Linett v Australian Education Union

WILCOX J: 1 This application for prerogative relief was remitted to this Court by the High Court of Australia pursuant to s 44 of the Judiciary Act 1903. 2 The applicant, the Victorian Principals Federation ("the VPF") challenged a decision of a Full Bench of the Australian Industrial Relations Commission. The members of the Full Bench constitute the first respondent to this proceeding. The Full Bench rejected an application for registration of the VPF, under the Workplace Relations Act 1996 ("the Act"), as an organisation of employees, The Australian Education Union ("AEU"), a registered organisation that opposed the VPF's application for registration, is the second respondent to this proceeding. 3 At the conclusion of argument, on 12 February 2002, the Court announced that the application would be dismissed and reasons would be provided at a later date. Counsel for the AEU raised the possibility of his client applying for a costs order, despite the terms of s 347 of the Act. The Court reserved leave to his client to make an application by written submissions to be provided within 21 days. No such application has been made. 4 The Court's remaining duty is to provide its reasons for dismissing the application. My task has been facilitated by reading in draft form the judgment of Kiefel J. Her Honour makes extensive reference to the history of the matter and the reasons for the relevant decision of the Full Bench, given on 8 June 2001. I need not repeat her account. 5 As will be apparent from the judgment of Kiefel J, there was debate in the present proceeding as to whether any error of law that might have been committed by the Full Bench was one of a jurisdictional or non-jurisdictional character. Indeed, there was debate as to whether the distinction between these two types of error had been effectively abolished by the High Court in Craig v South Australia (1995) 184 CLR 163. I do not think the distinction was abolished in Craig, at least insofar as administrative tribunals are concerned. In conjunction with Madgwick J, I discussed this question in Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission (1999) 93 FCR 317 at 339-341. The High Court's subsequent decisions, in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 194 CLR 194 and Minister for Immigration and Multicultural Affairs v Yusuf [2001] FCA 30; 180 ALR 1, do not affect what we said. I adhere to it. 6 However, in my opinion, the distinction between jurisdictional and non-jurisdictional error of law has no significance in the present case. The applicant has failed to demonstrate the Full Bench fell into any error of law. 7 In considering the decision of the Full Bench, it is important to note it was, and always had been, common ground that, in considering VPF's application for registration as an organisation, the Commission was entitled to take into account its connection with an earlier organisation, also called "Victorian Principals Federation" ("the old VPF"), and the conduct and relationships of that organisation. This was because the applicant ("the new VPF") relied upon the record of the old VPF, and an even earlier predecessor, the Federation of Victorian Principal Associations, as a positive feature of its claim for registration. 8 As counsel for the VPF recognised, it followed from the position taken by his client before the Commission, in respect of earlier organisations, that it was not erroneous in point of law for the Commission to investigate, and weigh, the conduct and relationships of those organisations, at least to the extent they cast light on the issues raised for the applicant organisation by paras (a) and (aa) of the s 189(1) of the Act. No argument was put to us that the Full Bench of the Commission erred in law because it took into account irrelevant matters. 9 It is also important to note that no submission, arising out of the date of the old VPF's conduct, was made to us. The most significant items of the additional evidence related to events that occurred as long ago as 1992-1994. The Full Bench appreciated this. The Full Bench said it had considered "whether the events are of such antiquity that they should not be held against the VPF", which was not formed until 13 February 1998. For reasons that it gave, the Full Bench thought it was appropriate to take these events into account, despite their age. The Full Bench's reasoning included application of the principle in Jones v Dunkel (1959) 101 CLR 298; but no complaint was made to us about that. 10 As Kiefel J has recorded, the argument for the VPF in this Court was put in various ways. However, it boiled down to a single proposition: the Full Bench failed to give consideration to the evidentiary material that was tendered to, and considered by, Senior Deputy President Williams. As was common ground before us, this material was also before the Full Bench and ought to have been considered by it. But counsel for the applicant claimed this material was disregarded by the Full Bench; the Full Bench allowed itself to become fixated on the fresh evidence tendered to it and ignored the evidence seen by Senior Deputy President Williams. 11 I do not think this criticism can be sustained. It is true the Full Bench did not describe, summarise or analyse the considerable body of evidence tendered to Senior Deputy President Williams. The Full Bench apparently thought this to be unnecessary. At para 47 of their reasons, the members of the Full Bench said: "We next turn to the conclusions Williams SDP reached with respect to the criteria in paragraphs (a), (aa), (h) and (j) of s.189(1). In our view, these conclusions were open to his Honour on the evidence before him. However, in the light of the further evidence admitted on appeal (which, of course, was not before his Honour) we have come to the conclusion that the criteria in at least paragraphs (a) and (aa) of s.189(1) have not been met." In other words, the Full Bench accepted that the evidence before Senior Deputy President Williams indicated the applicant met the requirements of paras (a) and (aa) of s 189(1); however, the fresh evidence indicated otherwise. 12 Once it is recognised that the Full Bench accepted the findings of Senior Deputy President Williams in relation to the evidence before him, it cannot be maintained that the Full Bench left this material out of account. In accepting the findings of Senior Deputy President Williams, it not only took the material into account; it gave weight to it. The problem, from the applicant's point of view, was that the Full Bench thought the additional material worthy of greater weight. Weight was a matter for the Full Bench to determine. Provided a tribunal takes into account the whole of the relevant evidence, attribution of weight does not give rise to any error of law. 13 I see no legal error in the decision of the Full Bench. It was because I was of that opinion on 12 February 2002 that I joined in the order of the Court dismissing the application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

BETWEEN: EX PARTE: IAN LINETT AND ANNE COUGHLIN AND THE VICTORIAN PRINCIPALS FEDERATION

AND: THE HONOURABLE VICE PRESIDENT McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH FOR THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

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.

42 The findings of the Full Bench on the events of 1992/93 did not require express findings by it as to the balance of the evidence. It was not suggested by the VPF that any of the evidence it relied upon bore directly upon the issue the Full Bench was considering with respect to the payment. In the way in which the Full Bench approached the matter, absent any further explanation, evidence of that conduct provided an explanation for the very matters which the Senior Deputy President had considered, but now the evidence painted a different picture and led to a different conclusion.

43 It may be accepted that more than one inference was open to the Full Bench. It might have accepted the VPF's contention that the old VPF had its own reasons for appearing in the Commission and making submissions and that this did not necessarily mean that it was the representative of the employer. The difficulty the Full Bench obviously considered that it faced, was that it did not explain the payment which was said to be a reimbursement to the VPF president for his "IRC deliberations on behalf of DSE"; nor the reference to the possibility of creating a "service agreement" in connexion with the payment. Even more strikingly, at one point, the payment is referred to VPF's "significant legal costs whilst acting on behalf of the DSE at the AIRC". At another point in the documents it appeared that the DSE was advising the VPF about what it should do in the proceedings. The focus of the Full Bench upon these documents reflected the AEU's contentions.

44 When it came to consider the allegations made by the AEU in connexion with these documents, it observed that they "may not be correct". It then proceeded to draw the inference upon the basis referred to in Jones v Dunkel. I do not however understand the Full Bench to be saying that it doubted that an inference could properly be drawn. Rather, it was saying that the truth may be otherwise but, importantly, the VPF was not providing contradictory evidence.

45 The application by the VPF is based on complaints concerning the fact-finding process employed by the Full Bench. Jurisdictional error, such as would ground the relief sought, is not shown.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

BETWEEN: EX PARTE: IAN LINETT AND ANNE COUGHLIN AND THE VICTORIAN PRINCIPALS FEDERATIONS

AND: THE HONOURABLE VICE PRESIDENT McINTYRE, THE HONOURABLE SENIOR DEPUTY PRESIDENT DUNCAN AND THE HONOURABLE COMMISSIONER DEEGAN AS MEMBERS OF A FULL BENCH FOR THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION AND THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

MARSHALL J 47 In this matter the applicants seek constitutional relief in respect of a decision of a Full Bench of the Australian Industrial Relations Commission ("the Commission") to refuse to register the Victorian Principals Federation ("the VPF") as an organisation of employees pursuant to the Workplace Relations Act 1996 (Cth) ("the Act"). The application made to the High Court of Australia was remitted by Hayne J to this Court on 23 August 2001. 48 On 12 February 2002, the Court informed the parties that it was of the view that the application should be dismissed. An order was made to that effect. What follows are the reasons for my concurrence in the making of that order.

Factual background to the application 49 On 13 February 1998, the VPF was formed in part to carry on the work of another body, also known as the Victorian Principals Federation ("the old VPF"), and to achieve federal registration under the Act. The old VPF was established in 1993. 50 A general meeting of the VPF was held on 13 March 1998, at which it was noted that the Council of the old VPF had resolved that same day as follows: "Council noting the report of the President on the recent establishment of the Victorian Principals Federation resolves that the work and functions of this body should be carried forward by the Victorian Principals Federation established on 13 February 1998. Council, further, gives and assigns all of its entitlements to any assets or rights together with any liabilities to the established Victorian Principals Federation. Council further resolves that no day be fixed for the next meeting of Council."

51 The minutes of the VPF meeting on 13 March 1998 record that:

Motion: 'This general meeting resolves that the Victorian Principals Federation carry forward the work of the body previously known by that name.' Michael Small: Southern Cross PS/Ray Heathcote: Mt Eliza PS Carried unanimously." 52 On 16 March 1998, an application was lodged in the Commission for the registration of the VPF. The application was heard by Senior Deputy President Williams in late 1998 and early 1999. The Australian Education Union ("AEU") was the sole objector to the application. 53 On 16 November 1999, Williams SDP issued a decision granting registration to the VPF ("the decision of Williams SDP"). 54 Subsequently, the AEU lodged an application for leave to appeal pursuant to s 45 of the Act. As a result, the decision of Williams SDP was stayed by Vice President McIntyre. 55 The application for leave to appeal was heard by a Full Bench of the Commission (McIntyre VP, Duncan DP and Deegan C) on 6, 7 and 8 June 2000. In its reasons for decision dated 19 July 2000 ("the first Full Bench decision"), the Full Bench identified certain errors in the decision of Williams SDP. Rather than making an order disposing of the application before it, however, the Full Bench listed "the appeal" for further submissions.

56 Further hearings occurred before the Full Bench on various days between August 2000 and March 2001. On 8 June 2001, the Full Bench published its reasons for decision ("the second Full Bench decision") which quashed the decision of Williams SDP and dismissed the application for registration. The second Full Bench decision is now the subject of the instant application for constitutional relief.

(i) The decision of Williams SDP 57 The following material pertinent points were made in the decision of Williams SDP: · The VPF is "the evolutionary development of an industrial association for members of the principal class". · The VPF is the "industrial successor" to the old VPF. · Persons eligible for membership of the VPF may be employed by school councils as well as by the State of Victoria. · The VPF is a genuine association which acts in what it perceives to be the best interests of its members. · The VPF is an association "for furthering or protecting the interests of its members". · The "State of Victoria, through the Department of Education (the DOE) as an employer of members of the principal class, either directly or indirectly through the professional associations, has the capacity to control or improperly influence the VPF". · The VPF and its predecessors, including the old VPF, had different policies to those of the AEU, but that "does not mean that [the VPF] is under the control of or is improperly influenced by external elements, let alone the DOE". · The VPF "is free from control by, or improper influence from, any employer." · The descriptions contained in s 188 of the Act of the associations of employees that may apply for registration are not mutually exclusive. It is a matter of choice for the relevant association to apply under s 189(1) or s 189(4) of the Act.

(ii) The first Full Bench decision 58 The following material pertinent points were made in the first Full Bench decision: · The VPF is not an enterprise association because the business of providing State education in Victoria is not carried out by a single employer - "There is one predominant employer, the State of Victoria, but there is also a number of relatively small employers, namely, school councils established and operating under the Education Act." · Section 189(1) of the Act provided the criteria which applied to the VPF as an association ("other than an enterprise association") when applying for registration. · The decision at first instance failed to have regard to s 189(5) of the Act in that it did not consider whether there was any recent conduct by the VPF or its members which would have provided grounds for an application for deregistration of the VPF had it been registered when any such conduct occurred. (iii) The second Full Bench decision

59 The following material pertinent points were made in the second Full Bench decision: · There was no recent conduct by the VPF or its members which would have provided grounds for an application for deregistration of the VPF had it been registered. Accordingly the requirements of s 189(5) were satisfied.

· The conclusions of Williams SDP regarding s 189(1)(a) and (aa), inter alia, were open to his Honour on the evidence before him. Section 189(1)(a) deals with the criterion that an association applying for registration must be a genuine one and one "for furthering or protecting the interests of its members". Section 189(1)(aa) deals with the criterion that an association of employees be "free from control by, or improper influence from, an employer…".

· Further evidence was tendered by the AEU but no additional evidence was tendered by the VPF.

· In the absence of evidence in response to such further evidence the Full Bench accepted the inferences contended by the AEU to arise from the additional evidence.

· The Full Bench noted the VPF's reliance on the industrial activities of its predecessors but reached the conclusion, based on the unchallenged new evidence, that the VPF had failed to establish that it was a genuine association or an association for furthering or protecting the interests of its members as referred to in s 189(1)(a) of the Act.

· The further evidence demonstrated that the old VPF acted on behalf of the State of Victoria in 1993 in making submissions to the Commission and accepted $8,500 from the State to cover legal expenses incurred in making those submissions.

· The VPF consequently also failed to establish that it was free from employer control or improper influence by an employer with the meaning of s 189(1)(aa) of the Act.

· The Full Bench granted the AEU leave to appeal, quashed the decision at first instance and decided that the application by the VPF for registration as an association be dismissed.

The nature of the proceedings before the Full Bench 60 The decision of Williams SDP was a decision in respect of which an appeal lay to a Full Bench; see s 45(1)(f) of the Act which provides that: "Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against:

(f) a decision (other than in relation to a prescribed matter) in a proceeding before a designated Presidential Member acting in that capacity."

61 The circumstances in which the Full Bench will grant leave are dealt with by s 45(2) of the Act which provides that:

"A Full Bench shall grant leave to appeal under subsection (1) if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted." 62 In the instant matter, the Full Bench did not deal with the question of leave in advance of the merits of the appeal. This is not an uncommon approach in s 45 applications. 63 It is clear that the AEU had standing to apply under s 45 of the Act pursuant to s 45(3)(c) of the Act given that, as the objector to the registration of the VPF, the AEU was a party to the proceeding at first instance. 64 Section 45(6)(a) of the Act provides that: "For the purposes of an appeal under this section, a Full Bench: (a) may admit further evidence." (emphasis supplied).

65 The High Court handed down its decision in Coal and Allied Operations Pty Limited v Australian Industrial Relations Commission [2000] HCA 47, (2000) 203 CLR 194, 203 in the interim between the appeal before the Full Bench being adjourned and the hearing of further submissions between August 2000 and March 2001. At [13] of that decision, Gleeson CJ, Gaudron and Hayne JJ stated as follows: "If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing." 66 Further at [17], their Honours considered that an appeal under s 45 of the Act was by way of rehearing where the powers of the Full Bench under s 45(7) of the Act were exercisable "only if there is error on the part of the primary decision-maker".

Findings by Williams SDP on section 189(1)(a) evidence 67 At [219] of his decision Williams SDP said that: "…the VPF in its present incarnation was conceived as a separate and distinct organisation with the objective of pursuing the industrial interests of the class of employees it purports to represent. The evidence does not justify a finding either that the VPF is a shell association or that there was some ulterior motive for its formation and for this application." 68 Williams SDP also accepted that the evidence before him disclosed the following: · A substantial proportion of those persons eligible to be members of the VPF belonged to the VPF. · The VPF is committed to providing adequate and effective representation of the industrial interests of its members. · The VPF is entitled to rely on the industrial "track record" of its predecessors, including the old VPF. · The old VPF resisted the AEU's attempts to obtain federal award coverage for principals. · The old VPF pursued a less militant approach to industrial relations than that taken by the AEU. · The old VPF's less militant approach was perceived by it to be in the best interests of its members and was not opposed by its membership. · The VPF and old VPF's co-operation with various professional associations representing principals did not and does not diminish VPF's ability to represent the industrial interests of its members. · The VPF, through its predecessors, "had industrial standing in the area in which it wishes to operate".

69 At [235] Williams SDP concluded that, in light of the above, he was:

"… satisfied that the VPF is a genuine association and one which is for furthering or protecting the interests of its members."

Treatment of s 189(1)(a) evidence by the Full Bench on appeal 70 At [47] of its second decision, the Full Bench accepted that the conclusions reached by Williams SDP regarding s 189(1)(a) were open to him "on the evidence before him". The Full Bench then continued as follows: "However, in light of the further evidence admitted on appeal (which, of course, was not before his Honour) we have come to the conclusion that the criteria in at least paragraphs (a) and (aa) of s189(1) have not been met." 71 Earlier at [21], the Full Bench noted that the AEU had submitted that "the further evidence, if admitted, would, when considered with the evidence before Williams SDP, reinforce its submission … that his Honour's conclusions with respect to a number of criteria in s 189(1) were erroneous." 72 The Full Bench described those documents tendered by the AEU on appeal and accepted by it as further evidence as follows: "The AEU's further evidence primarily comprised documents relating to dealings between the Department of Education (the employer), on the one hand, and other associations and predecessors of the VPF on the other hand. There are 86 such documents. They fill two large folders. The AEU also tendered a large folder containing transcript of proceedings before, and decisions of, the Commission in relation to a number of cases involving the AEU and the employer between 1992 and 1998. Included in the documents tendered by the AEU are: (1) a memorandum dated 26 May 1993 from John Pascoe, Acting General Manager People Services, to Frank Peck, Acting General Manager Quality Assurance, including: "In addition, an amount of $8,500 has been agreed to be paid by the Director to the VPF as reimbursement for Geoff Head's IRC deliberations on behalf of DSE. I propose that this would be paid on invoice rather than create a service agreement specifically for this purpose." (Geoff Head, referred to above, was the President of the old VPF and DSE is Directorate of School Education.) (2) a briefing dated 28 May 1993 from the General Manager Quality Assurance including: "That the Director authorise an additional amount of $8,500 to be paid to the VPF as reimbursement for the report Geoff Head provided to the IRC on the Directorates behalf. This would be paid through a purchase order using the grants charge line." and "Arrange with the General Manager, Finance and Administration for the VPF to be reimbursed $8,500 for deliberations at the IRC." (3) a proposed letter from Geoff Spring, Director of School Education, to Peter Martin, President of the VASSP, and Peter Paul, President of VPPA, including: "You will be aware from your negotiations with the Management Development Unit that I have endorsed a financial package to assist the principal's associations to provide specific service and programs to the Directorate during the 1992-3 and 1993-94 financial years: These are summarised below: A Victorian $8,500 DSE advocate during IRC deliberations on place of principals in IR award context Reimbursement of costs incurred on behalf of the DSE Principals Federation (VPF)

... Finally, I have endorsed the reimbursement of $8,500 to the Victorian Principals Federation for the provision of a DSE report to the Industrial Relations Commission. This will be paid on an invoice presented to the General Manager, Financial and Administrative Services, Mr Geoff Drury. The Manager, Principal Development, will advise you about the administrative procedure." (4) a letter dated 4 June 1993 from Zana Smith, Manager Principal Development, to Margaret Dozzi, Secretary of the old VPF, including: "The Director has approved the reimbursement of $8,500 to the VPF for Geoff Head's deliberations at the AIRC earlier this year. If you would be kind enough to prepare a letter from the Federation seeking reimbursement, I will arrange for a cheque to be drawn immediately. 1. Address letter to: Mr John Pascoe A/General Manager People Services Level 20 Rialto Towers PO Box 4367 Melbourne 3000 2. The text should include a statement to the effect 'as approved by the Director the VPF is seeking reimbursement for legal expenses incurred whilst acting on behalf of the DSE at the Australian Industrial Relations Commission in (insert date). 3. Attach any relevant documents eg legal bills etc." (5) a memorandum dated 4 June 1993 from Frank Peck, General Manager Quality Assurance Division, to Wayne Benbow, Manager Recurrent Unit: "Would you please draw a cheque immediately for $8,500 to be enclosed with the attached Director's letter advising the VPF of the reimbursement. The cheque is to be made payable to the Victorian Principals Federation." (6) a letter dated 9 June 1993 from Geoff Head, President of the old VPF, to J Pascoe, Acting General Manager People Services: "I am writing to you seeking reimbursement for our participation in hearings at the Australian Industrial Relations Commission during December 1993 and February 1994. It is our understanding that the reimbursement has been approved by the Director since the Victorian Principals Federation incurred significant legal costs whilst acting on behalf of the DSE at the AIRC on 4th, 7th and 8th December 1993, 16th, 17th and 18th December 1993 and a date in March 1994 (not specified in the account). We attach photo copies of the accounts received by the VPF as verification of the bonafides of this claim for reimbursement." (7) an undated letter from Geoff Spring, Director of School Education, to Geoff Head, President of the old VPF: "I enclose a cheque for $8,500 as reimbursement to your organisation for legal costs incurred whilst acting on behalf of the DSE at the Australian Industrial Relations Commission." (8) minutes of DSE/VPF Working Party Meeting of 10 June 1993 including: "7.2 ATU Log of Claims - should VPF intervene? Yes! VPF should request that Principals should not be included. Previously Principals had a separate award to teachers." (9) minutes of the DSE/VPF Working Party Meeting of 24 June 1993 including: "ATU log. The VPF sought advice on what part it should play in ATU log. The DSE advised that VPF should: . seek to intervene . raise a threshold issue that principals should be excluded work with DSE. Action: John Evans be asked to discuss this matter with VPF." (The persons named in these documents, other than officers of the old VPF, the VPPA and the VASSP, are officers of the employer.) (The documents referred to in subparagraphs (8) and (9) were in evidence before Williams SDP.)" 73 At [49] of its second decision the Full Bench said that: "In the proceedings before us, the VPF has, … called no evidence." I do not consider that the Full Bench intended its observations at [49] to be literally construed. The evidence before Williams SDP was also before the Full Bench. More correctly stated, the VPF did not seek to admit any further evidence before the Full Bench. 74 At [50], the Full Bench referred to Jones v Dunkel (1959) 101 CLR 298 and to various passages in the judgments in that case including the observation of Windeyer J at 321 that: "…Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case." 75 As a result of an absence of evidence in response to the further evidence tendered by the AEU, the Full Bench accepted the submission of the AEU that the old VPF had appeared in the Commission in 1993 at the behest of and on behalf of the then State Government and falsely portrayed itself as independent of the Government. In this regard, the Full Bench said at [58] that: "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 incurred in so doing. This conclusion prevents us from being able to form the view that the VPF, having relied substantially on its predecessors is "a genuine association" or "an association for furthering or protecting the interests of its Members." (emphasis added) 76 The VPF had placed reliance upon the history and previous conduct of the VPF in its application for registration.

The findings of Williams SDP on the section 189(1)(aa) evidence 77 Williams SDP accepted that the State Government had the capacity to improperly influence the VPF. He also accepted that the evidence showed that the old VPF pursued a different industrial agenda from that pursued by the AEU, but that the difference did not mean that the VPF would be improperly influenced by "external elements". His Honour concluded at [242] that: "On the evidence, I am satisfied that the VPF is free from control by, or improper influence from, any employer."

Treatment of the s 189(1)(aa) evidence on appeal 78 The Full Bench accepted at [47] that his Honour's conclusions about s 189(1)(aa) were open to him on the evidence before him but took a different view about VPF's application in the context of s 189(1)(aa) of the Act "in light of the further evidence admitted on appeal". 79 At [59] the Full Bench said that: "It is also our view that the VPF has failed to make good the criterion in s.189(1)(aa); that is, relevantly, that the VPF is free from control by, or improper influence from, the employer." 80 At [61], the Full Bench added that: "The further evidence called by the AEU, however, in our view shows that in 1992-1993 the VPF was not free from control by, or improper influence from, the employer. It is of course a matter of record that there was a change in the Government of the State of Victoria in October 1999; that is, after the conclusion of the evidence before Williams SDP. The failure by the 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 s189(1)(aa) has not been met."

The submissions on appeal 81 At [58], the Full Bench stated that it had concluded from the further evidence tendered by AEU that the VPF had acted on behalf of the employer. That conclusion consequently prevented the Full Bench from being able to form the view that the VPF had satisfied the criteria in s 189(1)(a) of the Act. 82 Counsel for the VPF submitted to the effect that in so concluding, the Full Bench appears to have focussed on the further evidence tendered by the AEU to the exclusion of the evidence which was before Williams SDP. In addition, the Full Bench had acknowledged at [41] that the evidence before Williams SDP had led him to a conclusion which was open to him. 83 It was further contended by counsel for the VPF that there is no indication in the reasoning process of the Full Bench that it considered the further evidence in light of the evidence which was before Williams SDP. It was put that the Full Bench had fastened upon the new evidence (and the lack of a specific evidentiary response to it) to the exclusion of relevant evidence on the topic which was before it on account of it being before Williams SDP. That evidence led to the findings made by Williams SDP referred to in the 4th and 5th points at [57] above.

84 The Full Bench concluded its treatment of s 189(1)(aa) of the Act at [61] by saying that: "On the basis of the further evidence, we are of the view that the criterion in s189(1)(aa) has not been met". As with the s 189(1)(a) material, it was submitted on behalf of the VPF that where the Full Bench appears to have focussed entirely upon the further evidence and ignored the effect of the evidence which was before Williams SDP that related to s 189(1)(aa) and referred to at [236] to [241] of his Honour's decision. See also the findings referred to in the 6th, 7th and 8th points at [57] above. 85 It was submitted on behalf of the AEU that the Full Bench did not focus entirely on the new material put before it to the exclusion of what was before Williams SDP. It stressed that the new evidence before the Full Bench was much more extensive than the eight matters emphasised in the Full Bench's decision; see [59] above. Counsel referred the Court to some of those additional documents to reinforce the strength of the material and its capacity to have the Full Bench reach a different view about compliance with s 189(1)(a) and 189(1)(aa). That was so, notwithstanding the findings of Williams SDP which were open on the evidence before him. Counsel for the AEU submitted that the Full Bench did not ignore relevant material, but considered the new material so probative that it should form a different view to Williams SDP about whether the VPF satisfied the requirements of s 189(1)(a) and (aa).

Alleged Jurisdictional Error 86 This Court can only interfere with a decision of the Commission by way of constitutional relief if the decision discloses jurisdictional error. In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 at 21, [82] their Honours McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said that: "It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the 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. "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law." 87 I do not consider that the reasons for decision of the Full Bench when read as a whole disclose jurisdictional error. The Full Bench said at [47] of its reasons for decision that it acted on the basis of "new evidence" combined with what was before Williams SDP when considering whether the VPF had complied with s 189(1)(a) and 189(1)(aa). In my view, it has not been established that the Full Bench ignored relevant material or further, and more imprtantly, that it ignored relevant material "in a way that affect[ed] the exercise of [its] power"; see Yusuf [82], ALR 22 and X v Minister for Immigration & Multicultural Affairs [2002] FCA 56. Some isolated parts of the Full Bench's reasons give an impression that it had regard to the new material to the exclusion of the evidence tendered at first instance. When those parts, however, are put in context and the reasons for decision are read as a whole, I do not consider that the Full Bench focussed on the further material to the exclusion of the evidence that was before Williams SDP.

The "currency issue" 88 In addition, the VPF submitted on appeal that the Full Bench erred in taking into account the conduct of a former officer of a predecessor to the VPF in his dealings with the former State Government. This submission is a somewhat surprising one considering that the activities of the predecessors to the VPF were relied upon by the VPF to advance its application for registration. In my view it would have been fanciful for the Full Bench to fail to consider the VPF's application for registration in isolation from the bodies whose work it was established to continue or in isolation from the activities of the officials of those bodies.

89 Although ordinarily the Commission would consider an application for registration by reference to the activities of the body applying for registration, it is not entitled to shut its eyes to industrial reality and disregard the activities of the predecessors to the applicant for registration. Consideration of whether an association is of a particular type can often be informed by a consideration of the antecedents, if any, of the association. There is no reason to suggest that s 189(1)(a) and (aa) cannot be considered in that light. The Full Bench did not err by considering the conduct of predecessors to the VPF when determining whether the VPF had satisfied the requirements of s 189(1)(a) and (aa).

Costs 90 As mentioned by Wilcox J at [3] of his Honour's judgement, leave was reserved to the AEU to apply for costs if it were so advised. No application was made. It appears to me that any such application, if made, would not have succeeded. 91 The VPF sought mandamus to compel compliance with a duty imposed on the Commission under the Act. The duty in issue in the proceeding before the Court owed its existence to the Act. Consequently, s 347(1) of the Act would have operated to prevent the making of any costs order if one had been sought: see Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16 at [42], (2001) 203 CLR 645 at 660. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate: Dated: 15 March 2002 Counsel for the Applicant: Mr S Howells

Solicitor for the Applicant: Ryan Carlisle Thomas

Counsel for the second Respondent: Mr M Bromberg

Solicitor for the second Respondent: Holding Redlich

Date of Hearing: 11 and 12 February 2002

Date of Judgment: 15 March 2002