KIEFEL J:
14 The applicant, the Victorian Principals Federation ("the VPF") seeks orders including one setting aside the decision of the Full Bench of the Industrial Relations Commission made on 8 June 2001 refusing to register the VPF as an organisation of employees pursuant to the Workplace Relations Act 1996 (Cth)("the Act"). The matter has been remitted to this Court by the High Court of Australia.
15 The VPF was formed at a meeting on 13 February 1998. It was not in dispute in the Commission hearings that it sought to carry forward the work of a body also known by that name, which had been established in 1993. Indeed for some purposes, it placed reliance upon that history.
16 On 16 November 1999 Senior Deputy President Williams granted registration to the VPF after a lengthy hearing in which considerable evidence had been given and directed in the main to the criteria for registration in subs 189(1) of the Act. That subsection provides:
"(1) A designated Presidential Member shall grant an application for registration made by an association (other than an enterprise association) that, under section 188, may apply for registration as an organisation if, and only if:
(a) the association:
(i) is a genuine association of a kind referred to in section 188; and
(ii) is an association for furthering or protecting the interests of its members; and
(aa) in the case of an association of employees - the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and
(b) in the case of an association of employers - the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and
(c) in the case of an association of employees - the association has at least 50 members who are employees; and
(d) the designated Presidential Member is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act; and
(e) the rules of the association make provision as required by this Act to be made by the rules of organisations; and
(f) the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and
(g) a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and
(h) the registration of the association would further the objects of this Act; and
(j) subject to subsection (2), there is no organisation to which members of the association might belong, or, if there is such an organisation, it is not an organisation:
(i) to which the members of the association could more conveniently belong; and
(ii) that would more effectively represent those members."
Section 189(5) provides:
"(5) In applying paragraph (1)(d) or (4)(d), the designated Presidential Member must have regard to whether any recent conduct by the association or its members would have provided grounds for an application under section 294 had the association been registered when the conduct occurred."
17 There were other issues before the Commission, including that involving the proper characterisation of the Association, but they are not relevant to this application. There was evidence before the Senior Deputy President concerning the relationship between the body ("the old VPF" as it came to be called in the proceedings) and other professional associations and its relationship with the employer, the Department of Schools and Education ("the DSE"). The issue that evidence was directed to was the VPF's level of independence. The evidence also addressed the level of representation provided by the VPF for its members and its ability to resolve disputes and represent them. It is by reference to these questions that the Senior Deputy President made express findings, as to the criteria in subs 189(1), which favoured of a grant of registration. It is not necessary for present purposes to set them out in detail. By its reasons of 19 July 2000 the Full Bench of the Commission concluded that the Senior Deputy President had not had regard to the requirements of subs 189(5), as he was bound to do, but confirmed the correctness of the decision in other respects. The matter was then adjourned to permit further submissions to be put forward on the appeal.
18 On 25 August 2000 the Full Bench continued to hear the appeal. The decision in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194had been handed down in the interim. The Full Bench proceeded with the appeal by way of re-hearing, error having earlier been found in the Senior Deputy President's decision, and in so doing it admitted further evidence tendered by the sole opponent to registration, the Australian Education Union ("the AEU"). The evidence was said to reinforce the AEU's submissions that the Senior Deputy President's decision with respect to a number of the criteria in subs 189(1) were erroneous.
19 The further evidence was described by the Full Bench as primarily comprising documents relating to dealings between the DSE and other associations and the predecessors of the VPF. There were eighty-six such documents. The AEU also tendered a large folder containing transcript from previous proceedings, and decisions of the Commission in relation to a number of cases involving the AEU and the employer, the DSE, between 1992 and 1998. In connexion with that evidence the Full Bench identified the formation of the VPF at the meeting in February 1998 and the fact that it had predecessors, not only the VPF but also the Federation of Victorian School Administrators ("the FVSA") and the Federation of Victorian Principals Association ("the FVPA") and two other associations with which it had close connexions.
20 The Full Bench then made reference to the contents of nine documents dating between 26 May 1993 and 24 June 1993 which concerned the payment of monies by the DSE to the Chairman of the old VPF. By reference to those documents "in particular" and to "the transcript of various proceedings before the Commission" the AEU contended that the VPF had purported to portray itself as being independent of the employer in the various proceedings, whereas the documents showed that it was being reimbursed for appearing on the DSE's behalf. The VPF sought to explain the various letters and memoranda by reference to the identification of the extent of the interests of each of the VPF, and the DSE in the Commission proceedings. It was not conceded that the documents disclosed a payment for services, as alleged. The VPF did not call any evidence by way of further explanation.
21 It may be conveniently added here that the additional evidence put forward by the AEU and its contentions ranged beyond those discussed by the Full Bench. It was not however suggested that any of those other documents favoured the VPF, or in some way impacted upon the findings the Full Bench went on to make. The VPF's complaint concerning the consideration by the Full Bench of the evidence generally is that it failed to have regard to the evidence which had earlier been admitted in the Commission hearing.
22 The Full Bench turned first to consider the question whether any recent conduct by the VPF could have provided grounds, under s 294 of the Act, for cancellation of registration, had the VPF been registered. It will be recalled that it was this question which the Senior Deputy President was said not to have addressed. The Full Bench found that found there was no such recent conduct, which it took to be that conduct occurring since 13 February 1998, and answered the question in the VPF's favour.
23 In connexion with the criteria in subs 189(1), which it considered in light of the further evidence, the Full Bench observed at the outset that it was incumbent upon the VPF to satisfy it of each of the criteria in the subsection. It failed to do so at least with respect to the criteria in paras (a) and (aa) of the subsection. In relation to the first-mentioned paragraph the Full Bench referred to the Senior Deputy President's findings, which accepted the VPF's "working relationship" with the then Government and its reluctance to undertake industrial action as explicable and not as preventing it from being given as a genuine industrial association. It expressed agreement with them. Importantly, however, it considered that the further evidence:
"… shows more than that the old VPF was taking a different approach from the AEU and had a working relationship with the Government (that is, the employer). The further evidence, in the absence of any evidence in response, shows, we think, that the old VPF acted on behalf of the employer in making submissions to the Commission and accepted payment (the $8,500) for the legal fees it had incurred in so doing. This conclusion prevents us from being able to form the view that the VPF, having relied so substantially on its predecessors, is "a genuine association" or "an association for furthering or protecting the interests of its Members"."
24 In relation to the criterion in para (aa), the Full Bench was again of the view that the further evidence showed to the contrary of the findings of the Senior Deputy President. He had expressed satisfaction that the VPF was free from control by, or the improper influence of, any employer. In the view of the Full Bench, in the period 1992 to 1993, the VPF was not free from that control. It acknowledged however that there was a change of Government in October 1999 and that was after the evidence had been taken in the proceedings below. Addressing that question, the Full Bench said:
"The failure by VPF to call evidence in the proceedings before us leaves us with no information as to the current relationship between the VPF and the employer. In this circumstance we can act only on the basis of the evidence before Williams SDP and the further evidence of the AEU. On the basis of the further evidence, we are of the view that the criterion in s 189(1)(aa) has not been met."
25 The conclusions reached by the Full Bench involved two processes which are the subject of this application. The findings about the actions of the old VPF were based upon inferences drawn from the documentary evidence, assisted by reference to the approach referred to in Jones v Dunkel (1958) 101 CLR 298. The second process involved its taking into account the events which took place mostly in 1993 as relevant to the questions before it about the VPF, the applicant for registration.
26 With respect to the documents concerning the payment of the sum of $8500 to the old VPF the AEU had contended that that body appeared in Commission proceedings at the behest of, and on behalf of, the employer and that in those proceedings the old VPF falsely portrayed itself as independent of the employer. The Full Bench said that the "contentions may not be correct" but went on:
"But, to paraphrase the words of Kitto J in Jones v Dunkel, any inference favourable to the AEU for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness for the VPF and the evidence provides no sufficient explanation of his or her absence.
In the absence of evidence in response from the VPF, we are persuaded to accept the inferences contended for by the AEU rather than those contended for by the VPF."
27 The Full Bench then turned to consider whether the events were "of such antiquity that they should not be held against the VPF", in particular because it was not formed until 13 February 1998. The VPF in its case before the Senior Deputy President, had however relied upon the old VPF. It had claimed to be its successor, at least for industrial relations purposes, and indeed the "successor to a series of other associations". The Senior Deputy President had found on the evidence that "the VPF is the evolutionary development of an industrial association for members of the principal class and that it can validly lay claim to being the industrial successor to the professional association, the FVSA and the old VPF." It was entitled to rely upon the "track record" of its predecessors, the Senior Deputy President had considered. In the VPF's written submissions on the hearing before the Senior Deputy President, which were tendered by the AEU on the appeal, the following references were included:
"Para 9 'The Applicant VPF has resolved to carry forward the work of the old VPF in response to the decision of the old VPF Council that its work and functions should be carried forward by the Applicant VPF.'
Para 10 'The Applicant is able to trace its history back to the Federation of Victorian Principals Associations in 1976.'
Para 14 'The Applicant association and its predecessors VPF and FVSA have a sustained record of industrial activity and recognition.'
Para 15 'The record and activity of the Applicant VPF and its predecessors illustrates that the registration of the Applicant would, in effect, be the maintenance of the status quo. The VPF and its predecessors have long represented the industrial interests of Principals and Assistant Principals. They have participated in the relevant industrial forums and have consistently represented the interests of their members with the employer.'
Para 25 'Looking further back into the history of VPF, it is clear that both FVSA and VPF have had substantial membership and a record of industrial activity.'
Para 123 'The evidence before the Commission indicates that the predecessors to the VPF have participated as industrial associations in the former Victorian Industrial Relations System. There is no evidence to indicate that the applicant's predecessors failed to participate responsibly in that system.'
Para 169 Reference to the increase in membership from 1991 to 1998: 'the increase in membership in the period is a fair indication of employee preference over time.'"
28 After setting out those submissions the Full Bench expressed the following view:
"When we take into account this reliance by the VPF on its predecessors, we do not think we can treat the further evidence called by the AEU as of such antiquity that we can now disregard it."
It concluded that the VPF had failed to establish the criteria specified in subs 189(1)(a): "When regard is had to the further evidence, to the VPF's reliance on its predecessors and to the VPF's failure to call evidence in response …" . The further evidence was also utilised to determine the question under subs (1)(aa).
29 The VPF had two principal contentions on this application. It submitted that the conclusion that it was not a genuine association, or one free from the influence of others, was not open merely by reference to the fact that one party had paid another's legal costs. Additionally, it was contended that, in coming to this conclusion, the Full Bench had not approached the criteria in question in subs 189(1)(a) and (aa) correctly and by misunderstanding the nature of the opinion it was required to form. It was further submitted that the Full Bench failed to take into account other evidence which showed that the VPF was an association of the kind which fulfilled those criteria. The reference to other evidence was, as earlier mentioned, to evidence admitted in the proceedings before the Senior Deputy President and forming part of the material before the Full Bench. In each respect, necessarily, it was submitted that the error on the part of the Full Bench was one of law and amounted to jurisdictional error, such as would found the relief sought.
30 In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, 171, Lord Reid described what amounted to jurisdictional error on the part of a Tribunal:
"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the Tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."
31 A substantial part of this passage was relied upon in Craig v South Australia (1995) 184 CLR 163in support of a submission that an inferior court commits jurisdictional error when it addresses the wrong issue or asks itself the wrong question. The High Court (at 178-179) did not consider that Lord Reid's comments applied to an inferior court for the purpose of certiorari. A distinction was to be drawn between such a court and a tribunal. It went on (at 179):
"At least in the absence of a contrary intent in the statute or other instrument which established it, an administrative tribunal lacks authority either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law. That point was made by Lord Diplock in In re Racal Communications Ltd [[1981] AC 374 at 383]:
'Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so.'
The position is, of course, a fortiori in this country where constitutional limitations arising from the doctrine of the separation of judicial and executive powers may preclude legislative competence to confer judicial power upon an administrative tribunal. If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."
32 I do not consider that the High Court is to be understood as suggesting that any error of law on the part of a tribunal will suffice for jurisdictional error. That is to say, the distinction between jurisdictional and non-jurisdictional error on the part of the Tribunal has not been removed: see per Wilcox and Madgwick JJ in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317, 340-341 [68]. The maintenance of the distinction may be inferred from the apparent approval of Lord Reid's speech with respect to tribunals. The context in which the Court was speaking in Craig's case is of importance. As Finkelstein J pointed out in Edwards v Justice Giudice (1999) 94 FCR 561, 590 [106], in Craig's case the High Court was indicating that, absent a clear intention to the contrary, administrative tribunals established by statute do not have jurisdiction to break the law. Indeed, it is unlikely that Parliament intended them to make final determinations on questions of law. The distinction between jurisdictional error and a "mere error of law" is maintained, the latter being one which has been arrived at on an issue that has been entrusted to the inferior court or tribunal to decide for itself, even if its decision is wrong: Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369, 391-2. This approach would appear to be consistent with the later decision of the High Court in Coal and Allied Operations Pty Ltd, 208 [31]:
"There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council [(1947 47 SR(NSW) 416 at 420], it "misunder[stood] the nature of [its] jurisdiction … or 'misconceive[d] its duty' [Referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243] or '[failed] to apply itself to the question which [s 45 of the Act] prescribes' [Referring to R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242-243] …. or '[misunderstood] the nature of the opinion which it [was] to form' [Referring to R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432]". The Full Bench did none of those things.
In his reasons for decision, Giudice J proceeded on the basis that the Full Bench could intervene only if there was error on the part of Boulton J. In this his Honour was correct. Giudice J held that there was error on the part of Boulton J. If he was wrong in that view (a matter upon which it is unnecessary to express an opinion), that was an error within jurisdiction not an error as to the nature of the jurisdiction which the Full Bench was required to exercise under s 45 of the Act. Accordingly, it was not an error in respect of which relief could be granted by way of prohibition or mandamus under s 75(v) of the Constitution."
33 The second of the principal submissions for the VPF falls to be determined, on one view, by reference to the nature of the error said to have been made by the Full Bench, and it is convenient to deal with it first.
34 The VPF contended that the Full Bench was obliged to have regard to all relevant material. The difficulty with that argument, generally, is that failure to take into account all evidence which is relevant, in an evidentiary sense, does not amount to jurisdictional error. The submission confuses the requirement that an administrative decision-maker have regard to that which the statute makes relevant and renders necessary to be considered. It was in that sense that Lord Reid spoke in the passage referred to above from Anisminic and the High Court in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 40-1. The reference in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, upon which the VPF placed reliance, that a ground for judicial review which involved jurisdictional error is made out if it "ignores relevant material" should not be read out of context. It does not seem to me that their Honours were departing from previous statements about jurisdictional error and errors within jurisdiction. In particular the ground relied upon is qualified by their Honours. They do not refer to every occasion when relevant material is ignored by a tribunal as sufficient, but only when it "affects the exercise of its powers". The following is the passage in question at [84] (from the judgment of McHugh, Gummow and Hayne JJ):
"No doubt it must be recognised that the ground stated in para (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which para (e) deals. That having been said, the addition of the qualification to para (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out."
35 It is possible, as the passage from Yusuf makes plain, that a Tribunal fails to consider evidence because it misapprehends the question that it is addressing. Indeed in this case the "relevant considerations" were the criteria in s 189 and the other sections to which they refer. It is clear however that the Full Bench was addressing these questions.
36 Constitutional relief might also be granted where a tribunal sets its face against a body of evidence put forward by a party. This would be a very rare occurrence. Relief would be granted on the basis that it has actually failed to undertake its duty. In such a situation mandamus would lie, but such an order is not sought here. The applicant seeks to quash the decision for error.
37 The VPF's complaint is in reality that the Full Bench failed to weigh the evidence it had earlier adduced against the view it took of the evidence as to the payment. This appears from the terms of certain of its submissions and from the nature of the evidence it identified, which was said to show how the VPF had developed as an association, how the personnel had changed and how people in positions of leadership had adopted different approaches in recent times. Nevertheless if it did fail to properly weigh the evidence this would not amount to jurisdictional error. It would be one within jurisdiction, one which occurred in the process of fact-finding so as to answer the questions posed by the statute. It does not seem to me, in any event, that the Full Bench failed to understand the nature of the evidence or failed to consider it, a matter to which I shall shortly return.
38 Another contention put by the VPF also falls into this category. It was submitted that the Full bench was required to address the VPF's material because the relevant questions under pars (a) and (aa) of subs 189(1) were as to whether the VPF "is" an association of a particular kind. That imports currency. On first consideration it might be thought that error of the requisite kind was involved, because the Full Bench had regard to the wrong question, namely whether the old VPF had been such an association. The Full Bench however went further and satisfied itself that that evidence was relevant to the current position of the VPF. It did not fail to address the correct question. The VPF's submission, properly understood, is simply that the earlier conduct should not have been determinative of the questions. If there was error with regard to the evidence it would not amount to jurisdictional error.
39 In the course of its argument the VPF referred to the criteria in subs 189(1) as "jurisdictional facts". It was said to follow that any errors committed with respect to them were of necessity errors going to jurisdiction.
40 The VPF's contention refers to the situation where legislation has provided that a Tribunal formed an opinion as to the existence of a fact upon which its jurisdiction and its powers depart. This may be distinguished from the position where an error is said to arise in connexion with the task given to it by the Act: R v Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service (1951) 82 CLR 177, 186; Parisienne Basket Shoes v Whyte, 391-392. This case falls within the latter description.
41 The Senior Deputy President had been satisfied, by reference to the evidence, that the relative inactivity of the old VPF was explained by reference to the different view it took of industrial relations and how to achieve success. It may also have compromised its position at times but the Senior Deputy President accepted that this did not mean it lacked control or suffered from influence from any employer. The Full Bench said that it accepted that these findings were open on the evidence before the Senior Deputy President. This itself shows that it understood the finding and the evidence upon which it was based, even if it was stated shortly. In its conclusion it also stated specifically that it had come to its conclusion on the basis of the evidence before the Senior Deputy President and the new evidence before it.