Download Word Document


Workplace Relations Act 1996

s.45 appeals against decision

issued by Commissioner Whelan on 7 September 2004


Kellogg Brown & Root Pty Ltd and Others



Esso Australia Pty Ltd


s.170MH termination of certified agreement

Kellogg Brown and Root Pty Ltd




[AG808833  PR906164]

Worley ABB Joint Venture





[AG807076  PR903464]




[AG808906  PR906306]

Corke Instrument Engineering Pty Ltd




[AG806847  PR903150]








Appeal - certified agreements applying to work in the oil and gas industry - application to terminate agreements - public interest - whether termination contrary to the public interest - role of client in contractor negotiations - relevance of employer demand for change in roster - Workplace Relations Act 1996 ss.45 and 170MH


[1] Esso Australia Pty Ltd (Esso) develops and operates oil and gas production facilities at Longford and Long Island Point in the Gippsland area of Victoria and nearby in Bass Strait. Esso enters into contracts for the supply of services to its business. This case concerns disputation which has arisen between some of the contractors engaged by Esso, and Esso itself, and a number of trade unions concerning the conditions of employment to be afforded to employees engaged by the contractors for the purpose of carrying out the Esso contracts.

[2] The contractors and the nature of their contracts are as follows. Kellogg Brown and Root Pty Ltd (KBR) and Worley ABB Joint Venture (Worley ABB) provide engineering, procurement and construction services to Esso. Their contracts involve regular scheduled engineering construction work primarily at the Longford Gas Plant, the Long Island Point facility and on offshore platforms. Worley ABB Joint Venture is a composite entity comprised of two companies being Worley Pty. Limited and ABB Service Pty. Limited. Corke Instrument Engineering (Aust) Pty Ltd (Corke) does not contract directly with Esso but provides electrical instrumentation services to KBR for the purposes of KBR's contract with Esso.

[3] In each case the contract commenced in March 2001 and, after extensions, was to expire on 31 December 2004. Esso has an ongoing need for the provision of these services and has called for tenders. It has indicated, however, that it will appoint one contractor only for all of the works. While the Worley ABB joint venture has not tendered for the new contract, Worley Pty Limited has tendered in its own right and ABB Service Pty Limited has tendered with a new joint venture partner. KBR has also tendered. There is at least one other bidder.

[4] Some idea of the scale of the works included in the present contracts is provided by the value of the new contract which is anticipated to be in the vicinity of $900 million over the next nine years. The number of employees engaged by the contractors for the purposes of the Esso contracts onshore was around 150. During the proceedings the number of employees engaged for the same purposes offshore fluctuated between 60 and 150.

[5] The contractors are parties to agreements certified by the Commission which regulate wages and conditions to be afforded by the contractors to their employees engaged for the purposes of the Esso contracts. The agreements are:

[6] The agreements have a common expiry date of 30 June 2003 but remain in operation by force of s.170LX(3) of the Act. Despite extensive negotiations between the contractors and the unions, the Australian Workers' Union (AWU), the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), no agreement has been reached on terms and conditions to replace those in the existing certified agreements. The major issue in the negotiations, and one on which the negotiations have broken down, is the type of roster to apply to employees working on the offshore platforms. Offshore employees currently work a roster of 7 days of 12 hour shifts offshore followed by seven days off duty onshore. Esso and the contractors wish to introduce a new roster requiring up to 14 days offshore followed by 14 days off duty onshore. The unions and the employees wish to retain the current roster and are strongly opposed to the proposed change.

[7] While what we have indicated so far gives the context for the proceedings, the applications before the Commission are ones made by the contractors for termination of each of the certified agreements. The applications were made pursuant to s.170MH of the Act on 13 February 2004. They were heard by Commissioner Whelan between February and June 2004. The Commissioner issued a decision on 7 September 20045 dismissing the applications. Esso and the contractors have lodged appeals, for which leave is required, against that decision. They seek orders quashing the Commission's decision and terminating the agreements.

[8] Section 170MH is as follows:

[9] It can be seen from s.170MH(2) that on receiving an application for termination the Commission is obliged to take steps to obtain the views of the persons bound by the agreement about termination. Subsequently, the Commission is required by s.170MH(3) to terminate the agreement if it considers it is not contrary to the public interest to do so.

[10] Commissioner Whelan's decision is a thorough one in which she carefully set out her reasoning. It is a difficult task to summarize such a closely reasoned decision but we think it can fairly be said to consist of the following essential steps.

[11] The Commissioner pointed out that because of its effect on the employees' wages and conditions the termination of the agreements would result in confusion and a deterioration in the industrial climate and might lead to a change in the relative bargaining strength of the parties. The Commissioner found that such consequences appeared to be within the scheme of the Act and did not of themselves raise issues affecting the public interest. In the particular circumstances of this case, however, the Commissioner found that there were two considerations which indicated that termination of the agreements would be contrary to the public interest. The first concerned Esso's role in the negotiations. The second concerned the offshore roster. Since they were the focus of most of the submissions we shall deal with these two considerations in some detail later.

[12] The Commissioner also considered a number of other factors which were potentially relevant to the public interest. These were the effect on gas production of any industrial action should the agreements be terminated, any adverse impact on the Latrobe Valley community should the rosters be altered as sought by the contractors and Esso, the alleged futility and prematurity of the application, whether termination of the agreements would be beyond jurisdiction and whether public benefits would result from termination.

[13] The Commissioner was not satisfied that there was a "real and probable threat" to gas supplies should the agreements be terminated. In relation to the impact of the proposed roster change on the Latrobe Valley community, she was unable to reach a firm conclusion but expressed the view that the potential impact should be properly investigated. The Commissioner rejected suggestions that the application was premature because the contractors had not exhausted other courses of action. She nevertheless found that termination could be of little benefit to Worley ABB and unlikely to facilitate bargaining between Worley ABB and the unions because the joint venture was not continuing after the termination of its contract at the end of December 2004. She also rejected a submission that termination of the agreements would be beyond jurisdiction because it would assist in the achievement by Esso of an improper purpose. Finally, the Commissioner found that to the extent that termination of the agreements might promote bargaining, termination would be in the public interest.

[14] In the concluding section of her decision the Commissioner indicated that she decided that it would be contrary to the public interest to terminate the agreements and she dismissed the application. The Commissioner relied squarely on the two considerations she had earlier identified - Esso's role in the negotiations for a new agreement and the 14 day roster claim. She decided that each consideration formed a separate and sufficient basis to reject the applications.

[15] On the question of Esso's role in the negotiations the Commissioner said:

[16] In relation to the 14 day roster claim the Commissioner said:

Leave to Appeal

[17] We agree with the appellants that the appeal raises important questions of construction and application of s.170MH. We are satisfied that the matter is of such importance that in the public interest leave should be granted to appeal. Our reasons for that satisfaction appear later. We grant leave to appeal.

[18] An application under s.170MH requires the exercise of a discretion. Accordingly the correctness of the decision can only be challenged by showing error in the decision-making process: Coal and Allied Operations Pty. Limited. v Australian Industrial Relations Commission and Others8. As the majority noted in Coal and Allied9, the errors that might be made in the decision-making process were referred to in House v The King as follows:

[19] The appellants submitted that the Commissioner's decision is affected by the following errors:

The Construction of s.170MH(3)

[20] All parties to the appeal made submissions about the operation of s.170MH(3). We were referred to a number of decisions including Re Joy Manufacturing Company Pty Ltd11, Re Geelong Wool Combing Ltd12 and Re Mount Thorley Operations Enterprise Agreement 199613. It is sufficient to say that the unions, generally speaking, supported Commissioner Whelan's view that the interests of the parties, in the particular context of s.170MH as a whole, are to be taken into account in considering the effect of termination of the agreements upon the public interest. This submission was bolstered by reference to the requirement in s.170MH(2) that the Commission take steps to obtain the views of persons bound by the agreement. The appellants, on the other hand, sought to persuade us that the Commissioner's approach reflected an impermissible mingling of the interests of the parties with the public interest in exercising the discretion in s.170MH(3).

[21] It seems to us that confusion will arise if attempts are made to paraphrase the statutory test and to formulate rules or guidelines for its application. All that need be said is that despite the requirement in s.170MH(2) to take steps to ascertain the views of the parties to the agreement, ultimately the test is that set out in s.170MH(3). That test is based on the public interest alone. If the legislature had intended that the interests of the negotiating parties should also be considered it could have made specific reference to those interests. The terms of s.170MH(3) can be contrasted with 170MX(5)(c) which reads:

[22] The absence of any reference to the interests of the negotiating parties in s.170MH(3) is significant. It follows that the views of persons bound by the agreement may be relevant to the exercise of the discretion if they shed light upon the effect of termination on the public interest, but they should not be given any independent weight. To do so would be to import into the application of the section something which on its proper construction it does not include.

[23] The notion of public interest refers to matters that might affect the public as a whole such as the achievement or otherwise of the various objects of the Act, employment levels, inflation, and the maintenance of proper industrial standards. An example of something in the last category may be a case in which there was no applicable award and the termination of the agreement would lead to an absence of award coverage for the employees. While the content of the notion of public interest cannot be precisely defined, it is distinct in nature from the interests of the parties. And although the public interest and the interests of the parties may be simultaneously affected, that fact does not lessen the distinction between them.

[24] We were referred to a number of authorities concerning the ascertainment of the public interest. It is sufficient to refer to two. The first is the decision of the High Court of Australia in Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia14(the QEC case). In that case the Court was considering the exercise of the discretion conferred on the Conciliation and Arbitration Commission by s.41(1)(d)(iii) of the Conciliation and Arbitration Act 1904. A similar discretion is now conferred upon this Commission by s.111(1)(g)(iii) of the Act. That section reads:

[25] The QEC case was concerned with whether or not the Commission had failed to exercise its jurisdiction in upholding an application by the Queensland Electricity Commission to refrain from further hearing or from determining an industrial dispute between it and the Electrical Trades Union of Australia. The following passage appears in the joint judgement of the majority:

[26] It is clear from this passage that the ascertainment of the public interest may involve balancing countervailing public interests. That the Commission should take all of the circumstances into account is made clear by Dawson J in Re Australian Insurance Employees Union; Ex parte Academy Insurance Pty Ltd.16 These authorities provide useful general guidance in the application of the test in s.170MH(3). They illustrate the types of interests which can be properly described as public interests and confirm the breadth of circumstances which may be relevant to the ascertainment of those interests.

[27] It should be emphasized that the Commission's consideration of the public interest for the purpose of s.170MH(3) is directed to the consequences of terminating the agreement. In a given case, some consequences will be clearly predictable, others will be less so. For the most part the Commission should be guided by the likely foreseeable consequences of termination rather than speculation about possible consequences.

Esso's Role in the Negotiations

[28] We turn now to the first basis for the Commission's decision - Esso's role in the negotiations. The Commissioner found that the contracts gave Esso a great deal of control over changes sought to be implemented by the contractors and over the bargaining process as a whole. It is appropriate to set out some of her other findings in full.

[29] These findings of fact were the basis for conclusions that Esso's role in the negotiation raised an issue affecting the public interest. It was expressed this way:

[30] Esso's role in the negotiations should be seen in its full context. That context includes the following circumstances. Esso is the operator of the offshore platforms and onshore facilities at which work was carried out by the contractor's employees. Esso has its own employees at these locations. It is to be inferred that in these circumstances Esso has a legitimate interest in the conditions to be offered to the employees of the contractors. It is not surprising that the claim by the contractors for the adoption of the 14 day roster was rightly seen by all parties and by the Commissioner as having implications not only for the contractors' offshore employees, but for Esso's offshore employees as well. It is also relevant that under the contracts Esso was obliged to reimburse the contractors for increases in labour costs. Given these considerations we are unable to attribute to Esso's involvement in the negotiations the characterization which the Commissioner gave to it. Furthermore we do not regard Esso's role in this case as unusual. Other examples can be found in contemporary industrial relations of head contractors and indeed Governments reserving a right to influence or even to control the outcome of negotiations between their contractors or agencies and the employees of the contractors or agencies. Nothing in Part VIB prohibits conduct of this type, provided there is no coercion.19

[31] On the hearing of the appeal senior counsel for the unions advanced a number of propositions based on the evidence before the Commissioner which were said to support the decision. A number of the propositions were adopted by the Commissioner. The first was that in the context of the agreement negotiations the contractors were under economic pressure to appease Esso because Esso was calling for tenders for a single contract. Leaving the pejorative reference aside, the likelihood that in future there would be only one contract with Esso rather than two was an everyday commercial reality which all parties had to grapple with and could not be regarded as in any way raising public interest considerations. The next proposition was that Esso had a strong incentive to pursue and control roster change because it would be the direct beneficiary of any resulting productivity improvements. We find nothing exceptional in this. The situation is similar as between client and contractor whenever the contract operates on a cost plus basis. The next proposition was that Esso had the incentive that roster change for the contractors' employees would help it pursue its desire to change rosters for its own employees. Accepting that Esso wished to introduce the 14 day roster for its offshore employees but had so far been unsuccessful, its support for and encouragement of the contractors' pursuit of the 14 day roster is not extraordinary. Presumably Esso supports many other conditions of employment for the contractors' employees which are consistent with the conditions of its own employees. Next it was submitted that historically Esso had involved itself in managing the contractors' industrial negotiations. There are questions of degree of involvement, but accepting that the evidence supports the proposition advanced, it cannot be suggested that a client could not, by contract, reserve to itself the responsibility for managing the industrial relations of its contractor. Once that is accepted, as it must be, there is nothing sinister, or even unusual, about the role adopted by Esso in the negotiations. The next proposition was that the contracts gave Esso a high degree of control over changes in the industrial conditions of the contractors' employees. In a context where increases in costs would be borne by Esso, and changes in conditions might impact on Esso's direct industrial interests, it is understandable that Esso might retain a contractual right to veto or approve any proposed changes.

[32] A number of propositions were advanced concerning the level of Esso's influence over the contractors in relation to the negotiations in general and the 14 day roster in particular. An Esso document indicating that only the introduction of the 14 day roster would meet its expectations for a successful outcome to the negotiations was relied upon as were various other documents passing between Esso and the contractors in connection with the contractors' tactics in the negotiations. This material indicated that Esso executives were deeply involved in the preparation of various positions adopted by the contractors and in their responses to proposals from the unions. Esso also reviewed various documents the contractors circulated to their employees and gave advice to contractor representatives as to what they should say at meetings with employees. Accepting that this series of propositions is correct, in our view it does not establish that Esso's conduct is unacceptable either by reference to the objects of the Act or to some other legitimate source of public policy.

[33] We do not think it is productive to examine in detail the evidence as to the degree of control which Esso may or may not have exercised over the contractors during the negotiations. It is sufficient to indicate that there was no evidence before the Commission to support a finding that the representatives of the contractors were forced to adopt positions in negotiations against their will. To the contrary, they appear to have been willing participants in a cooperative exercise which was appropriate from a contractual point of view. Esso's close involvement with the negotiations provided commercial protection for the contractors. Should they make an agreement with the unions leading to increases in labour costs without Esso's approval, they would not be able to recover those costs under the contract. Far from being coerced by Esso, the contractors' interests were the same. Commercially and industrially the interests of Esso and the contractors were interlocked; commercially, because of the provisions in the contract and industrially, because of the implications of the negotiations for Esso's own employees and presumably also other employees working offshore in Bass Strait. It was to be expected that the contractors would not make an agreement which Esso believed was unacceptable either because of the cost or because of the possible ramifications for the Bass Strait workforce. Indeed it was in the contractors' interests to ensure that Esso, their client, was satisfied with any agreement they made. And at another level there were operational interdependencies. For example, changes in work scheduling or rostering, because of the offshore environment, would require cooperation and coordination from Esso's helicopter fleet, a matter to which the Commissioner referred in the context of the 14 day roster claim.20

[34] It follows from these considerations that the Commissioner was wrong to conclude that the influence exercised by Esso over the contractors was contrary to the Act. It follows also that the Commissioner's conclusion that termination of the agreements would be contrary to the public interest, because it would facilitate a process contrary to the Act, was also erroneous.

[35] Before leaving this part of the decision it is opportune to comment on the submission advanced by some of the appellants that the conduct of a party in bargaining is not a relevant consideration in the exercise of discretion required by s.170MH(3). This proposition must be rejected as too wide. There may be circumstances in which unconscionable conduct by a party in connection with the renegotiation of an agreement touches the public interest and should be taken into account.21 This, however, is not such a case.

The 14 Day Roster Claim

[36] We turn now to the second, discrete ground for the Commissioner's decision, namely: that it would be contrary to the public interest to facilitate the contractors' pursuit of the 14 day roster claim by terminating the agreements.

[37] As we have indicated above, the contractors were seeking a change in the length of the roster cycle from the current 7 days on duty/ 7 days off duty to a roster cycle of up to 14 days on/ 14 days off. The Commissioner found that the contractors wanted to introduce the 14 day roster and that the termination of the agreements would, by placing pressure on the employees, facilitate that objective.

[38] To fully understand the basis for the Commissioner's conclusion it is necessary to mention some of the statutory context. The Act enjoins the Commission to take account of the principles in the Family Responsibilities Convention. Section 93A reads:

[39] The Family Responsibilities Convention is defined in s.3 of the Act to mean the Workers with Family Responsibilities Convention, 1981, a copy of which is Schedule 12 to the Act. Article 4 of the Convention reads:

[40] The principal object of the Act includes reference to family responsibilities in these terms:

[41] Section 170MH is in part VIB of the Act. The object of that part is in s.170L. That section reads:

[42] It is also appropriate to note that in exercising the discretion in s.170MH the Commission is bound by s.170LA(1) which is:

[43] The Commissioner examined the evidence concerning the predicted impact of the 14 day roster on occupational health and safety, family responsibilities and discrimination. She found that while the evidence was inconclusive as to the effect of the 14 day roster on occupational health and safety, the introduction of rosters requiring more than 7 consecutive days offshore would have a detrimental effect on the family responsibilities of the employees. In her view this was a consideration affecting the public interest. Her findings are summarized in the following passage:

[44] The appellants submitted that the Commissioner erred in two respects. The first error was said to be that by focussing on the predicted effect of the 14 day roster on the family responsibilities of the contractors' employees, the Commissioner took into account an irrelevant consideration. The substance of the submission on this point was that there was no necessary causal connection between the termination of the agreements and the imposition upon offshore employees of the 14 day roster with the deleterious effects upon family life which the Commissioner attributed to it. The second error was alleged to be that the Commissioner's findings about the harmful effects of the 14 day roster were not open to her in any event. This part of the submission relied upon a number of propositions such as the difficulty of predicting whether such a roster would be introduced, if so how it would operate and the evidence about the seemingly satisfactory operation of a similar roster in many parts of Australia and overseas.

[45] To deal with these submissions it is necessary to start with an assessment of the direct consequences of the termination of the agreements. As we understand it, the immediate legal effect would be that the employees would fall back under the coverage of the relevant safety net awards. Under those awards, the contractors submitted, hours of work were regulated in such a fashion that the existing offshore roster could not be altered by the contractors without the agreement of the employees. We understand that to be so. As to wages, it is to be inferred that the wages provided for in the agreements are significantly in excess of those in the applicable awards. The contractors undertook to maintain the employees' wages for a period of one month while negotiations continued. After that time, if agreement had not been reached, the contractors proposed a scheme of remuneration involving maintenance of the current roster but a reduction in earnings of something around 10%. The contractors volunteered to give undertakings to the Commission about these issues or to incorporate them in a deed or a certified agreement if necessary. These offers to render the post-termination arrangements more certain were not taken up by the unions nor were they mentioned by the Commissioner.

[46] It may safely be assumed that the termination of a certified agreement, carrying with it the loss of significant benefits, is not itself contrary to the public interest. That is evident from the terms of s.170MH(3). Bearing in mind the material before the Commissioner, we think it is clear that the effect of termination upon the wages and other conditions of the contractors' employees does not have any implications for the public interest. The Commissioner was of a similar mind.

[47] While appreciating the Commissioner's concern that termination would facilitate the contractors' pursuit of the 14 day roster, it seems to us that in the circumstance no true public interest issue arose. There was no necessary causal connection between the termination of the agreements and the imposition upon the offshore employees of the 14 day roster. The scheme of the Act contemplates the parties taking industrial action as part of the enterprise bargaining process. In relation to Division 2 agreements, protected action, as identified in s.170ML, may be taken in support of agreements of the kind identified in s.170LI: Electrolux Home Products Pty Limited v The Australian Workers' Union and Others.23 The only limitation on the subject matter of the proposed agreement is that it should be about matters pertaining to the relationship between the relevant employer and its employees. In relation to Division 3 agreements, protected action may be taken in furtherance of negotiations for agreements of the kind identified in ss.170LO and 170LP. The limitation on the subject matter of the proposed agreement is relevantly the same as that in s.170LI because of the definition of industrial dispute in s.4. The Act stipulates the requirements for an agreement to be certified24 and the matters which will prevent it from being certified.25 Given these provisions, the Commission should be slow to censor the subject-matter of bargaining by exercising the discretion in s.170MH(3). That discretion should be exercised in harmony with the freedom to bargain and to take protected action in the course of bargaining which Part VIB permits.

[48] Furthermore, it does not follow that because a party is pursuing a particular claim that claim will be the subject of agreement or that any agreement reached will take a particular form or will have a particular effect. Experience suggests otherwise. In other words, there is a speculative element bound up with the Commissioner's conclusion.

[49] For these reasons we consider that the Commissioner erred in giving weight to the fact that the contractors were seeking a form of roster which, in her view, was one contrary to the public interest.


[50] It is neither necessary nor desirable that we pass judgment on the merits of the 14 day roster. In a survey of the offshore employees which was conducted on behalf of the unions, 23% of employees with spouses and dependent children indicated that they would resign immediately if a 14 day roster was introduced and 55% indicated that they would work on in the short term but seek other employment. The Commissioner formed the view, largely because of the views of the employees, that the roster would impact unfavourably on the ability of employees to balance their work and family responsibilities. There may be grounds for concluding that this view was not open having regard to the evidence of Dr Parker and the evidence of a number of witnesses with experience of the 14 day roster. While there is no doubt the employees opposed the roster and that their opposition was sincere, evidence based on proper research, if it could be obtained, may be a better guide. Also it goes, almost without saying, that when it comes to the effect on family responsibilities much may depend on the precise form of the roster and the manner of its introduction. In that connection it should be recalled that the contractors sought rosters of up to 14 consecutive days offshore.

[51] There is nothing we can usefully add, other than to encourage the parties to develop mutually beneficial work practices to assist employees to balance their work and family responsibilities effectively.26 We appreciate that this is a challenging task in an industrial environment in which the ability of parents to return home at the end of each day to participate in normal family activities is necessarily absent. We note that whether a roster requiring more than 7 consecutive days offshore might be contrary to the terms of s.170LU(5) is a matter better considered if and when it arises in the context of an application for certification of an agreement dealing with such a roster.

[52] In light of our conclusions as to the basis for the Commissioner's finding that termination of the agreements would be contrary to the public interest the Commissioner's decision must be quashed. We agree with the Commissioner, broadly for the reasons she gave, that the other grounds relied upon by the unions in opposition to the applications should be rejected. We do not consider that termination of the agreements would be contrary to the public interest. In the circumstances the applications must be granted. We think it appropriate that the contractors' proposals in relation to the wages and conditions to apply after termination of the agreements should be rendered certain by the execution of a deed or deeds as was volunteered to the Commissioner. Seven days after the filing and service of such deed or deeds we shall issue the orders necessary to give effect to this decision.




F. Parry SC with R. Dalton of counsel for Kellogg Brown & Root Pty Ltd, Worley ABB Joint Venture and Corke Instrument Engineering (Aust) Pty Ltd.

Dr C. Jessup SC with C. O'Grady of counsel for Esso Australia Pty Ltd.

S. Wood of counsel for the Australian Mines and Metals Association.

M. Bromberg SC for the Australian Workers' Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.

Hearing details:



December 9 and 10.

1 AG807076 PR903464.

2 AG808906 PR906306.

3 AG806847 PR903150.

4 AG808833 PR906164.

5 PR951725.

6 Ibid.

7 Ibid.

8 (2000) 203 CLR 194.

9 Ibid at 205.

10 (1936) 55 CLR 499 at 505, per Dixon, Evatt and McTiernan JJ.

11 T1133, 25 September 2000.

12 PR937499, 5 September 2003.

13 R7850, 4 August 1999.

14 (1987) 61 ALJR 393.

15 Ibid, at 395.

16 (1988) 78 ALR 466 at 467.

17 References omitted.

18 PR951725.

19 See s.170NC.

20 PR951725 at para [81].

21 See s.3(e) of the Act.

22 PR951725.

23 [2004] HCA 40 per Gleeson CJ at para [25], McHugh J at para [114] and Gummow, Hayne and Heydon JJ at para [164].

24 See s.170LT.

25 See s.170LU.

26 See s.3(i).

Printed by authority of the Commonwealth Government Printer

<Price code E>