R v Foster; Ex parte Commonwealth Steamship Owners' Association

Part XA. of the Navigation Act was introduced into that statute by Act No. 109 of 1952. Its leading provisions invest the Commonwealth Court of Conciliation and Arbitration with a specific jurisdiction to prevent or settle industrial disputes by conciliation or arbitration. "Industrial dispute" is defined by that Act to mean "a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State; and a situation which is likely to give rise to a dispute as to industrial matters which so extends". The Act also includes in the specific jurisdiction power 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. "Industrial matters" is an expression that is specially defined to mean "all matters in relation to the salaries, wages, rates of pay or other terms and conditions of service or employment of masters, pilots or seamen".

The dispute submitted to the learned judge fell within both of those provisions, or at all events within the latter. It clearly related to an industrial matter.

The Act by s. 405G provides that, "Except as provided by this Part - (a) the Court or a Conciliation Commissioner is not empowered to make an order or award in relation to industrial matters".

Section 405Q, upon which his Honour relied, provides that, "An order or award under this Part does not have effect to the extent (if any) to which it is inconsistent with a law of the Commonwealth other than Division 15 of Part II. of this Act".

Division 15 of Pt. II. of the Act is a new division introduced by the same statute, No. 109 of 1952, in place of an old one, and relates to the subject of accommodation.

It is, of course, clear enough that the award which his Honour was invited to make by the application would be inconsistent with the existing provisions of the awards upon which it would have operated. His Honour took the view that the expression in s. 405Q "inconsistent with a law of the Commonwealth" meant inconsistent with an award of the Commonwealth Court of Conciliation and Arbitration, at all events when that award was made by the Court before the operation of Act No. 109 of 1952 in relation to the subject matters with which that Act deals. For that reason he decided that it would be futile to attempt to make any award in relation to the specific industrial dispute brought before him, and he declined to entertain the matter further, and struck it out.

In our opinion the interpretation that his Honour placed on s. 405Q is erroneous. The expression "inconsistent with a law of the Commonwealth" does not refer to industrial awards. It relates to laws made under the legislative powers of the Commonwealth directly or indirectly. The whole subject matter with which it deals is itself inconsistent with the idea that the section was using the expression "law of the Commonwealth" to embrace industrial awards. That is not the natural meaning of the expression, and it is not a meaning that has hitherto been placed upon the expression.

It is said, however, that the case is not one for the use of the prerogative writ of mandamus for two reasons. The first reason is that the learned judge did not decline jurisdiction, but addressed his mind to the exercise of his jurisdiction and came to the conclusion simply that it just ought not to be exercised. The second reason is that there are other remedies available under the Navigation Act, and that the prerogative writ should therefore not be used until they have been resorted to and exhausted.

As to the first ground, his Honour's judgment makes it reasonably clear what view his Honour took. Having construed s. 405Q as making it impossible for him to make any award in relation to this dispute which would have an operation that was effective, he said that it was urged that the section meant that the intrusion of any other law-making authority into that field would be regarded as inconsistent legislation. His Honour then said: "And that is the very thing that s. 405Q explicitly invalidates. To intrude at all (except as to Div. 15 of Pt. II. of the Navigation Act) is to make a wholly inconsistent law and it is thus without any effect."

His Honour went on then to say that he accepted that view, and added: "Obviously I should refrain from intruding and so avoid making a completely futile award or order."

His Honour proceeded to say: "I am to settle disputes and deal with industrial matters, but in so doing I must make no award or order inconsistent with an existing Commonwealth law, and, since that field is completely covered by the existing awards, there seems no room for awards or orders of mine. Of course the jurisdiction to make orders and awards is not the only jurisdiction conferred on me by the Act, but it is the one which falls in question in these proceedings. For these reasons I think the summons should be struck out."

It is clear that his Honour declined for an erroneous legal reason, a reason which we hold to be erroneous, to exercise the function that was committed to him by the Act. The decision which he gave was not an exercise of that authority, but a decision that it was not an occasion to exercise it and that relief should therefore be refused and jurisdiction should not be exercised. In his own words, the field was a field upon which he should not intrude because it was closed by s. 405Q. We think that field was not closed by s. 405Q. It follows that he has not performed the duty which the statute lays upon him of hearing and determining the dispute.

The second suggestion that adequate remedies exist may be briefly dealt with. The remedies referred to are those created by new ss. 405H, 405J, 405K and 405L of the Act. Section 405H relates to the reference of industrial questions to the Full Court of the Arbitration Court, and s. 405J relates to the hearing by the court of those questions. Section 405K, with leave of the Chief Judge, gives an appeal against any order or award and enables the court to deal with such an appeal. Section 405L gives a further power of referring questions of law to the Full Court.

It is unnecessary to discuss those sections in detail because we consider that they do not in such a case as the present confer an equally convenient, beneficial and effective remedy as mandamus. The present case is one in which relief may be more readily given in a much more effective manner and in a less embarrassing manner to all the parties in this way than by taking the whole proceedings up to the Full Court of the Arbitration Court in one or other of the ways which those remedies might allow.

We are therefore of opinion that the order nisi to hear and determine the application made by the summons according to law should be made absolute, and that the order should include an order that the respondents, the Australian Institute of Marine and Power Engineers, should pay the costs.

The order will be: Order absolute; costs of the prosecutors against the Australian Institute of Marine and Power Engineers.