conferred upon the Commonwealth Conciliation and Arbitration Commission under s. 72 of the Conciliation and Arbitration Act 1904-1958, I have had the advantage of reading the judgment of the Chief Justice in this case; and I respectfully agree with his analysis and construction of pars. (a) and (b) of that section. The matters here in question have a direct, real and substantial connexion with Australia. The prosecutor, being registered here as a foreign company, is amenable, as is a resident, to the jurisdiction of Australian courts. The ships' officers whose conditions of service are in question reside in Australia, and they are engaged and discharged in Sydney. Probably they, or most of them, are Australian citizens and are domiciled in Australia. The ships on which they serve are British ships regularly coming to and departing from Australian ports in the course of voyages for the purpose of trade, including carrying cargo and passengers to and from Australia. These circumstances are enough to bring the matter within those with which, under either par. (a) or (b), s. 72 upon its proper construction empowers the Arbitration Commission to deal. The case seems to me very different from some of those imagined in argument concerning affairs aboard foreign ships and the labour conditions of foreign crews having no real or substantial connexion with Australia beyond the fact that the vessels in which they serve from time to time come into Australian ports. Some of the imagined circumstances might well be within the constitutional power of Parliament under s. 51 (i.), however inappropriate it might seem to be for it to legislate in respect of them; but they would not fall within the powers Parliament has confided to the Arbitration Commission on the proper construction of its statute. (at p312)

11. The prosecutor's contention that it should be discharged from the proceedings before the learned Commissioner thus fails. But I do not mean that I think an award in the very terms put forward could properly be made by the learned Commissioner in respect of officers and engineers serving in the prosecutor's ships. The log of claims seems to involve an assumption that an award might be made in respect of working conditions aboard the prosecutor's ships in exactly the same terms as an award could be made to operate in respect of work to be done in ships within covering cl. 5. This I think is a mistake. An award of the Arbitration Commission operating in ships within covering cl. 5 is merely part of the law of Australia operating where Australian law is in force; whereas an award in relation to work to be done aboard the prosecutor's ships gets its efficacy because it prescribes terms and conditions which are to be read into a contract of service made in Australia between Australia residents. Whether the courts of another country would treat these enforced terms in a contract made in Australia as binding would depend upon the doctrine of private international law applied in those courts. The distinction between serving in the prosecutor's ships and serving in ships within covering cl. 5 is not merely theoretical. Some of the provisions of the proposed award, whether or not they would be suitable to employment in Australian ships, would not be appropriate terms in contracts made by the prosecutor with Australians for services as officers in its ships. I may mention one such matter. The log of claims of the Merchant Service Guild of Australasia apparently claims that every master or mate on a ship of the prosecutor, whoever he be and wherever he be engaged, must henceforth be employed in accordance with the terms proposed, whether or not he be a member of the guild. But it is not, I think, in any way certain that the Arbitration Commission has under its statute any authority to dictate terms of contracts to be made in the future outside Australia, by persons not represented in these proceedings and who could be foreign nationals having no connexion by residence or domicile with Australia. As I see the matter at present, that would travel far beyond the essential facts of this case and far beyond anything which the decision in Metal Trades Employers Association v. Amalgamated Engineering Union [1935] HCA 79; (1935) 54 CLR 387 would support And I do not think this obstacle is at all overcome by the proposed clause that "all future ships' articles signed by employees (as defined) shall be deemed to incorporate the terms hereof". The history of ships' articles is explained in Abbott on Shipping 14th ed. (1901) p. 220. In relation to British ships, the expression means the agreement between the master and the crew, provided for now by s. 114 of the Merchant Shipping Act. The articles of the prosecutor's ships are signed in Hong Kong pursuant to the Merchant Shipping Act, s. 124. This, it seems, is because most members of the crews are Chinese who are engaged in Hong Kong. But the Australian masters, mates and engineers are engaged in Australia. The statutory provisions under the Merchant Shipping Act do not prevent the making of a contract outside, or additional to, the statutory articles; and if such a contract be more beneficial to the seaman than the articles, and not inconsistent with them, it is enforceable: McKernan v. Fraser [1931] HCA 54; (1931) 46 CLR 343, at p 358; Moore v. "City of Malines" (1947) 81 LlLR 96; Federated Seamen's Union of Australasia v. Commonwealth Steamship Owners' Association [1922] HCA 7; (1922) 30 CLR 144 So far as the prosecutor and the respondents are concerned, the present dispute has occurred in Australia in relation to the conditions of employment of Australians under contracts made in Australia. In my view, the learned Commissioner has power in respect of these respondents to proceed to the making of an award, but not necessarily to make an award in the terms proposed. (at p313)

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

ORDER

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