5. In Fisher v. Fisher the Court dismissed an appeal from the answers given by the Full Court to the questions reserved in the special case on the ground that the appeal was incompetent. The Court took the view that the answers were advisory only and did not operate to affect the rights and liabilities of the parties: per Gibbs C.J. at p 450. A little later, the Court took a similar view when dismissing as incompetent an appeal from an answer given by the Full Court of the Federal Court to a question reserved in a special case stated by the Administrative Appeals Tribunal under s.45(1) of the Administrative Appeals Tribunal Act 1975 (Cth): Swiss Aluminium Ltd. In that case the Court pointed (at p 425) to the distinction "between answers given to questions in a stated or special case which determine the rights of the parties (Smith v. Mann [1932] HCA 30; ((1932) 47 CLR 426)), and answers to a stated or special case which are advisory or consultative only: Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [1967] HCA 18; ((1967) 116 CLR 273)".

6. The reference in the passage just quoted to answers which are "advisory or consultative only" is to one category of answers to stated and special cases which do not determine the rights of the parties. That category consists of answers which are not determinations binding on the court or tribunal stating the case and the parties and are in that sense advisory or consultative . For the most part they are cases stated to a court which lacks jurisdiction to entertain and determine the basic proceeding in which the question or questions arise, the court or tribunal stating the case having complete authority and control over the proceeding except to the extent that provision is made for the resolution of the stated or special case. Cases stated by arbitrators during the course of an arbitration are perhaps the best illustrations. Courts answering questions stated by arbitrators have no jurisdiction to make an award in the arbitration. So it is natural to speak of the answers to such questions as being "advisory or consultative only": see, for example, In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613, at p 619; Carr v. Wodonga Shire [1924] HCA 15; (1924) 34 CLR 234, at pp 241-242. But this is not to say that the answers to such questions constitute an advisory opinion of the kind proscribed by this Court in In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. In that case the Court held that the function of giving an academic advisory opinion to the executive government, dissociated from litigation actually in train, lies outside the exercise of judicial power. An advisory or consultative opinion given by a court in the context of proceedings actually in train before a court, tribunal or arbitrator is an exercise of judicial power. It would seem to follow that such an advisory or consultative opinion amounts to an order within the meaning of s.73 of the Constitution, even if it does not bind the court, tribunal or arbitrator who states the case. After all, the expectation is that the opinion will be applied and acted upon by those who seek it; that is what the relevant statute invariably contemplates, even if the statute does not require it by means of explicit direction or provision. The hierarchy of courts and the doctrine of precedent make it an imperative, despite the absence of any direct means of enforcement short of challenge to a final determination that fails to incorporate or proceed in accordance with the opinion.

7. I acknowledge that what I have said is not consistent with existing authority in this Court, authority to which I have been a party: see Fisher v. Fisher, Swiss Aluminium Ltd. and Yule v. Junek (1978) 139 CLR 1. As the correctness of previous authority has not been challenged in argument, it would plainly not be right to disregard what these cases have decided. However, as a majority of the Court considers that their soundness is questionable, it is appropriate that I should state my agreement with that view for the reasons which I have given.

8. But this is by the way. As indicated earlier, not all answers to a stated or special case which do not determine rights in suit are not binding on the court or tribunal stating the case. When a statute provides for a case to be stated by a judge exercising original jurisdiction to the Full Court or appellate division of the court of which he is a member and also provides that the court to which the case is stated shall determine the question reserved in the case, in my view the determination of that question is binding on the judge exercising original jurisdiction and on the parties. That result is surely what the language and the context of the provision contemplate. The hierarchy of the court system and the doctrine of precedent combine to support this interpretation. The effect of the determination of the questions reserved by the case is just as if the primary judge had determined the questions as preliminary questions of law in advance of the hearing of the action. The statute simply provides for a resolutive answer to the questions by a court having greater status in the hierarchy than the judge exercising original jurisdiction. It would be strange indeed if statutory recourse to the higher court expressed to require a determination of the question were to yield an answer which was not a determination but only an advisory or consultative opinion which the primary judge was not bound to accept and apply, except in so far as his ultimate decision in the proceeding is subject to appeal.

9. The view which I have expressed has the support of the comments made by Diplock LJ. in Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630 where his Lordship said (at p 642):

"Where the issue separately determined is not decisive of

the suit, the judgment upon that issue is an interlocutory

judgment and the suit continues. Yet I take it to be too

clear to need citation of authority that the parties to the

suit are bound by the determination of the issue. They

cannot subsequently in the same suit advance argument or

adduce further evidence directed to showing that the issue

was wrongly determined. Their only remedy is by way

of appeal from the interlocutory judgment and, where

appropriate, an application to the appellate court to adduce

further evidence ..."

Although his Lordship's views on issue estoppel as expressed in Fidelitas were subsequently qualified by the Court of Appeal in Bobolas v. Economist Newspaper Ltd. (1987) 1 WLR 1101, at p 1105; (1987) 3 All ER 121, at pp 124-125, on account of the observations of the House of Lords in Carl Zeiss Stiftung v. Rayner and Keeler Ltd. (No. 2) (1967) 1 AC 853, at pp 935, 947, that qualification does not touch the passage which I have quoted.

10. To the same effect is the decision of this Court in Federated Engine-Drivers and Firemen's Association of Australasia ("FEDFA") v. Broken Hill Proprietary Co. Ltd. [1913] HCA 71; (1913) 16 CLR 245 where the President of the Commonwealth Court of Conciliation and Arbitration (Higgins J.) stated a case for the opinion of this Court in proceedings where FEDFA sought an award in settlement of an interstate industrial dispute. Section 31 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), as it then stood, enabled the President to state a case for the opinion of the High Court and provided that it should hear and determine the question. Although no appeal lay from the Arbitration Court to the High Court, Griffith C.J. and Barton J. held that the President and the parties were bound by the answers given by the High Court to the questions reserved in the stated case: see pp 257, 268. Isaacs J. was of the same opinion. His Honour stated (at pp 274-275):

"The legislature, while not in so many words directing (the

President) to follow it, expects him to do so. 'Hear and

determine' involves a decision which all subordinate

tribunals must follow, and I agree that it is appealable to

the Privy Council. ... There is no legal sanction if the

President does not follow the opinion. For instance, if,

though endeavouring to apply it correctly, he misapprehends

its import or in some way misapplies it, there is no method

of correcting the error. He does not thereby exceed his

jurisdiction, and so no prohibition will lie, and appeal is

taken away."

Higgins J. (dissenting) considered that the High Court's opinion was merely advisory or consultative: see at p 284.

11. Isaacs J.'s answer to the first question stated differed slightly from that of Griffith C.J. and Barton J., this difference being dictated by his Honour's view that the use of the word "deemed" in the amending legislation which was the subject of the first question had a retrospective operation. The order of the Court gave effect to the judgments of Griffith C.J. and Barton J.

12. Subsequently, in Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. (No. 1) [1913] HCA 76; (1913) 16 CLR 591, Isaacs J. observed (at pp 620-621):

"(T)he determination of this Court is one which the law

expects and requires the President to accept and apply as

a binding declaration of law in the matter before him.

Nothing can justify a departure from that, except a

competent mandate changing the law before he deals with the

plaint ... And except for any change of law by Parliament

before the Arbitration Court deals with the case, and a

change made applicable to the case before that Court

notwithstanding the determination already arrived at, that

determination must stand, and not even this Court, except in

the case supposed, can in my opinion make as between the

parties in the same proceeding a contrary determination."

The decision in Federated Engine-Drivers and the same view expressed by Isaacs J. in Merchant Service Guild about s.31 are significant because no appeal lay from an award of the Arbitration Court to this Court and this Court had no general jurisdiction to deal with the proceeding in the Arbitration Court except in so far as it was called upon to hear and determine the stated case. If, in that context, the answers to the stated case were binding on the President and the parties, the case for saying that answers given by the Full Court of the Federal Court (and, for that matter, the Full Court of the Family Court) to a case stated by a judge of that Court are determinative and binding is even more compelling. This conclusion necessarily entails a rejection of the proposition that answers given by the Full Court of the Federal Court in such a case are advisory or consultative only whereas answers given by a court of which the judge stating the case is not a member are determinative of the issue.

13. The issue then is whether the answers given by the Full Court of the Federal Court to the questions in the stated case are binding upon this Court as well as the judge stating the case and the parties now that the entire proceeding has been removed into this Court. The argument in favour of an affirmative answer is formidable: the answers remain operative and binding and, in the absence of any appeal, it may be said that this Court lacks jurisdiction to set them aside or to deal with them. Moreover, these considerations are reinforced by the maxim nemo debet bis vexari pro una et eadem causa. But the fact remains that the entire proceeding has been removed into this Court and, notwithstanding that the Full Court judgment is binding on the parties, this Court cannot be bound by a decision of a lower court in the hierarchy. The procedure for removal into this Court under s.40 of the Judiciary Act 1903 (Cth), which is designed to ensure that constitutional questions and other questions of public importance are determined by this Court, enables it to reconsider preliminary questions of law decided by the Full Court of the Federal Court, even though the decision of that Court is not the subject of an appeal and may not be appealable. Indeed, it verges on the ludicrous to suggest that the very purpose of removal may be frustrated simply because the cause removed has proceeded to the point at which an unappealable order has been made. It is no answer to this argument to say that an appeal will lie when the court below makes a determination resolving the rights in suit. That may take a long time and involve great expense. The object of s.40 was to secure early resolution of constitutional questions and other issues of public importance.

14. It follows that the Court can reconsider the answers given by the Federal Court to the questions reserved in the stated case and that it can give directions under s.42(1) of the Judiciary Act which will have the effect of displacing the answers given by the Federal Court, that Court being bound to accept and apply directions given by this Court as the superior court in the hierarchy. That is the course which the Court took in Smith v. Smith.

"(1) Subject to this Act, an award (including an award

made on appeal) -

(a) is final and conclusive;

(b) shall not be challenged, appealed against,

reviewed, quashed or called in question in any

court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account.

(2) A determination or finding of the Commission upon

a question as to the existence of an industrial dispute is,

in all courts and for all purposes, conclusive and binding

of all persons affected by that question.

(3) An award shall not be called in question in any

way on the ground that it was made by the Commission

constituted otherwise than as provided by this Act."

There is little point in reviewing the history of the antecedents of this provision. It is recounted elsewhere: see Aronson and Franklin, Review of Administrative Action, (1987), pp 691-701. It is sufficient if I begin by saying that, ever since the well-known judgment of Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, it has been accepted that the provision is subject to significant limitations. His Honour said (at p 615):

"Such a clause is interpreted as meaning that no decision

which is in fact given by the body concerned shall be

invalidated on the ground that it has not conformed to the

requirements governing its proceedings or the exercise of

its authority or has not confined its acts within the limits

laid down by the instrument giving it authority, provided

always that its decision is a bona fide attempt to exercise

its power, that it relates to the subject matter of the

legislation, and that it is reasonably capable of reference

to the power given to the body."

The reason for interpreting the provision in this way is that it is necessary to reconcile the prima facie inconsistency between a statutory provision which seems to limit the powers of a tribunal and the privative clause which appears to contemplate that the tribunal's order will operate free from any restriction: Reg. v. Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, at p 418.

16. The scope and content of the three provisos in the Hickman principle have not been examined in any detail in subsequent decisions of this Court. And, in the absence of specific facts and evidence, the present case is scarcely a suitable vehicle for embarking on such an undertaking, the more so as argument was not directed to the topic. But I should say something about the first proviso, namely, that the "decision is a bona fide attempt to exercise" the power of the decision-maker, because it is now suggested, though not in argument, that this qualification excludes an examination of the subjective intentions or motivation of the decision-maker and is confined to an examination of objective considerations arising on the face of the record. When attention is given to the careful way in which Dixon J. stated the first proviso in the Hickman principle, as it applied in that case, it is evident that he was looking, inter alia, to the bona fides of the decision-maker. His Honour said, at p 616:

"But where the legislature confers authority subject to

limitations, and at the same time enacts such a clause as is

contained in reg.17, it becomes a question of interpretation

of the whole legislative instrument whether transgression of

the limits, so long as done bona fide and bearing on its

face every appearance of an attempt to pursue the power,

necessarily spells invalidity. In my opinion, the

application of these principles to the Regulations means

that any decision given by a Local Reference Board which

upon its face appears to be within power and is in fact a

bona fide attempt to act in the course of its authority,

shall not be regarded as invalid." (emphasis added)

Later, in R. v. Murray; Ex parte Proctor [1949] HCA 10; (1949) 77 CLR 387, his Honour spoke, at p 400, of "an honest attempt to deal with a subject matter confided to the tribunal".

17. The proviso appears to have been understood by Kitto J. in the same sense: see his Honour's reference to "(t)he bona fides of the commissioner" in Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at p 325. No doubt Dixon J.'s formulation of the principle drew partly on the antecedent common law according to which decisions of administrative bodies are generally reviewable for mala fide or dishonest motivation. Decisions of arbitral bodies such as the Australian Conciliation and Arbitration Commission ("the Commission") do not stand as exceptions to that rule. Having regard to the history of the Hickman principle and to the evident meaning of the first proviso to it, I am not prepared, in the absence of comprehensive argument, to hold that the scope and content of the first proviso are limited in the manner now suggested.

18. It is also well settled that s.60 does not confer upon the Commission power that exceeds Parliament's legislative power under the Constitution or preclude any challenge to the validity of an award made by the Commission on constitutional grounds and that it must be read down accordingly: Reg. v. Kirby; Ex parte The Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159, at p 175. As Dixon J. pointed out in Hickman, at p 616, Parliament cannot "give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution". So, s.60 does not make an award of the Commission purporting to have been made in settlement of an interstate industrial dispute immune from challenge on the ground that the dispute was not industrial or interstate in character: Ex parte The Transport Workers' Union of Australia, at pp 173-174. In conformity with this long-standing principle, this Court has, by means of prohibition granted under s.75(v) of the Constitution, often restrained the Commission and its predecessor, the Arbitration Court, from proceeding further in connection with purported awards made otherwise than in settlement of an interstate industrial dispute. The provisions of s.60 do not qualify the jurisdiction to grant mandamus, prohibition or an injunction against an officer of the Commonwealth, though, subject to considerations affecting constitutional validity, the section validates awards of the Commission but only in accordance with the Hickman principle.

19. The Federal Court lacks the jurisdiction conferred by s.75(v) of the Constitution to grant relief against an officer of the Commonwealth holding office under the Act or its successor, the Industrial Relations Act 1988 (Cth): see s.39B(2)(a) of the Judiciary Act. According to the applicant's argument, the consequence of this want of jurisdiction is that the Federal Court's jurisdiction is limited by the terms of s.60. The contention is that s.60 is a law that defines the jurisdiction of that Court, along with that of other courts, under s.77 of the Constitution. The contention cannot be sustained. Section 60 extends the limits of the award-making power and governs the effect of its exercise; it does not define the jurisdiction of this Court or the Federal Court.

20. But this may not be an essential step in the applicant's argument, for s.60 must be applied in any event in proceedings brought in the Federal Court under s.119 of the Act. Sub-section (1) of that section provides:

"Where any organization or person bound by an order or

award has committed a breach or non-observance of a term of

the order or award, a penalty may be imposed by the Court

or, except in the case of a breach or non-observance of

a term of an order or award of the kind referred to in

sub-section 33(1), by any District, County or Local Court or

Court of summary jurisdiction that is constituted by a

Judge, by a Police, Stipendiary or Special Magistrate or by

an Industrial Magistrate appointed under any State Act who

is also a Police, Stipendiary or Special Magistrate."

Section 60 precludes any challenge to the validity of the award on non-constitutional grounds which falls within the Hickman principle; in other words, the award must be treated as valid if it satisfies the three provisos expressed in that principle.

21. The question remains: does the section preclude a challenge to the validity of the award or part of it on constitutional grounds raised by way of defence to such proceedings? The answer to that question must be in the negative. The section cannot have a wider operation in relation to the jurisdiction of the Federal Court than it has in relation to the jurisdiction of this Court. If it were otherwise, in a case in which this Court could grant relief under s.75(v) by way of prohibition directed to the Commission, it would be bound to dismiss an appeal under s.118B from an order of the Federal Court in proceedings under s.119 of the Act in which that Court was constrained to treat as valid a constitutionally invalid award. The Hickman interpretation of s.60 does not depend on the s.75(v) jurisdiction of this Court; the Hickman interpretation has its origins in the supremacy of the Constitution and the judicial power. The provisions of the Constitution, with all their limits, are binding "on the courts, judges, and people ... of every part of the Commonwealth": Covering Cl.5 of the Constitution. The courts are the arbiters of constitutionality and the legislature cannot shackle the jurisdiction of the courts to determine questions of constitutional validity, though the legislature can define the jurisdiction of particular courts pursuant to s.77. It has been said that "it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation": Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, per Williams J. at p 222. That case was decided in accordance with the principle that, generally speaking, the defence power apart, the constitutional validity of a law or of an administrative act cannot be made to depend on the opinion of the Parliament, the Executive or an administrative body to the effect that the law or the Act is within the legislative powers of Parliament. "(A) tribunal not exercising the judicial power of the Commonwealth cannot be given power to determine (a constitutional) fact conclusively": Reg. v. Heagney; Ex parte ACT. Employers Federation [1976] HCA 32; (1976) 137 CLR 86, at p 104; see also Reg. v. Portus; Ex parte McNeil [1961] HCA 50; (1961) 105 CLR 537, at pp 540-541. So, if the question arises whether an award, or a provision in an award, is within the ambit of the Parliament's legislative powers, that question must be examinable by the courts.

22. In Shrimpton v. The Commonwealth [1945] HCA 4; (1945) 69 CLR 613, Dixon J. said, at pp 629-630:

"(F)inality, in the sense of complete freedom from legal

control, is a quality which cannot, I think, be given under

our Constitution to a discretion, if, as would be the case,

it is capable of being exercised for purposes, or given an

operation, which would or might go outside the power from

which the law or regulation conferring the discretion

derives its force. An exercise of a power, whether

legislative or administrative, cannot rise higher than its

source, viz., the power itself, and an attempt under the

power to make unexaminable what is done in ostensible

pursuance of a further delegation of authority must, to that

extent, fail."

23. There is no occasion here to examine the question whether federal administrative discretions may conceivably be exercised for non-constitutional purposes. That is a separate problem which has arisen mainly in the context of s.92: see, for example, Wilcox Mofflin Ltd. v. New South Wales [1952] HCA 17; (1952) 85 CLR 488, at pp 520, 522; Buck v. Bavone [1976] HCA 24; (1976) 135 CLR 110, at pp 119, 126, 131; Hughes and Vale Pty. Ltd. v. New South Wales (No. 1) [1954] UKPCHCA 5; (1954) 93 CLR 1, at p 32.

24. It follows from all that I have said that s.60(1) does not protect an award, or a provision in an award, which exceeds the legislative powers of the Parliament from challenge on that ground. Whether Parliament can, in any circumstances, in the exercise of the powers conferred by s.51(xxxv) and (xxxix) of the Constitution, validly make the opinion of a specialist tribunal as to the existence of actual, threatened, impending, probable or likely disputes immune from challenge beyond what the Hickman principle allows, is a question upon which I express no opinion. It is a large question on which we did not have the benefit of argument and its resolution is not material to the outcome of this case.

25. In the result, I am of opinion that the answers given by the Full Court of the Federal Court to the questions asked in the stated case are correct. I would make a declaration accordingly and remit the matter to the Federal Court and direct that it be dealt with accordingly.

BRENNAN J. The applicant, Mr O'Toole, is the Federal Secretary of the Australasian Meat Industry Employees' Union ("the AMIEU"), an organization of employees registered under the provisions of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). He applied to the Federal Court for orders under s.119 of the Act, alleging that the respondent company wrongly deducted an amount from the wages payable to an employee pursuant to the South Australian Meatworks Industrial Agreement-Award 1982 ("the award") and did not pay wages to employees who were entitled to be paid wages pursuant to the award. The employees were alleged to be members of the AMIEU. The relevant provisions of s.119 read as follows:

" (1) Where any ... person bound by an ... award has

committed a breach or non-observance of a term of the ...

award, a penalty may be imposed by the Court ...

...

(2) Any such penalty may be sued for and recovered by -

...

(b) any organization which is affected, or whose members

or any of them are affected, by the breach; ...

...

(3) Where, in any proceedings against an employer before

a Court specified in sub-section (1), it appears to the

Court that an employee of that employer has not been paid

an amount to which he is entitled under an order or award,

that Court may order that the employer shall pay to the

employee the amount of the underpayment ..."

(Although the Industrial Relations Act 1988 (Cth) has now come into force, the s.119 proceedings are continued under the Conciliation and Arbitration Act: Industrial Relations (Consequential Provisions) Act 1988 (Cth), s.9.) The applicant sought, inter alia, the imposition of a penalty on the company and an order for payment to employees of the moneys to which they were allegedly entitled under the award. The company filed points of defence, some of which challenged the validity of the award and the jurisdiction of the Australian Conciliation and Arbitration Commission ("the Commission") to make it.

2. In the Federal Court, Gray J. stated a case for the consideration of a Full Court of the Federal Court containing, inter alia, the following paragraphs:

" 9. ... the Australian Conciliation and Arbitration

Commission, constituted by Mr. Commissioner Gough,

purported to make the South Australian Meat Works

Industrial Agreement Award 1982 ('the Award') by

consent of the (Meat and Allied Trades Federation of

Australia) and the Union. ...

...

14. By its points of defence, the respondent (company) has

contended that the award cannot be enforced under s.119

of the Act, since the Award was purportedly made by

the Australian Conciliation and Arbitration Commission

beyond its jurisdiction, and the Parliament cannot

grant to the Federal Court of Australia jurisdiction

to enforce an Award so made. ... In my view, the

respondent has challenged or called in question the

Award, within the meaning of s.60(1)(b) of the Act.

15. The Award was purportedly made in matter C No. 5159 of

1982, in part settlement of an industrial dispute found

by the Commission on 28th October 1981 in matter C No.

4342 of 1981 to exist between the Federation and the

Union, based on service by the Federation on the Union

of a log of claims and letter of demand on or about

30th September 1981, and the failure of the Union to

accede to the demands and claims so made.

...

17. The respondent proposes to rely upon evidence contained

in affidavits in support of its proposition that the

Award was not an award made lawfully and within the

power or jurisdiction lawfully conferred on the

Australian Conciliation and Arbitration Commission. A

summary of the facts upon which the respondent proposes

to rely on this question is set out in (Annexure 'D').

18. Counsel for the applicant have indicated that they

intend to object to the reception of the evidence

referred to in paragraph 17, and to any questions

in cross-examination or other evidence designed to

establish the facts alleged in annexure 'D', on the

ground that such evidence and questions are rendered

inadmissible by s.60 of the Act as interpreted by the

Full Court in Roundstreet Pty. Ltd. v. Brown (1987) 14

FCR 50. Counsel for the respondent has indicated

that he desires to challenge the correctness of that

decision of the Full Court."

The facts stated in the special case show that the proceedings had reached a stage where questions of law relating to the validity of the award and to the admissibility of certain evidence as to the validity of the award were ripe for determination. Gray J. reserved seven questions relating to these issues for the consideration of the Full Court. A Full Court, specially constituted by five judges, heard and determined the questions so reserved. On 8 September 1989, the Court by majority (Bowen C.J., Morling and Gummow JJ., Northrop and Gray JJ. dissenting) answered the questions as follows:

"(a) Does s.60(1) of the Act, on its true construction,

preclude the Court, in proceedings under s.119 of

the Act, from receiving evidence for the purpose

of determining whether the Award was or was not

made within the constitutional jurisdiction of the

Australian Conciliation and Arbitration Commission?

Answer: No.

(b) Does s.60(1) of the Act, on its true construction,

preclude the Court, in proceedings under s.119 of

the Act, from receiving evidence for the purpose of

determining whether the member of the Australian

Conciliation and Arbitration Commission who purported

to make the Award did or did not act or attempt to act

bona fide in the course of his authority under the Act?

Answer: No.

(c) If and to the extent to which s.60(1) of the Act

precludes the Court, in proceedings under s.119 of the

Act, from receiving evidence of the kinds contemplated

in questions (a) and (b), is s.60(1) of the Act

invalid as being beyond the legislative power of the

Commonwealth under the Constitution?

Answer: Sub-section 60(1) of the Act, construed in

accordance with the answers to Questions (a) and

(b), is not invalid.

(d) Does s.119 of the Act, on its true construction, confer

jurisdiction on the Court to impose a penalty for

breach or non-observance of the Award if in fact the

Award is made beyond the constitutional jurisdiction of

the Australian Conciliation and Arbitration Commission?

Answer: No.

(e) If and to the extent to which s.119 of the Act confers

jurisdiction on the Court to impose a penalty for

breach or non-observance of the Award, where the Award

was in fact made beyond the constitutional jurisdiction

of the Australian Conciliation and Arbitration

Commission, is s.119 of the Act invalid as being beyond

the legislative power of the Commonwealth under the

Constitution?

Answer: Section 119 of the Act, construed in accordance

with the answer to Question (d), is not invalid.

(f) To the extent to which s.60(1) of the Act precludes the

Court, in a proceeding under s.119 of the Act, from

receiving evidence that the Award was made beyond

the constitutional jurisdiction of the Australian

Conciliation and Arbitration Commission, is s.119

of the Act beyond the legislative power of the

Commonwealth under the Constitution?

Answer: Sub-section 60(1) of the Act is not to be construed

in the manner stated in this Question and s.119 is

not invalid.

(g) Does s.119 of the Act require the applicant to prove as

part of his case the validity of the Award of which the

respondent is alleged to have committed a breach or

non-observance?"

Answer: No."

When their Honours published their respective reasons for decision, the Full Court published a minute of orders containing the Court's answers but no order embodying the answers has been entered.

3. The Attorney-General for the Commonwealth applied for and was granted an order under s.40(1) of the Judiciary Act 1903 (Cth) removing the whole cause pending in the Federal Court into this Court. The purpose of removing the cause was to secure the reconsideration by this Court of the answers given by the Full Court of the Federal Court, but not by way of appeal. It was apprehended that no appeal would lie from the Federal Court to this Court against the answers given to the questions reserved by Gray J. What is sought is a reconsideration de novo of the answers given by the Federal Court on the footing that the answers given by this Court will override any inconsistent answers given by the Federal Court though the Federal Court's answers are not formally set aside.

4. The question whether an appeal lies from the Full Court's answers is not itself relevant to the exercise by this Court of its original jurisdiction to hear and determine the s.119 proceedings which have been removed here. Nevertheless, as we shall see, that question is directly related to a question which is of critical importance to the further hearing and determination of these proceedings, namely, whether the answers given by the Full Court conclude the issues of law to which those questions respectively relate so that this Court must take those answers as conclusive for the purposes of the proceedings whatever the views of this Court might otherwise be.

5. The special case was stated by Gray J. pursuant to s.25(6) of the Federal Court of Australia Act 1976 (Cth) which reads:

" The Court constituted by a single Judge sitting in

either Division may state any case or reserve any question

concerning a matter with respect to which an appeal would

lie from a judgment of the Judge to a Full Court of the

Court for the consideration of a Full Court of the Court in

that Division and the Full Court has jurisdiction to hear

and determine the case or question."

A single judge may reserve any question of law pursuant to s.25(6) at any stage of the proceedings, provided the "matter" with which the question is concerned is a matter "with respect to which an appeal would lie" to a Full Court. An appeal does lie with respect to proceedings for relief under s.119 of the Act from a single judge to the Full Court (s.24(1)(a) of the Federal Court of Australia Act) and Gray J. was therefore empowered to reserve questions of law which concerned those proceedings. Although s.25 bears the heading "Exercise of appellate jurisdiction", a question reserved necessarily arises in the proceedings pending in the original jurisdiction of the Court before the judge who reserves the question: Giris Pty. Ltd. v. Federal Commissioner of Taxation [1969] HCA 5; (1969) 119 CLR 365, at p 378. In answering a question reserved pursuant to s.25(6), a Full Court exercises jurisdiction of the same character as that exercised by the judge who reserves the question - in this case, original jurisdiction: see Henderson v. Pioneer Homes Pty. Ltd. [1979] HCA 55; (1979) 142 CLR 294, at p 299. Section 25(6) invests the Full Court of the Federal Court with a jurisdiction analogous to that invested in a Full Court of this Court by s.18 of the Judiciary Act when a case is stated or a question is reserved by a single Justice.

6. The purpose of a power to reserve a question is to obtain from the court which answers the question a ruling which the judge who reserves the question can apply in determining the proceedings. The answer itself may not conclude an issue in the proceedings, or a cause of action in the proceedings or the proceedings as a whole; it may amount to no more than a consultative opinion to be applied in the determination of the proceedings by the judge who reserves the question. There are significant distinctions between an answer which concludes an issue, a cause of action or a proceeding, and an answer which does not.

7. Where an answer is a mere consultative opinion, it does not itself affect the rights and obligations of the parties though it may provide cogent guidance in the making of an order which will affect those rights and obligations. A mere ruling on a point of law in the course of a hearing gives rise to no estoppel: Yule v. Junek (1978) 139 CLR 1, at p 14. Nor does an interlocutory order affecting the procedure of the litigation, for such an order may be reviewed if circumstances warrant a review during the course of the proceedings: Turner v. Bulletin Newspaper Co. Pty. Ltd. [1974] HCA 25; (1974) 131 CLR 69, at pp 96-97. But a decision which concludes an issue tried separately is a final order and is not open to review except on appeal, even though the decision does not conclude the entire cause of action or proceeding: Gray v. Dalgety and Co. Ltd. [1916] HCA 35; (1916) 21 CLR 509, at p 543; and cf. White v. Brunton (1984) QB 570. It is therefore necessary to examine the legal effect of an answer to ascertain whether it finally determines the rights and obligations of the parties in a relevant respect.

8. Where an answer is conclusive in the sense of finally determining the parties' rights and obligations, the parties are thereafter bound by the answer unless and until it is set aside on appeal. The cogency of a non-conclusive answer, on the other hand, depends on the current state of the law when the time comes to translate the answer into an order which finally affects the rights and obligations of the parties. The distinction arises from "an essential difference" between the doctrine of estoppel per rem judicatam on the one hand and the doctrine of precedent on the other: Spencer Bower and Turner, The Doctrine of Res Judicata, 2nd ed. (1969), p 16. The chief example of the difference between the doctrines, cited by Spencer Bower, is In re Waring; Westminster Bank v. Burton-Butler (1948) Ch 221, where an earlier decision by the Court of Appeal as to the applicability of s.25 of the Finance Act 1941 (U.K.) was held to be binding on the trustee of an estate and those beneficiaries who were parties to the earlier proceedings although a different rule, derived from a later and contrary decision by the House of Lords, was applied in the case of a beneficiary who was not party to and not bound by the earlier decision. (But cf. Arnold v. NatWest Bank Plc. (1989) Ch 63, a case which, in my respectful view, rests on an uncertain foundation.)

9. The description of an answer as a "consultative opinion" is not entirely satisfactory even when the answer is non-conclusive, for a judge who reserves a question to be answered by a court to which an appeal lies from his decision is, except in an unusual case where the legislature or weightier authority intervenes, constrained to apply the answer in deciding the case. Yet the constraint derives from pragmatic considerations which demand conformity to the opinion of a court superior in the hierarchy, not from the doctrine of estoppel per rem judicatam.

10. A consultative opinion which does not itself affect the rights and obligations of the parties has been held not to constitute a "judgment", "decree" or "order" as those terms are understood in s.73 of the Constitution and therefore no appellate jurisdiction can be conferred on this Court to entertain an appeal from an answer given by way of consultative opinion; on the other hand, if the answer were to conclude an issue, a cause of action or a proceeding, it would be decisive of the rights of the parties and would estop the parties from subsequently challenging any issues of fact and law which are determined by and legally indispensable to the conclusion: Blair v. Curran [1939] HCA 23; (1939) 62 CLR 464, at pp 531-532. Such an answer would amount to a judgment, decree or order from which an appeal might lie to this Court under s.35 of the Judiciary Act. Thus in Merchant Bills Corporation Ltd v. Permanent Nominees (Aust) Ltd (1972-73) ALR 565 this Court held that an "opinion advice or direction" under a Trustee Act finally determined the rights of the parties to the proceedings and thus attracted the appellate jurisdiction of this Court.

11. The question whether an appeal may lie from an answer given by an intermediate court thus corresponds with the question whether the answer concludes the parties' rights and obligations. The applicable principle was recently stated by this Court in Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation [1987] HCA 43; (1987) 163 CLR 421 at p 425:

" It is well settled that an order must finally determine

the rights of parties before it will qualify as an order

within the meaning of s.73 of the Constitution and s.35 of

the Judiciary Act 1903 (Cth): Smith v. Mann [1932] HCA 30; ((1932) 47

CLR 426, at pp 445-446); Minister for Works (W.A.) v.

Civil and Civic Pty. Ltd. [1967] HCA 18; ((1967) 116 CLR 273 at pp 277-

279,281,285-286,288-290); Yule v. Junek (at p 14); Fisher

v. Fisher [1986] HCA 61; ((1986) 161 CLR 438 at pp 449-451). Thus,

a distinction has been drawn between answers given to

questions in a stated or special case which determine the

rights of the parties (Smith v. Mann), and answers to a

stated or special case which are advisory or consultative

only: Minister for Works (W.A.) v. Civil and Civic Pty. Ltd.

The former, but not the latter, constitute an order within

the meaning of s.73 and s.35."

(See also The President of India v. The Moor Line Ltd. (No.2) [1958] HCA 25; (1958) 99 CLR 212.) The passage cited cannot be taken to exclude all interlocutory orders from being appealed, but it excludes appeals from answers to questions of law which are given merely to guide a judge at trial.

12. In some circumstances, it appears that the reserving of a question for the consideration of a court which ordinarily sits on appeals amounts to an order that the question reserved be tried as a separate issue by the appellate court. Where the answer given by the appellate court does conclude the issue, the effect of that answer is binding on the parties at all subsequent stages of the proceeding unless set aside on appeal: Badar Bee v. Habib Merican Noordin (1909) AC 615; Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) LR 11 Ind App 37, at pp 41,42; Gray v. Dalgety and Co. Ltd., at pp 521-522,541-543; Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630, esp. per Diplock L.J. at pp 641-642. If such a determination were made by a Full Court of the Federal Court, it would bind this Court if the proceedings were removed here no less than it would bind the Court from which the proceedings were removed (per Isaacs J. in Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. (No.1) [1913] HCA 76; (1913) 16 CLR 591, at p 621) although the determination would amount to a judgment, decree or order from which an appeal might lie to this Court. As Diplock L.J. explained in Fidelitas Shipping, at p 642:

"Where the issue separately determined is not decisive of

the suit, the judgment upon that issue is an interlocutory

judgment and the suit continues. Yet I take it to be too

clear to need citation of authority that the parties to the

suit are bound by the determination of the issue. They

cannot subsequently in the same suit advance argument or

adduce further evidence directed to showing that the issue

was wrongly determined. Their only remedy is by way

of appeal from the interlocutory judgment and, where

appropriate, an application to the appellate court to

adduce further evidence: but such application will only be

granted if the appellate court is satisfied that the fresh

evidence sought to be adduced could not have been available

at the original hearing of the issue even if the party

seeking to adduce it had exercised due diligence.

This is but an example of a specific application of the

general rule of public policy, nemo debet bis vexari pro

una et eadem causa. The determination of the issue between

the parties gives rise to what I ventured to call in Thoday

v. Thoday ((1964) P 181, at p 198) an 'issue estoppel.' It

operates in subsequent suits between the same parties in

which the same issue arises. A fortiori it operates in any

subsequent proceedings in the same suit in which the issue

has been determined."

13. Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. [1913] HCA 71; (1913) 16 CLR 245 ("the FEDFA Case") appears to be a case in which the question reserved for consideration was treated as an interlocutory judgment which finally concluded the question reserved. There, the President of the Commonwealth Court of Conciliation (Higgins J.) had stated a case for the opinion of the High Court in proceedings where the FEDFA had by plaint alleged an industrial dispute and sought an award in settlement. The case was stated pursuant to s.31 of the Conciliation and Arbitration Act which provided, inter alia:

"(1) ...

(2) The President may, if he thinks fit, in any proceeding

before the Court, at any stage and upon such terms as he

thinks fit, state a case in writing for the opinion of the

High Court upon any question arising in the proceeding

which in his opinion is a question of law.

(3) The High Court shall hear and determine the question,

and remit the case with its opinion to the President, and

may make such order as to costs as it thinks fit."

Higgins J. submitted six questions to the High Court including -

" (1) Is an association of land engine-drivers and firemen

an association that can be registered under sec.55 of the

Act?

(2) If not, is the objection fatal to the claim when the

case comes on for hearing?"

The High Court answered the first question in the negative, the latter in the affirmative: [1911] HCA 31; (1911) 12 CLR 398. Thereafter the Conciliation and Arbitration Act was amended to permit registration of associations such as the FEDFA and to deem prior purported registrations to be valid. The effect of the High Court's answer to the questions on the proceedings which were pending in the Arbitration Court in the light of the amendment then became the subject of dispute. Griffith C.J. said (16 CLR at p 257):

"It was contended, on the one hand, that the opinion or

determination is merely consultative, and, on the other,

that it is judicial. There can, I think, be no doubt

that it is appealable to the King in Council under the

Constitution. And I think that the use of the words 'hear

and determine' indicate unmistakably that the proceeding

is judicial. ... If the matter in question does not go to

the whole alleged cause of suit, it can only operate as a

direction to the President as to the law which he is to

observe in giving his judgment in the suit. And, having

regard to the structure of sec.31, I think that the same

result follows even where the decision of the High Court

goes to the whole cause of suit. For, since an appeal does

not lie from the Arbitration Court, it seems to follow that

that Court alone can formally pronounce judgment in the

suit. On the other hand, I am clearly of opinion that both

the President and the parties are bound by the decision of

the High Court, which, as between the parties, is res

judicata, and, as to the President, is a direction which it

is unthinkable that he can disobey."

" I cannot help thinking that the words 'hear and

determine' govern paragraph 2 of sec.31, and that the

'hearing and determination' there prescribed is a judicial

act, so closely equivalent to a judgment that an appeal

would lie from such a decision given by this Court to the

Judicial Committee of the Privy Council, subject, of course,

to special leave. I think that on the statement of a

case the question becomes transferred from the Court of

Arbitration to the High Court, to be there determined,

though the result is remitted to the President. I think the

question submitted is to be determined by this Court once

for all, and not to be determined over again one way or the

other by the learned President, and that our decision binds

the Court of Arbitration and the parties as well. The

parties are heard and the question is determined, although

the result of the decision may be embodied in the award of

the Court when the President pronounces it."

Isaacs J. treated the High Court's answers to the questions in the stated case as binding on the President although, absent a right of appeal, there was no means of constraining him to apply the answers. His Honour said (at pp 274-275):

"The decision of the High Court is, after all, only its

'opinion' on a matter of law; and the requirement to 'hear

and determine' the question is only to place a judicial

duty upon this Court to answer the question, and to make

that answer authoritative when remitted; that opinion is

certainly to guide the President, and to guide him as

authoritatively as if it were set out plainly in an Act of

Parliament. The legislature, while not in so many words

directing him to follow it, expects him to do so. 'Hear

and determine' involves a decision which all subordinate

tribunals must follow, and I agree that it is appealable to

the Privy Council."

Higgins J. dissented, regarding the High Court's answers as merely a consultative opinion, though he acknowledged that those answers would probably have compelled him as President of the Arbitration Court to act upon them had the law not been amended (at pp 282-283). His Honour said (at p 284):

"I cannot treat the words 'hear and determine the question'

as necessarily implying a finding of law which is to be

binding between the parties, or such of them as appear

to argue the question. After all, the 'hearing and

determination' are only with a view to an 'opinion'; the

final result of what the High Court does is only an

'opinion.' The word 'opinion,' which is used twice in

the previous parts of the section, is not an appropriate

word for a final and conclusive judgment between parties.

Indeed, the question asked need not be in issue between

the parties at all, although it must 'arise in the

proceedings'; it may be asked by the President for his own

guidance, even though both parties object."

The order made in the case reflected the opinions of Griffith C.J. and Barton J. Shortly afterwards, in Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. (No.1), Isaacs J. said (at pp 620-621):

" I agree that whatever 'opinion' we give must be given

'judicially,' and therefore authoritatively, as decided in

the second case. The section says this Court 'shall hear

and determine the question,' and according to that decision

and the authorities on which it rests, the determination of

this Court is one which the law expects and requires the

President to accept and apply as a binding declaration of

law in the matter before him. ... here the section further

provides that 'the High Court shall hear and determine the

question,' and the result follows which I have stated in my

judgment in the Engine-Drivers' Case (No.2). ... The rule

applying in such a case is thus stated by the Judicial

Committee speaking by Lord Macnaghten in Badar Bee v. Habib

Merican Noordin (at p 623):- 'It is not competent for the

Court, in the case of the same question arising between the

same parties, to review a previous decision not open to

appeal.'"

His Honour thus treated the first decision as binding because there was an estoppel per rem judicatam.

14. In Smith v. Mann [1932] HCA 30; (1932) 47 CLR 426, where the Workers' Compensation Commission was empowered to state a case for decision by the Supreme Court, an answer to a case stated before award was regarded as advisory, but after award as judicial: see pp 445-446. In that case, the view was taken that there was no conclusive determination of any issue in the proceedings by the Supreme Court except where the case was stated after the award was made. Where a case is stated after an award is made, the Commission has exhausted its function and the Court's decision itself concludes the rights of the parties: cf. C.T. Cogstad and Co. v. H. Newsum, Sons and Co. (1921) 2 AC 528. In Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [1967] HCA 18; (1967) 116 CLR 273, although the Full Court of the Supreme Court of Western Australia was empowered "to hear and determine" an appeal against an advisory opinion which the statute authorized a judge of the Court to give, it was held that the Full Court on appeal had jurisdiction merely to express an advisory opinion. Kitto J. observed (at p 286) that the word "determine" "is not a word of invariable meaning, though undoubtedly there is a prima facie difficulty in applying it to a mere giving of advice: Tata Iron and Steel Co. Ltd. v. Bombay Chief Revenue Authority ((1923) 39 TLR 288, at p 291)." In Tata Iron and Steel, Lord Atkinson said (at p 291):

" When a case is stated for the 'opinion' of the Court,

that word would serve prima facie to indicate that the

order made by the Court was only advisory. Where the case

is referred for the 'decision' or 'determination' of a

question, there is a prima facie difficulty in holding that

the order embodying this determination or decision is

advisory, but the use of these words or one of them is not

decisive."

In Fisher v. Fisher [1986] HCA 61; (1986) 161 CLR 438 it was held that the answers given by the Full Court of the Family Court to questions reserved by a special case stated by a judge of that Court were advisory only. The case had been stated under a power to reserve questions of law conferred on judges of the Family Court by s.94A of the Family Law Act 1975 (Cth):

" (1) If, in proceedings in a court, being proceedings in

which a decree to which sub-section 94 (1) (the appeal

provision) applies could be made, a question of law arises

which the Judge and at least one of the parties wish to

have determined by a Full Court of the Family Court before

the proceedings are further dealt with, the Judge shall

state the facts and question in the form of a special case

for the opinion of a Full Court, and a Full Court shall

hear and determine the question.

(2) The Full Court may draw from the facts and the

documents any inference, whether of fact or of law, which

could have been drawn from them by the Judge."

The jurisdiction of this Court which was considered in the FEDFA Case and the jurisdiction of the Full Court of the Family Court which was considered in Fisher v. Fisher were each to hear and determine the questions reserved, yet in the FEDFA Case the jurisdiction of this Court determined the issue raised by the reserved question and in Fisher v. Fisher the jurisdiction of the Full Court of the Family Court was held to go no further than the expression of a consultative opinion. The FEDFA Case was not cited in the argument in Fisher v. Fisher, but that is not to say that Fisher v. Fisher is to be dismissed as a decision per incuriam. Perhaps the chief distinction between the statute considered in the FEDFA Case and the statute considered in Fisher v. Fisher lies in the court in which the power "to hear and determine" was reposed. In the FEDFA Case, the President of the Arbitration Court was concededly vested with exclusive jurisdiction to determine the proceedings in which the case was stated but a different court - this Court - was vested with jurisdiction "to hear and determine" the reserved questions. In Fisher v. Fisher, the Family Court of Australia - though not exclusively - was vested with jurisdiction in the proceedings and the Full Court of that Court had power "to hear and determine" the reserved questions: the same court was empowered both to reserve the questions and to hear and determine them. The point of distinction must be that, when a power to hear and determine a reserved question is conferred on a Full Bench of the same court as is seized of the proceeding in which the question is reserved, the answer is taken to be merely the expression of a consultative opinion; but when a power to hear and determine is conferred on another court, the reservation of the question is taken to raise an issue for separate trial and the answer is taken to be determinative of the issue so raised. Section 25(6) of the Federal Court of Australia Act places this case in the former category. Therefore, though a Full Court of the Federal Court has power "to hear and determine" reserved questions, the answers given by the Full Court of the Federal Court in this case must be taken to be merely advisory, just as the answers given by the Full Court of the Family Court were taken to be advisory. That being so, there is no estoppel per rem judicatam. Hence there is neither jurisdiction nor need to make an order setting aside the answers given by the Full Court (see Minister for Works (W.A.) v. Civil and Civic Pty. Ltd., at p 279) before giving effect to any contrary view entertained by this Court. It follows that, on removal of the proceedings to this Court, this Court must determine and give effect to its own view of the law, whether or not that view corresponds with the answers given by the Full Court of the Federal Court.

15. If this Court were now purporting to exercise the same jurisdiction as that exercised by the Full Court of the Federal Court, namely, the giving of an advisory opinion in answering reserved questions, it might have been necessary to consider whether such a jurisdiction can be conferred as part of the judicial power of the Commonwealth. The opinion of the majority in In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, at p 265, that "there can be no matter within the meaning of (s.76 of the Constitution) unless there is some immediate right, duty or liability to be established by the determination of the Court" would have to be considered further in order to see whether a "matter" might comprehend the expression by the Full Court of a federal court of an opinion to guide a single judge of the same court in determining a right, duty or liability in actual contest between parties to pending litigation in that court. The history of Commonwealth legislation shows that the Parliament and this Court have acted on the assumption that such jurisdiction may properly be conferred and exercised: see, for example, s.198 (now repealed) of the Income Tax Assessment Act 1936 (Cth) and Ronpibon Tin N.L. and Tongkah Compound N.L. v. Federal Commissioner of Taxation [1949] HCA 15; (1949) 78 CLR 47; Parke Davis and Co. v. Commissioner of Taxation [1959] HCA 15; (1959) 101 CLR 521; Union-Fidelity Trustee Co. of Australia Ltd. v. Federal Commissioner of Taxation [1969] HCA 36; (1969) 119 CLR 177; Curran v. Federal Commissioner of Taxation [1974] HCA 46; (1974) 131 CLR 409; s.18 of the Judiciary Act and R. v. Kidman [1915] HCA 58; (1915) 20 CLR 425, but cf. p 448; and Steele v. Defence Forces Retirement Benefits Board [1955] HCA 34; (1955) 92 CLR 177. In the last-mentioned case, the jurisdiction of the single Justice who reserved the questions for the Full Court had jurisdiction to hear and determine a matter finally and conclusively and without appeal: s.83(2) of the Defence Forces Retirement Benefits Act 1948 (Cth) (as it then was). It is not necessary finally to resolve this question, however, for the jurisdiction which this Court is now exercising is the ordinary jurisdiction to hear and determine the entire cause which has been removed into this Court. The substantial question which must now be determined by this Court, preliminary to the hearing of the evidence in the cause, is whether it is open to the respondent company in these proceedings to challenge the validity of the award on which the application under s.119 of the Act is founded. It will be remembered that this is the substantial question raised in the case stated by Gray J.

16. However, before turning to that question, I should refer to the standing of the decisions of this Court which establish what was recently and unanimously stated to be a "well settled" principle, namely, "that an order must finally determine the rights of parties before it will qualify as an order within the meaning of s.73 of the Constitution and s.35 of the Judiciary Act": Swiss Aluminium, at p 425. This principle was not challenged in the present case. Indeed, the procedure of removing the whole cause into this Court was adopted in deference to that principle. In these circumstances, reconsideration of the principle in other judgments raises the question whether I too should express my view as to the correctness of the principle. I do not propose to do so; not merely in order to avoid saying more than is necessary to decide the case but on account of a more fundamental concern about the doctrine of stare decisis and its operation in a final court of appeal.

17. Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature, judges make law. Within the proper limits, judges seek to make the law an effective instrument of doing justice according to contemporary standards in contemporary conditions. And so the law is changed by judicial decision, especially by decision of the higher appellate courts. Thereafter, the law is taken to be and to have been in accordance with the principle which informs the new decision: the ratio decidendi. The ratio, which is expressed in or necessarily implied by reasons for judgment to which a majority of the participating judges assent, is the law. It is not merely a judicial opinion as to what the law is; it is a source of law: see Salmond on Jurisprudence, 12th ed. (1966), p 141.

18. A judge who participates in the creation of a judicial precedent, no less than a judge who dissents, is bound by the precedent created so long as it remains the law. The reasons for judgment which contain the ratio are not mere records of individual judicial opinion which the author is free to repent and withdraw: the investing of the ratio with the character of law flows not from the authority of the judge but from the authority of the court. It follows that only the court can change the law so made. In this Court, in order to preserve an appropriate balance between the desirability of certainty in law and the exigencies of change, the Court determined that it would not "hear full argument on every occasion when counsel wishes to contend that a previous case was wrongly decided": Evda Nominees Pty. Ltd. v. Victoria [1984] HCA 18; (1984) 154 CLR 311, at p 316. The practice thus developed of requiring that leave to canvass an earlier decision be granted before this Court will enter upon a reconsideration of the earlier decision. In my respectful opinion, since the rationes decidendi of this Court are the law of this country, the Justices of this Court are bound to accept the ratio of a previous decision of this Court as the law unless and until leave is given to canvass the correctness of that decision.

19. Of course, there are many instances in the reports of a judicially-expressed doubt about or dissatisfaction with a particular decision. Yet there is a difference between expressions of that kind, which might helpfully stimulate professional reflection upon and ultimately lead to an argued reconsideration of a decision, and the rejection - in all but form - of a settled principle without argument in open court. In the former situation, the authority of this Court and its decisions are accepted; in the latter situation, though I say so with respect, it seems to me that the law is targeted for overruling in advance and the authority of this Court and its decisions are eroded by mere judicial opinion. How are other courts and parties to regard the law in the period before overruling is formally pronounced? And with what confidence can a litigant who seeks to have the existing law maintained approach the argument in which its overruling is in issue?

20. If the maintenance of the law hitherto settled in this Court as to the meaning of "judgments" in s.73 of the Constitution and s.35 of the Judiciary Act is extensively criticized by judicial dicta, one cannot contemplate with equanimity the situation of a litigant who seeks to uphold the existing rule. Take the case of a litigant who, having been acquitted of a criminal offence at trial and having had his acquittal confirmed by an intermediate court of appeal, finds that the Crown seeks an order from this Court which, without disturbing the formal verdict, would declare that his acquittal was secured by legal error. In defence of his reputation he may wish to argue that the Constitution protects an acquitted person from the obloquy of a judgment of this Court which, in order to correct a point of law, declares his acquittal to be defective yet provides him with no opportunity of reaffirming his entitlement to an acquittal. Such a litigant's argument would be met by a counter-argument, judicially endorsed, that his view applies "a narrow and legalistic construction" to the Constitution and the Judiciary Act and, undesirably and illogically, denies to this Court its ability "to discharge its function as the final appellate court of the nation". Such a litigant may wish to argue, with or without the support of the Commonwealth and the States, that the primary function of this Court is to determine the rights and obligations of parties to litigation and that the declaration of the law is incidental to the determination of those rights and obligations. He may wish to argue that the public interest in having this Court declare the law for this country may be a paramount consideration in the granting of special leave to appeal, but it should not prevail over the interests of litigants in the determination of appeals. At all events, I would not choose between the competing arguments without having had the benefit of submissions in open court on behalf of parties whose respective interests present the issue in sharpened focus for determination.

21. Until that occurs, I would adhere to what this Court has institutionally declared to be the settled law and to accept, as the parties accepted, that the answers did not affect the rights and obligations of the parties and therefore no appeal lay from the answers given by the Federal Court.

22. Had those answers concluded the parties' rights and obligations, it is axiomatic that this Court could not have departed from the answers given. The issue, in that event, would have been the parties' rights and obligations, not what the law is. However, as the answers of the Federal Court did not conclude the parties' rights and obligations, it is open to this Court to address the same questions and to answer them for the purposes of the proceedings in whatever manner this Court determines to be correct.

The effect of s.60 of the Conciliation and Arbitration Act.

23. In the submissions of the applicant and of the intervener, the Attorney-General for the Commonwealth, the award is protected from collateral attack in s.119 proceedings by s.60 of the Act which provides:

" (1) Subject to this Act, an award (including an award

made on appeal) -

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed,

quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account.

(2) A determination or finding of the Commission upon a

question as to the existence of an industrial dispute is,

in all courts and for all purposes, conclusive and binding

on all persons affected by that question.

(3) An award shall not be called in question in any way

on the ground that it was made by the Commission

constituted otherwise than as provided by this Act."

This provision, or a predecessor of more limited import, has stood in the Act or its predecessor since the Commonwealth Conciliation and Arbitration Act was enacted in 1904. The long history of these provisions shows that privative provisions in the Act have had limited success in shielding awards from both judicial review and collateral attack. The constitutional limitations on the arbitration power have proved to be intractable and the statutory limitations which the Parliament itself imposed on the award-making power could not be swept aside. The leading cases are collected in judgments in Reg. v. Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, at pp 418-419,420-423.

24. In this case the applicant, with the support of the Attorney- General, seeks to give a wider operation to s.60 than has hitherto been accorded. Before considering the arguments advanced to this end, it is desirable to note some propositions which are common ground.

25. It is accepted that s.60 does not (for the Parliament cannot) circumscribe the jurisdiction of this Court conferred by s.75(v) of the Constitution in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. By appropriate proceedings under s.75(v), a person whose interests are affected by a purported award may attack its validity directly. If the attack is successful, the purported award may be declared invalid. No court other than this Court and the Federal Court has been invested with jurisdiction under s.75(v), and the Federal Court is prohibited from exercising that jurisdiction against an officer of the Commonwealth holding office under the Act or, nowadays, under the Industrial Relations Act: Judiciary Act, s.39B(2)(a). It follows that no direct attack can be made on the validity of a purported award save in this Court. The submissions of the applicant and the Attorney-General go further, submitting that s.60 is effective to shield a purported award from collateral attack whether on the ground that the purported award is beyond constitutional power or on the ground that the purported award is beyond statutory power. These grounds evoke separate consideration.

26. The power of the Parliament to make laws with respect to the several subjects set out in s.51 of the Constitution is limited, of course, by the terms in which the power is conferred. The subject of par.(xxxv) is -

"Conciliation and arbitration for the prevention and

settlement of industrial disputes extending beyond the

limits of any one State".

A law which would purport to empower the Commission to make an award to prevent or settle a controversy which does not or would not amount to an "industrial dispute" or which, though amounting to an "industrial dispute", is not or would not be an industrial dispute "extending beyond the limits of any one State" finds no support in s.51(xxxv). It follows that no award, whether apparently supportable as an exercise of statutory power or not, can find support in s.51(xxxv) of the Constitution if it is not made to prevent or settle "industrial disputes extending beyond the limits of any one State." The stream can rise no higher than its source.

27. In proceedings in the Federal Court under s.119 of the Act to enforce a purported award against a party who claims that the award lacks constitutional support, does s.60 preclude the Federal Court from deciding whether the award lacks constitutional support? We have seen that no direct attack can be made in the Federal Court on the award under s.75(v) of the Constitution. The prohibitions in s.60(1)(b) against entertaining an appeal against a purported award and against reviewing or quashing an award are otiose, for the Federal Court has not been invested with jurisdiction to entertain an appeal against an award or to review or quash an award. When the Federal Court hears and determines proceedings under s.119 of the Act, it is not exercising such a jurisdiction. However, the prohibition in s.60(1)(b) against permitting a purported award to "be challenged ... or called in question" would, if fully effective, preclude a collateral attack upon its validity. The applicant and Attorney- General submit that s.60(1)(b) operates, pursuant to s.77(i) of the Constitution, to confine the jurisdiction of the Federal Court in proceedings under the Act by excluding jurisdiction to entertain a collateral attack on the validity of an award. Reliance is placed on Harrison v. Goodland [1944] HCA 41; (1944) 69 CLR 509 where this Court observed that, on a prosecution before a magistrate for breach of an order made by a Judge of the Court of Conciliation and Arbitration, s.31 (a predecessor of s.60(1)(b)) precluded the magistrate from entertaining a challenge to, or a calling in question of, an order of the Court of Conciliation and Arbitration. That was not a case where constitutional support for the order was in question. It was assumed, perhaps correctly in the case of an order of the Court of Conciliation and Arbitration that was in part a judicial order (see per Dixon J. at p 521), that the magistrate was precluded from examining whether the Judge had made an order beyond his statutory powers. The case is distinguishable not only because no question of constitutional validity was in question but also because it related to the validity of an order made by a superior court. Here the question is whether the prohibition in s.60(1)(b) of the Act precludes a superior court from examining the constitutional support for an award made in purported exercise of an arbitral power containing no judicial element.

28. When s.60(1)(b) of the Act purports to prohibit all collateral attack by prohibiting a court from entertaining a challenge to or calling in question an award, it purports to direct the way in which the court must treat the purported award. That is not to withdraw or limit the court's jurisdiction but to prescribe the legal effect to be attributed to an award in the exercise of the court's jurisdiction. The validity of a purported award is not a "matter" separate from the matter arising under s.119 of the Act. One of the issues which falls for determination by a court exercising jurisdiction in a matter arising under s.119 is whether the instrument propounded as an award is in truth an "award" within the meaning of that term in s.119. In determining that issue, the court is not exercising a jurisdiction in a distinct matter but is simply applying the relevant law, and that law includes the Constitution to which effect must be given in accordance with Covering Cl.5. That clause makes the Constitution and laws which are made "under the Constitution" "binding on the courts, judges, and people of every State and of every part of the Commonwealth".

29. Nevertheless, so the argument runs, when the Federal Court is exercising its jurisdiction in a matter under s.119 of the Act, s.60 withdraws from its jurisdiction the issue of validity of a purported award, that issue being open to determination only in this Court in proceedings under s.75(v) of the Constitution. It is a non sequitur to argue from a denial of jurisdiction to the Federal Court to entertain a direct attack on the validity of a purported award to a requirement that that Court reject a collateral attack on validity. That argument encounters insuperable difficulties. If collateral attack were precluded so that every purported award had to be treated as if it were valid except in proceedings under s.75(v), by what means could the constitutional limitation on power be made effective? Even if this Court were to decide under s.75(v) that an award is invalid and were to direct a writ of prohibition to the Commission, this Court could not prohibit the Federal Court from exercising its jurisdiction on the footing that the award was valid. On the hypothesis that s.60 could effectively require the Federal Court not to question the validity of an award but to treat every purported award as valid, that Court would be acting within its jurisdiction in doing so. A writ of prohibition directed to the Commission pursuant to s.75(v) might well be a brutum fulmen unless it restrained the proposed applicant for s.119 orders from invoking the jurisdiction of the Federal Court. Unless restrained, any person armed with a purported though invalid award could invoke s.60 to require a court in other proceedings under the Act to treat the purported award as valid.

30. If s.60(1)(b) were to preclude a collateral attack founded on a lack of constitutional support, it would require a court entertaining proceedings under the Act to treat as valid a purported award which in truth lacked constitutional support. If that were the effect of s.60(1)(b), it would contravene Covering Cl.5 of the Constitution. No law of the Parliament can confer validity on a purported award when constitutional support is lacking; to the extent to which a law purports to do so, the law is invalid. As this Court said in reference to a provision (s.16(1)) similar in import to s.60(1)(b) in Reg. v. Kirby; Ex parte The Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159, at pp 173-174:

"The difficulty is not overcome by the provisions of

s. 16(1) for that section, however far its operation may

extend, cannot operate to render inviolate and so clothe

with validity an award or order the making of which, having

regard to the limits of the relevant constitutional power,

could not in the first instance have been authorized by the

legislature."

"though this section (s.16(1)) may have the effect of giving

a practical operation to some awards or orders made without

express legislative authority, it is, for the reason

already given, incapable of protecting or preserving orders

made not only in excess of the powers conferred by the Act,

but also in excess of the capacity of the legislature to

authorize the making of awards and orders in relation to

industrial matters."

A law which seeks to direct a court to treat a purported but constitutionally invalid award as valid is, to that extent, itself beyond the legislative power of the Parliament and it is not itself a law made "under the Constitution". It follows that s.60(1)(b) has no effect upon a challenge to the validity of an award so far as that challenge is founded on a lack of constitutional support.

31. A law enacted in exercise of a constitutional power may exhaust but not exceed the power. Therefore the Parliament might, if it so chose, immunize any purported award from collateral attack provided the immunity does not extend to attacks founded on lack of constitutional power. Although the prohibition in s.60(1)(b) against challenging or calling in question an award must be read down to be within constitutional power, that does not affect the operation of the provision upon a purported award which, if made under the statute, would be supported by the Constitution. In such a case, there remains the problem of reconciling the broad terms of the prohibition with the express provisions of the Act. If s.60(1)(b) were to preclude any collateral attack on a purported award when the attack is founded merely on want of statutory power, the statutory limitations on the powers of the Commission would be ineffective: a purported award, though made outside the powers conferred by the Act, would have to be treated as valid. Conversely, if the statutory limitations were to be given their full effect so that every purported award which is made outside the powers conferred by the Act is treated as invalid for all purposes, the prohibition in s.60(1)(b) against challenging or calling in question an award would be nugatory. The point was made in Reg. v. Coldham (at p 418):

" As Dixon J. explained in Murray [1949] HCA 10; ((1949) 77 CLR 387,

at pp 398-399), and in other cases, it is a matter of

reconciling the prima facie inconsistency between one

statutory provision which seems to limit the powers of the

Tribunal and another provision, the privative clause, which

seems to contemplate that the Tribunal's order shall

operate free from any restriction. The inconsistency is

resolved by reading the two provisions together and giving

effect to each."

The manner of reconciliation was stated by Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 615:

"(Privative provisions) are not interpreted as meaning to

set at large the courts or other judicial bodies to whose

decision they relate. Such a clause is interpreted as

meaning that no decision which is in fact given by the body

concerned shall be invalidated on the ground that it has

not conformed to the requirements governing its proceedings

or the exercise of its authority or has not confined its

acts within the limits laid down by the instrument giving

it authority, provided always that its decision is a bona

fide attempt to exercise its power, that it relates to

the subject matter of the legislation, and that it is

reasonably capable of reference to the power given to the

body."

In the opinion of Menzies J. in Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. [1960] HCA 68; (1960) 104 CLR 437, at p 455, this passage "has come to be regarded as classical". The effect of s.60(1)(b) on a purported award which is supportable by the Constitution but which has been made outside the powers of the Commission is to require it to be treated as valid when the three conditions stated by Dixon J. are satisfied and (a fourth condition, if not already inherent in the conditions stated) when the treatment of the purported award as valid does not infringe "inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal": Reg. v. Coldham, at p 419. Thus a purported award, supportable by the Constitution but made outside the powers conferred on the Commission, must be treated as valid where it is a bona fide attempt to exercise the award-making power, relates to the subject matter which an award might legitimately address, is reasonably capable of being referred to the award-making power and does not transgress "inviolable limitations or restraints" which the statute imposes on the powers of the Commission. This is not the occasion to determine finally the meaning and content of the Hickman-Coldham conditions but without comprehensive argument I would not presently be prepared to hold that the first condition is necessarily satisfied when the face of the record reveals no want of bona fides in the attempt to exercise the award-making power, though want of bona fides may not be easily proved without such evidence. I respectfully agree with what the Chief Justice has written on this question.

32. When the Hickman-Coldham conditions are fulfilled, s.60 will "validate" the purported award in the sense that s.60 will shield it from direct or collateral attack and require the court before which the validity of the purported award is in question to exercise its jurisdiction on the footing that the purported award is not invalid merely on the ground that it was in truth made in excess of the statutory powers conferred on the Commission. Although s.60 does not deem an award made outside the powers of the Commission to be an award within those powers, s.60(1)(b) has the effect of giving a protected award an operation as though it were valid. Since s.60(1)(b) attributes to some invalid awards the same operation as valid awards would have, it may be said that s.60(1)(b) "validates" an invalid award: see R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208, at p 249. In that sense, s.60(1)(b) expands the powers conferred on the Commission by other provisions of the Act.

33. The prohibition against challenging or calling in question an award goes no further. If a purported award is not supportable as an exercise of statutory power and does not satisfy the conditions mentioned, it is invalid for all purposes and is not an "award" within the meaning of that term in s.119 of the Act. Section 60 does not withdraw from the Federal Court the power and the duty to determine in s.119 proceedings whether the instrument propounded as an award is an "award" for the purposes of that section: see Reg. v. Commonwealth Industrial Court Judges: Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at pp 321,324-325.

34. Thus it appears that the answers given by the Federal Court to the reserved questions were correct. Having decided those issues for ourselves, it is appropriate now to remit the cause to the Federal Court to continue with the hearing and determination of the proceedings commenced by the applicant's application. This Court's decision accords with the opinion of the Full Court of the Federal Court but the decision of this Court should be expressed in the form of an order under s.42(1) of the Judiciary Act directing that the matter be determined in accordance with the decision of this Court.

DEANE, GAUDRON AND McHUGH JJ. Before the Court are proceedings instituted in the Federal Court of Australia by the applicant, who is the Federal Secretary of the Australasian Meat Industry Employees' Union ("the Union"), against the respondent company, which was, at material times, a member of the Meat and Allied Trades Federation of Australia ("the Federation"). It will be convenient to refer to the applicant as if he were the Union and to the respondent as "the employer". In the proceedings, which have been removed into the Court pursuant to s.40(1) of the Judiciary Act 1903 (Cth), the Union alleges that the employer has been guilty of breaches or non-observance of the South Australian Meatworks Industrial Agreement-Award 1982 ("the Award") in that it failed to pay an employee his entitlements under the Award in respect of a specific period of employment. The Union seeks the imposition of a penalty upon the employer under the provisions of s.119 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act") and orders for the payment of wages underpaid to the employee and declaratory relief in respect of the entitlement of other employees of the employer at relevant times. The proceedings were instituted before the commencement of the Industrial Relations Act 1988 (Cth) and it is common ground that they continue and fall to be resolved under the provisions of the Act as if those provisions had not been repealed (see Industrial Relations (Consequential Provisions) Act 1988 (Cth), ss.9,67). It will, on occasions, be convenient to refer to relevant sections of the Act as if they remained operative of their own force.

2. In its Points of Defence filed in the Federal Court, the employer raised a large number of issues of fact. It also denied liability on the ground that the Award, which was purportedly made by the Australian Conciliation and Arbitration Commission ("the Commission") on the application of the Federation (with the consent of the Union) in 1982, was invalid for the reason that it was "in excess of" the Commission's jurisdiction both as a matter of the scope and requirements of relevant provisions of the Act and as a matter of the jurisdiction which could be validly conferred within the ambit of the legislative powers of the Commonwealth Parliament under the Constitution. In support of that line of defence, the employer desired to rely upon affidavit evidence directed to establishing that the Commission, in purporting to make the Award, was not acting bona fide in the exercise of its authority under the Act and that, at the time the Award was purportedly made, there existed no relevant dispute about an industrial matter extending beyond the limits of any one State. The Union disputed the admissibility of that evidence on the ground that it was rendered inadmissible by s.60(1) of the Act which provides, among other things, that, subject to the Act, an award is "final and conclusive" and shall not be "challenged, appealed against, reviewed, quashed or called in question in any court".

3. The learned primary judge stated a special case, reserving seven questions, for the consideration of a Full Court of the Federal Court pursuant to the provisions of s.25(6) of the Federal Court of Australia Act 1976 (Cth). The Full Court, specially constituted by five judges, was divided in relation to the answers which should be given to the questions. The majority (Bowen C.J., Morling and Gummow JJ.; Northrop and Gray JJ. dissenting) answered them as follows:

"(a) Does s.60(1) of the Act, on its true construction,

preclude the Court, in proceedings under s.119 of

the Act, from receiving evidence for the purpose of

determining whether the Award was or was not made

within the constitutional jurisdiction of the

Australian Conciliation and Arbitration Commission?

Answer: No.

(b) Does s.60(1) of the Act, on its true construction,

preclude the Court, in proceedings under s.119 of

the Act, from receiving evidence for the purpose of

determining whether the member of the Australian

Conciliation and Arbitration Commission who purported

to make the Award did or did not act or attempt to act

bona fide in the course of his authority under the

Act?

Answer: No.

(c) If and to the extent to which s.60(1) of the Act

precludes the Court, in proceedings under s.119 of the

Act, from receiving evidence of the kinds contemplated

in questions (a) and (b), is s.60(1) of the Act

invalid as being beyond the legislative power of the

Commonwealth under the Constitution?

Answer: Sub-section 60(1) of the Act, construed in

accordance with the answers to Questions (a) and

(b), is not invalid.

(d) Does s.119 of the Act, on its true construction,

confer jurisdiction on the Court to impose a penalty

for breach or non-observance of the Award if in

fact the Award is made beyond the constitutional

jurisdiction of the Australian Conciliation and

Arbitration Commission?

Answer: No.

(e) If and to the extent to which s.119 of the Act confers

jurisdiction on the Court to impose a penalty for

breach or non-observance of the Award, where the

Award was in fact made beyond the constitutional

jurisdiction of the Australian Conciliation and

Arbitration Commission, is s.119 of the Act invalid as

being beyond the legislative power of the Commonwealth

under the Constitution?

Answer: Section 119 of the Act, construed in accordance

with the answer to Question (d), is not invalid.

(f) To the extent to which s.60(1) of the Act precludes

the Court, in a proceeding under s.119 of the Act,

from receiving evidence that the Award was made beyond

the constitutional jurisdiction of the Australian

Conciliation and Arbitration Commission, is s.119

of the Act beyond the legislative power of the

Commonwealth under the Constitution?

Answer: Sub-section 60(1) of the Act is not to be

construed in the manner stated in this Question

and s.119 is not invalid.

(g) Does s.119 of the Act require the applicant to prove

as part of his case the validity of the Award of which

the respondent is alleged to have committed a breach

or non-observance?

Answer: No."

The Full Court published a minute of orders embodying the majority's answers to the questions at the time the respective reasons for judgment were published. Those orders have not, as yet, been taken out.

4. After the Full Court had published its answers to the questions, the Union applied to this Court for an order that the special case be removed into this Court pursuant to s.40(1) of the Judiciary Act. The Attorney-General for the Commonwealth intervened to obtain such an order of removal as of course. The objective was to obtain a review of the Full Court's answers. An order was made removing the whole cause pending in the Federal Court into this Court. The reason why an order for removal was sought was that it was apprehended that, on the current state of authority, the Court lacked jurisdiction to entertain a direct appeal from the actual answers given by the Full Court or from a formal order embodying those answers. The reason why the order made was for the removal of the whole cause was that, if the stated case and the Full Court's answers had alone been removed, it is difficult to see how there could be either justification or occasion for this Court to embark upon a consideration of the correctness of unappealable answers in circumstances where there were no further proceedings pending in this Court. The consequence of the order made is that the whole proceedings are now pending in this Court at the stage where the questions reserved for the consideration of the Full Court of the Federal Court have been answered.

5. Regardless of the reasons for its adoption, the procedure of removing a whole cause into this Court in order to enable a review of the answers given to questions reserved by a special case is both burdensome and fraught with potential difficulty. In particular, in the present case, the procedure adopted immediately gives rise to the query whether, in the absence of any available direct appeal from the answers given by the Full Court, the parties are bound by those answers with the result that the matter must proceed in this Court, as it would undoubtedly have proceeded before a judge of the Federal Court, in accordance with them. The answer to that question depends upon the nature of the particular stated case procedure and, in particular, the binding effect, in the absence of any direct appeal, of the answers given.

6. It is possible to point to instances where the answers to specific questions reserved by a special case will, in the absence of an appeal, finally dispose of some or all of the issues involved in the litigation and operate as an estoppel by judgment between the parties in relation to those issues and any matters of fact and law whose resolution was indispensable to the determination of them. Proceedings in which outstanding questions of law are reserved by an administrative tribunal in circumstances where the resolution of those questions will finally dispose of the matters in dispute ordinarily fall into that category of case (see, e.g., Smith v. Mann [1932] HCA 30; (1932) 47 CLR 426, at pp 445-446; and see also, for another example, the Act, s.107(4)(b)). In the present case, however, the answers given by the Full Court to the questions reserved for its consideration did no more than deal with certain questions of law which could be expected to arise for consideration in the course of the final hearing of the pending proceedings. It is true that s.25(6) of the Federal Court of Australia Act provides that the answers of the Federal Court "determine" the questions reserved. The answers do not, however, either as a practical matter or as a matter of their legal effect, "finally dispose of the rights of the parties". They are merely interlocutory in character (see, e.g., Hall v. Nominal Defendant (1966) [1966] HCA 36; 117 CLR 423, at pp 439-440, 443-444; Licul v. Corney [1976] HCA 6; (1976) 50 ALJR 439, at p 444; [1976] HCA 6; 8 ALR 437, at p 446; Carr v. Finance Corporation of Australia Ltd. (No. 1) [1981] HCA 20; (1981) 147 CLR 246, at pp 248, 253-254; Sanofi v. Parke Davis Pty. Ltd. (No. 1) [1982] HCA 9; (1982) 149 CLR 147, at pp 152-153). Indeed, they correspond to a ruling or order settling a preliminary point of law and directed not towards creating or affecting immediate rights but towards the subsequent conduct of the proceedings and the ultimate determination, on the hearing, of the issues involved in the action. That being so, they do not give rise to an estoppel by judgment in relation to the questions of law which they determine. In particular, to the extent that they may be carried into any final judgment given on the hearing of the action, they remain susceptible of challenge on an appeal to this Court from that judgment (cf. David Syme and Co. Ltd. v. Lloyd (1984) 3 NSWLR 346).

7. Moreover, in a case such as the present where a judge of a court reserves for the consideration of a full court of that court questions of law which will, or are likely to, arise in the course of the subsequent hearing of the action, the prima facie position is that, notwithstanding statutory provisions to the effect that the relevant full court will "determine" the questions, the answers given by that full court are, as a matter of strict law, "advisory" in their nature (see, e.g., Fisher v. Fisher [1986] HCA 61; (1986) 161 CLR 438, at p 450, and note, as to the use of the word "determine", Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [1967] HCA 18; (1967) 116 CLR 273, at pp 286-287, per Kitto J.). There is nothing in the provisions of the Federal Court of Australia Act which reverses that prima facie position in the present case. That does not, of course, mean that the primary judge would, if the matter had proceeded in the Federal Court, have been free to disregard the Full Court's answers to the questions reserved. The doctrine of stare decisis and the hierarchical system of courts which exists in this country would, in the absence of some intervening event, plainly have required that he accept and apply them. What it means for practical purposes is that the primary judge would not have been required to disregard the doctrine of stare decisis if intervening events had brought about a situation where observance of that doctrine required a departure from the answers given by the Full Court to the reserved questions. If, for example, this Court had, in a subsequent decision albeit in a different matter, held that those answers were mistaken, the primary judge would not have been precluded from proceeding on the basis of what was said by this Court in its subsequent decision in that other matter.

8. It follows from what has been said above that neither this Court nor the parties are bound, for the purposes of the disposition of the removed proceedings, by the answers given by the Full Court of the Federal Court. As has been indicated, the procedure of removal of the whole proceedings is an unsatisfactory one for obtaining a review of the answers to the reserved questions. While the decisions of this Court which effectively preclude a direct appeal from the answers given by a full court in a case where those answers are not finally determinative of the rights of the parties (see, e.g., Fisher v. Fisher, at p 450; Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation [1987] HCA 43; (1987) 163 CLR 421, at p 425) stand, however, the only alternative procedure for obtaining a review of the Full Court's answers would have been to have waited until the whole action had been heard and determined and then to institute an appeal from the ultimate judgment. If, on such an appeal, the challenge to the answers were to succeed in this Court, the result could be an order that the hearing of the action commence anew on the basis of the amended answers. That alternative course could, depending on the circumstances, be an even more unsatisfactory one than that which was adopted, namely, the removal of the whole cause into this Court at this stage. It appears that, on balance, the course adopted was justified and that we should embark upon a consideration of the correctness of the answers given by the Full Court. For one thing, the issues of law determined by those answers are of real difficulty and importance and are appropriate to be considered by this Court. For another, the interests of the administration of justice in the particular case will be better served by a consideration by the Court at this stage of the questions raised by the special case than by the order sought by the employer, namely, an order simply remitting the matter to the Federal Court for the hearing of the challenge to the validity of the Award in accordance with the conclusions of the Full Court. Before turning to a consideration of those questions, however, we wish to add some comments about the current state of authority to the effect that this Court irremediably lacks jurisdiction to entertain a direct appeal from the Full Court's answers (or from a formal order embodying them) in a case such as the present. If such a direct appeal were available pursuant to special leave, it would clearly be a more satisfactory method of proceeding.

9. It has long been settled that jurisdiction cannot be conferred upon this Court to furnish an advisory opinion to a body other than a court. So much was decided in In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257. The reason for that is that a reference requiring the furnishing of an advisory opinion to such a body does not constitute a "matter" for the purposes of Ch.III of the Constitution and is therefore beyond the scope of the original jurisdiction which is conferred or can be conferred by or pursuant to ss.75,76,77 and 78 of the Constitution. As Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. explained (at p 265), the word "matter" in those sections does not mean "a legal proceeding, but rather the subject matter for determination in a legal proceeding" and there can be no "matter" within the meaning of those sections "unless there is some immediate right, duty or liability to be established by the determination of the Court". Their Honours continued (at p 266):

"If the matter exists, the Legislature may no doubt

prescribe the means by which the determination of the Court

is to be obtained, and for that purpose may, we think, adopt

any existing method of legal procedure or invent a new one.

But it cannot authorize this Court to make a declaration of

the law divorced from any attempt to administer that law."

As their judgment indicates (see at pp 264-265), their Honours were influenced by the consideration that a procedure requiring that this Court furnish an advisory opinion to the Executive in circumstances divorced from the administration of the law in relation to an actual matter lies ill with the separation of functions and the division of powers upon which the Constitution "is based". It is but a short step to say that, where a procedure exists for obtaining a merely advisory opinion - in the absence of a "matter" - from a court of a State from whose "judgments, decrees, orders, and sentences" an appeal lies pursuant to s.73 of the Constitution, the advisory opinion given - in the absence of a "matter" - is not a judgment, decree, order or sentence for the purposes of that section. Were it otherwise, State legislation could establish an indirect procedure for obtaining an advisory opinion from this Court notwithstanding the absence of any actual matter. And so it would seem to follow that no appeal lies from the decision of a State court in a proceeding involving no more than the giving of a consultative opinion (cf. Smith v. Mann, at pp 445-446). In both categories of case (i.e. In re Judiciary and Navigation Acts type proceedings and a purported appeal from proceedings of that type in a State court), proceedings in this Court would involve a declaration of the law unrelated to any specific "matter" and "divorced from any attempt to administer" the law.

10. The position is, however, different in the case of an appeal from the decision of the full court of a court on questions reserved for its consideration in the course of proceedings in a "matter" pending in that court. In those circumstances, there is no question of the blurring of the distinction between executive and judicial functions and powers. The full court's determination in such a case has much in common with the making of a declaratory order and may be subsequently embodied in a formal "order". It is made in the course of the exercise of judicial power in relation to an actual "matter" and is in the context of, and not "divorced" from, the ordinary administration of the law. In the absence of quite exceptional circumstances, the full court's decision will, by operation of the doctrine of precedent, control the course of future proceedings and settle, for the purposes of those proceedings, the questions of law involved. In a practical sense, the decision and answers of the full court in such a case will commonly be far more significant in the determination of the rights of the parties than are many of the temporary or procedural interlocutory orders from which it has always been accepted that an appeal lies (by special leave) to this Court (see the Judiciary Act in both its original (s.35(1)(a)) and its present (s.35(2)) forms; and see, also, Reichenbach v. Associated Newspapers Ltd. (1953) 27 ALJR 536; Total Australia Ltd. v. Trade Practices Commission [1975] HCA 48; (1975) 50 ALJR 333; 8 ALR 153). In that general context, it is difficult to see any persuasive reason in law or policy why the answers to such questions, or the formal "orders" embodying them, should fall outside the reach of the words "all judgments, decrees, orders" as used in s.73 of the Constitution. In that regard, it is important to bear in mind that s.73 is directed towards defining the outer limits of this Court's appellate jurisdiction and that within those outer limits a legislative power of regulation and exception is conferred upon the Commonwealth Parliament (see Davern v. Messel [1984] HCA 34; (1984) 155 CLR 21, at p 54). Plainly, it is at least arguable that a narrow and legalistic construction of the general words of s.73, which excludes from the direct appellate jurisdiction of this Court any decision, judgment or order which does not of itself "finally determine the rights of parties" as a matter of strict legal theory (see Swiss Aluminium, at p 425), has the effect of establishing and entrenching an undesirable and illogical defect in the ability of this Court to discharge its function as the final appellate court of the nation. Moreover, such a constrictive construction of the broad phraseology of s.73 is not readily reconcilable with the settled approach to the construction of general constitutional grants of power.

11. As Knox C.J., Gavan Duffy, Powers, Rich and Starke JJ. expressly pointed out in In re Judiciary and Navigation Acts, at p 266, if a "matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purpose may ... adopt any existing method of legal procedure or invent a new one". In a context where appeals to this Court are ordinarily by leave only, it is difficult to see any real reason in policy why the advantages of new and developing procedures for the administration of justice should be partly negatived by the approach that the determination of legal questions by such procedures in the context of an actual matter must, even though a grant of leave to appeal would otherwise be fully justified in the circumstances, be removed from the reach of the appellate jurisdiction of this Court as a matter of jurisdiction unless the determination of itself finally determines the rights of the parties as a matter of legal theory as distinct from practical effect. The procedures of stated and special cases and reserved questions within a court provide a convenient method of resolving questions of law in circumstances where such resolution is desirable at an early stage to avoid abortive hearings and the waste of judicial resources, professional time and legal costs. It is regrettable if the advantages of those procedures must be wholly or partly negatived in any case where an appeal to this Court is appropriate and the appeal ultimately succeeds on the ground that the answers given below were mistaken. Moreover, there are other developments in legal procedures which represent important areas of the ordinary administration of law in this country and which would be constitutionally removed from the reach of the appellate jurisdiction of this Court if a narrow and legalistic construction of s.73 of the Constitution were maintained. Perhaps the most obvious example is the useful and now commonplace procedure for correcting error of law in criminal proceedings without undue infringement of the rule against double jeopardy, that is to say, the procedure by which the Crown may appeal to a court of criminal appeal in a criminal matter without seeking to overturn a verdict of acquittal (see Davern v. Messel, at p 68; Saffron v. The Queen [1953] HCA 51; (1953) 88 CLR 523).

12. It was not sought in argument to challenge the correctness of the decisions of the Court which confine the scope of s.73 of the Constitution in a way which excludes an appeal from any decision or order which does not finally determine the rights of the parties as a matter of strict legal theory. That being so, we refrain from expressing a concluded view about whether those decisions should be reopened and overruled. We have, however, thought it desirable that we indicate that we entertain serious doubts about whether that confinement can be justified. Certainly, it cannot be justified by the considerations relating to the integrity and independence of judicial functions and powers which underlie the decision in In re Judiciary and Navigation Acts and which preclude jurisdiction being conferred upon this Court to furnish to the Executive an advisory opinion divorced from the administration of justice in relation to an actual matter. Indeed, in so far as the special or stated case procedure within a court is concerned, it has long been accepted in this Court that that procedure is appropriate to the exercise by this Court of the judicial power of the Commonwealth (see, e.g., High Court Rules, O.35). We would add that we have been influenced in taking the course of disclosing, rather than ignoring, our present doubts about the correctness of earlier authority confining the scope of s.73 by the fact that what is involved is a self-imposed limitation upon the constitutional jurisdiction and duties of this Court, by the fact that some of us have been parties to that confinement of s.73 and by the consideration that it is difficult to see how the expression of our doubts could cause confusion in any lower court since the question of the jurisdiction of this Court under s.73 is hardly likely to arise for consideration in any other court.

13. Central to the issues raised by the questions reserved for the consideration of the Full Court of the Federal Court in the present case is the effect of s.60 of the Act. That section provided:

"(1) Subject to this Act, an award (including an

award made on appeal) --

(a) is final and conclusive;

(b) shall not be challenged, appealed against,

reviewed, quashed or called in question in any

court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account.

(2) A determination or finding of the Commission

upon a question as to the existence of an industrial dispute

is, in all courts and for all purposes, conclusive and

binding on all persons affected by that question.

(3) An award shall not be called in question in

any way on the ground that it was made by the Commission

constituted otherwise than as provided by this Act."

Section 4(1) of the Act provided that, except where otherwise clearly intended, "Award" means "an award made under this Act and includes an order". Under the Act, the power to make an award is vested in the Commission alone.

14. It is apparent that the words "an award" in s.60 refer, as a matter of statutory construction, to at least some purported awards (see, e.g., Australian Coal and Shale Employees Federation v. Aberfield Coal Mining Co. Ltd. [1942] HCA 23; (1942) 66 CLR 161, at p 182; R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 615). Were it otherwise, the provisions of s.60(1) would be essentially nugatory since, if their application were confined to valid awards, they would not preclude challenge to the validity of an award. On the other hand, it is also apparent that the section does not extend to every document or prescript which purports to be an award made under the Act. A document which was a complete forgery or sham would not, for example, attract the protection of s.60 merely because it described itself as an award made by the Commission in the exercise of its powers. In Aberfield (at p 182), in a passage quoted with approval by Dixon J. in Hickman (at p 615), Starke J. expressed the view that the word "award" in a statutory provision analogous to s.60 should be treated as meaning something "in fact done by the tribunal (i.e. the Commission) in the supposed exercise of the powers entrusted to it". Dixon J., in Hickman, expressed what was essentially the same notion in words which have subsequently been accepted by this Court as an authoritative statement of the effect, as a matter of statutory construction, of provisions of the general nature of s.60. His Honour said (at p 615):

"Such a clause is interpreted as meaning that no decision

which is in fact given by the body concerned shall be

invalidated on the ground that it has not conformed to the

requirements governing its proceedings or the exercise of

its authority or has not confined its acts within the limits

laid down by the instrument giving it authority, provided

always that its decision is a bona fide attempt to exercise

its power, that it relates to the subject matter of the

legislation, and that it is reasonably capable of reference

to the power given to the body."

(See, generally, Reg. v. The Members of the Central Sugar Cane Prices Board; Ex parte The Maryborough Sugar Factory Ltd. [1959] HCA 35; [1959] HCA 35; (1959) 101 CLR 246, at p 255; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) [1967] HCA 47; (1967) 118 CLR 219, at pp 252-253; Reg. v. Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, at p 418.)

15. It follows that a purported award will, as a matter of statutory construction, attract the protection of s.60(1) of the Act if it satisfies three conditions, namely, that it represents a bona fide attempt by the Commission to exercise its powers, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the Commission. The first of those conditions has been the subject of no detailed examination in this Court. There are some statements in the cases which support the approach that it refers to the subjective intentions or motivation of those purporting to exercise the relevant power (see, e.g., Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at p 325). In our view, however, in the context of s.60, it should be understood as referring to what is apparent on the face of the record since it would seem clear that an investigation into the subjective motivation of members of the Commission is the very type of inquiry which the legislature was most concerned to preclude. So understood, the condition will, as a practical matter, be satisfied unless the purported exercise of power can be seen, on the face of the record, to be not bona fide. That being so, the cases in which that first condition is not satisfied in respect of an award purportedly made by the Commission will be rare and extreme. The second and third conditions are related. Both involve objective tests. The requirement that the award relate "to the subject matter of the legislation" will ordinarily be satisfied if the purported award deals with industrial matters. Putting to one side breach of the rules of procedural fairness, the requirement that the award be "reasonably capable of being referred to the power" will be satisfied if, on the face of the record, it appears that the award was made by the Commission in purported exercise of the power of conciliation or arbitration conferred by the Act. See Amalgamated Engineering Union, at pp 252-253, where it was said that the requirement is satisfied if "the purported exercise (of power) ... is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power)". See also Australian Workers' Union, at p 418. In what follows, we shall refer to a "purported award" as an award which satisfies the three above-mentioned conditions as so understood.

16. By its terms, s.60(1) makes an award "final and conclusive" and immune from being "challenged, appealed against, reviewed, quashed or called in question in any court". The sub-section is stated to be subject to the Act. Accordingly, it does not apply to an award which has been cancelled or set aside by the processes and procedures recognized by the Act. Nor does it preclude challenge as authorized by the Act. Otherwise, the clear legislative intent to be discerned in the section is that an award which has been purportedly made in pursuance of the Act is valid and binding. It was not suggested that that legislative intent could not be achieved to the extent that an award was made contrary to some limitation or requirement imposed by the Act but not referable to the Constitution. However, it is necessary to consider whether s.60(1) must otherwise be read down by reason of constitutional limitations upon legislative power, and, if so, to what extent.

17. The relevant primary grant of legislative power is that contained in s.51(xxxv) of the Constitution which confers upon the Parliament legislative power with respect to "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State". Since par.(xxxv), like the other grants in s.51, is concerned only to authorize legislation by the Parliament, any nexus between the paragraph and an award made by the Commission must be through the Act which is the only suggested relevant enactment. The statutory powers conferred by the Act upon the Commission are confined to the settlement and prevention by conciliation and arbitration of inter-State industrial disputes which have at least progressed to the stage of being "threatened", "impending", "probable" or "likely". See definition of "industrial dispute" in s.4(1) of the Act. And, of course, s.60(2) provides that a finding as to an industrial dispute is, "in all courts and for all purposes, conclusive and binding on all persons affected by that question". It will be necessary to make further reference to s.60(2). First, however, it is desirable that we identify with some precision the constitutional basis of the Commission's statutory powers. It would seem that those statutory powers are more narrow than could have been validly conferred by legislation enacted pursuant to par.(xxxv) in that that paragraph extends to authorize laws with respect to conciliation and arbitration for the prevention of inter-State industrial disputes in the abstract. Be that as it may, the constitutional basis of the Commission's jurisdiction under the Act is that which the Act itself selects, namely, the existence of an actual, threatened, impending, probable or likely inter-State industrial dispute. Given the terms of the constitutional grant of legislative power and subject to the possible effect of s.75(v) of the Constitution (see below), it is within the legislative competence of the Parliament to provide that, if such a dispute existed, a purported award made by reference to that dispute is otherwise "final and conclusive" and immune from being "challenged, appealed against, reviewed, quashed or called in question in any court". But, if there was no such dispute, an award purportedly made by the Commission will lack the necessary nexus with the constitutional grant of legislative power. In that situation a purported award will be and, unless validated by s.60(1), will remain invalid for the reason that it lacks any constitutional foundation.

18. Before turning to s.60(1) of the Act, it is convenient to refer to s.60(2). In this Court, counsel for the Union did not rely upon s.60(2) and disavowed any suggestion that the questions raised in the present matter should be approached on the basis that it was the legislative intent that the Commission's finding as to an industrial dispute rather than the existence of an industrial dispute should, once that finding has been made, be the constitutional basis for the subsequent exercise of its powers of conciliation and arbitration. It is therefore not appropriate to determine the precise effect of s.60(2) in the present matter. Moreover, subject to one qualification, it would seem that any invalidity which attends s.60(1) (as to which see below) must, for corresponding reasons, attend s.60(2) of the Act. The qualification is that, assuming circumstances exist which could constitute an industrial dispute in the defined sense, it may be within the legislative competence of the Commonwealth Parliament - particularly if the grant of legislative power is with respect to disputes in the abstract - to make the opinion of a specialist and expert tribunal as to a threatened, impending, probable or likely dispute otherwise immune from challenge. If that is so, it would be arguable that the effect of s.60(2) is to limit the area of inquiry as to the validity of s.60(1) of the Act. The relevant inquiry would, on that argument, be, not whether a dispute in the defined sense existed, but whether the circumstances were such that the Commission could find that it existed. What follows in relation to s.60(1) must be understood as subject to that possible qualification.

19. As has been seen, s.60(1) of the Act is not predicated upon the assumption that the purported awards to which it applies are valid. To the contrary, the sub-section assumes some invalidity, including invalidity deriving from constitutional requirements, which it purports to overcome. That being so, it is necessary to consider whether s.60(1) can itself be supported as a valid enactment of the Parliament to the extent to which it seeks to make "final and conclusive" and immune from challenge awards which are otherwise invalid by reason of lack of constitutional basis. The sub-section can only be so supported if it is itself within the Parliament's legislative power with respect to conciliation and arbitration for the settlement of inter-State industrial disputes (s.51(xxxv)) or a law with respect to a matter incidental to the execution of that legislative power (s.51(xxxix)).

20. The legislative power conferred by s.51(xxxv) extends to the establishment of a system of conciliation and arbitration by a specialist tribunal such as that which the Act in fact established. Implicit in the notion of conciliation and arbitration is the power to determine a dispute by a binding order. Plainly enough, par.(xxxv) envisaged and authorized the establishment of a tribunal with conciliation and arbitration functions and jurisdiction in relation to actual or threatened inter-State industrial disputes and with authority to make binding orders, in the exercise of those functions and that jurisdiction, for the settlement or prevention of such disputes. Because of the nature and subject matter of inter-State industrial disputes, it is inevitable that such binding orders must, on occasion, take the form of prescribing general rules of conduct.

21. In our view, the legislative power to establish such a specialist tribunal for the purposes specified in par.(xxxv) encompasses, of itself and without need to resort to the incidental power contained in s.51(xxxix), the power to make legislative provision conferring upon such a tribunal and its orders whatever authority is reasonably necessary and incidental to enable the effective discharge of its functions. In the context of the limited nature of the grants of legislative power to the Commonwealth Parliament, the conferral of absolute immunity from any challenge to the validity of any orders made by such a tribunal upon constitutional grounds could not properly be seen as reasonably necessary or incidental in that sense. On the other hand, if adequate procedures for challenge to the validity of the orders of such a tribunal are available, provision that the orders of such a tribunal should bind while they stand seems to us to be properly capable of being seen as necessary and incidental to the effective exercise and discharge of the jurisdiction and functions of a tribunal entrusted with the settlement and prevention of inter-State industrial disputes by conciliation and arbitration. Such a provision would neither confer immunity from reasonable challenge nor exceed what was incidental to the conferral of such jurisdiction and functions in that it was necessary to avoid a situation in which the orders of a tribunal established to promote inter-State industrial harmony would themselves constitute an open-ended possible source of aggravated inter-State industrial dispute. It could be compared with a provision that made the judgment and orders of a federal court finally binding after ordinary and appropriate appellate procedures had been exhausted or ignored. Indeed, a conciliation and arbitration system under which long-standing awards, which prescribed and regulated conditions in industry and which had been accepted and acted upon by both employees and employers, could be challenged years after the time when they were made on the basis of a factual assertion that no industrial dispute had existed at that time would represent a prescription for uncertainty and a potential source of injustice and industrial chaos.

22. In Reg. v. Kirby; Ex parte The Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159, at p 173, Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ. expressed the view that the difficulty in seeing how an agreement could acquire "any of the attributes of an award" in the absence of a relevant inter-State industrial dispute was not overcome by a provision corresponding to s.60(1)(b) and (c) (i.e. s.16(1) of the Conciliation and Arbitration Act 1904-1947). Their Honours added the comment (at pp 173-174) that such a provision, "however far its operation may extend, cannot operate to render inviolate and so clothe with validity an award or order the making of which, having regard to the limits of the relevant constitutional power, could not in the first instance have been authorized by the legislature". Their Honours' attention would not, however, seem to have been directed to the possibility that circumstances might exist in which, subject to the existence of appropriate legal procedures for contemporaneous challenge, subsequent validation might properly be seen as incidental to the grant of effective jurisdiction. We do not think that their Honours' comments should be accepted as precluding either the possible existence of such circumstances or the conclusion that a provision of the kind referred to in the preceding paragraph could, depending on the context, be within the legislative power conferred by s.51(xxxv) and (xxxix).

23. If the provisions of the Act had established or allowed adequate procedures to enable a person affected to challenge the constitutional validity both of steps taken by the Commission in the course of making an award and of the purported award itself, we would have been of the view that it lay within the competence of the Parliament to provide, in the particular context of the legislative power conferred by par.(xxxv), that a purported award which had survived the availability of all such challenges should thenceforth be valid and binding. Such a legislative provision would, in our view, be inherent in the legislative power to establish an effective tribunal for settling and preventing inter-State industrial disputes by conciliation and arbitration. So to say is not to suggest that the Parliament can validly preclude effective legal challenge on constitutional grounds. It is simply to say that the Parliament can confer validity upon a purported order of a tribunal which would otherwise be without constitutional foundation if so to do can reasonably be seen as necessary and incidental to the effective discharge by that tribunal of its legitimate and constitutionally valid functions. As has been indicated, the circumstances in which the conferral of such constitutional validity could properly be seen as necessary and incidental in that sense are necessarily confined. In particular, they will not exist unless there were appropriate and adequate means of legal challenge (i.e. in judicial proceedings) to the constitutional validity of the relevant orders at a stage or stages before the validating provisions become applicable.

24. When one examines the provisions of the Act in the present case, it is manifest that no adequate procedure for legal challenge to the constitutional foundation either of acts done by the Commission in the course of making an award or of a purported award was provided. Indeed, the provisions of the Act were concerned to preclude any effective legal challenge against the wishes of the Commission. The only form of legal challenge to the validity of the Commission's acts which the Act recognized was the power of the Commission itself to refer a question of law for the opinion of the Federal Court (s.107). Otherwise, there was nothing at all in the Act to qualify the immunity from legal challenge which s.60 purported to confer. It is, of course, settled law - if it ever needed to be settled - that the Parliament cannot legislate to oust the original jurisdiction of this Court, pursuant to s.75(v) of the Constitution, in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth. Consequently, s.60 could not preclude the jurisdiction of this Court to entertain an application for a writ of mandamus or prohibition or for an injunction directed to a member or members of the Commission as officers of the Commonwealth. Quite apart from questions of expense and possible geographical remoteness, proceedings in this Court are, however, quite inappropriate for the determination at first instance of factual issues such as whether the particular circumstances of a particular case were such as to give rise to an industrial dispute in the defined sense. And the same is true if, by reason of s.60(2) or a like provision, the question is whether the circumstances were such that the Commission could find that a dispute in the defined sense existed. Moreover, the availability of proceedings under s.75(v) to challenge validity does not, of itself, preclude the operation of validating legislation. Thus, if s.60 operated to validate an award from the time it first took effect, the availability of proceedings under s.75(v) would not provide any effective prior challenge to an award which took effect at the time when it was made (cf. the Act, s.57).

25. It follows that, subject to the possible qualification deriving from s.60(2), s.60(1) of the Act was, to the extent that it would purportedly validate an award that was made in the absence of any relevant industrial dispute in the defined sense, beyond the legislative competence of the Commonwealth Parliament. That being so, s.60(1) must be read down to that extent. Subject to what has been said as to the jurisdiction of this Court conferred by s.75 of the Constitution, the sub-section is otherwise valid. It was argued on behalf of the Union that the section should not be construed as a validating section but should simply be construed as precluding any court, other than this Court in the exercise of its jurisdiction under s.75(v) of the Constitution, from entertaining a challenge to the validity of a purported award. In our view, the section should not be read down in that way. Such a reading down would change the nature of the section from that of a general validating provision (shall be "final and conclusive": s.60(1)(a)) to that of a provision which merely restricted the jurisdiction of courts other than this Court. The correct way of reading down the section is to confine its validating operation to that which it was within the legislative competence of the Parliament to enact. So read down and subject to the possible qualification deriving from s.60(2), s.60(1) does not validate an award made in the absence of any relevant industrial dispute in the defined sense. Nor does it immunize an award from attack on the ground that it lacks constitutional foundation by reason of the fact that no such industrial dispute existed at the time when it was purportedly made.

26. As has been said, the present proceedings against the employer are proceedings under s.119 of the Act for breach or non-observance of a term of the Award. Section 119(1) expressly provides that liability under the section only exists "(w)here any organization or person bound by an ... award has committed a breach or non-observance of a term of the ... award" (emphasis added). It follows from what has been said above that the employer is, on the hearing of the proceedings, entitled to dispute its liability on the ground that it is not bound by the Award for the reason that the Award is invalid for lack of constitutional foundation. It is common ground that the Award was in fact purportedly made by the Commission. That being so, the provisions of s.60(1) will be applicable to protect the Award if the Award appears, on its face, to have been made bona fide and to relate to the subject matter of the legislation and it appears on the face of the record that the Award was purportedly made by the Commission in exercise of the power of conciliation or arbitration. Again subject to the possible qualification deriving from s.60(2) of the Act, that protection will not, however, preclude the employer from rebutting the ordinary presumption of validity by establishing, by appropriate evidence, that the Award lacks constitutional foundation by reason of the fact that no relevant industrial dispute in the defined sense existed at the time when it was made.

27. The answers which the Full Court of the Federal Court gave to the questions reserved for its consideration should, in our view, be confined so that they refer expressly to the only suggested constitutional ground for denying validity to the purported award in the present case. We would alter the answer given to Question (a) so that it reads:

"When the section is read down in the manner indicated, No.

Subject to the possible qualification deriving from s.60(2)

of the Act, evidence may be led to establish the absence of

any relevant 'industrial dispute'."

We would alter the answer to Question (d) so that it reads: "No. See answer to (a)." In addition, the answer to Question (b) should be altered to read:

"Section 60(1) precludes any evidence directed to the

question whether the relevant member of the Commission acted

or attempted to act bona fide in the course of his authority

which goes beyond establishing what is apparent on the face

of the record."

We would remit the cause to the Federal Court so that it can be disposed of in accordance with the answers of the Full Court of the Federal Court as so amended.

DAWSON J. The applicant, a union official, brought proceedings in the Federal Court against the respondent company, an employer, under s.119 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). Section 119 provides that the Court, which under s.118A of the Act amounts to the Federal Court, may impose a penalty where a person bound by an order or award of the Conciliation and Arbitration Commission has committed a breach or non-observance of a term of the order or award. The Court may also order the payment of an unpaid amount to which an employee is entitled under the order or award.

2. The applicant alleges that the respondent, in breach of the South Australian Meatworks Industrial Agreement-Award 1982, failed to pay employees the wages to which they were entitled. The applicant seeks the imposition of a penalty and orders for the payment of the amounts underpaid. Notwithstanding the replacement of the Act by the Industrial Relations Act 1988 (Cth), the proceedings commenced by the applicant continue on foot under ss.9 and 67 of the Industrial Relations (Consequential Provisions) Act 1988 (Cth).

3. The respondent sought to raise the defence that the award was made without jurisdiction in that it was not made bona fide and was not made in settlement of an industrial dispute extending beyond the limits of any one State. The latter requirement is imposed initially by s.51(xxxv) of the Constitution as a restriction upon Commonwealth legislative power and is translated into the Act by the definition of "industrial dispute".

4. The applicant indicated that he intended to object to the reception of evidence in support of the defence which the respondent sought to raise. He did so in reliance upon s.60 of the Act. That section, so far as is relevant, provides:

"(1) Subject to this Act, an award (including an award made

on appeal) -

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed,

quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account.

(2) A determination or finding of the Commission upon a

question as to the existence of an industrial dispute is, in

all courts and for all purposes, conclusive and binding on

all persons affected by that question."

The applicant requested the trial judge (Gray J.) to state a case for the consideration of the Full Court of the Federal Court pursuant to s.25(6) of the Federal Court of Australia Act 1976 (Cth) in order to determine whether, in the light of s.60(1) of the Act, the respondent was entitled to attack the validity of the award and to adduce evidence for that purpose. The trial judge acceded to the applicant's request, stating a case and reserving questions for the Full Court. That Court (Bowen C.J., Morling and Gummow JJ.; Northrop and Gray JJ. dissenting) answered the questions upon the basis that the respondent was entitled to attack the bona fides of the award and its validity on constitutional grounds notwithstanding s.60(1) and to adduce evidence accordingly. After the Full Court had delivered judgment answering the questions but before any order was taken out, the whole cause pending in the Federal Court was removed as of course into this Court upon the application of the applicant, supported by the Attorney- General for the Commonwealth, pursuant to s.40(1) of the Judiciary Act 1903 (Cth).

5. Section 25(6) of the Federal Court of Australia Act provides:

"The Court constituted by a single Judge sitting in

either Division may state any case or reserve any question

concerning a matter with respect to which an appeal would

lie from a judgment of the Judge to a Full Court of the

Court for the consideration of a Full Court of the Court in

that Division and the Full Court has jurisdiction to hear

and determine the case or question."

Under ss.24(1)(a) and 25(1) of the Federal Court of Australia Act an appeal would lie from a judgment of the trial judge to the Full Court in the matter before him and he had, therefore, power to state the case and reserve the questions which he did. Both the case stated and the questions reserved concerned the matter for determination under s.119 of the Act.

6. The decision to apply for the removal of the whole cause into this Court after the Full Court had answered the questions reserved by the trial judge was no doubt influenced by the view taken recently in Fisher v. Fisher [1986] HCA 61; (1986) 161 CLR 438 and Swiss Aluminium Australia Ltd. v. Federal Commissioner of Taxation [1987] HCA 43; (1987) 163 CLR 421 that no appeal lay to this Court from answers given by the Full Court of the Family Court and the Full Court of the Federal Court respectively to questions reserved for their consideration upon a case stated by a single judge.

7. It was held in Fisher v. Fisher and Swiss Aluminium that the answer to a question of law, which of itself is not decisive of the rights of the parties, cannot be, or form the basis of, a judgment, decree or order within the meaning of s.73 of the Constitution. Section 73 of the Constitution governs the appellate jurisdiction of the High Court and limits it to the hearing and determination of appeals from "judgments, decrees, orders, and sentences". The decisions in Fisher v. Fisher and Swiss Aluminium are in accordance with authority which proceeds upon the view that an answer to a question of law upon a case stated is consultative or advisory only where it is ineffective to determine the rights of the parties, some further step being necessary on the part of the trial judge to apply the answer in the case in which it arises: Smith v. Mann [1932] HCA 30; (1932) 47 CLR 426; The President of India v. The Moor Line Ltd. (No.2) [1958] HCA 25; (1958) 99 CLR 212, at p 214; Saffron v. The Queen [1953] HCA 51; (1953) 88 CLR 523, at pp 527-528; Minister for Works (W.A.) v. Civil and Civic Pty. Ltd. [1967] HCA 18; (1967) 116 CLR 273, at pp 279, 282; see also Yule v. Junek (1978) 139 CLR 1, at p 14. Of course, that view does not explain why, under s.73, a decision that determines no rights, but may yet be in the form of an order, is not appealable to the High Court. I use the term "order" because the answers upon a case stated are ordinarily in the form of an order which, unlike a final judgment, does not dispose of a matter. However, the difference between a judgment and an order is far from precise. The two terms overlap considerably.

8. The authorities which are said to lead to the result that a decision which does not determine rights cannot be an order within the meaning of s.73 are for the most part concerned with appeals from the decision of a court upon a case stated by an arbitrator. The relevant legislation in the United Kingdom governing the powers and functions of arbitrators enabled them to state in the form of a special case for the opinion of the court any question of law arising in the course of the arbitration. In the case of In re Knight and Tabernacle Permanent Building Society (1892) 2 QB 613 an arbitrator stated a case upon a question of law for the opinion of the court and it was held by the Court of Appeal that no appeal lay from the decision of the court. Reliance appears to have been placed upon the wording of the legislation which spoke of the "opinion" of the court. Lord Esher M.R. pointed out, at p 617, that the words used were not the "determination" or "decision" of the court and there was not the prima facie difficulty which existed where the statute spoke in those terms. He was contrasting Ex parte County Council of Kent (1891) 1 QB 725, where the statute provided for the submission of a question for the decision of the court. Nevertheless, it was held in Ex parte County Council of Kent that the jurisdiction of the court was consultative only and no appeal lay from its decision. On the other hand, in Ex parte Dawes; In re Moon (1886) 17 QBD 275 it was held that, where a question of law arising in a bankruptcy proceeding might be "determined" upon a special case stated by a County Court for the opinion of the High Court, an appeal lay to the Court of Appeal from the decision of the High Court.

9. Notwithstanding the emphasis placed upon the language of the legislation in In re Knight and Tabernacle Permanent Building Society, a more fundamental consideration seems to have been that the arbitrator had merely sought guidance as to the course which he should pursue in the arbitration. As Bowen L.J. put it, at p 619: "He does not divest himself of his complete authority over the subject-matter of the arbitration. He still remains the final judge of law and fact." It is in this sense that there is no decision until the arbitrator applies the opinion of the court and it is inaccurate to describe the opinion as an order. Indeed, Kay L.J. observed, at p 621: "I do not think that the section contemplates that the Court should give any judgment or make any order, but simply that it should express an opinion." See also C.T. Cogstad and Co. v. H. Newsum, Sons and Co. (1921) 2 AC 528. Of course, if the opinion of the court is erroneous, an award expressed to be founded upon the opinion can be set aside as containing an error of law apparent on the face of the award: British Westinghouse Electric and Manufacturing Company Limited v. Underground Electric Railways Company of London Limited (1912) AC 673. But it seems that the opinion expressed by a court upon a case stated in arbitration proceedings has been regarded as not being a judgment or order, more because it would usurp the authority of the arbitrator and take the matter outside the reference to arbitration to regard it otherwise, rather than because an order must of its very nature determine rights. Of course, the fact that a decision determines no rights may indicate that it is by way of guidance only, but it by no means follows that a decision which does not determine rights can never form the basis of an order of a court.

10. An arbitrator has always been able to state a case in the form of a final award so that he is functus officio and the answer of the court upon the case decides the controversy between the parties. In that event an appeal lies from the decision of the court, but as much because the arbitrator has exhausted his functions as because the order of the court finally determines the matter: C.T. Cogstad and Co. v. H. Newsum, Sons and Co., at pp 532-533, 534, 541. In 1934 the relevant English legislation was amended and an arbitrator was given the power to make an interim award as well as a final award and to do so by way of a special case upon a particular issue so that the decision of the court determines that issue. An appeal lies from such a determination: Fidelitas Shipping Co. Ltd. v. V/O Exportchleb (1966) 1 QB 630. Where that procedure is adopted, the rights of the parties are determined by the court upon the issue, but so also has the arbitrator exhausted his function in relation to that issue. Both the parties and the arbitrator are bound by the decision, there being an issue estoppel arising under the principle nemo debet bis vexari pro una et eadem causa. There is no longer any room for further arbitration upon the issue.

11. In Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. (No.2) [1913] HCA 71; (1913) 16 CLR 245 it was held, on a case stated under what was s.31 of the Act by the President of the Commonwealth Court of Conciliation and Arbitration for the "opinion" of the High Court, that the answer of the High Court given after it had "heard and determined the question" was a conclusive judgment binding on the Arbitration Court and the parties. No appeal lay from the Arbitration Court to the High Court. A case had been stated in a proceeding before the Arbitration Court in which an association of land engine-drivers and firemen alleged an industrial dispute and sought an award. The jurisdiction of the Arbitration Court depended upon whether the association was registered under the Act. It purported to have obtained registration, but the validity of the registration was challenged. The President of the Arbitration Court (Higgins J.) stated certain facts and reserved certain questions. The relevant questions were: "(1) Is an association of land engine-drivers and firemen an association that can be registered under sec.55 of the Act?"; and "(2) If not, is the objection fatal to the claim when the case comes on for hearing?". This Court answered the first question in the negative and the second question in the affirmative. Retrospective amendments to the Act led to further questions being reserved concerning the effect of its previous answers. It was held by this Court (Griffith C.J., Barton and Isaacs JJ.; Higgins J. dissenting) that the previous answers constituted a conclusive judgment binding upon the Arbitration Court and the parties. As Griffith C.J. said, at p 257:

"It was contended, on the one hand, that the opinion or

determination is merely consultative, and, on the other,

that it is judicial. There can, I think, be no doubt

that it is appealable to the King in Council under the

Constitution. And I think that the use of the words 'hear

and determine' indicate unmistakably that the proceeding

is judicial. But I do not think, though at first I was

disposed to do so, that the pronouncement of the High Court

operates as a judgment of the Arbitration Court. If the

matter in question does not go to the whole alleged cause of

suit, it can only operate as a direction to the President as

to the law which he is to observe in giving his judgment in

the suit. And, having regard to the structure of sec.31, I

think that the same result follows even where the decision

of the High Court goes to the whole cause of suit. For,

since an appeal does not lie from the Arbitration Court, it

seems to follow that that Court alone can formally pronounce

judgment in the suit. On the other hand, I am clearly of

opinion that both the President and the parties are bound

by the decision of the High Court, which, as between the

parties, is res judicata, and, as to the President, is a

direction which it is unthinkable that he can disobey."

"But though the determination is equivalent to a judgment of

this Court, so as to be appealable, I do not say that it

also amounts to a judgment of the Arbitration Court. It is

conclusive between and upon the parties in the sense that it

is res judicata, and cannot be afterwards controverted by

them; but, as I have indicated, the President must take

his direction from it, and receive it as the law which his

judgment or award is to enforce."

"The decision of the High Court is, after all, only its

'opinion' on a matter of law; and the requirement to 'hear

and determine' the question is only to place a judicial

duty upon this Court to answer the question, and to make

that answer authoritative when remitted; that opinion

is certainly to guide the President, and to guide him as

authoritatively as if it were set out plainly in an Act of

Parliament. The legislature, while not in so many words

directing him to follow it, expects him to do so. 'Hear

and determine' involves a decision which all subordinate

tribunals must follow, and I agree that it is appealable to

the Privy Council."

Only Higgins J. in dissent, citing In re Knight and Tabernacle Permanent Building Society, regarded the opinion of the High Court (at p 283) as "merely interlocutory and consultative". And yet that opinion of itself determined no rights. To do so, it had to be applied in the Arbitration Court. I think it clear enough that the majority regarded the decision of the High Court as binding upon the Arbitration Court and the parties because it was a decision of the highest court in the judicial hierarchy (subject then to any appeal to the Privy Council) and, therefore, binding upon all courts below. It was not a decision which merely gave guidance in proceedings outside the judicial system. It was more in the nature of a declaratory judgment. It was therefore appropriate to regard the decision as an appealable judgment or order of the Court. See also Merchant Service Guild of Australasia v. Newcastle and Hunter River Steamship Co. Ltd. (No.1) [1913] HCA 76; (1913) 16 CLR 591, per Isaacs J. at pp 620-621.

12. Nevertheless, Fisher v. Fisher, Swiss Aluminium and Saffron v. The Queen clearly adopt the view that an answer to a question of law which determines no rights cannot constitute an order within the meaning of s.73. Other decisions of this Court which are consistent with English authority do not necessarily lead to that conclusion. In Smith v. Mann it was held that answers given upon a case stated, which determined whether a proposed award of the Workers' Compensation Commission stood or fell, were not merely advisory and were appealable. Similarly, in The President of India v. The Moor Line Ltd. [1958] HCA 24; (1958) 99 CLR 185, this Court entertained an appeal from an order of the Victorian Supreme Court by which answers were given to certain questions raised in the form of a special case for the decision of the court by the final award of an umpire in arbitration proceedings. On the other hand, in The President of India v. The Moor Line Ltd. (No.2) it was held that answers given to questions raised by a case stated in the course of arbitration proceedings were advisory only and not appealable.

13. It would seem that, where the answer to a case stated by an arbitrator will not determine the matter between the parties or an issue in the matter, the court affords no more than guidance, however authoritative, and it is inappropriate for that guidance to be regarded as an order. But that does not mean that there are not cases in which a court may be authorized to determine a question of law referred to it by an inferior tribunal in such a way as to bind that tribunal and the parties, notwithstanding that no rights are immediately affected by the determination. Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. (No.2) says as much. Similarly, a full court may be authorized to make a binding determination of a question of law referred to it by a single judge. That determination will be binding because it must be applied by the lower court when the rights of the parties ultimately fall to be decided. Thus, although the determination of a question of law may be expressed in an abstract way (in answer to a case stated it is, however, generally expressed in the context of quite specific facts), nevertheless, it is ultimately binding upon the parties in those situations to which it applies. It is not to the point that the determination itself does not immediately affect rights, and it is appropriate that the determination should be embodied in an order. And if an order is appropriate, I must now say (though I thought otherwise in Fisher v. Fisher) that it is not immediately apparent to me why such an order should not be an order within the meaning of s.73 of the Constitution.

14. Of course, if the determination of a court amounts to no more than guidance, not only is an order inappropriate but it may fall outside the scope of s.73 for another reason. There may then be no matter before the Court and it has long been established that Ch.III of the Constitution, in which s.73 appears, confers no jurisdiction upon the High Court "to determine abstract questions of law without the right or duty of any body or person being involved": In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, at p 267. True it is that the denial of an advisory jurisdiction has been the denial of an original jurisdiction and is based upon the use of the word "matter" or "matters" in those sections which confer original jurisdiction. But the limitation to be drawn from those sections - ss.75, 76, 77 and 78 - pervades the whole of the chapter and determines the boundaries within which the judicial power of the Commonwealth must be exercised having regard to the separation of powers and functions which the Constitution requires. It is hardly to be thought that the appellate jurisdiction of the Court should be construed in such a manner as to disregard the limits otherwise imposed upon the exercise of judicial power. If that could be done, those limits might be subverted by requiring the Court to hear appeals from State courts in cases involving only the giving of an advisory opinion. In conferring appellate jurisdiction, s.73 (which also refers to matters, although not so as to conclude the issue) must be confined to appeals from judgments, decrees, orders and sentences in matters and "there can be no matter ... unless there is some immediate right, duty or liability to be established by the determination of the Court": In re Judiciary and Navigation Acts, at p 265.

15. There would seem, however, to be no reason why, if there is a matter on foot, the binding determination of a question of law arising within that matter should not amount to an order from which an appeal might lie under s.73. After all, in In re Judiciary and Navigation Acts this Court (at p 267) regarded the answers which it gave in Federated Engine-Drivers and Firemen's Association of Australasia v. Broken Hill Proprietary Co. Ltd. (No.2) as involving the exercise of judicial power under s.76 of the Constitution. And it has never been suggested that, when a question of law is reserved by a single justice for the consideration of the Full Court of this Court under s.18 of the Judiciary Act, the determination of that question does not involve the exercise of judicial power. There was in the present case a matter in the Federal Court and, if the answers given by the Full Court of the Federal Court may be regarded as an order or the basis for an order, the absence of any capacity on the part of this Court to give advisory opinions could not stand in the way of an appeal under s.73 of the Constitution. The order would be an interlocutory order, but appeals under s.73 have never been restricted to final orders. Under ss.4 and 33(3) of the Federal Court of Australia Act special leave would be required, but the grant of special leave may in some circumstances be appropriate, for example, where otherwise the parties might incur unnecessary inconvenience and expense in pursuing the matter to its conclusion before seeking special leave to appeal.

16. But Fisher v. Fisher and Swiss Aluminium do stand in the way of any appeal against the answers given by the Full Court of the Federal Court. The parties do not seek to reopen those decisions and they are a sufficient justification for the course taken, which was to remove the proceedings into this Court under s.40(1) of the Judiciary Act. The whole of the cause is before this Court, including the questions and answers given by the Full Court of the Federal Court. If there were good reason why this Court should not pass upon those questions and answers, it may have been possible under s.42(1) of the Judiciary Act simply to have remitted the cause to the Federal Court to have it determine the matter in accordance with the answers given by the Full Court. There is, however, a suggestion to the contrary in Attorney- General (N.S.W.) v. Commonwealth Savings Bank [1986] HCA 22; (1986) 160 CLR 315, at p 329. But such a course would be inconvenient in this case and, there being a satisfactory explanation why special leave to appeal was not sought, it is preferable to pronounce upon the answers given by the Full Court before remitting the matter to the Federal Court with such directions under s.42(1) of the Judiciary Act as may be necessary. A similar course was adopted in Smith v. Smith [1986] HCA 36; (1986) 161 CLR 217. If the directions should be inconsistent with the answers given by the Full Court, those directions must nevertheless prevail. That is in accordance with the binding effect of judgments of this Court. It is also consistent with the nature of the answers given by the Full Court because, even if those answers were appealable, they determined no rights. A contrary view of the law subsequently expressed by this Court would, upon the ordinary principles of precedent, prevail and justify a departure from the answers given by the Full Court of the Federal Court. Since the cause is not one in which any declaration is sought, any order of this Court should, I think, be in the form of directions.

17. That brings me to the matter of substance. Section 60 of the Act and its predecessors have a long history: see Aronson and Franklin, Review of Administrative Action, (1987), pp 691-701. It is now settled that privative clauses such as s.60 cannot be taken at face value. That is to say, s.60 cannot be given a literal construction because to do so would be to disregard other provisions of the Act confining the jurisdiction of the Conciliation and Arbitration Commission (now the Industrial Relations Commission) to make awards. Indeed, s.60(1) is expressed to be subject to the Act. It is not sufficient to say that the words "subject to this Act" refer only to such matters as appeals under s.35 of the Act to a Full Bench of the Commission or applications under s.59 of the Act for the variation or setting aside of awards. The Commission is empowered to prevent or settle industrial disputes by conciliation or arbitration, but in the exercise of this power it is limited to the means provided by the Act. It is also limited by the restrictions placed upon Commonwealth legislative power by s.51(xxxv) of the Constitution. That power extends only to the making of laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.

18. The constitutional limitation may be put to one side for the moment. Where there are statutory limitations upon a power in conjunction with a privative clause, the latter must be reconciled with the former. That reconciliation has been developed in the cases and the basic formula which has been adopted is to be found in the judgment of Dixon J. in R. v. Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598, at p 615:

"Such a clause is interpreted as meaning that no decision

which is in fact given by the body concerned shall be

invalidated on the ground that it has not conformed to the

requirements governing its proceedings or the exercise of

its authority or has not confined its acts within the limits

laid down by the instrument giving it authority, provided

always that its decision is a bona fide attempt to exercise

its power, that it relates to the subject matter of the

legislation, and that it is reasonably capable of reference

to the power given to the body."

In Reg. v. Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415, Mason A.C.J. and Brennan J. set out the cases in which this formula has been applied, and pointed out (at p 418) that it is a matter of reconciling the prima facie inconsistency between a statutory provision which seems to limit the powers of a tribunal and another provision, the privative clause, which seems to contemplate that the tribunal's order shall operate free from any restriction.

19. It was observed by Kitto J. in Reg. v. Commonwealth Industrial Court Judges; Ex parte Cocks [1968] HCA 86; (1968) 121 CLR 313, at p 324, that s.119 allowed the tribunal (then the Commonwealth Industrial Court) to impose a penalty where a person bound by an award had committed any breach of any term of an award. That in turn raised the question whether the expression "term of the ... award" in s.119 meant a term de facto appearing in the award "whether valid or invalid either wholly or in its relevant application". He continued, at pp 324-325:

"In this connexion it is necessary to bear in mind s.60

of the Act, providing that 'subject to the Act' an award is

final and conclusive and shall not be called in question

in any court, and that a determination or finding of the

Commission upon a question as to the existence of an

industrial dispute is conclusive in all courts. If this

section were to be interpreted with complete literalness and

without the qualifying expression which introduces it, the

Commonwealth Industrial Court would be obliged, as in fact

it thought it was, to treat s.119 as giving it jurisdiction

to impose a penalty for 'any breach of any term' including a

term which, so far as material, the award-making authority

had no power to put into the award. But it has long since

been decided that s.60 has not so extensive an operation,

for, as its introductory words acknowledge and require, the

provisions it contains must be reconciled with the rest of

the Act and particularly with the provisions which subject

the powers of the Commission to limitations some at least

of which are plainly intended to spell invalidity for any

action that transgresses them."

20. Thus, without taking into account any constitutional restrictions, s.60 will preclude an award from being called in question provided that it is the result of a bona fide attempt to exercise the power to make it, it relates to the subject-matter of the legislation and it does not on its face go beyond the power: see Reg. v. Coldham; Ex parte Australian Workers' Union, at p 418. Where none of these matters is raised and an award is on its face within power, it may be sufficiently proved by the tender of a sealed or certified copy under s.193 of the Act. Whilst it must be possible to call evidence in support of a contention that an award has not been made bona fide (I would take the requirement of bona fides to embrace at least some aspects of natural justice) or in support of a contention that it does not relate to the subject-matter of the legislation, this does not open an award to attack upon the basis of some mere defect or irregularity which is not such as to deny the power to make it. This, I think, is what was meant by Mason A.C.J. and Brennan J. when in Reg. v. Coldham; Ex parte Australian Workers' Union, at p 419, they referred to the provisions which s.60 is unable to affect as being those which impose "inviolable limitations or restraints". Similarly, it is what Deane J. and I had in mind in the same case when we said, at p 427, that "(s)uch a statutory provision is effective to exclude any general judicial review of the proceedings of the Commission". However, s.60 does not preclude a court from going behind an award to investigate whether it represents a bona fide attempt to pursue the power conferred: see R. v. Hickman; Ex parte Fox and Clinton, per Dixon J. at p 616. The contrary was not argued and it is plain that what appears on the face of the record cannot be binding when matters such as the good faith of the tribunal are called in question.

21. I do not understand any of these propositions to be contested by the applicant or the Attorney-General for the Commonwealth who intervened to support him. The principal attack by the respondent upon the validity of the relevant award concerned an alleged failure to comply with constitutional requirements and the allegation of lack of bona fides was bound up with that alleged failure. I turn, therefore, to the extent, if any, to which s.60 precludes the respondent from raising in the Federal Court questions of constitutional validity.

22. It is well established that s.60 cannot operate to require an award which is beyond constitutional power to be treated as valid. As was observed in R. v. Hickman; Ex parte Fox and Clinton by Dixon J., at p 616, it is "quite impossible for the Parliament to give power to any judicial or other authority which goes beyond the subject matter of the legislative power conferred by the Constitution". And in relation to s.16(1), a precursor of s.60, this Court said in Reg. v. Kirby; Ex parte The Transport Workers' Union of Australia [1954] HCA 19; (1954) 91 CLR 159, at pp 173-174:

"The difficulty is not overcome by the provisions of s.16(1)

for that section, however far its operation may extend,

cannot operate to render inviolate and so clothe with

validity an award or order the making of which, having

regard to the limits of the relevant constitutional power,

could not in the first instance have been authorized by the

legislature."

23. Under s.75(v) of the Constitution this Court has jurisdiction in all matters in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth and no privative clause such as s.60 can affect that jurisdiction. The members of the Commission are officers of the Commonwealth. If in proceedings under that provision the question of the validity of an award arises, the Court must be able to determine that question, both in relation to constitutional validity and otherwise: Reg. v. Coldham; Ex parte Australian Workers' Union, at p 427. The Federal Court is vested with a similar jurisdiction under the Judiciary Act, but is prohibited from exercising it against an officer of the Commonwealth holding office under the Act or, now, the Industrial Relations Act: see s.39B(2)(a). It follows that no direct attack may be made upon the validity of an award in the Federal Court.

24. The applicant does not seek to dispute the incapacity of s.60 to require an award which is made beyond constitutional power to be treated as valid, or to affect the jurisdiction of this Court to determine questions of validity. What is said is that the Federal Court stands in a different position. Its jurisdiction is, under s.77 of the Constitution, to be defined by law and it is said that s.60 is such a law or part of such a law. Section 60 operates, it is said, to withhold from the Federal Court jurisdiction which would otherwise be conferred upon it by ss.119 and 118A of the Act to determine the constitutional validity of an award in proceedings which are brought under s.119. Thus it is by implication conceded that, apart from s.60, jurisdiction is conferred upon the Federal Court to determine the constitutional validity of an award if that question arises in proceedings under s.119. That is plainly correct. Since s.119 is concerned with the breach or non-observance of a term of an award by which an organization or person is bound, its application is dependent upon the existence of a valid award. An award made beyond constitutional power is invalid and a nullity. In determining whether an award exists, s.60 apart, the Court must necessarily determine that it is made within constitutional power. The question is whether s.60, by requiring something which purports to be an award to be treated as a valid award, can do away with any need to determine whether an award actually exists or not.

25. Section 77 of the Constitution provides that, with respect to any of the matters mentioned in ss.75 and 76, Parliament may make laws defining the jurisdiction of any federal court other than the High Court. The matter mentioned in s.76(ii) is any matter arising under any law made by Parliament. The matter mentioned in s.76(i) is any matter arising under the Constitution or involving its interpretation. The jurisdiction of the Federal Court under s.119 is defined with respect to a matter arising under a law made by Parliament, namely, the Act. It is not defined with respect to a matter arising under the Constitution or involving its interpretation, although a question arising under the Constitution or involving its interpretation may fall for the determination of the Court in the exercise of its jurisdiction under s.119. As Brennan J. observed in Re Tooth and Co. Ltd. (No.2) [1978] FCA 36; (1978) 34 FLR 112, at pp 139-140, a matter arising under a law of Parliament may also be a matter arising under the Constitution or involving its interpretation, but "(w)hen jurisdiction to determine a matter which falls within s.76(ii) of the Constitution is conferred, the jurisdiction may be exercised to hear and determine a matter which answers that description whether or not the matter also answers the description contained in s.76(i)". See also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141, at p 154.

26. If s.60, read literally, confines the jurisdiction otherwise conferred upon the Federal Court by s.119 of the Act so as to exclude jurisdiction to determine the constitutional validity of an award, then in my view the section itself is in breach of the Constitution. Since s.60 cannot, for the reasons discussed, be read literally in disregard of limitations imposed upon the power of the Commission by other sections of the Act, there seems to me to be no reason why it should not also be construed so as to avoid conflict with constitutional requirements. There may be no practical difference between putting the matter in that way and saying that s.60 must be read down by an application of s.15A of the Acts Interpretation Act 1901 (Cth), but, having regard to the restricted interpretation which s.60 must receive in any event, I think that it is the better way to put it.

27. To my mind it is beyond question that Parliament has no power to make a law which requires the Federal Court in exercising the jurisdiction conferred by s.119 to do so upon the basis of the breach or non-observance of an award made outside the limits imposed upon Commonwealth legislative power by the Constitution. Such a law would require the Federal Court, in disregard of constitutional requirements which are binding "on the courts, judges, and people of every State and of every part of the Commonwealth" (see Covering Cl.5 of the Constitution), to act upon that which under the Constitution must be regarded as a nullity. Nor would the conflict with the Constitution stop there. If the Federal Court could be and were empowered to impose a penalty or make an order under s.119 upon the basis of an award which was constitutionally invalid, it would, in exercising the power, be acting within its jurisdiction. A writ of prohibition, which is a remedy to restrain persons acting judicially from exceeding their power or authority, would not lie. The jurisdiction of this Court under s.75(v) of the Constitution, which cannot validly be cut down, could not be exercised to prevent the Federal Court from acting upon an invalid award. Nor could it be exercised to prevent parties from invoking a jurisdiction which, ex hypothesi, would have been validly conferred upon the Federal Court. But the legislature cannot do indirectly what it cannot do directly. It cannot exclude the jurisdiction of this Court in proceedings under s.75(v) to pronounce upon the invalidity of an award by conferring upon the Federal Court the power to treat the award as valid.

28. I am, of course, speaking about constitutional invalidity. To the extent that the difficulties which arise in the construction of a privative clause may be overcome, Parliament may - if necessary in reliance upon the incidental power contained in s.51(xxxix) - provide that an instrument which purports to be an award should be regarded as an award. To do so would not necessarily exclude proceedings to prohibit the making of an award outside the statutory limits, the occasion for the operation of a privative clause being the enforcement of the award. But in so providing, Parliament cannot transgress the limits imposed by the Constitution upon its legislative power. Whatever the potential of the incidental power, it cannot be used to justify a law which exceeds a restriction contained within the definition of the specific power relied upon. Thus it is beyond the power of the Commonwealth to require an award to be treated as valid which is not in fact made for the prevention or settlement of an industrial dispute extending beyond the limits of any one State.

29. For these reasons, I think that the answers given by the Full Court of the Federal Court to the questions reserved by the case stated were correct. I would remit the matter to the Federal Court and direct that it be dealt with in accordance with those answers.

TOOHEY J. I agree with Dawson J. that the answers given by the Full Court of the Federal Court to the questions asked in the case stated are correct and with his Honour's reasons for reaching that conclusion.

2. I also agree with the reservations expressed by Dawson J. as to the current state of the authorities which hold answers to questions of law arising from a case stated or special case to be outside the operation of s.73 of the Constitution as not constituting an order in terms of that section. But as the parties did not seek to argue the correctness of those decisions, it is inappropriate to do more than share the reservations expressed by his Honour. If and when that issue does arise, this Court will have to consider whether it is appropriate to review the existing authorities, a matter which goes not only to the correctness of those authorities but to the implications of the doctrine of stare decisis for any suggested review. On a matter of such importance, we should have the benefit of argument. That we do not presently have.

Declare that the answers given by the Full Court of the Federal Court to the questions asked in the stated case are correct.

Direct that it be dealt with in accordance with the declaration made by this Court.