JURISDICTIONAL FACTS UNDER SS 18 AND 19 OF THE SCHEDULE
187 In the conduct of the Union's case before us, it became clear that the question whether any, and if so what, of the requirements of ss 18 and 19 of the Schedule were jurisdictional facts was of some importance. There have been two extensive hearings in the Commission with respect to the questions now raised for determination by the court, and on one view the Union would be facing an uphill task in contending that the Commission did not perform its statutory function. Whatever may be said about the appropriateness of the "pragmatic approach" taken by Ross VP, the Full Bench buttressed its endorsement of that approach with a systematic consideration, according to the merits, of every point which the Union raised. As noted earlier in these reasons, however, the Union submitted that the facts found against it were jurisdictional ones (in relation either to the competence of the Federation's application for registration or to the validity of the registration itself, or to both) for the court to determine. As so understood, at least this aspect of the Union's case, if sound, would support its application for prohibition and certiorari, more so than for mandamus.
188 It is convenient to commence with the most recent elucidation by the High Court of what is involved in the concept of a "jurisdictional fact". In Corporation of the City of Enfield v Developments Assessment Commission (1999) 199 CLR 135, 148 [28] Gleeson CJ, Gummow, Kirby and Hayne JJ said:
The term "jurisdictional fact" (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision-maker to exercise a discretion. Used here, it identifies a criterion, satisfaction of which mandates a particular outcome.
Whether legislation operates in such a way is a question of construction. In Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, Dixon J said (with the assent of Evatt and McTiernan JJ) (59 CLR at 391):
It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.
Likewise, in Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707, Spigelman CJ said (with the assent of the other members of the Court of Appeal) (61 NSWLR at 710 [6]):
The issue is one of statutory construction. What is required is a careful analysis of the statute which confers the jurisdiction. Consideration must be given to the language of the power under consideration and to the total context of the legislative scheme in which the power is conferred, including the scope and nature of the jurisdiction and of the fact said to be jurisdictional.
See also The Australian Heritage Commission v Mount Isa Mines Limited (1997) 187 CLR 297, 306. In the present case, therefore, we are required to consider the scope and operation of ss 18 and 19 of the Schedule.
189 For reasons which will appear later, in the present case it is important not only to decide which, if any, of the requirements of ss 18 and 19 of the Schedule were in the nature of jurisdictional facts but, to the extent that they were, to decide at what point in the process of an application for registration the absence of such facts deprived the Commission of jurisdiction to proceed. As their Honours in City of Enfield noted, depending upon the operation of the statutory provision in question, a jurisdictional fact may enliven the power to exercise a discretion, or it may mandate a particular outcome. In the case of ss 18 and 19 of the Schedule, the question arises whether the jurisdictional fact (if there be one) relates to the power of the Commission to hear an application at all, or only to the power to grant the application.
190 The relevant provisions of the Schedule were only the last in a long line of statutory and regulatory provisions that had their genesis in the Conciliation and Arbitration Act 1904 (Cth) ("the 1904 Act"). Section 55(1) of that Act as originally enacted, provided that:
… [a]ny of the following associations may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization ….
There followed two paragraphs, one referring to "any association of employers" of a certain kind, and the other in these terms:
Any association of not less than one hundred employees in or in connexion with any industry.
Under s 55(2) of the 1904 Act, until otherwise prescribed, the conditions were as set out in Schedule B to that Act. Schedule B was headed "Conditions to be complied with by associations applying for registration as organizations", and consisted of six unnumbered clauses. The requirements of the rules of applicant associations were contained in a lengthy and detailed clause. However, the requirements were generic, in the sense that they set out the kinds of provisions that the rules were required to have, rather than any necessary content thereof. In 1910, Schedule B was repealed, and a new Schedule B was substituted. There were few changes of substance.
191 At this point it is convenient to refer to an early judgment of the High Court upon which the Union strongly relied in the present case, Federated Engine-Drivers' and Firemen's Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398. In that case, an association had been registered, and had reached the stage of seeking an award. By its rules, it consisted of persons employed in the "land engine-driving and firing" industry. It was argued that that was not an "industry", and that the registration was invalid. That argument succeeded. It was held that the certificate of registration was not conclusive. Griffith CJ said (12 CLR at 413):
In my judgment an association which is not within the categories defined in sec. 55 is incapable of being registered. The conditions are conditions to be complied with by an association which is assumed to be capable of being registered. Its existence as such must precede the compliance. That existence is in one sense, no doubt, a condition precedent to registration, but it is not one of the conditions prescribed in Schedule B and referred to in sec. 57. The notion that a certificate by the Registrar, which is a mere ministerial act, should have the effect of validating a thing which the law does not allow to be done is prima facie improbable.
At the time, s 57 of the 1904 Act gave conclusive evidentiary effect to a certificate of registration issued by the Registrar with respect to the fact of registration and to compliance with the prescribed conditions. Barton J held (at 424) that the Association's registration had been "given to it without statutory warrant". Isaacs J expressed the view (at 451) that there was "no legal organization to submit the dispute".
192 As noted by Griffiths CJ in Federated Engine Drivers, the existence of an association capable of being registered was not, at the time, a "prescribed condition". However, it was fundamental. It was a jurisdictional fact because only such an association could, in the terms of s 55(1) itself, be registered. Further, it is important in the present case to note that it was the act of registration, rather than the making of the application for which Schedule B provided, with respect to which the existence of an association of the specified kind was jurisdictional. That was, of course, consistent with the then terms of s 55(1), which said nothing about an application, but which merely identified the kinds of associations that could be registered.
193 In 1928, s 55(2) of the 1904 Act was amended, such that compliance with the conditions set out in Schedule B, "or as prescribed", was now a requirement for both registered organisations, and (as traditionally) for associations applying for registration. Correspondingly, the heading to Schedule B was amended at the same time to make it clear that the conditions set out therein had to be complied with not only by applicant associations but also by organisations. At the same time (and for the first time), regulations were made under the 1904 Act which prescribed the conditions to be complied with by associations applying for registration. In 1947, the regulations were repealed, and replaced with new regulations. Regulation 106 of the new regulations set out the conditions to be complied with by an association applying for registration.
194 By 1956, what had started life as s 55 was, as a result of amendments and renumbering, now s 132 of the 1904 Act, but, relevantly to the present matter, the scheme of the section remained the same. Using introductory words which were relevantly indistinguishable from those enacted in 1904, s 132(1) entitled an association, the members of which included not less than 100 employees "in or in connexion with any industry" or "engaged in an industrial pursuit or pursuits" to be registered. By an amendment in 1956, Schedule B was repealed. At the same time, the regulations were again repealed and replaced. A new reg 115(1) set out the prescribed conditions for registration. By reg 115(2), it was provided that the conditions specified in subreg (1) applied in relation to organisations in like manner as they applied in relation to applicant associations. Under par (a) of subreg (1), for the first time it became a prescribed condition that the association be "a voluntary and bona fide association of a kind referred to in section 132 of the Act". Although the terms of the Regulations could not control the construction of the Act itself, this regulation was in harmony with the scheme of s 132(1) in its assumption that the question of the existence and character of an applicant association was an essential pre-condition to registration. Consistently, at the same time a new reg 119(2)(a) was introduced, which made it a permissible ground of objection to the registration of an applicant association that it was not "an association capable of registration under the Act". The "kind of association" question was, therefore, a matter to be considered and determined by the Registrar on an application for registration. That did not mean, of course, that the Registrar was given jurisdiction to determine the question conclusively. On the authority of Federated Engine Drivers, and from the clear words of s 132(1) itself, I do not think that the new regulation in 1956 could be regarded as having had any such effect.
195 At least to the extent necessary to mention for present purposes, the structure, and substantially the content, of s 132(1) and of reg 115(1), remained unchanged from then until the repeal of the 1904 Act in 1988.
196 In 1970, the High Court decided a case which is significant in the present context and which effectively confirmed the proposition that status as an association of a kind referred to in s 132(1) of the 1904 Act was a jurisdictional fact. In Pitfield v Franki (1970) 123 CLR 448, an association of fire fighters had been registered in accordance with s 132. It was contended in the High Court that fire fighting was not an industry, that the occupation of fire fighter was not an industrial pursuit, and, therefore, that it was beyond the jurisdiction of the Registrar to register the association. The court upheld that contention, and, as I read the judgment, would have granted prohibition were it not for the fact that the act of registration was complete. Certiorari was granted instead. Barwick CJ said (123 CLR at 459-460):
On the view I have taken there was no authority in the Commission to effect the registration. Lack of that authority would ground equally prohibition or certiorari dependent upon the state of affairs when the prerogative writ was sought. Here, in my opinion, the proper writ to be issued is a writ of certiorari to bring up the registration for the purpose of it being quashed for want of authority to have made it.
McTiernan J held (at 463) that the certificate of registration "ought not to stand as if it were validly in force". Menzies J held (at 467) that the certiorari should go, and Owen J agreed (at 467) with the Chief Justice. The effect of Pitfield v Franki, fairly clearly, was that status as an association of a kind referred to in s 132(1) of the 1904 Act was a jurisdictional fact apropos registration. It was no answer to say that the Registrar, in registration proceedings, had held the applicant to be an association of such a kind.
197 There were two authorities upon which the Federation relied in support of its contention that status as an association, and as one of a particular kind, were not jurisdictional facts, but were matters to be determined conclusively by the Registrar in registration proceedings. The first was Ex parte J.C. Williamson, Ltd (1912) 15 CLR 576 in which an application for registration had been made by an association of actors. While that application was pending, an employer sought prohibition on the ground that acting was not an industry and on similar grounds. The High Court refused the remedy, upon the basis that the respondent Deputy Industrial Registrar had jurisdiction to decide the point in contention, rightly or wrongly. Having referred to South Eastern Railway Co v Railway Commissioners (1881) 6 QBD 586, Griffith CJ said (15 CLR at 580-581):
The question then is whether an order to register these applicants could under some circumstances be properly made, although it might be improperly made under the circumstances of this case. In order to dispose of the application the Registrar must enter upon some inquiry. He may, for instance, come to the conclusion that the applicants are not sufficient in number, and there are many other things upon which he may come to a conclusion adverse to them. He must, necessarily, have jurisdiction to inquire whether he ought to grant or refuse the application. If he erroneously comes to the conclusion that he should grant it, that does not show that he had no jurisdiction to make the inquiry, but only that he had made a mistake in the exercise of his jurisdiction to inquire. An appeal lies from his determination to the President of the Court, and … an appeal lies from the President's decision to this Court.
Barton and Isaacs JJ expressed substantially concurring opinions. However, that the Registrar was held to have jurisdiction to enquire whether the applicant association was of a kind referred to in s 55(1) of the 1904 Act did not yield the result that, if he answered that question wrongly, the consequent act of registration would necessarily be valid and safe from attack in later proceedings. Indeed, Griffith CJ made a point of noting (15 CLR at 581) that the registration of an association that was not entitled to be registered would be "ineffectual", in which respect his Honour referred to Federated Engine-Drivers. I do not, therefore, think that J.C. Williamson qualifies the proposition for which Federated Engine Drivers and Pitfield v Franki stand. It does, however, provide support for the proposition that the making of an application by an association that was not entitled to be registered was not a nullity, but gave rise to a question into which the Registrar was obliged to enquire.
198 The other authority upon which the Federation relied was R v Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service (1951) 82 CLR 177, in which an association of professional engineers, registered as an organisation under the 1904 Act, had applied to the Registrar for his consent to the deletion of a proviso in its eligibility rule, by which employees in the public service were excluded from membership. It was submitted that, on a proper construction of the 1904 Act, and in order to keep that Act within constitutional limits, it was beyond the power of the Registrar to bring about a circumstance in which any single organisation had the capacity to enrol as members persons who were, and persons who were not, engaged in industry (on the hypothesis that public service engineers were not engaged in industry). In a passage relied upon by the Federation, Dixon J said (82 CLR at 186):
In my opinion the Industrial Registrar in proceeding under regs 118 and 119 was exercising the power reposed in him. He was considering an application for his approval and the registration of an alteration of the rules. This power enabled him to approve and required him before doing so to satisfy himself of the matters specified in s 79(3). He is engaged upon the very function assigned to him and none the less so because he may arrive at an erroneous conclusion. An officer may decide a matter before him wrongly without exceeding his power.
I think that the policy of the Act is that matters of this description should be dealt with by the Court of Conciliation and Arbitration and by its officers and that we should be very careful in maintaining the distinction between error in deciding a matter and excess of power so that we do not award a writ of prohibition in matters which are within the province of the court and of the Registrar to decide. We should be careful to exclude from our consideration matters which go to the correctness or incorrectness of the decisions of the Registrar or of the court when we are called upon to decide whether they have exceeded power. In the present case I do not think an erroneous determination of the Registrar would amount to an excess of power if he makes an erroneous determination, and on that ground I think that there is no room for a writ of prohibition.
There is, perhaps, scope for the view that Dixon J intended to convey the meaning that anything that was required to be decided by the Registrar could be incorrectly decided by him, without judicial review. I do not, however, think that his Honour intended that his observations in that regard should apply to facts upon which the jurisdiction of the Registrar himself depended. Indeed, Latham CJ, and McTiernan and Webb JJ decided the case not simply by reference to the proposition articulated by Dixon J, but by reference also to the legal and constitutional soundness of the proposition upon which the prosecutor relied. Having referred to that proposition, his Honour the Chief Justice said (82 CLR at 184):
I see no foundation for such a contention. The Commonwealth Parliament has a power to legislate with respect to the Commonwealth Public Service which certainly includes power to determine the terms and conditions of employment and also to provide a specific manner of determining what those terms and conditions may be. There can be in my opinion no constitutional objection to the use for this purpose to such an extent as Parliament thinks proper of the machinery which has been provided by legislation passed under s. 51(xxxv.) of the Constitution.
McTiernan J said that the rules of the organisation, if amended as proposed, would not be in conflict with the 1904 Act, adding: "on that short ground I do not think that the case is one for prohibition." (82 CLR at 186-187). Webb J said (82 CLR at 187):
I think the order nisi should be discharged solely because I am not satisfied that if the rules of the union had originally been presented without the proviso they should have been rejected, or should have led to the refusal of the registration of the union.
Fullagar J said that the case lay "altogether outside the scope of the writ of prohibition" (at 187) and Kitto J said that he was "of that opinion also". In the circumstances, I do not think that Taylor stands for the broad proposition which the Federation sought to extract from it.
199 Consistently with the authorities to which I have referred, I take the view that the requirements, in s 132(1) of the 1904 Act, that an applicant for registration be an association in fact, and be one of a particular kind, were jurisdictional facts. I also take the view, however, that it was the act of registration, rather than the act of applying, with respect to which the facts were jurisdictional. The legislation simply was not concerned with any question as to the validity of the application. Indeed, after the repeal of Schedule B, the Act did not refer to the application. The means by which an association aspiring to be registered reached the point at which it might assert an entitlement to be registered were matters of procedure, and were dealt with in the Regulations.
200 It was in this state of things that the 1904 Act was repealed by the Industrial Relations Act 1988 (Cth) ("the IR Act"). The new registration provisions were ss 188 and 189, which introduced the format later to be found in ss 18 and 19 of the Schedule. Section 188(1) commenced: "Any of the following associations may apply for registration as an organisation…". There followed, in pars (a) and (b) of the subsection, references to associations of employers and employees (respectively) having certain characteristics (much along the lines of s 18 of the Schedule). Section 189(1) commenced "A designated Presidential Member shall grant an application for registration made by an association that, under section 188, may apply for registration, as an organisation if, and only if …". There followed a list of criteria, or conditions, to be satisfied before the applicant could be registered (much along the lines of s 19 of the Schedule).
201 The criteria or conditions in s 189 of the IR Act were substantially what had previously been the "prescribed conditions" referred to in s 132(1) of the 1904 Act and set out in reg 115 of the Regulations. In adopting this format in the IR Act, the legislature was adopting a recommendation first made in October 1981 by Mr Richard Searby QC and Mr J E Taylor in their Report to the Department of Industrial Relations on the 1904 Act (see p 72 thereof) and endorsed in April 1985 in the Report of the Committee of Review into Australian Industrial Relations Law and Systems (see par 9.84, recommendation R.62 and par 79 of App VIII thereof). The essence of the recommendation was that the bifurcation of the various requirements for registration between the Act and the Regulations had no rational basis and that, because of the central position occupied by registered organisations, all the relevant provisions should be in the Act.
202 The legislature went further in 1988 than merely to incorporate what had been the "prescribed conditions" into s 189: had it intended to do only that, s 188(1) would have been expressed in the same terms as s 132(1) of the 1904 Act. The legislature converted what had previously been an entitlement of the applicant - see Ex parte Brideson (1989) 166 CLR 338, referred to further below in another context - to an obligation of the designated Presidential member (in s 189). Put another way, where the 1904 Act had said what may be achieved by an applicant association, the IR Act said what the Commission shall do in relation to such association. Effectively, what was done here was the adoption of a different drafting convention. The parliamentary materials accompanying the enactment of the IR Act revealed no policy considerations underlying the new format of ss 188 and 189. The Explanatory Memorandum explained the effect of the new sections, but gave no hint that a change in the nature of the rights of associations applying for registration, or of the obligations of the Commission, was intended.
203 The question which arises is whether the legislature in 1988 intended to change the nature of the jurisdictional facts required to be established in the process of registration. If there were any such intention, it went, as I have mentioned above, unremarked in the Parliamentary materials which accompanied the new Act. Given the importance of the jurisdictional issues involved, and the background to the terms of the new provisions as referred to above, I do not think there was any such intention. I consider that status as an association of a kind referred to in the new s 188 continued to be a jurisdictional fact, and that it was jurisdictional apropos the act of registration, not the making of the application. As to the latter aspect, I do not think that the mere use of the formula in s 188 "may apply" had the incidental - and what would have been a very substantial - effect of making it legally impossible for an association which was not of a kind referred to in s 188 to apply for registration. The use of that formula, as I have attempted to explain, was the result only of a change in drafting. Under the IR Act, when an application (for present purposes, assumed to have been made de facto, whether or not also de jure) for registration came before a designated Presidential Member, his or her starting point was s 189 of the IR Act. If certain conditions were satisfied, he or she was obliged to grant an application "by an association that, under section 188, may apply …." Looked at this way, the concern of s 188 was not with the competence of applications as such: it was with the identification of associations that "may apply". The point of the formula "may apply" was that it fed through into s 189 and thus gave content to the obligation of the designated Presidential Member.
204 In the result, I take the view that the enactment of ss 188 and 189 in 1988 effected no change to the quality of the jurisdiction to deal with applications for registration. It was at the point of registration only that the status of an applicant as an association of a kind referred to in s 188 was jurisdictional. The IR Act was not concerned with the competence of applications as such. And the same should be said of ss 18 and 19 of the Schedule, the terms of which were relevantly unchanged from those introduced in 1988. Under ss 18 and 19 of the Schedule -
(a) the status of an applicant as an association of a kind referred to in s 18 was a requirement of valid registration, not of the competency of the application;
(b) that requirement was a jurisdictional fact which the Commission was obliged to decide, but could not determine conclusively.
205 It was also argued on behalf of the Union that the opening words in s 19(1) of the Schedule, "an application … made by an association", had the effect that it was not within the jurisdiction of the Commission to grant an application that was not made with the authority of the association to which it ostensibly related. I am inclined to think that there is something artificial about that proposition. As a matter of construction, the question of authority to apply for registration was legislatively allocated for consideration under par (h) of s 19(1) of the Schedule. Whether that paragraph stated a jurisdictional fact is a question to which I shall turn presently. But the presence of the paragraph tends to indicate that it was not intended that the opening words of the subsection might be pressed into service to deal with objections to the authority of those who lodged an application which was ostensibly regular and which related to an association of the requisite kind. The history of s 132(1) of the 1904 Act and corresponding earlier provisions - which were not concerned with the application as such at all - speaks strongly against any such intention. This is not a case in which the ostensible applicant was not the association to which the application related at all. It is a case of an otherwise apparently regular application as to which questions of authority arise. I do not consider that the wording of the opening passage in s 19(1) of the Schedule was, of itself, sufficient to clothe those questions with the status of jurisdictional facts.
206 I consider next whether the matters set out in the lettered paragraphs of s 19(1) of the Schedule were jurisdictional facts apropos the act of registration, as argued by counsel for the Union. The alternative view is that the requirements of s 19(1) of the Schedule were matters for the Commission to determine, rightly or wrongly, and that the objective correctness of such a determination was not justiciable in later proceedings for prohibition or certiorari; or, in other words, that the objective correctness of such a determination should not be regarded as necessary to the existence of jurisdiction for the Commission to make it.
207 The argument advanced on behalf of the Union derives some support - and, superficially, considerable support - from the use of the imperative expression "must … if, and only if …" in s 19(1). On the face of it, it seems rather obvious that, absent satisfaction of every condition in the subsection, the Commission must not grant the application and, as a statutory body of limited jurisdiction, what it must not do it could not do. There is, however, a distinction between the extent of the Commission's jurisdiction to determine the factual matters set out in s 19(1), on the one hand, and the nature of its obligation upon having made such a determination, on the other hand. How this distinction is to be resolved will be a matter of construction of the statutory provisions in question, and will not necessarily be governed by the use of the formula "if, and only if": see Phillips v Industrial Relations Commission of NSW (2006) 154 IR 96, 99.
208 Under s 132(1) of the 1904 Act, there was a question whether, notwithstanding an applicant having satisfied the specific statutory criteria for registration, including the "prescribed conditions", and having successfully deflected any specific statutory grounds of objection, the Registrar retained a general discretion to refuse registration upon, for example, public interest grounds. In Brideson, this question was resolved in the negative. That outcome depended upon the structure of s 132(1) of the 1904 Act. Wilson, Deane and Gaudron JJ said (166 CLR at 347-348):
The only other possible source of a general discretion to refuse registration is s. 132(1) which posits that an association "may … be registered … as an organization". In its ordinary usage the word "may" is permissive or facultative. So it is in s. 132. But s. 132 does not refer (except indirectly) to what the Registrar may do. It refers to what an association may become viz a registered organisation. In that context s. 132 must be seen as conferring, subject to s. 142 of the Act, an entitlement to registration, if an association elects to become registered, upon the Registrar being satisfied that the requirements of the section (including the conditions prescribed by reg. 115) have been met.
I have explained above the new drafting technique employed in ss 188 and 189 of the IR Act. Now, registration came about by the designated Presidential Member acting in accordance with the statutory obligation imposed on him or her under s 189. That obligation was mandatory. The legislature adopted the formula "shall grant … if …" for this purpose. Although the genesis of that formula appeared first in the Industrial Relations Bill 1987 (Cth) (as cl 218 thereof), the statutory draftsman was effectively proceeding on a view of the pre-existing law that was confirmed in 1989 in Brideson. To close the circle, as it were, and to deal with both possible outcomes, he or she added the words "and only if", making it clear that the Commission had no general discretion either way - whether to grant, or to refuse, registration.
209 For the above reasons, I take the view that the use of the formula "if, and only if" was intended to make it clear that the only matters upon which the Commission's determination whether to grant registration depended were those set out in the lettered paragraphs of s 19(1) of the Schedule, and that there was no general discretion. It was not thereby intended that those matters should be jurisdictional facts in the sense that it was not the Commission, but a court in proceedings for prohibition or certiorari, that should have final authority to decide them.
210 That conclusion does not, of course, resolve the question with which I am presently concerned. There are however, two broad indications, in the structure and content of s 19(1) of the Schedule, that suggest that the legislature intended that the Commission's decision on the criteria set out in the lettered paragraphs of that subsection should be final. The first is the dichotomous nature of the process implied by s 19(1). Although the existence of an application by an association of a particular kind was the foundation of the Commission's jurisdiction, the matter of compliance with the criteria in the subsection was the very thing entrusted to the Commission to determine. Speaking for the NSW Court of Appeal in Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55, Spigelman CJ said (at 65 [44]):
The authorities suggest that an important, and usually determinative,
indication of parliamentary intention, is whether the relevant factual reference
occurs in the statutory formulation of a power to be exercised by the primary
decision-maker or, in some other way, necessarily arises in the course of the
consideration by that decision-maker of the exercise of such a power. Such a
factual reference is unlikely to be a jurisdictional fact. The conclusion is likely
to be different if the factual reference is preliminary or ancillary to the exercise of a statutory power. The present case is, so far as I have been able to discover, unique in that the one statutory regime contains the same factual reference in both kinds of provisions.
211 The dichotomous process under s 19(1) reflected legislation which had been in place since 1904. Section 55(1) - and later s 132(1) - of the 1904 Act first identified the subject-matter of the Registrar's task - "any of the following associations" - and then stated the conditions the existence of which the Registrar was required to consider. This dichotomous structure was continued into the provisions which became ss 18 and 19 of the Schedule. I think it unlikely that the legislature ever intended that satisfaction of the prescribed conditions, or, more recently, compliance with the criteria in s 19(1), was not to be determined conclusively by the Registrar, or the Commission, but might be re-agitated before a court on a proceeding for prohibition or certiorari. Otherwise, as it seems to me, such a proceeding would be little different from an appeal on the merits.
212 The second indication relates not to structure but to content. The nature of the prescribed conditions, or of the requirements of s 19 of the Schedule, was such as to make it likely that the Registrar's, or the Commission's, decision was (subject to appeal) intended to be final. In some respects, particularly in the early days, those conditions were minutely detailed - such as those making various requirements as to the contents of an applicant's rule-book. In other respects, they were wholly administrative - such as those which stipulated the paperwork required to make application for registration. In yet other respects, particularly more recently, those conditions required the decision-maker to exercise a judgment on matters of degree and evaluation - such as the requirement of freedom from control by, or improper influence from, employers etc. It seems improbable that, save for the avenues of appeal for which the legislature provided, it was intended that the objective correctness of the decision of the Registrar or the Commission on such matters might later be the subject of curial adjudication in proceedings for prohibition or certiorari.
213 Indeed, it was not the Union's contention that every paragraph in s 19(1) of the Schedule set up a jurisdictional fact. Counsel for the Union accepted that pars (b), (g), and (j), and the genuineness aspect of subpar (i) of par (a), did not set up facts of that kind, but were matters which were to be decided only, and conclusively, by the Commission in registration proceedings. Counsel seemed to make that concession by reference to the subject matter of the paragraphs concerned, each of which involves matters of assessment, evaluation or judgment on the part of the Commission. However, although I accept counsel's submission that criteria of that kind are unlikely to be jurisdictional, I also think it unlikely that the legislature would have harboured a silent intention that some only of the otherwise undifferentiated criteria set out in s 19(1) should be regarded as facts upon which the jurisdiction of the Commission to register depended, regardless of the finding of the Commission in relevant respects.
214 It is true that par (e) of s 19(1) of the Schedule, alone of the paragraphs in the subsection, referred not to an objective circumstance, but to the Commission being satisfied of a particular circumstance. It is, of course, well-established that legislation in such terms does not make the objective existence of the circumstance justiciable in subsequent judicial review proceedings, because the matter upon which jurisdiction depends is not the circumstance itself, but the Commission's state of satisfaction. I do not, however, consider that the terms of par (e) sustain the conclusion, in relation to each of the other paragraphs in s 19(1), that the circumstance referred to was a jurisdictional fact. Alone of the paragraphs in the subsection, par (e) looked to the future, rather than to an existing or past state of affairs. Inescapably, as it seems to me, the drafter of the paragraph had no alternative but to express it by reference to the state of satisfaction, or similar, of the decision maker. I do not think that the terms in which it was expressed throw any light upon the proper construction of the remaining paragraphs in the subsection.
215 The potential for a difference of opinion on questions such as that presently under consideration is demonstrated by the judgments of the members of the High Court given in a very similar legislative context in Architects Registration Board of Victoria v Hutchison (1925) 35 CLR 404. In the facts of that matter, Victorian legislation provided:
Any of the following persons who applies in the prescribed form to be registered under this Act may on payment of the prescribed fee be so registered if the [board] … is satisfied that such person has attained the age of twenty-one years and is of good character, namely: any person who … (c) has for a period of at least one year before the first day of January one thousand nine hundred and twenty-three been bona fide engaged in Victoria in the practice of the profession of an architect and has made application for registration within six months after that date.
An application for registration had been refused by the board upon the ground that the applicant had not for a period of at least one year before 1 January 2003 been bona fide engaged in Victoria in the practice of the profession of an architect. The applicant obtained a writ of mandamus from the Supreme Court, seemingly on the basis that, contrary to the decision of the board, he had in fact been in the practice of the profession of an architect for the necessary period. On appeal to the High Court, the first question was whether the practice qualification which was controversial in the case was a matter conclusively for determination by the board, and not justiciable in later court proceedings. The court split evenly, Knox CJ and Starke J holding that it was a matter for the board, Isaacs and Rich JJ holding that it was a matter which was amenable to review by a court. Since the latter Justices held, on the facts, that the qualification requirement had not been satisfied, the appeal was allowed.
216 In the course of his reasons in Hutchison, Starke J said (35 CLR at 412-413):
The law is clear enough. If the true construction of the statute be that the applicant is entitled to registration if a certain state of facts exist, then it is not for the Board conclusively to decide whether that state of facts exists, and it is competent to the Courts of law, in appropriate proceedings, to inquire into and determine whether those facts do exist. But if the true construction of the statute be that the Board is entrusted with authority and jurisdiction to investigate and determine whether those facts exist, then, if no appeal be given, its determination, honestly given and without reference to extraneous circumstances which it is not entitled to consider, is final and cannot be reviewed in the Courts of law (R v Nat Bell Liquors Ltd; R v Commissioners for Special Purposes of the Income Tax). If the Board acts within its authority, then "it does not matter how erroneously it determined, for its decision in such a case cannot be reviewed by mandamus" (R v Cotham; R v Bowman; R v Woodhouse). In the present case it was the duty of the Board to compile a register containing the names and addresses, qualifications and other prescribed particulars of persons who are admitted to the register pursuant to the Act (sec. 6(d)). The Act does not say that the decision of the Board is to be final. It constitutes, however, a tribunal of experts to compile a register containing the names, addresses, qualifications and other prescribed particulars. And it undoubtedly places the final determination of some qualifications in the hands of that tribunal (see sec. 7, sub-secs. 1(d) and (g)). Also the statute gives it extensive powers of summoning persons before it, and of compelling them to produce documents, and of examining them upon oath (see sec. 13). All this, in my opinion, makes it difficult to resist the conclusion that authority is given to the tribunal to investigate the qualifications of persons applying for registration, and that a decision upon those qualifications is on a matter arising within its authority and jurisdiction (cf. London County Council v Galsworthy).
Although the judgments of Knox CJ and Starke J may, in the circumstances, be of uncertain authority (see Re Wakim (1999) 198 CLR 511, 571), the judgment of Starke J was referred to with approval by the High Court in Mount Isa Mines (187 CLR at 306).
217 I take the view that, on a proper construction of ss 18 and 19 of the Schedule, it was the Commission that was, in the words of Starke J, "entrusted with authority and jurisdiction to investigate and determine" whether the requirements of s 19(1) were satisfied in any particular case, and that those requirements should not be regarded as jurisdictional facts apropos the act of registration.
218 Before leaving the matter of the proper construction of ss 18 and 19 of the Schedule, I should refer to par (a) of s 19(1). It might be asked: if the existence and character (under s 18(1)(b)) of the association were jurisdictional facts (as I have held), how can the question posited by the second limb of subpar (i) of the paragraph, which seems to deal with the same point, not be such a fact? The answer is, I consider, to be found in the history of these provisions. Notwithstanding the jurisdictional requirements stated in s 132(1) of the 1904 Act (as to which see Federated Engine Drivers and Pitfield v Franki) the first of the prescribed conditions, in par (a) of reg 115(1), was that "the association shall be a voluntary and bona fide association of a kind referred to in section 132 of the Act". In other words, the requirement was both fundamental to the jurisdiction of the Registrar and a matter which he or she had to determine. If the Registrar made a wrong determination on the question whether the association was the right "kind" of association, the determination would be reviewable on prohibition or certiorari, not because the Registrar had erred under reg 115(1)(a), but because the necessary jurisdictional fact required by s 132(1) was absent. That the regulation-making authority required the Registrar to consider for himself or herself whether the association was such as could be registered was, I consider, by way of setting out systematically the things with which he or she had to deal, by way of a checklist as it were. The same approach should be taken to the construction of s 19(1) of the Schedule. The taking of that approach does not affect my conclusion that the requirements of the lettered subparagraphs of the subsection did not, as such, set up jurisdictional facts.