Public Service Association (SA) v Federated Clerks' Union

Public Service Association (SA) v Federated Clerks' Union - [1991] HCA 33 - HCA 1991 case summary — Zoe

[11]

The Registrar will, whether or not an objection has been made by any registered association, unless in all the circumstances it is, in the Registrar's opinion, undesirable to do so, refuse an application to register an association where, in the same locality and connected with the same industry, there exists a registered association to which, in the Registrar's opinion, the members of the association applying for registration (referred to in this section as "the applicant association") might conveniently belong, but if the registered association is registered under the Commonwealth Act or is a branch or forms part of an organization so registered and the applicant association is registered under the Commonwealth Act or is a branch or forms part of an organization so registered, the Registrar cannot refuse to register the applicant association merely on the ground that its members might conveniently belong to the other association. Paragraph (b) of s. 121(5) does not refer to an opinion but, in so far as it incorporates s. 116(2), it requires the Registrar, in a case where he or she forms the opinion that the persons to whom coverage would be extended on registration of a rule alteration might conveniently belong to another registered association, to refuse registration unless he or she forms a further opinion that it would be undesirable to refuse an application to register the rule alteration. The latter opinion imports a limited discretion to register a proposed alteration but only when the opinion is formed that there are countervailing considerations outweighing the prima facie bar which arises when the opinion is formed that the persons to be covered by the altered rules might conveniently belong to another registered association. As a limited discretion to register is created by the joint operation of s. 116(2) and s. 121(5)(b), it cannot be said that the words "may refuse" in sub-s.(5) should be construed as "must refuse" [2] . 1. Cf. Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation (1971), 127 C.L.R. 106, at pp. 133-135.

[23]

(1936) 55 C.L.R. 499. 2. (1979) 54 A.L.J.R. 243. A submission that the Registrar had erred in his application of the "conveniently belong" test was rejected: Mr. Heywood-Smith submitted that, having decided to apply the "conveniently belong" test, so far as it was applicable, the Registrar erred in the way he dealt with it. I did not accept that submission. It seemed to me that, on this topic, the matter of real substance lay in the penultimate paragraph of the passage I have cited above from the reasons for decision of the Industrial Registrar on this topic. Now, whether that is an application of the "conveniently belong" test or not, it is a matter relevant to the exercise of the discretion; and Mr. Heywood-Smith did not suggest the Registrar was in error in finding that the [present respondents] could not cover the majority of persons sought to be covered by the proposed addition. It is clear that Deputy President Allan misunderstood the nature of the decision which the Registrar had made: it was not an exercise of an unstructured discretion. A finding that the F.C.U. and the A.S.W.U. could not cover a majority of those who would be covered by the proposed alteration was not merely "a matter relevant to the exercise of the discretion". Without rehearing the matter, Deputy President Allan reached the conclusion that no error appeared in the way the Registrar had dealt with it. Misunderstanding the nature of the Registrar's decision, the Deputy President misunderstood the issues which would fall for decision by the Full Commission if leave to appeal were granted. On appeal from a decision of the Registrar on an application under s. 121(5) involving a "conveniently belong" issue, the Full Commission is vested with jurisdiction to determine for itself: (i) the "conveniently belong" issue and, if that be determined adversely to the applicant for registration, whether in the opinion of the Commission it is nevertheless undesirable to refuse registration (par. (b)); (ii) whether the proposed rule alteration would prejudicially affect members of the applicant association or of any other registered association (par. (a)); and (iii) whether there is any other reason making it proper to refuse registration (par. (c)). Misconceiving the nature of the jurisdiction which the F.C.U. and the A.S.W.U. were seeking leave to invoke, the Full Commission applied an erroneous test in refusing leave to appeal. It should have ascertained whether there was a reasonably arguable case that the Registrar had wrongly decided the issues arising under any of the paragraphs in s. 121(5) [7] .
1. (1936) 55 C.L.R. 499.
2. (1979) 54 A.L.J.R. 243.
3. See, by way of analogy, Niemann v. Electronic Industries Ltd., [1978] V.R. 431, at pp. 432-433, 436-438.

[46]

Logically, the question of the jurisdiction of the Supreme Court to entertain the proceedings should be determined first. Indeed, if this Court were to hold that the Full Court lacked jurisdiction, it would be inappropriate to embark upon an examination of the correctness of the Full Commission's order refusing leave to appeal to it in circumstances where the jurisdiction of the ordinary courts to entertain a challenge to the correctness of that order had been excluded by statutory provision and where the only order which could be made by this Court would be that the Full Commission's order be reinstated. A majority of this Court is, however, of the view that the Full Court did possess jurisdiction to entertain the proceedings and to make the orders which it made. That being so, it is appropriate that I indicate that I am in general agreement with the joint judgment of Dawson and Gaudron JJ. in relation to the two questions concerning the correctness of the reasoning of the majority of the Full Commission. While it is arguable that the reasons of Deputy President Allan (with which Commissioner Perry agreed) should be differently construed, it appears to me, as it did to the Full Court of the Supreme Court, that they do indicate that the majority of the Full Commission thought that the Registrar's overall decision had been made in the exercise of a "very wide" unstructured general discretion of the kind referred to by Starke J. in House v. The King [24] . In that, the majority of the Commission fell into error. While the resolution of the overall issue whether a desired alteration should be approved could, depending upon the circumstances of a particular case, require the formation of a discretionary judgment in relation to a number of subsidiary questions, the overall decision itself does not involve the exercise of a wide unstructured discretion. It also appears to me that the members constituting the majority of the Full Commission wrongly acted on the basis that, if leave to appeal were granted, the Full Commission could properly interfere with the Registrar's decision only on the ground that it was vitiated by the kind of error which would justify the intervention of an appellate court on an appeal in the strict sense to correct the exercise by a court of first instance of such a general discretion. Even if the Registrar's decision had been made in the exercise of a very wide general discretion, a Full Commission would be entitled, on an appeal to it, to reach its own conclusion about whether the desired amendment to the eligibility rule should be approved. As Dawson and Gaudron JJ. point out, it is, nonetheless, open to the Commission to take the view that, as a matter of discretion, leave should not be granted in the circumstances of a particular case unless it appears that the Registrar had fallen into some identifiable error.

[51]

Section 95 of the Act manifests a legislative policy that, subject only to the exception in relation to "excess or want of jurisdiction", the awards, orders and decisions of the Industrial Commission of South Australia should be immune from challenge or review in the ordinary courts. Such a legislative policy in relation to the decisions of industrial tribunals is commonplace in this country. Its rationale is not difficult to identify. Industrial tribunals, when they are not themselves specialist courts of law, customarily include members who either are judges of a court or are possessed of legal training and experience comparable to that required of an appointee to judicial office [25] . Their functions commonly extend to the making of awards or orders which lay down general standards of conduct which bind whole sections of the community in their future conduct and relations. The efficient discharge of such quasi-legislative functions may well require departure from traditional curial methods and procedures. Even where the resolution of a narrow actual dispute between individual parties is involved, the advantages of compulsory mediation or conciliation have been availed of by industrial tribunals to an extent unaccepted in most ordinary courts [26] . In a context where prompt action - sometimes at a tribunal's own initiative [27] - to prevent and resolve disputes is necessary in the public interest, there is much to be said for the view that such specialist industrial tribunals should be empowered to determine promptly and with finality the questions involved in the actual and potential industrial disputes which they are called upon to resolve [28] . The delays and expense of proceedings in the ordinary courts of this country serve to reinforce such a policy and its rationale. Indeed, at least in so far as delay is concerned, the present case provides a good example. As has been mentioned, the decision of the Registrar was to approve an amendment to the Association's eligibility rule. The object of the amendment, which was not effective unless and until approved, was to allow two groups of employees to become members if they so desired. It is now more than two years since the Registrar decided to approve the amendment and more than one and a half years since the Full Commission disposed of the application for leave to appeal. The result of the proceedings in the ordinary courts is that the Association still does not know whether the desired amendment to its eligibility rule will become effective. Perhaps even more important, the members of the two groups of employees are still left to speculate about the identity of the union or unions which they might join.

[53]

As a matter of ordinary language, the exception in s. 95(b) in relation to a challenge to an "award, order or proceeding" on the ground of "excess or want of jurisdiction" is apt to refer only to a case where it is claimed that the award, order or proceeding is itself wholly or partly outside the limits of the jurisdiction of the Commission in the circumstances. In the case of an award or order, the basis of such a challenge could be that the Commission had no relevant jurisdiction at all. Alternatively, it could be that, while the Commission possessed relevant jurisdiction, the award or order made exceeded or went beyond what the Commission had jurisdiction to do in the circumstances of the case. In the exercise of the jurisdiction which it possesses, the Commission is necessarily entitled - or possessed of "jurisdiction" - to determine relevant questions of fact and law. In determining such questions, the Commission may, within its jurisdiction, fall into an identified error of law or fact. Even if such an error "within jurisdiction" affects an award or order of the Commission, it will not, without more, produce the consequence that the award or order is made without, or in excess of, jurisdiction [29] . In the absence of any applicable overriding constitutional provisions [30] , identified error of law or fact on the part of the Commission will bring a case within the exception in s. 95(b) only if it leads the Commission to purport to make an award or order or to entertain a proceeding which is of a nature which it had no authority to make or entertain in the circumstances of the case. In other words, "jurisdiction" is not used in the wide and almost meaningless sense to which Lord Reid disapprovingly referred in Anisminic Ltd. v. Foreign Compensation Commission [31] . It is used in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them. It is when "jurisdiction" is used in that sense in a provision such as s. 95(b) that it is meaningful to speak, as this Court has done in many cases, of error being "within" and not in "want or excess of" the "jurisdiction" of a tribunal such as the Commission [32] .

[57]

That construction of the exception in s. 95(b) is also supported by a consideration of the general structure of the Act which continues the existence of a specialist Industrial Court [34] , with which the Commission is associated, as a court of record [35] constituted by judges [36] with tenure of office comparable to that of a judge of the Supreme Court [37] . Section 15 of the Act confers jurisdiction on the Industrial Court to interpret any award or industrial agreement, to hear and determine any question of law or case stated that is referred to it by the Commission and "to hear and determine jurisdictional or other questions as to the validity of awards or orders of the Commission". That express conferral of jurisdiction upon a specialist court is an important amelioration of the effects of barring access to the ordinary courts on questions other than excess or want of jurisdiction. The exclusiveness of that jurisdiction of the Industrial Court is protected by s. 92 of the Act which provides that the orders, decisions or proceedings of the Full Court of the Industrial Court are immune from being challenged, appealed against, reviewed, quashed or called in question "except in proceedings before the Full Court of the Supreme Court founded on an alleged excess or want of jurisdiction". Clearly enough, the overall legislative intent to be discerned in ss. 95 and 92 is that the orders, awards and proceedings of the Commission and the orders, decisions and proceedings of the Industrial Court are not to be open to challenge in the ordinary courts by reason only of some underlying error of law or fact occurring in the course of the Commission's or Industrial Court's exercise of the jurisdiction conferred upon it but are to enjoy the type of immunity from challenge in the ordinary courts which similar provisions had been held to confer upon the old Arbitration Court of New South Wales in the performance of its judicial functions. The nature and extent of that immunity were correctly identified by O'Connor J. in Amalgamated Society of Carpenters and Joiners v. Haberfield Proprietary Ltd. [38] :

[59]

It follows from what has been said above that I respectfully disagree with the "wide meaning" which was given to the exception in s. 95(b) in the judgments of Bray C.J. and Wells J. in Reg. v. Industrial Commission of South Australia; Ex parte Minda Home Incorporated [41] , and in the judgment of Bray C.J. in Reg. v. Industrial Commission of South Australia; Ex parte Adelaide Milk Supply Co-operative Ltd. [No. 2] [42] . The effect of Bray C.J.'s comments in the Adelaide Milk Supply Co-operative Case, when those comments are read in the context of the judgments in the Minda Home Case, would be that the exception in s. 95(b) encompassed not only any "jurisdictional matters which at common law would have induced the Court of Queen's Bench to interfere by the machinery of the prerogative writs" but also any case where perusal of the Commission's reasons disclosed that its decision was affected by an irrelevant consideration or that it had failed to take account of a relevant consideration. Since a wrong view of the applicable law would presumably constitute an irrelevant consideration, it would follow that the exception in s. 95(b) encompassed any decision affected by error of law. For the reasons which I have endeavoured to explain, the mere fact that the Commission wrongly takes account of a particular consideration (e.g. an erroneous view of the law or a mistaken view of the facts) does not mean that a proceeding before the Commission or an award or order made by the Commission is itself vitiated by an excess or want of jurisdiction. The proceeding or the award or order will be so vitiated only if the effect of the error is that the Commission purports to entertain a proceeding or make an award or order which is of a nature which the Commission has no jurisdiction, in the circumstances, to entertain or make. Nor does the mere fact that, in the exercise of the jurisdiction conferred upon it, the Commission falls into error about the identification or content of relevant questions or about the order in which it should deal with questions mean that the award or order actually made is itself amenable to challenge on the ground of excess or want of jurisdiction within the exception contained in s. 95(b). To the contrary, the privative provisions of s. 95 manifest a plain legislative intent that an award or order made by the Commission should, if they were made in circumstances where the Commission possessed jurisdiction to entertain the proceedings and to make an award or order of that nature, be immune from challenge, review or calling in question in the ordinary courts. In that regard, the essential distinction between challenge for excess or want of jurisdiction which s. 95 permits and challenge on any other ground which the section precludes is that identified by Lord Lindley in Free Church of Scotland v. Overtoun (Lord) [43] :

[61]

It is common ground that, in the circumstances of the present case, the Full Commission possessed jurisdiction to entertain and determine the application for leave to appeal from the Registrar's decision. Indeed, the respondent Unions themselves seek to take advantage of that jurisdiction. In the exercise of it, the Full Commission necessarily possessed jurisdiction to reach conclusions about relevant questions of fact and law. Those questions included the nature and implications of the Registrar's decision and the grounds upon which it would be overturned by the Commission if leave to appeal were granted. Error in relation to such questions is error within jurisdiction [44] . It will sustain a challenge on the ground of excess or want of jurisdiction only if it leads the Commission to go beyond the limits of the jurisdiction conferred upon it by, for example, making an award or order of a kind which it has no power to make in the circumstances of the case. If, for example, the Full Commission's errors of law had led it to grant leave to appeal in circumstances where no appeal could lie even by leave or to make orders on the application for leave to appeal of a kind which it was not competent to make, the orders which it made would be susceptible to attack on that ground. There is, however, no suggestion of such an excess or want of jurisdiction in the present case. Upon analysis, the attack made in the present case is, to the extent that it goes to jurisdiction at all, neither directed to the jurisdiction actually exercised (i.e. the jurisdiction to hear and determine an application for leave to appeal and to make an order granting or refusing such leave) nor based on the ground that the order actually made was vitiated by excess or want of jurisdiction. It is on the ground that, in deciding whether to grant or refuse leave to appeal, the Commission failed to appreciate the extent of the jurisdiction which it would be called upon to exercise if leave to appeal were granted. Even if the appeal stage had been reached and the Commission had disposed of the appeal on a mistakenly narrow view of its function, there would not have been an excess or want of jurisdiction. There would have been a failure fully to exercise jurisdiction which was possessed. In fact, however, that stage was never reached. It follows that, in the circumstances of the case, the Full Court did not have jurisdiction to entertain the challenge to the Commission's order refusing leave to appeal. I would allow the appeal and make orders which would have the effect that the orders of the Full Court of the Supreme Court are set aside and the order of the Full Commission is reinstated.

[107]

I agree that the majority of the Full Industrial Commission ("the Commission") erred in holding that leave to appeal should be refused because the present respondents had not demonstrated that there was a real likelihood that the "exercise of discretion" by the Registrar had miscarried. The reasons of the majority members of the Commission show that they understood the nature of an appeal from the Registrar to the Full Bench to be governed by the principles applicable to an appeal from a discretionary judgment as explained in cases such as House v. The King [58] to which the majority referred. In Re Coldham; Ex parte Brideson [No. 2] [59] , however, this Court held that an appeal under s. 88F of the Conciliation and Arbitration Act 1904 Cth, from a decision of the Registrar to the Full Bench of the Australian Industrial Relations Commission, was an appeal by way of rehearing and that the Full Bench was bound to make its own decision on the evidence before it, including any evidence with respect to matters which had occurred since the decision of the Registrar. In Brideson [No. 2] [60] , the Court said that the statement in Re Federated Miscellaneous Workers Union of Australia [61] , that "the principles relating to the function of a tribunal sitting on appeal from the exercise of a discretion should be applied" in an appeal under s. 88F was an incorrect description of the Commission's function under that section. Since the provisions of s. 88F are not relevantly distinguishable from the provisions of ss. 104 and 105 of the Industrial Conciliation and Arbitration Act 1972 S.A. ("the Act"), the ratio of Brideson [No. 2] is applicable to an appeal heard pursuant to those sections. It follows, therefore, that, in exercising its discretion to grant or refuse leave to appeal pursuant to the provisions of s. 104 of the Act, the majority of the Commission fell into error. But it does not follow that the orders of the Commission refusing leave to appeal constituted an "excess or want of jurisdiction" within the meaning of s. 95 of the Act.

[113]

Nor am I able to accept the correctness of the contention that the orders of the majority of the Commission in this case constituted an excess of or want of jurisdiction. It is true that the orders of the Commission refusing the applications were incorrectly made because the Commission improperly limited the matters which it was entitled to take into account in exercising its discretion to grant or refuse the applications for leave to appeal. As I have pointed out, the majority of the Commission held that leave to appeal could be granted only if there was a real likelihood that the discretion of the Registrar had miscarried. For the reasons which I have already given, the Commission was in error in coming to that conclusion even if it was correct in characterizing the decision of the Registrar in this case as a discretionary decision. But the error of the Commission in so holding means no more than that the exercise of the discretion to grant or refuse leave in this case miscarried. It does not mean that the Commission fell into jurisdictional error. The Commission has power under s. 104 of the Act to hear, and a discretion to grant or refuse, applications for leave to appeal against decisions of the Registrar. An error made because of a failure to take into account a matter relevant to the exercise of that discretion is an error made within, and not outside or in excess of, jurisdiction: this Court has rejected the proposition that for practical purposes there is no distinction between jurisdictional and non-jurisdictional errors of law [66] . To hold that the Commission fell into jurisdictional error because, in exercising the discretion conferred by s. 104, it wrongly refused to take into account a matter which it should have taken into account would abolish the distinction between jurisdictional and non-jurisdictional error. It is, in my view, an error to think that the Commission misconceived the nature of its jurisdiction to grant or refuse leave to appeal against the decision of the Registrar. The reasons of the Commission do not demonstrate that it misunderstood that the jurisdiction conferred by s. 104 gave it a discretion to grant or refuse leave to appeal. To the contrary, the reasons of the Commission clearly demonstrate that the majority conceived that it was exercising a discretionary jurisdiction. What those reasons demonstrate is that the majority misunderstood the matters it could take into account in exercising that jurisdiction. But that is not a jurisdictional error. Nor is that position changed if the majority of the Commission were also in error in identifying the decision of the Registrar in this case as a discretionary decision. That would mean no more than that the majority had made another error within jurisdiction in the course of exercising the discretion conferred by s. 104.

At a glance

Court

Decision date

Before

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Judgment (117 paragraphs)

Parties