The approach of the Court
10 The jurisdiction of the High Court to grant a writ of prohibition against an officer of the Commonwealth is conferred on that court directly by s 75(v) of the Constitution. Where, as in the present cases, the High Court remits to this Court an application for a writ of prohibition, pursuant to s 44(1) of the Judiciary Act, jurisdiction is conferred on this Court by s 39B(1) of the Judiciary Act. Section 412(2) and (3) of the WR Act contain further grants of jurisdiction to this Court with respect to any matter in which a writ of prohibition is sought against an officer of the Commonwealth holding office under the WR Act, and with respect to matters remitted to this Court pursuant to s 44 of the Judiciary Act.
11 There is no express reference in s 75(v) of the Constitution, or in s 412 of the WR Act, to writs of certiorari. Indeed, there is no constitutional or express statutory conferral on the High Court of jurisdiction to grant certiorari, although the terms of ss 31 and 32 of the Judiciary Act are broad enough to include the conferral of the power to grant the remedy of certiorari in a case otherwise within the High Court's jurisdiction. It is clear that, at least in a case in which the remedy of prohibition is also sought, the High Court has power to grant the remedy of certiorari as an alternative, or in aid of, the remedy of prohibition. In Pitfield v Franki (1970) 123 CLR 448, a majority of the High Court (Barwick CJ, McTiernan, Menzies and Owen JJ) held that the High Court had power to order that a writ of certiorari issue against a deputy president of the Commonwealth Conciliation and Arbitration Commission (a predecessor of the Commission) and a deputy industrial registrar, quashing a decision of the latter, confirmed by the former, to register an ineligible organisation pursuant to the Conciliation and Arbitration Act 1904 (Cth) (repealed).
12 Subsequently, there have been attempts to explain the basis of Pitfield v Franki. One such attempt was by Mason J (with whom Gibbs, Stephen and Jacobs JJ agreed), in R v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595 at 609 - 610. This was that the deputy industrial registrar's authority to register an organisation was necessarily confined by limits deriving from s 51(xxxv) of the Constitution to registering associations answering the relevant statutory description. This circumstance, possibly taken in conjunction with a bona fide claim for prohibition, was said to have given the High Court jurisdiction. In R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 26, Gibbs J (with whom Barwick CJ, Mason and Wilson JJ agreed) suggested that Pitfield v Franki could be explained because prohibition and certiorari were claimed as alternative remedies and, once the High Court was seized of jurisdiction because prohibition was sought in good faith against an officer of the Commonwealth, the Court had power under s 31 of the Judiciary Act to grant the more appropriate remedy of certiorari. In the alternative, Gibbs J thought that the case might have been regarded as one involving the interpretation of the Constitution.
13 It therefore appears that this Court can act safely on the assumption that it can order that a writ of certiorari be directed to the Commission, at least where the relief sought is based on a constitutional limitation on the Commission's power, and prohibition is sought in good faith. It is clear that the members of the Full Bench of the Commission, the first respondents in these proceedings, are officers of the Commonwealth, and are therefore amenable to prohibition pursuant to s 75(v) of the Constitution.
14 In order to obtain a writ of prohibition against a decision-maker, in respect of a decision, it is necessary to establish that the decision is the result of jurisdictional error, often described as want or excess of jurisdiction, on the part of the decision-maker. See R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 194 per Gibbs CJ, with whom Mason J agreed, 208 per Wilson and Dawson JJ, and 216 per Brennan J, and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 (2000) 204 CLR 83 at [53] per Gaudron and Gummow JJ, [142] per Kirby J, [160] - [163] per Hayne J. As Craig v South Australia (1995) 184 CLR 163 demonstrates, in the case of a decision-maker other than a superior court, certiorari is available either for jurisdictional error, or for error of law on the face of the record. As to what constitutes jurisdictional error, in Craig at 179, the High Court described the nature of jurisdictional error, where the decision-maker is an administrative tribunal, not a superior court:
'If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'
15 This description was adopted and explained by McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 (2001) 206 CLR 323 at [82].
16 The reference in Craig to jurisdictional error where an administrative tribunal, at least in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, is apt to include the making of findings, or the reaching of conclusions, as to what are known as jurisdictional facts. Where the legislature has made a fact or event a condition upon the existence of which the jurisdiction of a tribunal depends, the tribunal cannot give itself jurisdiction by erroneously deciding that the fact or event exists. See Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [127] per Gummow J. A jurisdictional fact is a threshold requirement, which must exist before the decision-maker is authorised to proceed to the making of some further decision, or to the exercise of some other function. It is clear that, lacking the power to determine its own jurisdiction conclusively, a decision-making body which makes a finding that a jurisdictional fact exists, when that fact does not exist, will exceed its jurisdiction and thereby become amenable to the remedies of prohibition and certiorari.
17 Section 101 of the WR Act confers on the Commission power to make a finding as to the existence of an industrial dispute in the following terms:
'(1) Subject to subsection (2), where a proceeding in relation to an alleged
industrial dispute comes before the Commission, it shall, if it considers
that the alleged industrial dispute is an industrial dispute:
(a) determine the parties to the industrial dispute and the matters
in dispute; and
(b) record its findings;
but the Commission may vary or revoke any of the findings.
(2) Where the Commission constituted in any manner has made findings in
relation to an industrial dispute, the Commission (however
constituted) may, for the purpose of exercising powers in subsequent
proceedings in relation to the same industrial dispute (other than
powers on an appeal in relation to the finding), proceed on the basis
of the findings or any of them.
(3) A determination or finding of the Commission on 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 the question.'
18 Subsequent provisions in Pt VI of the WR Act confer on the Commission powers and duties in relation to an industrial dispute so found. Because of s 101(2), once a finding has been made that an industrial dispute exists, it is unnecessary for the Commission to revisit that question in the exercise of those powers and duties, unless it is invited to exercise the power in s 101(1) to vary or revoke the finding. The finding that an industrial dispute exists is therefore an example of a jurisdictional fact. It is a finding the correctness of which may be challenged as a means of establishing jurisdictional error in a proceeding in which prohibition and certiorari are sought.
19 In its terms, s 101(1) of the WR Act empowers the Commission to make a finding of an industrial dispute 'if it considers that the alleged industrial dispute is an industrial dispute'. On the face of it, the exercise of the powers and duties of the Commission is made to depend upon the formation by the Commission of an opinion that an industrial dispute exists, rather than on the actual existence of an industrial dispute. In some cases in which the jurisdictional fact is the formation of an opinion by the decision-maker that a particular fact exists, rather than the actual existence of that particular fact, there will only be jurisdictional error if the decision-maker has misunderstood the nature of the opinion required, or has acted in a way that is arbitrary, capricious, irrational or not bona fide. The court will not substitute its own opinion for that of the decision-maker. See, for example, R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407. It is established, however, that the exercise of the power of the Commission pursuant to s 101(1) of the WR Act does not fall within this category. The constitutional limitations on the concept of an industrial dispute, derived from s 51(xxxv) of the Constitution, the head of legislative power on which the WR Act depends for this purpose, are such that Parliament could not empower the Commission to give itself jurisdiction by forming an opinion that an industrial dispute exists where no industrial dispute, within the constitutional concept, in fact exists.
20 The phrase 'industrial dispute' is defined in s 4(1) of the WR Act in the following terms:
'industrial dispute (except in Part XA) means:
(a) an industrial dispute (including a threatened, impending or probable
industrial dispute):
(i) extending beyond the limits of any one State; and
(ii) that is about matters pertaining to the relationship between
employers and employees; or
(b) a situation that is likely to give rise to an industrial dispute of the kind
referred to in paragraph (a);
and includes a demarcation dispute (whether or not, in the case of a demarcation dispute involving an organisation or the members of an organisation in that capacity, the dispute extends beyond the limits of any one State)'.
21 Section 4(3) includes more elements in the definition. Nowhere does the WR Act explain what is meant by the concept of 'industrial dispute' or even define separately the words 'industrial' and 'dispute'. Inevitably, this means that the reader is left to assume that, except to the extent to which the definition is confined by specific provisions of the WR Act, the expression 'industrial dispute' has its constitutional meaning. In R v Coldham; Ex parte Australian Social Welfare Union (1983) 153 CLR 297 at 312, the High Court held that the correct approach to the construction of the expression 'industrial disputes' in s 51(xxxv) of the Constitution is not to treat it as a technical or legal phrase, but to give to it its popular meaning. At 312 - 313, the court said:
'It is, we think, beyond question that the popular meaning of "industrial disputes" includes disputes between employees and employers about the terms of employment and the conditions of work. Experience shows that disputes of this kind may lead to industrial action involving disruption or reduction in the supply of goods or services to the community. We reject any notion that the adjective "industrial" imports some restriction which confines the constitutional conception of "industrial disputes" to disputes in productive industry and organized business carried on for the purpose of making profits. The popular meaning of the expression no doubt extends more widely to embrace disputes between parties other than employer and employee, such as demarcation disputes, but just how widely it may extend is not a matter of present concern.'
22 In the present cases, IBM GSA and EDS claim that the CPSU cannot create an industrial dispute by the service on them of a log of claims, because those employed by IBM GSA and EDS were not, at the time of service of the log of claims, eligible to become members of the CPSU. The argument was directed to the proper construction of the relevant provision of the CPSU's rule relating to eligibility for membership. It was not argued that the CPSU's rules otherwise contained any limit on its capacity to serve a log of claims on IBM GSA or EDS, and thereby to create an industrial dispute. Nor was it contended that any provision of the WR Act expressly prohibits an organisation from creating an industrial dispute with an employer in respect of matters pertaining to the relations between that employer and its employees, where those employees are not eligible to become members of the organisation. It follows that IBM GSA and EDS are necessarily contending that one of the constitutional limitations on the concept of an industrial dispute is that an organisation, registered under the WR Act, lacks the capacity to create such a dispute by the service on an employer of a log of claims if that organisation cannot enrol as its members employees of that employer, because the rules governing eligibility for membership of that organisation do not extend so far as making those employees eligible to become members. The matter the subject of these proceedings is therefore necessarily 'a matter arising under the Constitution', because its success or failure depends upon the constitutional concept of an industrial dispute, rather than on any limitation on the nature of an industrial dispute derived from the WR Act, or from any other source. It was for this reason that it was necessary to serve notices pursuant to s 78B of the Judiciary Act on the Attorney-General for the Commonwealth of Australia, and on the Attorney-General for each State and Territory.
23 There is High Court authority that an organisation cannot create an industrial dispute by service of a log of claims on an employer, unless that organisation's rules relating to eligibility for membership permit it to enrol as members employees of that employer. An example is R v Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402. Much, if not all, of that High Court authority antedates the Social Welfare Union case and has not been re-examined in the light of that case. If the concept of an 'industrial dispute' bears its popular meaning, it may be that the CPSU has created an industrial dispute, by the service of its log of claims on IBM GSA and EDS, in respect of the terms and conditions of employment of the first category of persons on whose behalf the claim was made, namely those who were at the time members of the CPSU. The history of the telecommunications industry in Australia, to which reference is made later in these reasons for judgment, and particularly of attempts by the CPSU to continue to represent its existing members as their employment was transferred to corporations to whom functions formerly exercised by their original employer were 'outsourced', suggests that the CPSU might well have significant numbers of employees of IBM GSA and EDS who are still its members, even if the change of their employer means that they no longer fall within the provisions of the rule that would enable them now to enrol as members. There is authority that, provided that a person is eligible to become a member of an organisation at the time of joining, in the absence of a provision in the rules causing that membership to cease upon the person ceasing to be eligible to enrol, the person remains a member until an event such as resignation brings about the termination of the membership. See Troja v Australasian Meat Industry Employees' Union (Victorian Branch) (1978) 46 FLR 340 at 346 - 348 per Keely J (with whom J B Sweeney and Deane JJ agreed). There appears to be no rule of the CPSU to the effect that the membership of a member is terminated automatically if that member ceases to fall within the scope of the rule relating to eligibility to become a member. It might have been thought that the CPSU could create a dispute with IBM GSA and EDS with respect to those persons who remained its members at the time of service of the log of claims. At no stage does the CPSU appear to have argued to this effect. Those representing it, as well as those representing IBM GSA and EDS, and the members of the Commission who dealt with the matter, have all assumed that the principle that an organisation's capacity to create an industrial dispute is limited by the scope of its rules relating to eligibility for membership. It is therefore inappropriate to disturb that assumption. The proper approach to the case is to ask whether the Full Bench's decision was the result of jurisdictional error because the employees to whose terms and conditions of employment the log of claims related were not, at that time, eligible to become members of the CPSU.
24 In relation to the question of jurisdictional error, it is sometimes necessary to take note of a privative clause, such as that found in s 101(3) of the WR Act. In Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 (2003) 211 CLR 476, the High Court made it clear that, where the constraints on the jurisdiction of a decision-maker are statutory, it is necessary to examine the statutory provisions in conjunction with a privative clause, to determine whether it is the legislative intention that a failure to conform to the statutory requirements should result in the invalidity of the resulting decision. These considerations cannot be applicable to cases such as the present ones, in which the limitations on jurisdiction are derived from the Constitution. It is well-established that Parliament cannot extend its constitutional power by purporting to require courts to treat as valid a decision that is constitutionally invalid. See R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 and O'Toole v Charles David Pty Ltd (1991) 171 CLR 232. In the former of those cases, at 418 - 419, Mason ACJ and Brennan J invoked the principle, first laid down in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614 - 615, that a privative clause will validate a decision so far as it can do so constitutionally, provided that there is a bona fide attempt to exercise the power given, the decision relates to the subject matter of the legislation, and the decision is reasonably capable of being referred to the power. Their Honours also spoke of 'inviolable limitations or restraints' on the jurisdictional powers of a decision-maker. In the absence of relevant statutory provisions, containing such inviolable limitations or restraints on the power of the Commission to make a finding of the existence of an industrial dispute in the present cases, attention must again be directed to the constitutional concept of an industrial dispute. It is necessary to accept that Parliament has not made (and could not make) provision for the Commission to exceed the extent of the legislative power in s 51(xxxv) of the Constitution by making a finding that there is an industrial dispute when, in the constitutional sense of that expression, no industrial dispute in fact exists. Section 101(3) cannot protect a finding of the existence of an industrial dispute if, according to the constitutional concept of an industrial dispute, there is not in fact an industrial dispute.
25 Section 101(3) might conceivably have effect, in a case such as the present, to the extent that it might remove from consideration the power to grant certiorari for error of law on the face of the record, if such an error were found to be an error within the jurisdiction of the Commission. It is unnecessary to deal at length with this issue. If the Commission in the present cases erred in law by misconstruing the eligibility rule of the CPSU, and if its error of law in this respect caused it to make a finding of an industrial dispute in respect of employees who were not in truth eligible to become members of the CPSU, then there will be jurisdictional error. It will be unnecessary to be concerned with the possibility of error of law on the face of the record.
26 There is also authority that, even if the Commission has gone beyond the constitutional concept of an industrial dispute in some respects, in the way in which it records its findings, the High Court will not necessarily grant prohibition or mandamus (and therefore also not certiorari) when it is clear that there remains before the Commission an industrial dispute validly found in some significant respects. See R v Alley; Ex parte New South Wales Plumbers and Gasfitters Employees' Union (1981) 153 CLR 376. It is recognised that the power of the Commission to vary or revoke any of its recorded findings can be exercised to eliminate findings as to aspects of an industrial dispute lying outside the boundaries of the constitutional concept of an industrial dispute.
27 It is also clear that the onus of proof rests on a party seeking to establish jurisdictional error. This has been recognised at least since R v Foster; Ex parte Commonwealth Life (Amalgamated) Assurances Ltd (1952) 85 CLR 138. Ordinarily, the onus must be discharged, if it is to be, by the tendering to the court of evidence, admissible in accordance with the Evidence Act 1995 (Cth), establishing that the jurisdictional fact, which the decision-maker found to exist, actually did not exist. In Attorney-General for Queensland v Riordan (1997) 192 CLR 1 at 14, Brennan CJ and McHugh J recognised that the onus could be discharged by placing before the court the transcript of evidence and the documentary evidence tendered before the Commission. That was a case in which the issue was the genuineness of the demands made in a log of claims. It is easy to see how, in such a case, the evidence before the Commission would suffice to enable the court to make its own judgment as to whether the demands were so far-fetched as to lie outside the bounds of genuineness. It is more difficult to see how, in cases like the present, this Court can be expected to trawl through the evidence that was before the Commission, for the purpose of making its own findings of fact.
28 There are other problems arising from an attempt to discharge the onus of proof simply by placing before the court the evidence that was before the Commission. As the Commission is not bound by the rules of evidence (s 110(2)(b) of the WR Act), there is the possibility that there will thereby be placed before the court material that would not be otherwise admissible. To the extent to which the Commission has seen and heard witnesses, it is usually in a better position than the court, using a transcript of the evidence of those witnesses, to choose what evidence it will accept and what it will reject. Considerable weight must be given to the Commission's view when it has had this advantage.
29 It must also be recognised that the expertise of the court differs from that of the Commission. By s 10 of the WR Act, before a person can be appointed to the Commission, the Governor-General must form the opinion that the person has 'skills and experience in the field of industrial relations'. By s 20, the members of the Commission are under a duty to keep acquainted with industrial affairs and conditions. In deciding upon the correctness or otherwise of a finding of the Commission, great weight must be given to the specialist experience and knowledge of members of the Commission, and to the power of the Commission to inform itself on any matter in such manner as it considers just (s 110(2)(b) of the WR Act). For these reasons, in Riordan at 14 - 16, Brennan CJ and McHugh J recognised that, in evaluating the evidence that was before the Commission, the Court 'gives particular weight to the evaluation made by the Commission.' Their Honours cited a substantial line of authority for that proposition.
30 In the present cases, IBM GSA and EDS placed before the Court the whole of the material that was before the Full Bench of the Commission. They did not otherwise attempt to establish that, as a matter of fact, there did not exist an industrial dispute, consequent on the service of the log of claims on them by the CPSU. They invited the Court to make findings on particular issues of fact, in the hope and expectation that those findings of fact would lead the Court to the conclusion that there was no industrial dispute. This approach tended to treat the Court as if it were simply sitting on appeal from the decision of the Full Bench. Counsel for IBM GSA and EDS assured the Court that there was really very little disagreement about the facts. Attempts were made to require the parties to file during the hearing agreed statements of fact. Not surprisingly, complete agreement could not be reached. After the completion of the hearings, the Court directed that IBM GSA and EDS file statements of the findings of fact which they asked the Court to make, expressed in narrative form, with references to the material on which such findings might be made. The directions gave the CPSU an opportunity to submit alternative findings of fact, similarly referenced. The result was a further large quantity of material, which did not place the Court in a significantly better position to make relevant findings of fact than it had been.
31 The need to avoid treating the proceedings as if they were appeals from the Full Bench is obvious. So is the need to give the necessary weight to the conclusions of the Full Bench. The Court ought not to overturn any finding of fact, or conclusion, of the Full Bench without being satisfied that it is clearly wrong. A finding of fact made by the Full Bench ought to be accepted if it was reasonably open to the Full Bench to make that finding. Only a complete absence of material on which such a finding could be based, or a finding manifestly contrary to unchallenged evidence, or to the overwhelming preponderance of evidence, should be set aside. The fact that the Court might be disposed to make another finding should not cause it to succumb to the temptation to substitute such a finding for the finding made by the Full Bench. It should be remembered that Riordan was factually a very different case from the present cases. The necessity to delve into the material before the Commission was not great in that case. In the present cases, both IBM GSA and EDS invited the Court to go substantially further in second-guessing the Commission's findings. The Court should be very wary of being drawn into such a process.
32 In undertaking the task of determining whether it was reasonably open to the Full Bench to make the finding that an industrial dispute existed, it is necessary to begin with an examination of the relevant provisions of the rule of the CPSU governing the eligibility of employees to become its members.