King v Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: AUTOMATIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION'

INTRODUCTION 1 On 21 March 2000 I reserved the following question of law for the consideration of the Full Court: "Whether, having regard to Chapter III of the Constitution, Sub Division B of Division 7A of Part IX of the Workplace Relations Act (1996) (Cth) is a valid law of the Commonwealth in so far as it purports to confer jurisdiction upon the Federal Court of Australia, and in particular, jurisdiction to: (i) order that a vote of the constituent members be taken by secret ballot (s 253ZL(1)); (ii) order the making of amendments to the written outline of the proposal for the constituent part to withdraw from the amalgamated organisation if the Court is not satisfied that the Outline complies with s 253ZJA(3) of the Act (s 253ZJA(4)); (iii) order the making of amendments to the "Yes" or "No" case "to correct factual errors or otherwise to ensure that it complies with [the] Act" (s 253ZJB(3)) & 253ZJC(3)); (iv) allow photos, diagrams, etc to be used in the outline of the proposal for withdrawal (s 253ZJD(1));

(v) make such orders as it thinks fit in relation to the conduct of the ballot if the ballot is ordered (s 253ZL(3))." 2 Notice of the reservation of the above question for the consideration of the Full Court was given to the Attorneys-General of the Commonwealth and of the States (s 78B of the Judiciary Act 1903 (Cth)). Only the Attorney-General of the Commonwealth intervened and made submissions to the Court.

FACTS 3 The special case (see O 50 r 1 of the Federal Court Rules) states the following facts: "1. On 3 December 1999 application was made to the Federal Court of Australia under s 253ZJ of the Workplace Relations Act 1996 (Cth) ('the Act') for a ballot to be held to decide whether a constituent part of the Respondent amalgamated Union should withdraw from the Respondent. The validity of the application is in issue. 2. Annexure 'A' is a true copy of the Application filed in the Federal Court of Australia without the annexures thereto. Annexure B is a true copy of the 'Yes Case' filed in Federal Court of Australia. 3. The Respondent is a registered organisation of employees registered under the Act resulting from the amalgamation of a number of previously registered organisations including the Printing and Kindred Industries Union (the PKIU). The PKIU was a registered organisation of employees pursuant to the Industrial Relations Act 1998 (Cth) but was deregistered upon the amalgamation which resulted in the formation and registration of the Respondent. 4. At all material times until the Respondent was formed by the amalgamation there had been a New South Wales branch of the PKIU. After the 1st February 1995 and at all material times since, there has been a NSW Region of the Printing Division of the Respondent."

STATUTORY SCHEME 4 Part IX of the Workplace Relations Act 1996 (Cth) ("the Act"), which is comprised of ss 187A-293H, is headed "Registered Organisations". Division 7 of Pt IX of the Act contains provisions which establish a procedure to be followed where the amalgamation of existing organisations (ie registered organisation - s 4(1)) is proposed. It is sufficient to give a broad outline of that procedure. There must be a scheme for the proposed amalgamation which contains, amongst other things "a general statement of the nature of the amalgamation, identifying the existing organisations concerned" (s 238). The scheme must be approved by the committee of management of each existing organisation concerned in the amalgamation (s 240(1)). The existing organisations concerned in the proposed amalgamation must jointly lodge in the Industrial Registry an application for approval for the submission of the amalgamation to ballot (s 242(1)) accompanied by the scheme and a written outline of the scheme (s 242(2)). The written outline of the scheme, which must not without leave of a Presidential Member of the Australian Industrial Relations Commission ("the Commission") consist of more than 3,000 words, must "provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme" (ss 242(3) and 253F). 5 An existing organisation concerned in an amalgamation may lodge, with the application for approval, "a written statement of not more than 2,000 words in support of the proposed … amalgamation …" (the "Yes" case) (s 246). Members of the organisation, being 5% of the members of the organisation on the day on which the application was lodged, may lodge a similar statement in opposition to the proposed amalgamation (the "No" case) (s 253D(2) and (10)). The Presidential Member may amend the respective statements in support and in opposition to the proposed amalgamation "to correct factual errors or to ensure that the statement complies with [the] Act" (s 253D(6). The Presidential Member may also approve the statements including matter not in the form of words (eg diagrams or photographs) (s 253D(7)). 6 Where an application is lodged under s 242 in relation to a proposed amalgamation, a designated Presidential Member of the Commission must immediately fix a time and place for hearing submissions in relation to the granting of an approval for the submission of the amalgamation to ballot. The Presidential Member must also take steps to ensure that appropriate notification is given of the hearing (s 250). Only the applicants have a right to be heard on the hearing of the application; other persons may be heard, with the leave of the Presidential Member, in relation to prescribed matters (s 251). 7 If, at the conclusion of the hearing before the Presidential Member, he or she is satisfied of the matters specified in s 252(1) of the Act, the Presidential Member must approve the submission of the amalgamation to ballot (s 252(1)). Where such an approval is given, the Presidential Member "must, after consulting with the Electoral Commissioner, fix a day as the commencing day of the ballot and a day as the closing day of the ballot" (s 253B(1)). The Australian Electoral Commission must then, in relation to each of the existing organisations concerned in the proposed amalgamation, "conduct a secret postal ballot of the members of the organisation on the question whether they approve the proposed … amalgamation" (s 253J(1)). If the members of each of the existing organisations concerned in a proposed amalgamation approve the amalgamation, the amalgamation is approved for the purposes of Div 7 of Pt IX of the Act (s 253N) and the amalgamation takes effect in accordance with s 253Q. 8 Division 7A of Pt IX was inserted into the Act in 1996 "to give effect to the Government's policy of allowing for the undoing of certain amalgamations where a part of the amalgamated organisation wishes to withdraw" (Workplace Relations and Other Legislation Amendment Bill 1996 - Explanatory Memorandum p 147). It is headed "Withdrawal from amalgamations". The procedure which Division 7A establishes for withdrawal from amalgamations is in a number of ways comparable to the procedure for amalgamation established by Division 7. However, there are differences. One significant difference is that the Commission has no role to play in the procedure for withdrawal from amalgamations. In general terms, the role which the Commission plays in supervising the amalgamation process is purportedly given to the Federal Court for the withdrawal from amalgamation process. 9 Subdivision B of Div 7A ("Subdivision B"), consisting of ss 253ZJ-253ZO, is concerned with ballots for withdrawal from amalgamated organisations. The important provisions of Subdivision B for present purposes are the following: "253ZJ(1) An application may be made to the Court for a ballot to be held, to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation, if: (a) the constituent part became part of the organisation as a result of an amalgamation under Division 7 after 1 February 1991; and (b) the amalgamation occurred no less than 2 years prior to the date of the application; and (c) the application is made: (i) if the amalgamation occurred before the commencement of this Division - no more than 3 years after that commencement; or (ii) if the amalgamation occurred after the commencement of this Division - no more than 5 years after the amalgamation occurred. 253ZJ(2) However, an application cannot be made if: (a) during the last 12 months, the Court has rejected an application for a ballot to be held in relation to the constituent part of the organisation; or (b) a ballot was held that rejected the withdrawal of the constituent part. 253ZJ(3) The application may be made by: (a) the prescribed number of constituent members; or (b) a committee of management elected entirely or substantially by the constituent members, whether by a direct voting system or a collegiate electoral system; or (c) if the application relates to a separately identifiable constituent part - the committee of management of that part. 253ZJ(4) The application must be in the prescribed form and must contain such information as is prescribed. 253ZJA(1) The application must be accompanied by a written outline of the proposal for the constituent part to withdraw from the amalgamated organisation. Subject to subsection (2), the outline must: (a) provide, in no more than 3,000 words, sufficient information on the proposal to enable the constituent members to make informed decisions in relation to the proposed withdrawal; and (b) address such matters as are prescribed. 253ZJA(2) The outline may, if the Court allows, consist of more than 3,000 words. 253ZJA(3) The outline must be a fair and accurate representation of the proposed withdrawal and must address any matters prescribed for the purposes of paragraph (1)(b) in a fair and accurate manner. 253ZJA(4) If the Court is not satisfied that the outline complies with subsection (3), the Court must order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection. 253ZJB(1) The constituent members, or committee of management, making the application may file with the Court a written statement of no more than 2,000 words in support of the proposal for the constituent part to withdraw from the amalgamated organisation. 253ZJB(2) The statement must either: (a) accompany the application; or (b) be filed within such later time as the Court allows. 253ZJB(3) The Court may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act. 253ZJC(1) The amalgamated organisation may file with the Court a written statement of no more than 2,000 words in opposition to the proposal for the constituent part to withdraw from the organisation. 253ZJC(2) The statement must be filed either: (a) not later than 7 days before the day set down for the hearing of the application in question by the Court; or (b) with such later time as the Court allows. 253ZJC(3) The Court may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act. 253ZJD(1) An outline under section 253ZJA or a statement under section 253ZJB or 253ZJC may, if the Court allows, include matter that is not in the form of words, including, for example, diagrams, drawings, illustrations, photographs and symbols. 253ZJD(2) The Court may allow an outline under section 253ZJA, or a statement under section 253ZJB or 253ZJC, to be amended by whoever filed the outline or statement with the Court. … 253ZL(1) The Court must order that a vote of the constituent members be taken by secret ballot, to decide whether the constituent part of the amalgamated organisation should withdraw from the organisation, if the Court is satisfied that: (a) the application for the ballot is validly made under section 253ZJ; and (aa) the outline under section 253ZJA accompanying the application, or (if applicable) that outline as amended: (i) is a fair and accurate representation of the proposal for withdrawal from the organisation; and (ii) addresses any matters prescribed for the purposes of paragraph 253ZJA(1)(b) in a fair and accurate manner; and (b) the proposal for withdrawal from the organisation complies with any requirements specified in the regulations. 253ZL(2) In considering whether to order that a ballot be held, the Court may hear from: (a) an applicant for the ballot; and (b) the amalgamated organisation; and (c) a creditor of the amalgamated organisation; and (d) any other person who would be affected by the withdrawal of the constituent part from the amalgamated organisation. 253ZL(3) If the Court orders that a ballot be held, it may make such orders as it thinks fit in relation to the conduct of the ballot." 10 Subdivision C of Div 7A ("Subdivision C"), consisting of ss 253ZP-253ZU, is headed "Giving effect to ballots". As the heading foreshadows, the result of the ballot is not itself determinative of the issue of withdrawal from amalgamation. Section 253ZP(1) provides: "253ZP(1) If more than 50% of the formal votes cast in a ballot are in favour of a constituent part of an amalgamated organisation withdrawing from the organisation, the Court must, on the application of the constituent part: (a) determine the day on which the withdrawal is to take effect; and (b) make such orders as are necessary to apportion the assets and liabilities of the amalgamated organisation between the amalgamated organisation and the constituent part; and (c) make such other orders as it thinks fit in connection with giving effect to the withdrawal."

Proper Construction of Relevant Provisions 11 Before consideration can be given to whether the provisions of Subdivision B are valid laws of the Commonwealth, it is necessary to give consideration to the proper construction of certain of the provisions of the subdivision. In construing the provisions of Subdivision B, it is necessary to bear in mind the object of Div 7A of Pt IX of the Act. Section 253ZH of the Act provides that the object of Division 7A - "… is to provide for: (a) certain organisations that have taken part in amalgamations under Division 7 to be reconstituted and re-registered; and (b) branches of organisations of that kind to be formed into organisations and registered; in a way that is fair to the members of the organisations concerned and the creditors of those organisations." 12 I turn first to s 253ZJA (set out above) which is concerned with the written outline of the proposal for the constituent part to withdraw from the amalgamated organisation. Section 253ZJA is of central significance to the intended operation of Subdivision B in that it is designed to ensure that those entitled to vote in any ballot ordered by the Court shall have available to them "sufficient information on the proposal [for the constituent part to withdraw] to enable [them] to make informed decisions on the proposed withdrawal" (par 253ZJA(1)(a)). Subsection 253ZJA(3) requires that the outline "be a fair and accurate representation of the proposed withdrawal" and "address any matters prescribed for the purposes of paragraph (1)(b) in a fair and accurate manner". If the Court is not satisfied that the outline complies with the subs 253ZJA(3) requirements "the Court must order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection" (subs 253ZJA(4) - emphasis added). 13 The proper construction of s 253ZJA is to be determined having regard to the words of the section understood in the light of the context in which the section is found. An important aspect of that context is s 253ZL (set out above) which outlines the circumstances in which the Court must order that a vote be taken by secret ballot. Section 253ZL provides that the Court must order that a vote be taken by secret ballot if it is satisfied that: (a) the application for the ballot is validly made under s 253ZJ; (b) the outline is a fair and accurate representation of the proposal for withdrawal and addresses any prescribed matters in a fair and accurate way; and (c) the proposal for withdrawal from the organisation complies with any requirements specified in the regulations. 14 It is to be noted that s 253ZL makes no direct reference to the requirement of par 253ZJA(1)(a) that the outline must "provide … sufficient information on the proposal to enable the constituent members to make informed decisions in relation to the proposed withdrawal". The reason for this, in my view, must be that within the meaning of the section only an outline which provides "sufficient information on the proposal to enable constituent members to make informed decisions in relation to the proposed withdrawal" (par 253ZJA(1)(a)) will constitute "a fair and accurate representation of the proposed withdrawal" (subs 253ZJA(3)). Parliament can not have intended that the apparently mandatory requirement of par 253ZJA(1)(a) should be capable of being disregarded. 15 A second difficulty in the construction of s 253ZJA is the identification of the precise obligation imposed on the Court by subs (4). It is useful to consider the wording of comparable provisions in Div 7 of Pt IX. 16 Section 242(3) provides that, subject to s 253F, a written outline of a scheme for amalgamation must "provide sufficient information on the scheme to enable members of the existing organisations to make informed decisions in relation to the scheme" (cf s 253ZJA(1)(a)). Subsection 253F(3) provides: "253F(3) A designated Presidential Member: (a) may, at any time before the commencing day of the ballot for the amalgamation, permit the existing organisations concerned in the amalgamation to alter the outline; and (b) may amend the outline to correct factual errors or otherwise to ensure that it complies with this Act." 17 Section 253D is concerned with "Yes" and "No" cases. Subsections 253D(5) and (6) provide:

"253D(5) If 2 or more statements in opposition to the amalgamation are duly lodged in the Industrial Registry under subsection (2): (a) a designated Presidential Member must prepare, or cause to be prepared, in consultation, if practicable, with representatives of the persons who lodged each of the statements, a written statement of not more than 2,000 words in opposition to the amalgamation based on both or all the statements and, as far as practicable, presenting fairly the substance of the arguments against the amalgamation contained in both or all the statements; and (b) the statement prepared by the Presidential Member must accompany the ballot paper for the amalgamation as if it had been the sole statement lodged under subsection (2). 253D(6) A designated Presidential Member may amend a statement mentioned in subsection (1) or (2) to correct factual errors or to ensure that the statement complies with this Act." 18 It is not entirely clear whether par 253F(3)(b) and subs 253D(6) are intended to be merely facultative or whether the discretions vested in the Presidential Member to exercise the power to make amendments is coupled in each case with a duty to exercise the power under certain conditions (cf Commissioner of State Revenue (Victoria) v Royal Insurance Australia Limited (1994) 182 CLR 51 per Mason CJ at 63-64 and Brennan J at 84-85). What ever the position may be in this regard, if the discretion in either case is exercised in favour of the making of amendments, it appears that the Presidential Member is required to make the amendments himself or herself. Similarly, subs 253D(5) imposes an obligation on the Presidential Member himself or herself to prepare, or cause to be prepared, a composite "No case". 19 The difference in language between subss 253F(3) and 253D(6), on the one hand, and subs 253ZJA(4) on the other, reveals an intention in the legislature to impose a duty, as opposed to a discretion, on the Court where the Court is not satisfied that the outline of the proposal for withdrawal from the amalgamated organisation complies with subs 253ZJA(3). That duty is not a duty to amend the outline but a duty to "order the making of such amendments to the outline as it considers are needed for the outline to comply with that subsection." The words "such amendments … as it considers are needed" indicate that this duty can only sensibly be understood as a duty to order the making of specified amendments or amendments dealing with specified topics. A general order requiring the outline to be amended, for example, "to the extent necessary to bring it into compliance with subs 253ZJA(1)" would not, in my view, be an order of the kind required by subs 253ZJA(4). 20 Subsections 253ZJB(3) and 253ZJC(3) of the Act provide in respect of the "Yes" case and the "No" case respectively that: "The Court may order that the statement be amended, in accordance with the order, to correct factual errors or otherwise to ensure that it complies with this Act." 21 An issue which arises on the construction of subss 253ZJB(3) and 253ZJC(3) is whether they are intended to confer on the Court a simple discretion to make orders to ensure that any "Yes" or "No" case complies with the Act, or whether the discretion is coupled with a duty, which will presumably arise in circumstances in which deficiencies in the "Yes" or "No" case come to the attention of the Court, to exercise the power to order amendments to ensure that the relevant case does comply with the Act. The fact that the Court may not give consideration to the content of the "Yes" and "No" cases, should they have been filed, in determining whether to order that a vote of constituent members be taken by secret ballot (s 253ZL), tends to suggest that subss 253ZJB(3) and 253ZJC(3) must be intended to impose a duty on the Court where deficiencies come to the attention of the Court to ensure the factual accuracy of any "Yes" or "No" case filed and to ensure that the case otherwise complies with the Act. Were it not so, it would seem that the object of Div 7A of ensuring fairness to members and creditors of organisations (s 253ZH) could be undermined. Whether the sections in addition require the Court to inquire into the factual accuracy of any "Yes" or "No" case filed is a more difficult question. The view that I have ultimately reached in this matter makes it unnecessary for me to reach a concluded decision on this issue. I note, however, the difficulties which might arise in distinguishing matters of fact from matters of opinion or argument in a document apparently intended to be contentious in nature.

CONSIDERATION 22 The central role purportedly given to the Court by Subdivision B is the role of ordering that a vote of constituent members be taken by secret ballot if the Court is satisfied of the matters specified in paragraphs (a), (aa) and (b) of subs 253ZL(1) of the Act. This role cannot, in my view, relevantly be seen as a subsidiary aspect of any larger role: a fresh application to the Court under Subdivision C is necessary before a ballot result in favour of withdrawal can take effect. 23 Consideration of the matters specified in subs 253ZL(1) of the Act will involve the Court in a task of a kind that it commonly undertakes as part of a judicial function; that is the task of evaluating compliance with statutory and regulatory provisions. Paragraph (aa), however, is a provision of a different character. As a Chapter III court cannot be required to act in a manner inconsistent with judicial process (Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 191; Harris v Caladine (1991) 172 CLR 84 per Gaudron J at 150), it is necessary to identify the process by which the Court is to reach a determination as to whether the outline accompanying the application satisfies the requirements of subpars (i) and (ii) of par (aa). 24 Judicial process ordinarily involves a court looking to the parties to a proceeding to place before it evidence touching on the issues which it is required to determine. However, the only party to an application made under s 253ZJ of the Act is the applicant. An application made under s 253ZJ for a ballot to be held does not give rise to a lis inter partes. Moreover, the application is not expressly required by the Act or the regulation to be served on any person or organisation - although s 253ZK of the Act requires that upon the making of an application the Registrar of the Court is immediately to notify the Australian Electoral Commission of the application. 25 If the validity of Subdivision B be assumed, the Federal Court Rules ("the Rules") will provide for a hearing on the application. However, the Rules will not of themselves require the service of the application on any person or body. Order 48 r 11 provides merely for the District Registrar to endorse on an application, amongst other things, the name and address of any person whom the Court or a Judge has directed be given notice of the application (O 48 r 11(b)(ii)). It may be observed that O 48 r 11(b)(ii) appears to have been drawn on the assumption that an approach will or might have been made to the Court or a Judge for direction as to the giving of notice of the application before the application and accompanying documentation is lodged with the District Registrar. This seems not to be the practice ordinarily adopted in matters of this kind. 26 Subsection 253ZL(2) of the Act provides as follows: "253ZL(2) In considering whether to order that a ballot be held, the Court may hear from: (a) an applicant for the ballot; and (b) the amalgamated organisation; and (c) a creditor of the amalgamated organisation; and (d) any other person who would be affected by the withdrawal of the constituent part from the amalgamated organisation." 27 It is not clear whether subs 253ZL(2) is intended to give rise to an implied obligation on the Court to ensure that the persons described in pars (b), (c) and (d) of the subsection are notified of the application and of the hearing date for the application. The better view, in my opinion, is that the section does give rise to such an implied obligation. In view of the fact that subs 253ZL(1) provides that the Court must order that a vote be taken by secret ballot if it is satisfied of the matters therein specified, the scope for relevant submissions to be put to the Court under subs 253ZL(2) is limited. For this reason it seems likely that par (d) of subs 253ZL(2), which refers to "any other person who would be affected by the withdrawal",is intended to be construed narrowly. On this basis, and having regard to the nature of the judicial process, I conclude that subs 253ZL(2) is intended to give rise to an obligation on the Court to ensure that the persons described in pars (b), (c) and (d) of the subsection are notified of the application and of the hearing date for the application. 28 Nonetheless, neither the amalgamated organisation nor any other person given notice of the application is a party to the application for a ballot to be held. The Court would not seem to have any power to require the organisation, or any person other than the applicants, to attend the hearing or to place evidence or submissions before it. If no opposition to the application is raised, how is the Court to determine that it has the positive satisfaction required by pars 253ZL(1)(aa)(i) and (ii)? As a matter of strict logic it would seem that the Court will ordinarily have the required satisfaction provided that any orders made by it under subs 253ZJA(4) have been complied with. For this reason subs 253ZJA(4), and the process by which the Court is intended to fulfil the obligation imposed on it by the subsection, are of crucial importance. 29 It was contended that subs 253ZJA(4) creates for the Court a task "no different from many tasks judges are required to undertake" and reference was made to the Corporation Law and the Trade Practices Act 1974 (Cth) ("the TPA"). Subsection 253ZJA(4) does not, in my view, place the Court in an analogous situation so far as process is concerned to that which arises when an application comes before it involving s 52 of the TPA. A party who brings an application before the Court in reliance on s 52 of the TPA is required to satisfy the Court that the conduct complained of is "misleading or deceptive or is likely to mislead or deceive". If the evidence before the Court is insufficient positively to satisfy the Court that the conduct of which the applicant complains is of the proscribed character, the applicant will not have established its entitlement to relief. Sections 995, 1005 and 1325 of the Corporations Law have, in my view, comparable operations. 30 Nor, in my view, does s 447A of the Corporations Law give rise to a situation similar to that which arises under s 253ZJA(4) (see Australasian Memory Pty Limited v Brien [2000] HCA 30). Section 447A provides for the Court to make an order on the application of a person authorised by subs (4) to make such an application. The person who makes the application will carry the burden of satisfying the Court that a particular order should be made about how Pt 5.3A of the Corporations Law should operate in respect of a particular company. If the Court is not satisfied that any such order should be made, Pt 5.3A will continue to operate according to its terms. 31 At first glance, subs 411(6) of the Corporations Law, which provides that "[t]he Court may grant its approval to a compromise or arrangement subject to such alterations or conditions as it thinks just", appears an analogous provision to subs 253ZJA(4) of the Act. Significantly, however, subs 415(2) of the Corporations Law entitles the Court to require the Australian Securities and Investment Commission, or another person, to give the Court a report as to the terms of the compromise or arrangement, the conduct of the officers of the body or bodies concerned and any other matters that, in the opinion of the Commission or that person ought to be brought to the attention of the Court. That is, subs 415(2) of the Corporations Law makes it plain that it is not intended that the Court itself should engage in any process of inquiry. 32 I find it impossible to conclude that the application to the Court for a ballot to be held and the accompanying written outline of the proposal for a constituent part to withdraw from the amalgamated organisation will in every case provide the Court with sufficient information to allow the Court to reach a determination as to whether the outline provides "sufficient information on the proposal to enable constituent members to make informed decisions in relation to the proposed withdrawal" and is otherwise "a fair and accurate representation of the proposed withdrawal" (see para 14 above). Indeed, it seems possible that the application and the outline may, standing alone, be insufficient even to alert the Court to deficiencies in the sufficiency of the information, or in the fairness and accuracy of the information, provided in the outline. Unlike the Commission, the Court cannot be assumed to be well informed concerning the affairs of industrial organisations. 33 It therefore seems necessary to conclude that the legislature intended Subdivision B, and in particular subs 253ZL(1), to impose on the Court an obligation to initiate sufficient inquiries to allow it to reach a determination as to whether it is satisfied that the outline under s 253ZJA satisfies the requirements of subs 253ZJA(3) and par 253ZL(1)(aa). Is such an inquiry, which it seems may involve the Court in doing more than considering evidence placed before it, and which can not be seen to be merely peripheral to the task purportedly imposed on the Court by Subdivision B, a judicial task? 34 In The Queen v Trade Practices Tribunal; ex parte Tasmanian Breweries Proprietary Limited (1970) 123 CLR 361 Kitto J observed at 374-375: "In Labour Relations Board of Saskatchewan v John East Iron Works Ltd, Lord Simonds for the Privy Council said: 'It is a truism that the conception of the judicial function is inseparably bound up with the idea of a suit between parties, whether between Crown and subject or between subject and subject.' This is not to say that some powers may not be held to be judicial though no adjudication in a lis inter partes is involved, for there may be sufficient justification for such a conclusion in an analogy with an admittedly judicial function, or in the fact that the power is ancillary to a judicial function, or in some such consideration: …. But in general the notion is there, even if in the background, of arbitrament upon a question as to whether a right or obligation in law exists. … Thus a judicial power involves, as a general rule, a decision settling for the future, as between defined persons or classes of person, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to which that question is in future to be decided as between those persons or classes of persons. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist. It is right, I think, to conclude from the cases on the subject that a power which does not involve such a process and lead to such an end needs to possess some special compelling feature if its inclusion in the category of judicial power is to be justified." (some citations omitted; emphasis added) 35 In Harris v Caladine Gaudron J observed at 150: "Judicial power is usually defined in terms of its subject matter, but it is a power that, for complete definition, requires description of its dominant and essential characteristic, namely, that it is exercised in accordance with that process which is referred to as 'the judicial process'. Thus, in general terms, it is a power which cannot be exercised with the 'tribunal which has power … is called upon to take action …, which (subject to limited exceptions) proceeds by way of open and public inquiry, which involves the application of the rules of natural justice and which is directed to ascertaining 'the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined' …." (citations omitted; emphasis added) 36 In Precision Data Holdings Limited v Wills (1991) 173 CLR 167 at 191 the High Court said: "The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett. Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power." (emphasis added) 37 If subs 253ZJA(4) properly construed imposes on the Court an obligation, as I conclude that it does, to make such inquiries as are necessary to enable it to determine what amendments to the outline, if any, are necessary to ensure that the outline provides "sufficient information on the proposal to enable the constituent members to make informed decisions in relation to the proposed withdrawal" and is otherwise "a fair and accurate representation of the proposed withdrawal", it seems to me that the subsection is intended to require the Court to act in a manner inconsistent with judicial process. 38 Even if I am wrong in this regard, in view of the limited role given to the Court by Subdivision B, I can identify no "special compelling feature" of the power purportedly given to the Court by subs 253ZJA(4) (which, in my view, is not a judicial power of the traditional kind) to justify its inclusion in the category of judicial power (see Tasmanian Breweries case - para 34 above). The power is not one that, of its nature, is required to be exercised only by those who constitute the court upon which it is conferred (Harris v Caladine per Gaudron J at 147-148). Powers which are at least comparable are given to the Commission by Div 7 of Pt IX of the Act. Indeed it may be, although on the view which I have taken of subs 253ZJA(4) it is not necessary to decide, that the criterion specified by par 253ZJA(1)(a) is insufficiently well defined to be susceptible of judicial application (R v Judges of the Commonwealth Industrial Court; ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 per Kitto J at 383). 39 For the above reasons I conclude that Subdivision B is not a valid law of the Commonwealth in so far as it purports to confer jurisdiction on the Federal Court to order the making of such amendments to the outline as it considers are needed for the outline to comply with subs 253ZJA(3). 40 It may be that for similar reasons, Subdivision B is not a valid law of the Commonwealth in so far as it purports to confer jurisdiction on the Federal Court to order that the "Yes" and "No" cases be amended to correct factual errors or otherwise to ensure that they comply with the Act. However, the position with respect to this aspect of the jurisdiction purportedly given by Subdivision B to the Federal Court is less clear, in my view, that in the case of the outline. 41 On the construction of Subdivision B which I have adopted, subs 253ZJA(4) is crucial to the statutory scheme designed to lead to the making of an order by the Court that a vote of the constituent members be taken by secret ballot. Without subs 253ZJA(4) the scheme would, in my view, have an operation quite different from that intended by the legislature. For this reason the subsection is not, in my view, severable from the subdivision. 42 In my view the question of law reserved for the consideration of the Full Court should be answered "No."

I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

FINKELSTEIN J 43 The question in the case stated should be answered, and the relief should be formulated, as Gyles J has provided, for the reasons he has given. I certify that the preceding one (1) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

AND: AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION

GYLES J 44 I have had the advantage of reading the judgment of Branson J in draft, which relieves me of the necessity to set out the context in which the issue arises. The case concerns the vexed question of what is judicial power for the purposes of Chapter III of the Constitution. There has been a plethora of cases on this question in this Court, and in the High Court, during the last decade. Over the years, many of the cases have involved an industrial setting. So does this. The judgment of Branson J demonstrates that, as with much in what might be called the industrial jurisdiction, the process in which the Court is involved pursuant to Pt IX Div 7A of the Workplace Relations Act 1996 (Cth) ("the Act") is not a traditional lis between parties or a close analogy with it. This, in itself, is not critical (Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 169 ALR 616 at 642-643 [105]-[107]). As Mason and Murphy JJ said in R v Joske; ex parte Shop Distributive & Allied Employees Association (1976) 135 CLR 194 at 216: "It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision …" 45 In Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, the Court said (at 190-191) (omitting citations): "In some situations, the fact that the object of the determination is to bring into existence by that determination a new set of rights and obligations is not an answer to the claim that the function is one which entails the exercise of judicial power. The Parliament can, if it chooses, legislate with respect to rights and obligations by vesting jurisdiction in courts to make orders creating those rights or imposing those liabilities. It is an expedient which is sometimes adopted when Parliament decides to confer upon a court or tribunal a discretionary authority to make orders which create rights or impose liabilities. This legislative technique and its consequences in terms of federal jurisdiction were discussed by Dixon J in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett. Leaving aside problems that might arise because of the subject-matter involved or because of some prescribed procedure not in keeping with the judicial process, where a discretionary authority is conferred upon a court and the discretionary authority is to be exercised according to legal principle or by reference to an objective standard or test prescribed by the legislature and not by reference to policy considerations or other matters not specified by the legislature, it will be possible to conclude that the determination by the court gives effect to rights and obligations for which the statute provides and that the determination constitutes an exercise of judicial power." A recent example of this kind is the Proceeds of Crime Act 1987 (Cth) - see Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82. 46 In my opinion, it is necessary to consider subdivision B of Div 7A in the context of the whole of the Division. Obtaining an order for a ballot is part of a process which the heading of the Division accurately describes as "withdrawal from amalgamated organisations". A ballot is an essential precondition to the successful process, but a successful process also requires orders pursuant to s 253ZP and perhaps s 253ZV. The fact that two (or perhaps three) applications to the Court need be made does not, in my opinion, detract from the necessity to see the process as a whole. I regard the analogy with applications to the Court in relation to schemes of arrangement under Corporations Law to be useful, and that process involves two applications to the Court - one to convene the meeting or meetings and the other to approve the scheme. Before examining the legislation more closely, I should mention some general considerations, and some of the authorities. 47 It may be immediately recognised that the functions which Div 7A gives to the Court might have been given to a non-judicial body - such as the Industrial Relations Commission as in the case of amalgamations (referred to by Branson J) - but this is by no means fatal to validity. It is now well established that some powers may only be exercised by courts because they are essentially judicial, there are some powers which may not be exercised by courts because they are essentially legislative or administrative, but there are other powers or functions with what has been called a "double aspect" in the sense that they can be seen as either judicial or administrative according to the way in which it is to be exercised: "A function may take its character from that of the tribunal in which it is reposed. Thus, if a function is entrusted to a court, it may be inferred that it is to be exercised judicially; it is otherwise if a function be given to a non-judicial tribunal, for then there is ground for the inference that no exercise of judicial power is involved." (R v Hegarty; ex parte City of Salisbury (1981) 147 CLR 616 at 628) Whilst this approach has been criticised (eg, whatever happened to boilermakers? Pt II, de Meyrick, (1995) 69 ALJ 189), it is solidly entrenched (see, for example, Precision Data Holdings Ltd v Wills (supra) at 188-189; and per Gummow J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 136). 48 An authority which illuminates the present problem is R v Joske; ex parte Shop Distributive & Allied Employees Association (supra). At 209-211 Stephen J said: "Section 171C first of all empowers the Industrial Court, on application made to it, to determine whether "an invalidity has occurred in the management or administration" of an organization or otherwise in specified ways related to its affairs; if so the Court may make such declaration as it thinks fit - subs (1). So far the power conferred is clearly judicial. Then under subs (2)(a) the Court may, if it determines that such an invalidity has occurred, "make such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity, or to validate any act, matter or thing rendered invalid by or as a result of the invalidity"; and before doing so must, under subs (2)(b), "satisfy itself that such an order would not do substantial injustice to the organization or to any member or creditor of the organization or to any person having dealings with the organization". It is upon these two quoted provisions that the prosecutors rely in contending that a grant of non-judicial power is involved. Section 171D(1) empowers the Industrial Court to declare that a part of an organization has ceased to exist or to function effectively or that an office or position in an organization has become vacant, and that no effective means exists under the organization's rules to remedy this. Then subs (2) empowers the Court, having made such a declaration, to approve a scheme "for the taking of action by a collective body of the organization or of a branch of the organization or by an officer or officers of the organization or of a branch of the organization for the reconstitution of the branch or part of the branch, or of the collective body, or to enable it to function effectively, or for the filling of the office or position" (subs(2)) but it must first satisfy itself "that the order would not do substantial injustice to the organization or to any member of the organization" (subs (3)). It is the power to rectify, modify or validate as the Court thinks fit, and the power to determine whether an organization has ceased "to function effectively" and, if so, to sanction a scheme to rectify the position, in each case qualified only by the provision as to substantial injustice, that are particularly seized upon by the prosecutors as revealing in these sections that other than judicial power has been conferred on the Court. These provisions are concerned exclusively with the nature of the remedies open to the Court once it has adjudicated upon matters which have been initiated by a party and the determination of which is an eminently judicial function. The particular nature of an available remedy, at least when it is one not unfamiliar as part of the traditional equipment of courts of law or equity, can seldom be such as of itself to involve a court in a non-judicial function. The power in s 171C(2) to relieve against what otherwise would be the invalidating effect of non-compliance with requirements of the law is a commonplace of our jurisprudence and can scarcely of itself involve any overstepping of the bounds of judicial power. To qualify, by reference to the avoidance of "substantial injustice", the exercise of the wide discretionary power conferred by the words "as it thinks fit" introduces a concept with which courts are familiar and which does nothing to suggest a non-judicial function. By directing attention to the effect of a proposed order upon all those likely to be affected by it the Court is required to have regard to all the circumstances of the case. What was said by members of this Court in Cominos v Cominos is sufficient to answer the present attack upon s 171C(2). I need do no more than refer to what was said in the joint judgment of McTiernan and Menzies JJ and in the judgments of Walsh J, of Gibbs J and of Mason J. My own reasons for judgment express views which I regard as applicable in large measure to the present case. No different considerations appear to me to apply to s 171D; when the Court has made a declaration under subs (1) of that section a situation is disclosed in which some part of a registered organization has ceased to exist or has become moribund; the rules of the organization are found to provide no solution but some efficacious remedy is called for; the traditional response of the law in such a case has been to do very much what subs (2) provides for, to empower the Court to supervise a scheme for reconstitution of the defunct or moribund organization. In the fields of charitable trusts and of companies the same concept has been employed in exercise of power eminently judicial in character. It is said that the reference in s 171D(1) to an organization having ceased "to function effectively" invokes broad considerations of industrial policy such as are referred to in the recitation of the chief objects of the legislation in s 2 of the Act. I regard the reference to effective functioning as much more limited in scope; it is concerned with the performance, by the "part of the organization" which has been found wanting, of its function as such a part. Whether it is, in this sense, functioning effectively is a matter which is entirely within the scope of determination by the exercise of judicial functions. My general observations concerning s 171C apply equally to s 171D. It is for the foregoing reasons that I reject the submission that either of these two sections involves the purported conferring of non-judicial power upon the Industrial Court. I would accordingly discharge the orders nisi applicable to these two proceedings. Mason and Murphy JJ, having set out the effect of s 171C, said (at 215-8): "It involves, so the argument runs, the conferment on the Court of functions which differ markedly from the ascertainment and declaration of existing rights, involving as they do, the making of determinations by reference to criteria not enunciated and the making of orders creating new rights. In addition, it is urged that the concept of "substantial injustice" is so vague as not to lend itself to an exercise of judicial power. These considerations, it seems to us, are not enough to bring us within reach of the conclusion which the prosecutors seek to attain. Many examples are to be found in the exercise of judicial power of orders which alter the rights of the parties or are the source of new rights. Likewise, there are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power (see Cominos v Cominos). It is no objection that the function entrusted to the Court is novel and that the Court cannot in exercising its discretion call in aid standards elaborated and refined in past decision; it is for the Court to develop and elaborate criteria regulating the discretion, having regard to the benefits which may be expected to flow from the making of an order under subs (2)(a) and the impact which such an order will have on the interests of persons who may be affected. In the exercise of judicial power courts are called upon to decide whether particular transactions are invalid or unenforceable under the legislation relating to companies, money-lending and hire-purchase. Likewise they are frequently required to determine whether procedural steps taken in the course of legal proceedings have been validly or regularly taken. In each class of case the courts are empowered to relieve against invalidity, unenforceability or irregularity after having regard to any injustice, prejudice or hardship that may be caused by the making of such an order. This function, so it seems to us, is essentially an exercise of judicial power. Even if this were not so, the exercise of the power to grant relief must be regarded as incidental to the exercise of judicial power which is involved in the determination of the initial issue of invalidity, unenforceability or irregularity. For our part, we can perceive no real difference between these functions and the role thrust upon the Australian Industrial Court by s 171C. The exercise of the power given by s 171C(2), if not itself an exercise of judicial power (which in our opinion it is), is incidental to proceedings for a declaration of invalidity under subs (1) which involves the exercise of such power. It is a significant consideration, as the judgments in Reg v Davison point out, that the function is entrusted to a court, at least in those cases in which the function cannot be clearly classified as administrative in character, and that it is the same as or essentially similar to functions which have hitherto been discharged by courts. To our mind the present case should be distinguished from Reg v Spicer; Ex parte Australian Builders' Labourers' Federation in which s 140 of the Conciliation and Arbitration Act 1904-1956 was held invalid. Here the Court has a jurisdiction vested in it, exercisable on the application of a party; there the Court was given a power to act of its own motion. Here the jurisdiction conferred enables the Court to relieve against invalidity and its consequences, a function frequently undertaken by courts and not essentially dissimilar to that entrusted to courts under the companies, money-lending and hire-purchase legislation; there the power to disallow rules was a power which has been regarded as a non-judicial function. True, it was said in that case that the discretion given by s 140 was not a judicial discretion but was based "wholly on industrial or administrative considerations" (per Dixon CJ) and involved "considerations of industrial policy" (per Taylor J). We do not regard these observations as indicating that the mere requirement that a court take into account considerations of industrial policy in exercising a discretion is of itself enough to stamp that discretion with the character of a non-judicial function. The observations were made in a context in which there were other grounds supporting the conclusion reached by the Court. In the result it may be said of s 171C, as Barwick CJ said of s 143(2) of the Conciliation and Arbitration Act 1904-1973 in Reg v Joske; ex parte Australian Building Construction Employees and Builders' Labourers' Federation, that "The basis for the exercise of the discretion is specifically set out. It clearly partakes of judicial function: the weighing of the gravity of ascertained facts and decision upon the claims of justice." Section 171D(1) enables the Court, on an application made by an organization, a member or any person having a sufficient interest in respect of it, to declare "(a) a part of the organization …has ceased to exist or to function effectively and there are no effective means under the rules of the organization or branch by which it can be reconstituted or enabled to function effectively; or (b) an office or position in the organization or in a branch of the organization is vacant and there are no effective means under the rules of the organization or branch to fill the office or position, …" Sub-section (2) empowers the Court, once a declaration has been made, to "approve a scheme for the taking of action … for the reconstitution of the branch or part of the branch, or of the collective body, or to enable it to function effectively, or for the filling of the office or position". The Court, before making an order, must satisfy itself that the order would not do substantial injustice to the organization or to any member (subs (3)). An order or direction and any action taken in accordance with an order or direction has effect notwithstanding anything in the rules (subs (5)). Much of what we have said in relation to s 171C has equal application to s 171D. There is to our mind nothing in the issues which s 171D(1) poses for decision that is alien to the exercise of judicial power. Such issues of fact as the question whether part of an organization has ceased to exist or to function effectively, whether there are effective means under the rules by which it can be reconstituted or enabled to function effectively, are issues of fact well suited to judicial determination. So also are the issues posed by par (b) of subs (1). The principal point of attack made by the prosecutors was on the power given to the Court by subs (2) to approve a scheme. Yet this is a power which is associated with a jurisdiction to make a declaration under subs (1), a function which we have held to involve the exercise of judicial power. Whether a scheme will or is likely to (a) reconstitute a branch, part of a branch or a collective body, (b) enable any one or more of these entities to function effectively, (c) result in the filling of an office or position or (d) cause substantial injustice to the organization or any member are all issues which are susceptible to judicial determination in the exercise of judicial power, as indeed is the evaluation of the considerations which may be thought to be relevant to the making of an order granting or refusing approval. To the extent to which the argument is an attack on subs (3) it is sufficient for us to reiterate the observations which we have already made in connexion with s 171C(2)(b). Section 171D(1) entrusts to the courts a function similar to that which courts have undertaken in confirming schemes of arrangement under the Companies Act. These schemes often reconstitute the capital structure of a company and readjust the rights of creditors and shareholders. The jurisdiction thereby exercised, it should be acknowledged, involves the exercise of judicial power. Consequently, it is our opinion that the jurisdiction conferred upon the court by s 171D is itself an exercise of judicial power." Barwick CJ had said at 201: "… an attack was made upon the constitutional validity of ss 171C and 171D of the Act. The submitted ground of invalidity was that the sections purported to confer non-judicial power on the Industrial Court. This ground should be rejected because the nature of the relief which the sections authorize is, in no sense, antithetic to the exercise of judicial power: indeed, on the contrary, it is of a kind which in other areas of the law courts are wont to give. I agree with my brother Stephen that the relief which a court is authorized to give consequentially upon its judicial determination of some situation can rarely, if ever, be denied the quality of an exercise of judicial power. I also agree with my brother that the authorized relief cannot, in any case, be regarded as of a non-judicial nature. I agree with his expressed reasons for that conclusion." McTiernan J at 202 said: "Such powers as those sections give to the Court are of a judicial nature or incidental to the exercise of judicial power." 49 The decision of the High Court in Re McJannet; ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620, and the litigation which preceded it, is of interest. The case dealt with amalgamation. The background is sufficiently sketched by the following extract from the judgment of Brennan CJ, Deane and Dawson JJ at 637-8: "The amalgamation day fixed under s 253Q(2) of the Industrial Relations Act 1988 (Cth) for the amalgamation of the ATAEA, the Australian Journalists' Association and Actors' Equity was 18 May 1992. On that day the amalgamation took effect and the amalgamating organisations became de-registered, their members becoming members of the amalgamated organisation, namely, the Alliance. Section 253R provides: "(1) On the amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation. (2) For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day." On 3 June 1992 the Federal Management Committee of the Alliance directed certain officers of "the Queensland Branch of the former Australian Theatrical and Amusement Association (registered in the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees)" to transfer the property of the ATAUE to the Alliance and to discontinue the proceedings in Queensland for its amalgamation with the AWUEQ. Save for handing over some documents and other property which had admittedly belonged to the ATAEA, the officers of the ATAUE did not comply with the direction given by the Federal Management Committee of the Alliance. The Alliance and two individual applicants then sought relief of various kinds in the Federal Court, including a declaration that the Queensland branch of the ATAEA was one and the same as the ATAUE, a declaration that assets held in the name of the ATAUE were assets of the Alliance, a declaration that the amalgamation of the ATAUE and the AWUEQ was void and of no effect and a direction that the assets of the ATAUE be transferred to the Alliance. Relief was also sought against certain officers of the ATAUE. The jurisdiction of the Federal Court was said to be based upon ss 253X and 253ZC of the Commonwealth Industrial Relations Act. Section 253X provides: "(1) The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Subdivision in relation to the amalgamation, are fully effective. (2) The Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to." (emphasis added) Section 253ZC provides: "(1) Where any difficulty arises in relation to the application of this Subdivision to a particular matter, the Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty. (emphasis added) (2) An order made under subsection (1) has effect despite anything contained in this Act or in any other Commonwealth law or any State or Territory law." 50 For reasons which are not relevant to the present matter, their Honours held that the Federal Court had no jurisdiction to make the orders that it had under s 253X or under s 253ZC, and granted prohibition without considering the merits of the matter. Because of the way they approached the matter, Toohey, McHugh and Gummow JJ examined the sections more closely than the other members of the Court. At 657-9 their Honours said: "The proper construction of s 253X will be assisted by consideration of its context, the other provisions of Subdiv F of Div 7 of Pt IX. Section 253R, the text of which has been set out earlier, achieves a transmission of title by operation of law by providing that, of its own force, on the amalgamation day the assets and liabilities of a de-registered organisation become assets and liabilities of the amalgamated organisation. That, however, is not to say that the transmission of title will be fully effective in a legal sense, without the taking of consequential steps. The statute recognises this by making further provision. This includes such matters as deeming to have been given any consent by a third party which is necessary to give effect to the subdivision in any particular respect (s 253W(3)), and obliging registrars of land title systems, the Australian Securities Commission and companies dealing with instruments of transfer of shares and debentures, and other such authorities, to give effect in the relevant registers to the change of title (ss 253Y, 253Z, 253ZA, 253ZB). In these situations, the registering authority is required by the legislation to act upon a certificate signed by an authorised person which states that the amalgamated organisation has, under Subdiv F, become the holder or owner of the asset in question. Further, it will be for the amalgamated organisation to seek to obtain payment, by legal process or otherwise, of moneys owing to it as successor to the de-registered organisation. Pending proceedings are to continue as if the amalgamated organisation were and always had been the de-registered organisation (s 253V). The situation to which s 253X is directed thus is analogous to the duty imposed upon a new trustee to get in all the trust property. This duty includes an obligation to perfect title by, for example, notifying the debtor of assignment of a debt and securing registration as a shareholder. It is by consideration of such matters that one may perceive the content of the expression "fully effective" in s 253X. The section imposes an obligation upon the amalgamated organisation to take steps which are necessary to ensure the full effectiveness of the amalgamation and the operation of Subdiv F in relation to it. That obligation is enforceable by the Federal Court against the amalgamated organisation on the application of "an interested person". The section illustrates the significance of the "double function" referred to by Dixon J in Ex parte Barrett. First, it deals with substantive liabilities and substantive legal relations by imposing upon the amalgamated organisation the requirement that it take the steps referred to in s 253X(1). That is a law made by Parliament. The jurisdiction of the Federal Court is defined in the sense of s 77 of the Constitution by reference to matters arising under s 253X(1). But it is conditioned upon or requires an application of an interested person seeking orders appropriate to ensure that the amalgamated organisation takes the steps referred to in s 253X(1). Contrary to the conclusion reached by Black CJ and Gray J, the moving party may not be the amalgamated organisation for it is the body against which an order is sought. It may well be that a member of the amalgamated organisation, who seeks to have that body take the necessary steps to ensure that the amalgamation is fully effective, would be an interested person. It is not necessary for us to decide the point because in the present case the other condition for jurisdiction under s 253X was not met, namely that the order be against the amalgamated organisation. As we have explained, the amalgamated organisation is the Alliance, not the ATAUE and s 253X(1) could not, relevantly, impose any obligation upon the ATAUE. We turn next to consider s 253ZC. This provision takes as what one might call the substantive element of the law the existence of what might properly be characterised as a "difficulty" which has "arisen" in a particular circumstance, namely "in relation to the application of [Subdiv F] to a particular matter". Jurisdiction is conferred in respect of an application made to the Federal Court by "an interested person". The remedy which may be given is that which the Court considers proper to resolve the difficulty. The section thus is cast in a form appropriate to include the case where the amalgamated organisation has encountered a difficulty in relation to the application of the subdivision in relation to a particular matter. An example would be performance by the relevant title authority of the obligations imposed by ss 253Y, 253Z, 253ZA or 253ZB. The order which the Court may make will have effect, by force of s 253ZC(2), despite anything contained in any other law of the Commonwealth or any State or Territory law.

The jurisdiction of the Federal Court thus is defined by s 253ZC so as to depend upon a particular fact, event or circumstance, namely the existence of a "difficulty". That term is given further content in the section by requiring that it have arisen "in relation to" the application of Subdiv F "to a particular matter". Neither the quoted phrases nor the ordinary meaning of the term "difficulty", as a hindrance to action or something hard to do or to overcome, is narrow in scope. In any given case, further characterisation will be necessary to decide whether what is put forward as a relevant "difficulty" answers that description as a condition of jurisdiction. This is not a case (as was Ex parte Marsh) where the jurisdiction is conditioned merely upon an assertion or claim that there is a "difficulty" which has arisen in relation to the application of Subdiv F to a particular matter.

In order to identify the event or circumstance upon the occurrence or existence of which jurisdiction depends, it will be appropriate in any given controversy to identify the essential event or circumstance without which there is no "difficulty" in relation to the application of Subdiv F to a particular matter. In the present case the existence of a difficulty depended upon whether the ATAUE was or was not part of an organisation, the ATAEA, which, with two other organisations, was amalgamated into the Alliance, pursuant to Subdiv F. If the Federal Court wrongly decided that issue, then, in our view, there was jurisdictional error to attract prohibition under s 75(v) of the Constitution." 51 It will be observed that s 253ZJ in the present Act is indistinguishable from s 253ZC in the 1988 Act considered in Re McJannet (supra). It will also be observed that the role of the Federal Court under that legislation was not to make any order as to amalgamation, but to make orders facilitating the amalgamation. Section 253X served a similar function to the present s 253ZP. If the point has merit here, it had merit there as the legislation is comparable. It does not appear that any point was taken by the respondents at first instance, nor is it noticed by the judge, who had considerable experience in that jurisdiction (McJannet v White (1992) 39 FCR 1). On appeal to the Full Court, the point does not appear to have been argued. However, Northrop J (who dissented in the result on the merits) said: "The second part of s 253ZC empowers the Court "to make such order as it considers proper to resolve the difficulty". Having regard to R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141, this constitutes a valid grant of judicial power. See also Federated Cold Storage & Meat Preserving Employees Union of Australasia; Ex parte Gallagher (1983) 79 FLR 27 per Northrop J at 40-43." (McJannet v White (1994) 48 FCR 453 at 463E) 52 Gray J addressed the question of the jurisdiction of the Court (449G-502F), pointing out that jurisdiction could not be conferred by consent. His Honour found jurisdiction under the then s 253X(2). He raised some issues concerning the then s 253ZC, which he found unnecessary to resolve. 53 The only reference to the point in the High Court was when McHugh J, during the course of argument, said "perhaps the powers in ss 253X and 253ZC are not judicial". In response, counsel (in my opinion, cogently) referred to R v Joske; ex parte Shop Distributive and Allied Employees Association (supra) and nothing more emerged in argument or in the judgments. 54 Then there are other cases which deal with the role of the Court in relation to the elections of registered organisations. Finkelstein J recently described this as "an inquiry, not a proceeding inter partes" (Re Thompson; in the matter of an application for an inquiry relating to an election for an office in the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, Victorian Branch [2000] FCA 745 par 24-26). Similar jurisdiction has been exercised by Ch III Courts regularly after the Boilermakers decision. As long ago as 1961 it was held by Joske J sitting in the Commonwealth Industrial Court (Re Australian Builders' Labourers' Federation (NSW): Leary v The Australian Builders' Labourers' Federation (NSW) (1961) 2 FLR 342 at 343) that inquiries into disputed elections under the then provisions of the Conciliation and Arbitration Act 1904-1960 (Cth) were an exercise of the judicial power of the Commonwealth, applying the principles in R v Commonwealth Industrial Court; ex parte The Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368. Gray J took the same view in Re Application by Adamson for an Election Inquiry in the Amalgamated Metals Foundry and Shipwrights Union (Federal Court of Australia, Gray J, 17 June 1985, unreported) and Re Mellor; re Federated Liquor and Allied Industries Employees Union of Australia, Queensland Branch(1986) 17 IR 398. The Adamson matter went on appeal to the High Court on other issues. 55 The High Court had to consider a similar issue in relation to its own jurisdiction in Sue v Hill (1999) 73 ALJR 1016 and decided that sitting as a Court of Disputed Returns was exercising judicial power (Gleeson CJ, Gummow and Hayne JJ at 657-662, Gaudron J at 684-691). The distinction drawn by Gaudron J between function and process is a useful tool in analysing problems of this type. It is worth noting that the Court did not regard either s 364, which states: "The Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not" or s 360(2) of the Act there in question, which provided: "The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient" as inconsistent with the exercise of judicial power. In relation to the latter section, Gleeson CJ, Gummow and Hayne JJ said at …..: "[45]In the context in which s 360(2) appears in the Act, it does not confer some uncontrolled discretion exercisable by recourse to other than legal norms. Like that considered by Kitto J in R v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section, the discretion involved is "not so indefinite as to be insusceptible of strictly judicial application. Indeed, as Mason and Murphy JJ remarked in R v Joske; Ex parte Shop Distributive and Allied Employees' Association: "[T]here are countless instances of judicial discretions with no specification of the criteria by reference to which they are to be exercised - nevertheless they have been accepted as involving the exercise of judicial power: see Cominos v Cominos." 56 The respondent's submission in the present case was summarised (in a simplified way) as: "In the present circumstances, on its face, the task under Division 7A is clerical and non judicial; the Court is given a discretion to make amendments and take other actions without reference to any specified criteria: the exercise of the discretion is likely to involve policy considerations; and essentially the Court is engaged in a task which simply leads to the holding of a ballot and which does not identify or enforce antecedent rights." 57 Guided by these authorities, and bearing in mind these submissions, I return to the legislation in question. The Court is required to hear and determine an application made to it for an order that a ballot be held. It has no initiating role. An order cannot be made unless the Court is satisfied of the statutory criteria in s 253ZL(1). Those set out in subs (1)(a) and subs (1)(b) are conventional enough. There is an issue in relation to subs (1)(aa) when taken together with s 253JA and, perhaps, ss 253JB, 253JC and s 253JD. 58 It is necessary at the outset to construe the sections. I agree with Branson J: (1) as to the reconciliation of ss 253ZL(aa), 253ZJA(1)(a) and 253ZJA(3); (2) that s 253JA(4) obliges the Court to make an order if it is not satisfied as required, and that any order as to the precise words of any amendments to be made would be within power. I am not convinced that an order would need to take such a precise form. However, I do agree that a general order in the form set out by Branson J would not comply with the section; (3) that s 253ZL(2) gives rise to an obligation upon the Court to ensure that reasonable steps are taken to ensure that persons described in pars (b), (c) and (d) are notified of the application and of the hearing date for the application. I would go further, and hold that it is implicit that any such person might apply to be heard, and should be heard. In my view, any such person could apply to be, and could be, made a party under the ordinary Rules of Court. It was not unusual for a Summons in Equity to not name respondents, or to name limited respondents, and for the Court to order notification to or service upon others who might thereafter be made parties. I agree, however, that no person could be made a party against its will. I do not necessarily agree that (d) should be construed narrowly, although it is not possible, or appropriate, to say more in the absence of actual circumstances. 59 It is important, in considering the foregoing, to remember that Parliament assigned the function in this Division to an established Court with established procedures which, it would be assumed, would apply to the exercise of this jurisdiction, as well as the exercise of other statutory jurisdictions. It is primarily for this reason that I disagree with the conclusion of Branson J that the legislature intended to impose upon the Court an obligation to initiate inquiries to allow it to reach the requisite satisfaction going beyond considering evidence placed before it. Having in mind the way in which the Court goes about its business, it would take very clear words before it would be assumed that Parliament so intended. If this had been the intention, there is no reason why the task would not have been described as an inquiry - cf Div 5 of the same part of the Act dealing with inquiries into elections. 60 There must be an applicant or applicants for the order. The applicant, in addition to making the application, must accompany it with the required outline. The applicant must undertake the burden of satisfying ss 253ZJA(3) and 253ZL(1)(aa) whether or not there is an opponent. According to the ordinary practice of the Court, the application would need to be supported by evidence - initially on affidavit but including, if necessary, oral and documentary evidence obtained on subpoena or otherwise. If there is no opposition, the Court would consider whether that evidence was sufficient. If not, the Court would dismiss the application or adjourn it to enable more evidence to be obtained by the applicant. If there is opposition, then the opponent or opponents would have the opportunity of presenting evidence to counter the applicant's case. At all times the applicant, rather than the Court, is the moving party. If the applicant does not establish that the statutory criteria is satisfied, no order for a ballot will be made. In a case where the problem lies with the form of the outline, there are two possibilities. One is that the court cannot say whether the outline complies with s 253ZJA(3). In that event it will be up to the applicant to adduce further evidence and if it does not, the application will be dismissed. The second situation is where the Court is satisfied that s 253ZJA(3) has not been complied with in a particular respect. In that event the Court must make an order under s 253ZJA(4) to remedy the deficiency. In that connection, the Court can require further drafts to be provided by the parties until a satisfactory form of words is arrived at. There is nothing unusual about the Court making suggestions as to the form of a notice concerning a scheme of arrangement, a notice of meeting or a Part A statement where the form of document is a relevant issue in the proceedings. Indeed, nowadays, it is not unusual for courts to be more pro-active and managerial than in former times. 61 I cannot distinguish the process involved in this from the ordinary judicial process involved in exercising statutory jurisdictions. Unopposed applications of many types spring to mind from family provision (or testators family maintenance) applications, to calling meetings for approval of schemes of arrangement, to winding up or sequestration applications, to applications for dissolution of marriage and property settlements, to variation of restrictive covenants and easements, to applications for relief from invalidity in corporations matters, and all manner of applications by trustees or in relation to trusts, to name a few. In any event, as the cases concerning election inquiries to which I have referred reveal, it is by no means clear that an inquiry by a court is necessarily beyond judicial power. I need not pursue that question because of my view as to the construction of the sections. 62 Furthermore, I cannot see anything in this process which is otherwise antithetical to judicial power. The fact that the Court has no discretion if the statutory conditions are met cannot be so described (Palling v Corfield (1970) 123 CLR 52; Wynbyne v Marshall (1997) 117 NTR 11, 14, 22-26). I cannot agree with the submission of the respondent that the process is a case of "filling in the boxes" such as to be simply clerical or administrative. 63 Further, I do not accept the respondent's submission that the discretions granted by the Division are to be exercised without reference to specified criteria and are likely to involve policy considerations, including industrial considerations. The criteria are spelled out in ss 253ZJA, 253ZJB and 253ZJC and are appropriate for decision by a Chapter III Court. The issues cannot be distinguished in principle from those which arise, for example, in relation to misleading schemes of arrangement (eg Re NRMA Ltd [2000] 33 ACSR 595 (as to convening meetings); Re NRMA Ltd [2000] NSWSC 408 (as to approval of scheme)), to applications for injunctions in relation to notices of meetings either under the general law in accordance with Bulfin v Bebarfalds Ltd (1938) 38 SR(NSW) 423 or s 52 Trade Practices Act 1974 (eg Fraser v NRMA Holdings Ltd (1994) 52 FCR 1 and, on appeal, (1995) 55 FCR 452), in relation to notices concerning corporate takeovers (eg Samic Ltd v Metals Exploration Ltd (1993) 60 SASR 300) and in relation to the sufficiency of environmental impact statements (eg Schaffer Corporation Ltd v Hawkesbury City Council (1992) 77 LGRA 21). The same may be said of s 253ZJB and ZJC. The discretions in s 253ZJD and s 253ZL(4) are purely ancillary. I shall examine s 253ZP later. 64 Is there a problem in relation to the function being performed? The respondent puts that ordering a ballot does not identify or enforce antecedent rights. This submission does not recognise that the statute creates a right and the conditions for the enforcement of it on application to the Court. The fact that the right differs from, for example, a money judgment or other conventional relief after the decision on a prior lis inter partes is not to the point. The same might be said of the right to order corrective advertising or other unorthodox relief pursuant to s 87 of the Trade Practices Act 1974 (Cth). The same, indeed, might be said of the various statutory jurisdictions to which I have referred earlier. It is similar in principle to enforcing a rule of the organisation (cf The Queen v Joske (supra)). I do not believe that ordering a ballot of members of a registered organisation is, in itself, antithetical to judicial power, provided that the process is appropriate. 65 This brings me to s 253ZP. Again, the Court only has a role upon application. In my opinion, it is implicit, because the function is given to a Court, that the jurisdiction would only be exercised on evidence presented to it, in public, and after notice given to interested parties who would be given an opportunity to participate and support or oppose. I am not troubled by the width of the discretions granted by s 253ZP(1)(a) and (c). They are to be exercised having in mind the purpose of the Division, and its other provisions. The discretion in s 253ZP(1)(b) is not as wide as might appear at first glance. In the first place, it is limited to that which is necessary. In the second place, it is limited by subs (2). 66 The task under s 253ZP(1)(b) will, nonetheless, involve the exercise of choice and discretion and is a matter of degree, rather than the application of known fixed rules or a formula. I do not regard that as being different in substance from the moulding of relief in the traditional equitable jurisdiction of the courts or in the grant of statutory remedies such as those under the Trade Practices Act 1974 (Cth). Furthermore, the issues are not very different to those involved in consideration of corporate reconstructions effected by schemes pursuant to corporations law. This is a jurisdiction which has been exercised by traditional courts in the United Kingdom since 1870 in relation to a company in liquidation, and since 1908 in relation to a company not in liquidation, and in Australia since at least 1936. For some years the Federal Court had, and regularly exercised, this jurisdiction, and the High Court has heard appeals in relation to such proceedings, eg, Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485. The current provisions are in Chapter 5 of the Corporations Law, particularly s 411. There are similar provisions in the Co-operatives Act 1992 (NSW). The Court has had a similar jurisdiction in relation to life insurance companies for many years (Life Insurance Act 1995 (Cth) and its predecessor) and has regularly exercised it (eg, Re Armstrong Jones Life Assurance Ltd (1997) 74 FCR 160). 67 It is true that in those cases the Court approves or does not approve what is proposed. However, the nature of the judicial (as opposed to administrative) method would require the applicant constituent part here to propose and justify by evidence and argument in open hearing an apportionment, rather than leave it to the Court to work it out for itself. If there were any opposition, then those opposing would be expected to propose and seek an alternate apportionment. This illustrates quite well a "double aspect" function. It would be expected that an administrator would carry out the task in s 253ZP(1)(b) quite differently to a court. The duty to afford natural justice does not equate administrative decision-making with the judicial process. Thus, the legislature's choice of the repository of the function will fundamentally affect the manner in which the function is performed. It is of interest to note that s 20 of the Local Government Act 1919 (NSW) (now repealed), which dealt with the adjustment of local government boundaries, provided that in default of agreement on apportionment of assets etc between the areas affected: "… any Council or creditor may … submit the matter of making an equitable arrangement to a District Court Judge, who may summon witnesses, hear evidence, and determine the matter, and make an arrangement which shall be final and shall be embodied in a proclamation" (s 20(6)) The present context is more clearly judicial, as the order of the Court operates of its own force. 68 There is, however, a question as to whether the nature of the function which the Court is to play pursuant to s 253ZP is antithetical to the judicial role because of the mandatory nature of it. The Court has no role in sanctioning or approving the withdrawal. It is bound to determine a day on which the withdrawal is to take effect once the necessary majority of roles is established. The respondent would categorise this as "ticking the box". On one view, the function of the Court is simply to facilitate a transaction which the legislation has sanctioned. This could be seen as essentially administrative. The evil would be that the imprimatur of the Court would be given to a transaction and ancillary matters with which it has no judicial association. In the case of schemes of arrangement, the Court does retain a discretion in relation to approval even if the meetings have voted in favour. Although this would not often be exercised, the Court is not a mere rubber stamp (In re Alabama, New Orleans, Texas & Pacific Junction Railway Company [1891] 1 Ch 213; In re NRMA Ltd [2000] NSWSC 408; Re Hudson Conway Ltd (2000) 33 ACSR 657). 69 Another way of raising the issue is to ask whether the legislation involves the performance of non-judicial functions of such a nature that public confidence in the integrity of the judiciary as an institution is diminished - Grollo v Palmer (1995) 184 CLR 348 at 364-5; Kable v Director of Public Prosecutions (NSW) (supra) at 107-8, 118-9, 132-4. 70 I cannot see this legislation in that light. The policy reflected by it is that withdrawal from amalgamation should be facilitated in a way that is fair to members and creditors if a majority of constituent members vote accordingly. The role given to the Court in that process is, firstly, to ensure that the process is initiated in accordance with the legislation, secondly, to ensure that appropriate information is given to members to enable them to vote in an informed fashion, thirdly, to assist in ensuring that the ballot is properly conducted, fourthly, if there is the statutory majority, to ensure a timely and appropriate withdrawal, including a proper division of assets, liabilities between organisations and, lastly, to resolve difficulties which emerge, where necessary. I do not regard this as constituting the Court handmaiden of the legislature or the executive, or as causing the Court to act for purposes or in a manner antithetical to the proper exercise of the judicial power of the Commonwealth. 71 I would answer the question in the special case "yes", and order that the costs of the special case be reserved and dealt with as costs of the proceedings in the discretion of the primary judge. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Counsel for the Applicant: SC Rothman SC

Solicitor for the Applicant: Geoffrey Edward & Co

Counsel for the Respondent: WR Haylen QC and JH Pearce

Solicitor for the Respondent: Taylor & Scott

Counsel for Commonwealth Attorney General: H Burmester QC and KL Eastman

Solicitor for Commonwealth Attorney General: Australian Government Solicitor

Date of Hearing: 24 May 2000

Date of Judgment: 21 December 2000