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[2003] HCA 43
respondent. Order nisi discharged; the prosecutor was ordered to pay the respondents’ costs.
The High Court held that the AIRC could consider whether an Australian maritime award should apply to a foreign company and foreign crew working on a ship engaged in trade between Australian ports. The constitutional connection was the crew's participation in that trade, not the location of the employer or the crew's nationality, residence or recruitment. The Navigation Act's permit system and international-law arguments did not remove the AIRC's ability to consider the application. Nor did service outside Australia establish a jurisdictional defect where there was no denial of procedural fairness. The Court discharged the order nisi and ordered CSL Pacific to pay costs.
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2,698 words · generated 05/10/2026
The case concerned the reach of the Workplace Relations Act 1996 (Cth) (WRA) over maritime employment connected with trade on the Australian coast. The Maritime Union of Australia, the Australian Institute of Marine and Power Engineers, and the Australian Maritime Officers' Union applied to the Australian Industrial Relations Commission (AIRC) to vary the Maritime Industry Seagoing Award 1999. They sought to add CSL Pacific Shipping Inc (CSL Pacific), and potentially other employers of the crew of the vessel CSL Pacific, to the Award ([1]).
20 cited instruments linked from this judgment.
CSL Pacific was incorporated in Barbados. It was part of a corporate group that included CSL Australia Pty Ltd and was ultimately owned, in whole or in part, by a Canadian corporation ([2]). The vessel had previously been known as the River Torrens. CSL Australia acquired it in 1999 as part of a business operating ships on the Australian coast ([3]). In July 2000, CSL Pacific acquired the vessel, renamed it the CSL Pacific, registered it in the Bahamas and arranged for a crew to be recruited in Ukraine. The crew members were Ukrainian citizens and signed their ship's articles in Odessa ([4]).
The vessel initially traded in North Asia. From October 2001 it operated on the Australian coast under a time charter to CSL Australia. The charter left CSL Pacific responsible for navigation and the crew, and was not a demise charter ([5]). The vessel carried dry bulk cargo between ports in several Australian States under permits issued under s 286 of the Navigation Act 1912 (Cth) ([6]). Its crew's wages and conditions were fixed by agreement with the International Transport Federation and differed from the Award ([7]).
The unions' application relied on s 113 WRA, which empowers the AIRC to vary an award. Section 5 of the WRA extends the Act's operation to specified “industrial issues”, including matters pertaining to the relationship between employers and maritime employees so far as those matters relate to trade or commerce between the States, between Australia and a place outside Australia, and certain Territory-related trade ([8]-[10]).
The AIRC found an industrial issue. It described the issue as whether terms corresponding to some or all of the Award should apply to maritime employees engaged on the CSL Pacific on relevant voyages to or from Australian ports ([11]). It considered the employment conditions issue to relate to interstate trade because the crew were engaged in carrying goods between Australian ports for Australian shippers ([12]). Its proposed next step was provisional, not a final award variation. It directed the parties to show cause why CSL Pacific should not be added to the Award and why the Award should not apply in specified circumstances ([14]).
CSL Pacific sought certiorari and prohibition in the High Court, arguing that the AIRC had wrongly assumed jurisdiction. Its objections included statutory construction, constitutional power, the Navigation Act, international law and service of process ([15]-[16]). The High Court discharged the order nisi and ordered CSL Pacific to pay the respondents' costs.
The Court treated the central constitutional question as whether the WRA's operation had a sufficient connection with the trade and commerce power in s 51(i) of the Constitution. It restated that constitutional character depends on the rights, powers, liabilities, duties and privileges a law creates, and on its practical as well as legal operation. A connection is sufficient unless it is “so insubstantial, tenuous or distant” that the law cannot sensibly be described as one with respect to the power ([35]).
The Court relied on the established proposition that Parliament may regulate people working in activities that form part of interstate and overseas trade. A ship journeying for reward is in commerce, and the people who cooperate in its journeying are also in commerce. Their wages and working conditions relate to that commerce ([36]). The Court stated directly that the commerce power is attracted by employees' engagement in interstate and overseas trade ([37]).
That reasoning answered CSL Pacific's emphasis on its lack of an Australian presence and the foreign status of its crew. The Court said those features did not displace the connection arising from the crew's participation in the carriage of goods between Australian ports. It also rejected the suggested need for an additional degree of connection because the AIRC is a non-judicial body. In the Court's view, no special added connection requirement applied merely because the WRA authorised the AIRC to exercise authority ([38]-[40]).
The Navigation Act argument also failed. Part VI generally regulates ships in the coasting trade, including licensing and wages. But the CSL Pacific operated under permits issued under s 286. Under s 286(2), carriage covered by a permit is not deemed to be engagement in the coasting trade. The result was that the statutory wage requirements applying to licensed coasting-trade ships did not operate in the same way for this vessel ([21]-[27]). The Court saw no basis for concluding that this arrangement impliedly repealed s 5(3) WRA or required its plain terms to be narrowed. The provisions were to be read together, and the permit scheme did not prevent a separate application under the WRA ([28]-[29]).
The international-law objections did not establish a jurisdictional barrier either. The Court found no interference with navigation through territorial waters for the purpose of reaching or leaving Australian ports ([48]). As to the internal economy of ships, it explained that the principle did not require the AIRC to be barred from considering the subject. Instead, the AIRC could consider the importance of the ship's internal economy alongside Australia's economic interests, using the public-interest power in s 111(1)(g), which applied to the award-variation process through s 113(4) ([52]-[54]).
Finally, the service objection did not succeed. The AIRC's functions were legislative in nature, concerned with prescribing rules of conduct for the future, rather than the exercise of judicial power in a personal action ([59]). The Court accepted that procedural fairness could constrain the exercise of AIRC jurisdiction, including where a party had not been adequately notified. But it found no such denial on the facts. A Commissioner had ordered service at CSL Australia's Sydney office, and r 73 of the AIRC Rules 1998 allowed an order for substituted or other service intended to bring documents to the person's notice ([60]-[62]).
The judgment placed s 5(3)(b) within a legislative history that began with provisions added to the Navigation Act in 1952. Those provisions authorised the Commonwealth industrial tribunal to determine maritime industrial matters insofar as they related to interstate or overseas trade and commerce ([18]). In R v Foster; Ex parte Eastern and Australian Steamship Co Ltd, the Court had upheld the relevant legislation and accepted that the industrial tribunal could deal with working conditions in circumstances involving a foreign-registered ship and foreign trade, where the shipping company practised engagement of officers in Australia ([19]).
The present case addressed circumstances that differed in important factual respects. Here, CSL Pacific was incorporated overseas, the crew were foreign citizens recruited outside Australia, and the employer was not shown to have the kind of Australian presence discussed in Foster. The Court nevertheless held that these differences did not defeat the constitutional connection where the employees participated in interstate and overseas trade ([38]-[40]). In that sense, the judgment applied the existing commerce-power approach to a fact pattern in which the employment relationship had fewer personal and corporate connections with Australia.
The Court also addressed the relationship between s 5(3) WRA and the Navigation Act. It declined to treat the Navigation Act's licensing and wage provisions as an exhaustive code that displaced the WRA. The statutes could operate together: the Navigation Act's particular wage requirements depended on the ship's status and its licence, while the WRA separately enabled an industrial issue to be raised in relation to specified trade ([28]-[29]).
The judgment did not decide whether a permit under s 286 could have carried wage conditions equivalent to those applying to a licensed ship. It expressly left that question open ([27]). Nor did it decide whether s 21(1)(b) of the Acts Interpretation Act 1901 (Cth) would limit other legislation that used broader, unqualified language. It held only that the provision had no relevant operation on s 5(3), because that section itself identified the relevant trade and commerce connections ([42]-[43]).
The decision therefore clarified the statutory and constitutional questions presented by this application, but it did not determine whether the Award should ultimately be varied or what terms should apply. Those matters remained for the AIRC.
At [35], the Court stated that a law must have a connection to the relevant constitutional power, but that connection need not be especially close. It is enough unless it is “so insubstantial, tenuous or distant” that the law cannot sensibly be described as one about the subject of the power. In plain English, the constitutional inquiry was about the practical and legal relationship between the legislation and interstate or overseas commerce, not whether every person or company involved had a separate Australian connection.
At [36], the Court explained that a commercial voyage involves more than the shipowner or charterer. The workers who help the vessel make the journey are participants in commerce, and their wages and employment conditions relate to that commerce. This proposition linked the crew's employment conditions to the constitutional subject matter.
At [37], the Court made clear that the employer's identity and commercial role were not decisive. The relevant connection could arise from the employees' work in interstate and overseas trade, even if the entity responsible for wages and ship ownership was not itself operating the ship for commercial reward.
At [39], the Court rejected the suggested need for some further connection because the AIRC was a non-judicial body. It said there was no specific requirement of an additional degree of connection simply because the law authorised a non-judicial body to act. This was significant because CSL Pacific relied on the AIRC's institutional role as part of its jurisdictional objection.
At [53], the Court said that the internal-economy rule did not require a construction of s 5(3) that stopped the AIRC from considering the matter. The AIRC could consider the rule's significance, together with Australia's economic interests, when deciding whether further proceedings were desirable in the public interest. In plain English, the Court distinguished the AIRC's authority to consider the application from the separate question of whether it should ultimately proceed to make a variation.
At [58]-[62], the Court distinguished AIRC procedure from service requirements in court proceedings. Jurisdiction did not depend on formal service in the same way as a court's jurisdiction over a personal action. However, the AIRC still had to provide procedural fairness. The Court found no failure of adequate notification on the facts before it.
The case is most directly relevant where an industrial application concerns crew or other maritime employees working on a vessel engaged in trade between Australian States or between Australia and another country, and the employer or crew have limited personal connections to Australia. Relevant factual features in this judgment included the ship carrying goods between Australian ports, the foreign incorporation of the employer, foreign registration of the vessel, overseas recruitment of the crew, and permits under the Navigation Act ([2]-[7]).
The decision also matters where an argument is made that a sector-specific statute displaces a general industrial-relations statute. Here, the Court examined the interaction between Part VI of the Navigation Act and s 5(3) WRA and concluded that the permit scheme did not prevent the WRA application ([21]-[29]).
A further triggering fact pattern is a claim that customary international law, flag-state authority or a ship's internal economy prevents an Australian industrial body from considering employment conditions. The Court's response was not that those matters are necessarily irrelevant. Rather, they did not remove the AIRC's threshold authority to consider the application, and could be considered by the AIRC in exercising its public-interest function ([45]-[54]).
The service discussion is pertinent where a party is outside Australia and contests an industrial tribunal's authority because notice was sent across borders. The judgment directs attention to the tribunal's statutory and procedural rules, the means by which notice was given, and whether the party was adequately notified. It does not make formal service immaterial in every setting; it distinguishes the AIRC's legislative function from a court's exercise of judicial power ([55]-[62]).
The case does not decide the ultimate merits of the proposed award variation. It does not determine which wage rates or conditions should apply to foreign crew, whether the AIRC should exercise its discretion to make a variation, or whether any particular proposed award term would be appropriate. The AIRC had made a provisional determination and the High Court was reviewing its jurisdiction to proceed ([13]-[15]).
The judgment provided here contains no later judicial treatment of Re Maritime Union of Australia itself, and no later cases are supplied for analysis. It would therefore be unsafe to state how subsequent courts have applied, distinguished or limited the decision.
The reasons do show how the High Court situated its decision in earlier authority. It applied the sufficient-connection approach to characterisation and constitutional power discussed in Grain Pool of Western Australia v The Commonwealth and Re Dingjan; Ex parte Wagner ([35], [39]). It also relied on the established proposition that the trade and commerce power can support regulation of people employed in interstate and overseas commerce, citing Australian Steamships Limited v Malcolm and Seamen's Union of Australia v Utah Development Co ([36]).
The Court considered Foster as part of the legislative and doctrinal history. It noted that Foster had upheld the earlier maritime industrial-relations provisions, but declined to treat a statement by Windeyer J about a “real and substantial connexion” as requiring a separate heightened connection test for a non-judicial body ([19], [38]-[39]).
On statutory construction, the Court applied the approach in Project Blue Sky Inc v Australian Broadcasting Authority, directing attention to reading the two statutes together rather than assuming that one had silently displaced the other ([28]). On service, it distinguished the court-focused discussion in John Pfeiffer Pty Ltd v Rogerson, explaining that the AIRC's functions were legislative rather than judicial ([55]-[59]).
These are the relationships established by the reasons themselves. They are not evidence of how later courts treated the 2003 judgment.
Several questions were expressly left unresolved or remained outside the High Court proceeding. First, the Court did not decide whether the Minister's power under s 286(1) of the Navigation Act could be used to attach permit conditions requiring payment at Australian wage rates ([27]). The case therefore did not settle the full scope of that permit-making power.
Second, the Court did not determine the AIRC's ultimate public-interest assessment. It said the AIRC could consider the internal-economy principle and Australia's economic interests when deciding whether further proceedings were desirable under s 111(1)(g) ([52]-[53]). The High Court's decision meant the AIRC could consider the application; it did not decide what the AIRC should ultimately do.
Third, the reasons did not resolve every question about the content or customary status of innocent passage. The Court noted uncertainty about when the doctrine became customary international law and about its content, while concluding that the proposed AIRC process did not interfere with navigation to or from Australian ports ([46]-[48]).
Fourth, the Court did not determine whether r 72 of the AIRC Rules 1998 was confined to service within Australia. It found it unnecessary because r 73 had been used and its terms could support substituted service in the circumstances ([60]-[61]). The wider reach of r 72 was therefore not decided.
Finally, the case was about jurisdiction, not the final scope of any award. The AIRC had identified the industrial issue and provisionally proposed possible award coverage, but the High Court did not rule on the final wording or substantive application of the Award to the CSL Pacific and its crew ([11]-[14], [63]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ
RE: THE MARITIME UNION OF RESPONDENTS
AUSTRALIA & ORS
EX PARTE CSL PACIFIC APPLICANT/PROSECUTOR
SHIPPING INC
Re The Maritime Union of Australia & Ors;
Ex parte CSL Pacific Shipping Inc
[2003] HCA 43
7 August 2003
S391/2002
ORDER
Order nisi granted on 18 November 2002, as amended on 6 May 2003, discharged.
Prosecutor to pay the respondents’ costs.
Representation:
C N Jessup QC with G J Hatcher SC and C S Ward for the applicant/prosecutor (instructed by Blake Dawson Waldron)
No appearance for the first respondents
D F Jackson QC with A S Bell for the second respondents (instructed by W G McNally & Co)
Intervener:
D M J Bennett QC, Solicitor-General of the Commonwealth of Australia with R F Crow intervening on behalf of the Attorney-General of the Commonwealth of Australia (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re The Maritime Union of Australia & Ors; Ex parte CSL Pacific Shipping Inc
Constitutional Law (Cth) – Powers of the Parliament – Trade and commerce with other countries and among the States – Industrial relations – Application for variation of an award – Whether s 5(3), Workplace Relations Act 1996 (Cth) ("WRA") validly extends to employers not present in Australia – Whether s 5(3), WRA validly extends to foreign non-resident seafarers engaged outside Australia.
Industrial Law (Cth) – Application for variation of an award – Whether Australian Industrial Relations Commission had jurisdiction pursuant to s 5(3), WRA – Whether Pt VI, Navigation Act 1912 (Cth) impliedly repealed s 5(3), WRA – Whether s 5(3), WRA validly extends to employers not present in Australia – Whether s 5(3), WRA validly extends to foreign non-resident seafarers engaged outside Australia – Whether construction of s 5(3) to be limited through reference to rules of customary international law regarding "innocent passage" and "internal economy" of ships – Whether prosecutor validly served pursuant to Australian Industrial Relations Commission Rules 1998.
Constitution (Cth), s 51(i).
Acts Interpretation Act 1901 (Cth), s 21(1)(b).
Navigation Act 1912 (Cth), Pt VI.
Workplace Relations Act 1996 (Cth), ss 5, 111(1)(g), 113.
The parties
The prosecutor, CSL Pacific Shipping Inc ("CSL Pacific"), is incorporated in Barbados. Together with an Australian corporation, CSL Australia Pty Ltd ("CSL Australia"), CSL Pacific is a member of a group of companies ultimately owned in whole or in part by a Canadian corporation, The CSL Group Inc ("CSL Canada").
As a result of changes brought about by the ANL (Conversion into Public Company) Act 1988 (Cth), ANL Ltd ("ANL") became a company registered under the Companies Act 1981 (Cth) as a public company limited by shares1. In May 1999, CSL Australia acquired a portion of the business of ANL involving the operation of two ships, the CSL Pacific (then known as the River Torrens) and the CSL Yarra (then known as the River Yarra). These ships worked on the Australian coast. It appears that, at the time of their sale to CSL Australia, both ships were registered under the Shipping Registration Act 1981 (Cth) and were licensed to operate in the Australian coasting trade pursuant to the requirements of Pt VI (ss 284‑293A) of the Navigation Act 1912 (Cth) ("the Navigation Act"). The rates of pay and conditions of employment of the crews of the ships were regulated by the Maritime Industry Seagoing Interim Award 1998 ("the Interim Award"). That state of affairs continued after the transfer of the ships to CSL Australia, save that the rates of pay and conditions of employment of the Australian crew were, from 27 August 1999, regulated by the Award in place of the Interim Award.
On or about 14 July 2000, CSL Pacific acquired the River Torrens from CSL Australia. The vessel was renamed the CSL Pacific and was registered at Nassau in the Bahamas. At the time of the acquisition of the ship by CSL Pacific, the vessel was lying in Shanghai and had no crew. CSL Pacific arranged for the recruitment of a crew in the Ukraine. All crew members are Ukrainian citizens and they each signed ship's articles at Odessa in that country.
The CSL Pacific then commenced trading in North Asia. It did not work on the Australian coast until October 2001. In that month, the vessel was returned to the Australian coast and was time chartered by CSL Pacific to CSL Australia. The terms of the time charter, dated 1 October 2001, left CSL Pacific with responsibility for the navigation of the vessel and the crew and provided that it was not to be construed as a demise to CSL Australia. As a matter of internal practice within the corporate group, a time charter such as the one executed between CSL Pacific and CSL Australia may be terminated at the conclusion of any voyage at the direction of CSL Canada.
The has operated on the Australian coast under spot contracts, carrying dry bulk cargoes for a number of customers on a number of voyages between ports in South Australia, Victoria, New South Wales and Queensland. This has taken place pursuant to a combination of a continuing voyage permit and single voyage permits issued under s 286 of the Navigation Act. It will be necessary to refer further to that provision later in these reasons.
The WRA
"This Act has effect as if:
(a) each reference in this Act to preventing or settling industrial disputes, by conciliation or arbitration, included a reference to settling by conciliation, or hearing and determining, industrial issues; and
(b) each reference in this Act to an industrial dispute included a reference to an industrial issue."
Much then turns upon the use of the term "industrial issue" in place of "industrial dispute". Reference has been made to the power of variation of awards conferred on the AIRC by s 113 of the WRA. Section 113(4) states:
"This Act applies in relation to applications, and proceedings in relation to applications, for the setting aside or variation of awards in the same manner, as far as possible, as it applies in relation to industrial disputes and proceedings in relation to industrial disputes, and for that purpose such an application shall be treated as if it were the notification of an industrial dispute."
That provision in turn must be read, in the present case, with the reference in par (b) of s 5(2) to industrial issues.
"For the purposes of this section, the following are industrial issues:
...
(b) matters pertaining to the relationship between employers and maritime employees, so far as those matters relate to trade or commerce:
(i) between Australia and a place outside Australia;
(ii) between the States; or
(iii) within a Territory, between a State and a Territory, or between 2 Territories;
(c) matters pertaining to:
(iii) the relationship between flight crew officers and flight crew officers' employers, so far as those matters relate to trade or commerce:
(A) between Australia and a place outside Australia;
(B) between the States; or
(C) within a Territory, between a State and a Territory, or between 2 Territories".
"a person employed or engaged in any capacity on board a ship on the business of the ship, other than:
(a) the master of the ship;
(b) a pilot; or
(c) a person temporarily employed on the ship in port".
The assumption of jurisdiction
"We find that an industrial issue exists in this matter. The parties to the industrial issue are [the second respondent] and [CSL Pacific]. The subject matter of the industrial issue is whether terms and conditions of employment corresponding with some or all of the terms and conditions of employment applicable to maritime employees whose employment is covered by the [Award] should be accorded to maritime employees engaged on the ship CSL Pacific in respect of any class of, or all voyages to or from a port in Australia.
We are satisfied that the industrial issue as found is a matter pertaining to the relationship between employers and maritime employees. The subject matter at issue reflects a claim by [the second respondent] for terms and conditions of employment to be accorded to a class of maritime employees who are not members of [the second respondent]. The subject matter at issue pertains to the relationship of the employer and the employees who are members of the organisations party to the issue. This is so because the employer's non‑observance of standard minimum conditions of employment for maritime employees engaged in maritime trade and commerce within or about Australian territory causes such employees to be engaged on terms and conditions less favourable to them and less onerous on the employer than would be the case if terms and conditions under the Award were applicable."
"In the practical sense, the matter at issue that pertains to the relationship between employers and maritime employees clearly relates to trade or commerce between the States. That is so because the issue is about the conditions of employment of maritime employees who on the evidence are engaged regularly in the carriage of goods by sea between Australian ports for and on behalf of Australian shippers."
The AIRC concluded that it was within its jurisdiction to hear and determine the industrial issue as so identified and in particular to hear and determine the application to vary the Award for that purpose.
Finally, the AIRC recorded its provisional determination that the parties show cause within 15 working days before a Commissioner as to why the Award should not be varied by adding CSL Pacific, as employer of the crew engaged upon the ship CSL Pacific, and by adding a provision to the effect that the Award "applies in or in connection with voyages and operations within Australian waters or while operating under a permit or licence granted under the [Navigation Act] or on a voyage to or from a port in Australia"5.
The proceeding in this Court
On 18 November 2002, a Justice of this Court, on the application of CSL Pacific, ordered that the first respondent and the second respondent show cause before the Full Court as to why certiorari should not issue directed to the first respondent to bring into the High Court to be quashed the decision made on 27 September 2002 that the AIRC assume jurisdiction, and why prohibition should not issue directed to the first respondent prohibiting any further proceeding upon the application for variation of the Award made by the second respondent. The essential ground of the orders nisi was that, upon the proper construction and application of s 5(3)(b) of the WRA to the materials before the AIRC, the application to vary the Award did not present an industrial issue.
By leave of the Full Court, CSL Pacific added a further ground expressed as follows:
"Section 51(i) of the Constitution does not authorise the making of a law which regulates or operates by reference to the relationship between an employer and its employees when –
. the employer has no presence in Australia and does not engage in trade or commerce of the kind referred to in section 51(i); and
. the employees are foreign seafarers, not resident in Australia, not engaged in Australia and not members of any relevant Australian industrial organisation;
merely because the ship owned by that employer, and on which those employees work, is being used by another person to whom it has been wet chartered for the purposes of such trade or commerce, and to the extent that section 5(3)(b) of [the WRA] is such a law it is beyond legislative competence under the Constitution and invalid."
The use of the phrase "to the extent" indicates reliance by the prosecutor upon the severance or "reading down" provision made by s 15A of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act"). The WRA contains in s 7A its own particular severance provision but it may be put to one side.
The provenance of s 5(3)(b) of the WRA
The legislative pedigree of s 5(3)(b) of the WRA commenced with the Navigation Act 1952 (Cth). Section 37 thereof added Pt XA (ss 405A‑405Q) to the Navigation Act. Section 405D(2) conferred upon what was then the Commonwealth Court of Conciliation and Arbitration the power to hear and determine "industrial matters" in so far as they related 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". The phrase "industrial matters" was defined in s 405A as meaning "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".
After changes made in 19566, a provision in like terms to s 405D(2) appeared as s 72(b) of the Conciliation and Arbitration Act 1904 (Cth). The expression "industrial matter" was defined in s 71 in terms following those of s 405A. Sections 71 and 72(b) were the subject of the decision in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd7. The Court there held that s 72(b) was valid and supported by s 51(i) of the Constitution. Further, it was held that what by then had become the Commonwealth Conciliation and Arbitration Commission was empowered to deal with an industrial matter concerning the working conditions of officers at sea or in port in circumstances where they served on ships registered in London and trading between South Australia and Japan, under articles opened and signed in Hong Kong but where it was the practice of the shipping company to engage the officers in Australia.
Section 5 of the WRA is expressed in terms expanded from and made more precise than those of the previous provisions. The apparent looseness of the terms in which ss 71 and 72 had been expressed had occasioned difficulty, as identified by Dixon CJ in Foster8. The new s 5 first appeared in the Industrial Relations Act 1988 (Cth). The form taken by s 5, in particular the opening words of s 5(1), "[w]ithout prejudice to its effect apart from this section, this Act also has effect as provided by this section", reflects the form then already taken by s 6 of the Trade Practices Act 1974 (Cth). Of s 6, Mason J observed in R v Australian Industrial Court; Ex parte CLM Holdings Pty Ltd9:
"I now turn to s 6, which gives the Act an extended operation. To understand what the section seeks to achieve one must bear in mind that for the most part the operative sections of the Act which, according to their terms, regulate the conduct of corporations, are based upon the corporations power and the territories power. It will be recalled that in Strickland v Rocla Concrete Pipes Ltd10 the Court held that the corporations power could sustain provisions regulating restrictive trade practices engaged in by corporations within the meaning of s 51(xx). Section 6(1) recognizes that the Act will in the first instance have a direct operation according to its terms and at the same time provides that in addition to this operation the Act shall have a further operation in accordance with the provisions of s 6(2) and (3)."
Part VI of the Navigation Act
"A ship shall be deemed to be engaged in the coasting trade, within the meaning of this Act, if it takes on board passengers or cargo at any port in a State, or a Territory, to be carried to, and landed or delivered at, any other port in the same State or Territory or in any other State or other such Territory".
As has been noted earlier in these reasons, whilst the River Torrens was owned by CSL Australia, and before its acquisition by CSL Pacific and renaming as the CSL Pacific, the vessel was licensed to operate in the coasting trade pursuant to the requirements of Pt VI of the Navigation Act.
The condition respecting wages stipulated under s 288 is further spelled out in s 289. Every seaman employed on a ship engaged "in any part of the coasting trade" is entitled, "for the period during which the ship is so engaged", to payment of wages "at the current rates ruling in Australia for seamen employed in that part of the coasting trade" (s 289(1)). Where the ship is engaged not only in the coasting trade but also trades to places beyond Australia, the wages to which a seaman is entitled under s 289(1) shall be paid before the departure of the ship from Australia, and the ship may be detained until the payment is made (s 289(2)). Section 291 denies the efficacy of any agreement whether made in or out of Australia to limit or prejudice the rights of any seaman under Pt VI. Further, s 292 gives the character of prima facie evidence of the rates of wages ruling in Australia, for the purposes of s 289(1), to an award within the meaning of the WRA which is binding on or applicable to seamen employed in the coasting trade.
However, the nexus provided in Pt VI between award wages and engagement in the coasting trade was broken, with respect to the CSL Pacific, after its acquisition from CSL Australia. This was achieved by the operation of permits issued under s 286.
A permit under that section may be for a single voyage or may be a continuing permit (s 286(3)). Permits of both species were issued in respect of the CSL Pacific. Where a permit has been issued, then the prohibition otherwise imposed by s 288 upon the engagement in the coasting trade without a licence is lifted. This is effected by s 286(2) which states:
"The carriage, by the ship named in a permit issued under this section, of passengers or cargo to or from any port, or between any ports, specified in the permit shall not be deemed engaging in the coasting trade."
"Where it can be shown to the satisfaction of the Minister, in regard to the coasting trade with any port or between any ports in the Commonwealth or in the Territories:
(a) that no licensed ship is available for the service; or
(b) that the service as carried out by a licensed ship or ships is inadequate to the needs of such port or ports;
and the Minister is satisfied that it is desirable in the public interest that unlicensed ships be allowed to engage in that trade, the Minister may grant permits to unlicensed ships to do so, either unconditionally or subject to such conditions as he or she thinks fit to impose."
The relationship between the WRA and the Navigation Act
The prosecutor contends that the application to vary the Award made by the second respondent assumes a construction of the WRA which is "quite at odds" with the scheme expressed in Pt VI of the Navigation Act. What was said to follow from such a proposition was not entirely clear. Even allowing for an appropriate time sequence between the enactment of the provisions in the two statutes, it would require very strong grounds to support an implication that Pt VI impliedly repealed s 5(3) of the WRA11. Nor is it readily apparent that, notwithstanding its plain words, s 5(3) is to be given a limited construction by reason of the terms of Pt VI of the Navigation Act. Rather, as was indicated in Project Blue Sky Inc v Australian Broadcasting Authority12 with respect to provisions within the one statute, both s 5(3) of the WRA and Pt VI of the Navigation Act should be read together.
If that is done, the apparent difficulties which the prosecutor identifies and places at the forefront of its submissions then disappear. Were this a case where the prosecutor held a licence for the CSL Pacific to engage in the coasting trade under Pt VI of the Navigation Act, the Award would have the significance attached by the evidentiary provision in s 292. Where there is no such licence, and reliance is placed upon the permit system provided in s 286 for unlicensed ships, s 292 has no operation. Nevertheless, an application may be made to the AIRC founded upon s 5(3) of the WRA. That is the present case.
The case for the prosecutor
It will be recalled that the AIRC identified the relevant industrial issue as concerning the conditions of employment of maritime employees engaged regularly in the carriage of goods at sea between Australian ports for, or on behalf of, Australian shippers. That was an invocation in particular of par (b)(ii) of s 5(3) of the WRA with reference to industrial issues being matters pertaining to the relationship between employers and maritime employees, so far as those matters relate to trade or commerce between the States. However, the provisional determination contemplates a variation in the Award which perhaps goes further by the inclusion of the words not only "in or in connection with voyages and operations within Australian waters or while operating under a permit or licence granted under the [Navigation Act]" but also "on a voyage to or from a port in Australia"13. The latter expression may contemplate reliance upon that branch of par (b) of s 5(3) which fixes upon matters of the necessary character which relate to trade or commerce between Australia and a place outside Australia. The conclusions which follow in these reasons support the exercise of jurisdiction by the AIRC in both respects.
In essence, the case for the prosecutor is that the advantage it gains by the absence from the permits under Pt VI of the Navigation Act of any conditions respecting payment of wages at Australian rates is preserved from displacement by a variation to the Award made by the AIRC under its statute. In particular, the prosecutor contends, with the support of the Attorney-General of the Commonwealth on his intervention, that the extended operation given to the WRA by s 5 does not, on the proper construction of that legislation, reach far enough to permit the Award variation sought by the second respondent. The prosecutor further submits that if, contrary to its primary submission, the legislation did have a sufficient reach to permit this result, then it would be beyond the power conferred upon the Parliament by s 51(i) of the Constitution and would be read down to save its validity. However, these submissions as to lack of power do not have the support of the intervener. The Attorney-General submits that the power exists but that it has not been exercised to its full extent.
Validity
Section 51(i) of the Constitution confers power upon the Parliament to make laws, subject to the Constitution, for the peace, order and good government of the Commonwealth with respect to "[t]rade and commerce with other countries, and among the States".
Paragraph (b)(iii) of s 5(3) of the WRA speaks of matters relating to trade or commerce "within a Territory, between a State and a Territory, or between 2 Territories". It thus evinces a reliance by the legislature upon the territories power in s 122 of the Constitution. The submissions respecting validity made by the prosecutor would appear to apply to the territories power as well as to the commerce power. It also is implicit in the prosecutor's submissions that there is no other head of power which could support the legislation.
However, the variation of the Award is sought in terms which, as indicated above, would be sufficiently supported by s 5 in its foundation upon the trade and commerce power. In what follows, attention will be given, accordingly, to s 51(i) of the Constitution.
It is well settled that the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates and that its practical as well as legal operation must be examined to determine whether there is a sufficient connection between the law and the head of power in s 51(i)14. If a connection exists between the law and the relevant head of power the law will be "'with respect to' that head of power" unless the connection is "'so insubstantial, tenuous or distant' that it cannot sensibly be described as a law 'with respect to' that head of power"15.
It is also well settled that, in the exercise of the trade and commerce power, the Parliament can validly regulate the conduct of persons employed in those activities which form part of trade and commerce with other countries and among the States16. A ship journeying for reward is in commerce; those who co‑operate in the journeying of the ship are in commerce and the wages of those persons and the conditions of their employment relate to that commerce17.
It may be added that, with respect to the commerce clause in the United States Constitution, the Supreme Court settled the law to the same effect a century ago. The Supreme Court said in Patterson v Bark Eudora18 of a federal law protecting the payment of the wages of seamen:
"We are of the opinion that it is within the power of Congress to protect all sailors shipping in our ports on vessels engaged in foreign or interstate commerce, whether they belong to citizens of this country or of a foreign nation, and that our courts are bound to enforce those provisions in respect to foreign equally with domestic vessels."
As is apparent from these authorities, the commerce power is attracted by the engagement of the employees in interstate and overseas trade. The Attorney-General correctly stressed in his submissions that it is not to the point that the party responsible for payment of the wages of those employees and owning the ship in question is not itself also plying that ship for commercial reward.
"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."
There is no substance in the first and second matters relied upon by the prosecutor. They deny the settled authority that, where a connection exists between the law in question and the head of power which is not insubstantial, tenuous or distant, that connection is not displaced by the lack of some further or additional connection21. The same is true of the reliance upon the phrase "real and substantial connexion" as it appears in the passage in the judgment of Windeyer J in Foster. However it may have appeared soon after the changes made in 1956 to the industrial relations legislation, there is now no specific requirement of a particular added degree of connection to a head of power where the law in question authorises the exercise of legislative authority by a non‑judicial body such as the AIRC. It may be added that, in Foster, no other member of the Court used terms akin to those used by Windeyer J.
The submissions with respect to invalidity and reading down of s 5(3) fail. There remains the submission by the prosecutor that, notwithstanding the reach of the terms in which it is expressed, s 5(3) should be given a construction placing the assumption of jurisdiction by the AIRC in this case beyond its reach.
Construction
The prosecutor submits that s 5(3) should be read with the unexpressed limitations that it not apply to industrial matters in which (a) the employer has no "presence" in Australia and (b) the employees are foreign non‑residents who are not members of any relevant Australian industrial organisation. In this way, the prosecutor re‑introduces as matters of construction the arguments upon validity.
The prosecutor prayed in aid s 21(1)(b) of the Interpretation Act. That was said, if applied to s 5(3) of the WRA, to produce a construction which would be consistent with the reading advocated by the prosecutor. Section 21(1)(b) provides:
"In any Act, unless the contrary intention appears:
...
(b) references to localities jurisdictions and other matters and things shall be construed as references to such localities jurisdictions and other matters and things in and of the Commonwealth."
"It makes no explicit requirement that either the seaman, the employment or the injury have the slightest connection with the United States. Unless some relationship of one or more of these to our national interest is implied, Congress has extended our law and opened our courts to all alien seafaring men injured anywhere in the world in service of watercraft of every foreign nation – a hand on a Chinese junk, never outside Chinese waters, would not be beyond its literal wording."
The Supreme Court decisions upon the Jones Act are concerned with the reading of territorial limitations into the statute, with contrasting outcomes upon differing facts. To such legislation, if enacted in Australia, s 21(1)(b) of the Interpretation Act would have a readily apparent application. But the terms of s 5(3) of the WRA are not at large. Rather, they identify, in par (b) thereof, trade and commerce between the States, between Australia and a place outside Australia, and within and between Territories and between a State and a Territory. Section 21(1)(b) has no relevant operation upon s 5(3) of the WRA.
Two other principal grounds are relied upon by the prosecutor in construing s 5(3). The first is the need to avoid a construction of s 5(3) which places it "at odds" with Pt VI of the Navigation Act. There is, as explained above, no force in that ground.
The second may be identified by reference to the authorities cited by Taylor J in Meyer Heine Pty Ltd v China Navigation Co Ltd26 for the proposition that the Parliament, in enacting the WRA, is not readily to be taken as intending to deal with persons or matters over which, according to the comity of nations, jurisdiction belongs to some other sovereign or State. The sovereign authority involved here, the prosecutor submits, is that of the Bahamas, the law of the flag of the CSL Pacific. In particular, the prosecutor emphasises the need to displace only by clear and express terms what are said to be the rules of customary international law preserving to the law of the flag the regulation of the "internal economy" of ships, and protecting the right of "innocent passage".
"Innocent passage"
It is convenient to commence with consideration of the right of "innocent passage". In that regard, the prosecutor referred in particular to Arts 17, 18 and 19 of the United Nations Convention on the Law of the Sea ("the LOS Convention"). This was adopted on 10 December 1982 by the Third United Nations Conference on the Law of the Sea but it entered into force generally and for Australia only on 16 November 199427. That was well after the enactment of s 5(3) of the WRA.
There is room for dispute as to when the right of "innocent passage" came to be regarded as forming part of customary international law and as to the content of the doctrine28. Article 18 of the LOS Convention defines "passage" in this regard as meaning:
"navigation through the territorial sea for the purpose of:
(a) traversing that sea without entering internal waters or calling at a roadstead or port facility outside internal waters; or
(b) proceeding to or from internal waters or a call at such roadstead or port facility".
Of par (b), Professor O'Connell observed29:
"The inclusion of passage to and from ports in internal waters is intended to reflect the supposition that there are rules of international law reflecting freedom of access to ports, and that the coastal State would not be free to deny ships transit rights for the purpose of access."
Of the LOS Convention, it has been said30 that it:
"involved a delicate compromise on the issues that carefully balanced the rights of coastal states with the maritime powers. The emerging view is that the provisions of the LOS Convention relating to navigation are either customary international law, the best evidence of international practice, or, at the very least, the foundation upon which customary international law will develop."
Internal economy
"From experience, however, it was found long ago that it would be beneficial to commerce if the local government would abstain from interfering with the internal discipline of the ship, and the general regulation of the rights and duties of the officers and crew towards the vessel or among themselves. And so by comity it came to be generally understood among civilized nations that all matters of discipline and all things done on board which affected only the vessel or those belonging to her, and did not involve the peace or dignity of the country, or the tranquillity of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged as the laws of that nation or the interests of its commerce should require."
"By entering foreign ports and other internal waters, ships put themselves within the territorial jurisdiction of the coastal State. Accordingly, that State is entitled to enforce its laws against the ship and those on board, subject to the normal rules concerning sovereign and diplomatic immunities, which arise chiefly in the case of warships. But since ships are more or less self-contained units, having not only a comprehensive body of laws – that of the flag State – applicable to them while in foreign ports, but also a system for the enforcement of those flag State laws through the powers of the captain and the authority of the local consul, coastal States commonly enforce their laws only in cases where their interests are engaged. Matters relating solely to the 'internal economy' of the ship tend in practice to be left to the authorities of the flag State."
"A coastal state can condition the entry of foreign ships into its ports on compliance with specified laws and regulations. The jurisdiction to prescribe may extend even to some matters relating to the internal affairs of the ship."
There then is a citation of Patterson v Bark Eudora36.
The question thus becomes whether the interests of the coastal State are engaged such as to attract the operation of its legislation upon a particular subject to the visiting ship. An example of legislation of that nature is provided by Pt VI of the Navigation Act. That, as has been indicated, applies to all ships (s 284) and requires licensing to engage in the coasting trade. Moreover, the licensing system carries requirements, discussed earlier in these reasons, respecting the payment of wages. The licensing requirements of Pt VI do not apply to the CSL Pacific by reason of the operation of the permit system. However, the terms of s 5(3) of the WRA, in particular par (b), found the exercise of jurisdiction by the AIRC in matters engaging the interstate and territories and overseas commerce power. Whether, and the extent to which, an award or variation of an award is to affect the "internal economy" of ships such as the CSL Pacific is a matter entrusted for consideration by the AIRC.
In that regard, s 111(1)(g) of the WRA is important. This applies to the present application before the AIRC for variation by dint of s 113(4). The text of that latter provision is set out earlier in these reasons. Paragraph (g)(iii) empowers the AIRC to dismiss an application in whole or in part, or to refrain from further hearing or determining the industrial issue, if it appears to the AIRC that further proceedings would not be "desirable in the public interest". Considerations respecting the significance of the "internal economy" rule on the one hand and the economic interests of Australia on the other will be for consideration in due course by the AIRC. The "internal economy" rule does not require, as a matter of construction, the reading of s 5(3) of the WRA in such a fashion as to preclude entry by the AIRC upon consideration of the subject.
The suggested canons of construction upon which the prosecutor relies do not warrant any conclusion that the determination by the AIRC on 27 September 2002 was made in excess of jurisdiction.
Service
"Federal, State and Territory courts have jurisdiction in personal actions if the defendant is served with the court's originating process within the territorial bounds of the court's jurisdiction38. Those courts will also take jurisdiction in certain other circumstances prescribed by rules of court or by the Service and Execution of Process Act 1992 (Cth). In this 'long arm' jurisdiction a plaintiff must show some connection between the claim and the jurisdiction in which the claim is made."
The prosecutor emphasises its situation outside Australia and relies upon the proposition in the first sentence set out above as specifying the effective foundation of the jurisdiction of the AIRC in the present matter. Before the Full Bench, the prosecutor appeared by its solicitor. However, the appearance was expressed to be "conditional" and not to be taken as an admission or concession by the prosecutor that the AIRC had jurisdiction to entertain and hear the application to vary the Award39.
The evidence indicates that, earlier, on 28 March 2002, CSL Pacific had received at its office in Barbados a letter from the solicitors for the second respondent. This enclosed a copy of the application filed on 22 January 2002, as amended on 28 February 2002.
The Full Bench of the AIRC said with respect to the objection as to service outside the jurisdiction taken by the prosecutor40:
"Jurisdiction under the [WRA] is not dependent or conditioned upon formal or actual service of process. Rather, jurisdiction arises from an objectively established state of affairs between participants in employment and industrial relationships. That is not to deny that the exercise of jurisdiction may be precluded where procedural fairness is not accorded for reasons that include a failure to adequately notify or serve process."
That statement of the position should be accepted as correct.
The AIRC was not concerned with the exercise of judicial power where, as identified in Pfeiffer, the assertion of jurisdiction in personal actions depends upon the legal service of the initiating process. Rather, its powers are of a legislative rather than judicial nature, being concerned with the prescription of rules of conduct for the future in respect of the disputing parties.
The only question that arises is whether the Australian Industrial Relations Commission Rules 1998 stipulate for service of documents only within Australia. Rule 72 specifies various methods of effecting service of documents. They include posting the documents by registered post to the secretary at the registered office of a body corporate (r 72(2)(d)(ii)). The term "registered office" is defined in r 72(3) as meaning, in relation to a body corporate, the principal office or place of business of the body corporate. In the present case, there was literal compliance with r 72. In any event, further provision is made by r 73. This provides that the AIRC may make an order for substituted or other service of notice by letter or other specified means "for the purpose of bringing the document to the notice of the person to be served".
On 25 January 2002, a Commissioner ordered service upon CSL Pacific to be effected by sending sealed copies of the relevant documents, including the notification of hearing, by post to the office in Sydney of CSL Australia and there is no dispute that this was done. It is unnecessary to determine whether the service provided for in r 72 is limited to service within the Commonwealth. This is because r 73 was availed of in this case. Its general terms are apt to encompass an order for service within the jurisdiction in substitution for service outside the jurisdiction by the party in question.
The controlling consideration is that identified by the Full Bench, namely, whether in a particular case, there has been a denial of procedural fairness by a failure adequately to notify or serve process. A denial of procedural fairness may attract a remedy in this Court for excess of jurisdiction41. As has been indicated, no such issue arises in the present case.
Conclusions
Smith v ANL Ltd (2000) 204 CLR 493 at 506 [25]. ↩
Re Maritime Industry Seagoing Award 1999 (2002) 118 IR 294. ↩
(2002) 118 IR 294 at 320‑321. ↩
(2002) 118 IR 294 at 321‑322. ↩
(2002) 118 IR 294 at 328. ↩
By s 7 of the Navigation Act 1956 (Cth) and s 7 of the Conciliation and Arbitration Act 1956 (Cth). ↩
(1959) 103 CLR 256. ↩
(1959) 103 CLR 256 at 276‑277. ↩
(1977) 136 CLR 235 at 243‑244. See also Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 136‑137, 151. ↩
(1971) 124 CLR 468. ↩
Shergold v Tanner (2002) 209 CLR 126 at 136‑137 [34]-[35]. ↩
(1998) 194 CLR 355 at 381‑382 [69]-[71]. ↩
Re Maritime Industry Seagoing Award 1999 (2002) 118 IR 294 at 328.
(2000) 204 CLR 493
(2002) 118 IR 294
(1959) 103 CLR 256
(1977) 136 CLR 235
(1978) 144 CLR 120
(1971) 124 CLR 468
(2002) 209 CLR 126
(1998) 194 CLR 355
(2000) 202 CLR 479
(1995) 183 CLR 323
(1947) 74 CLR 31
(1914) 19 CLR 298
(1966) 115 CLR 10
(2001) 208 CLR 1
(2000) 203 CLR 503
(1958) 98 CLR 310
(1985) 160 CLR 548
(2000) 204 CLR 82
(1997) 189 CLR 654
Order nisi discharged; the prosecutor was ordered to pay the respondents’ costs.
The rates of pay and conditions of employment of the crew of the CSL Pacific are fixed by agreement made with the International Transport Federation and they differ from those provided for by the Award. It was in that setting that the application for variation was lodged with the AIRC on behalf of the second respondent. The Full Bench of the AIRC (comprising two Senior Deputy Presidents and a Commissioner) held2 that there was before it an "industrial issue" within the meaning of sub‑s (3)(b) of s 5 of the WRA. The members of the Full Bench together are the first respondent in this Court.
Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 [16]; cf at 515 [89]. ↩
Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369. See Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 79 per Dixon J. ↩
Australian Steamships Limited v Malcolm (1914) 19 CLR 298 at 329‑330; Seamen's Union of Australia v Utah Development Co (1978) 144 CLR 120 at 138, 152. ↩
cf the argument of Sir Garfield Barwick QC in R v Foster; Ex parte Eastern and Australian Steamship Co Ltd (1959) 103 CLR 256 at 264. ↩
190 US 169 (1903). See also Strathearn Steamship Co Ltd v Dillon 252 US 348 at 355‑356 (1920); Benz v Compania Naviera Hidalgo 353 US 138 at 142 (1957); McCulloch v Sociedad Nacional 372 US 10 at 17 (1963). ↩
190 US 169 at 179 (1903). ↩
(1959) 103 CLR 256 at 311. ↩
Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492‑493 [16]-[17] and the authorities there cited; cf at 515 [89]. ↩
46 USC §688. ↩
345 US 571 (1953). ↩
398 US 306 (1970). ↩
345 US 571 at 576‑577 (1953). ↩
(1966) 115 CLR 10 at 31. ↩
Australian Treaty Series, (1994), No 31. ↩
The Commonwealth v Yarmirr (2001) 208 CLR 1 at 55 [58]. ↩
The International Law of the Sea, vol 1, (1982) at 269. ↩
Schoenbaum, Admiralty and Maritime Law, 3rd ed (2001), vol 1, §2‑22. ↩
120 US 1 (1887). ↩
120 US 1 at 11 (1887). ↩
120 US 1 at 12 (1887). ↩
Churchill and Lowe, The law of the sea, 3rd ed (1999) at 65‑66 (footnote omitted). ↩
3d, vol 2, Ch 2, (1987). ↩
190 US 169 (1903). ↩
(2000) 203 CLR 503 at 517 [13]; see also at 548‑549 [116]. ↩
Laurie v Carroll (1958) 98 CLR 310; Gosper v Sawyer (1985) 160 CLR 548 at 564‑565. ↩
(2002) 118 IR 294 at 296. ↩
(2002) 118 IR 294 at 327. ↩
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82. ↩
Re McJannet; Ex parte Australian Workers' Union of Employees (Q) [No 2] (1997) 189 CLR 654 at 657. ↩