Public Service Association (SA) v Federated Clerks' Union

The Registrar may refuse an application under this section -

(a) if, in the Registrar's opinion, the addition to, or revocation or variation of, the rules would prejudicially affect the members of the applicant association or any other registered association;

(b) for any reason for which an application by an association for registration could be refused; or

(c) if for any other reason it is, in the opinion of the Registrar, proper that the application should be refused.

When a statute confers a power which the repository may refuse to exercise if any of certain prescribed conditions apply, the implication is that there is a duty to exercise the power unless a prescribed condition applies. Thus, although the phrase "[t]he Registrar may refuse" prima facie imports a discretion either to register or to refuse to register, the prescribing of three grounds of refusal confines the occasions of refusal to cases in which one or other of the prescribed grounds applies [1] . Of course, if a prescribed ground applies but itself creates a discretion affecting the exercise of the power, the scope of the discretion is to be collected from the terms of the condition. 1. See Re Coldham; Ex parte Brideson (1989), 166 C.L.R. 338, at pp. 347-348.

No discretion is conferred on the Registrar by par. (a) of sub-s.(5). An opinion under par. (a) relates to a matter of fact, namely, the prejudicial effect which the proposed rule alteration would have on members of the applicant association or on members of other registered associations. An opinion under par. (a) is not to be formed by reference to the Registrar's view of what is preferable or desirable; it is to be formed upon a finding of fact.

Nor is a discretion directly conferred on the Registrar by par. (b). However, among the reasons "for which an application by an association for registration could be refused" is the reason prescribed by s. 116(2). That sub-section reads:

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.

Paragraph (c) creates a wide discretion, wider than the discretion in par. (b). However, this paragraph does not give an untrammelled discretion to register or to refuse to register. There must be some objective factor, more or less specific, which leads the Registrar actually to form an opinion that it is proper to refuse registration.

It follows that, in the present case, there was no discretion to refuse registration under s. 121(5) unless one or other of the conditions prescribed by pars (a), (b) and (c) was satisfied. Either the Registrar had to form one of the opinions referred to in par. (a) or (c) or the Registrar had to form the opinion that the "conveniently belong" test in s. 116(2) was satisfied and, in the last-mentioned case, the power to register was conditioned on the formation of a further opinion that it was undesirable to refuse registration. The Registrar did not form either of the opinions referred to in pars (a) and (c) and, finding that the F.C.U. and the A.S.W.U. together could not cover the majority of the persons whom the P.S.A. sought to cover, he found it unnecessary to give further consideration to the "conveniently belong" test. Accordingly, he granted the application for registration of the alteration in the P.S.A. rules. The F.C.U. and the A.S.W.U. desired to challenge the Registrar's decision on appeal. They filed applications for leave to appeal to the Full Commission of the Industrial Commission, assigning grounds which challenged on the merits the Registrar's findings on issues arising under each of pars (a), (b) and (c) of s. 121(5).

The provisions governing appeals to a Full Commission of the Industrial Commission from a decision of the Registrar are as follows:

104. The Full Commission may grant leave to appeal to the Full Commission from an act or decision of the Registrar in relation to a matter before the Registrar and the Full Commission may hear and determine an appeal in respect of which leave is so granted.

(1) Where leave to appeal has been granted under this Division, the Full Commission may, on such terms and conditions as it thinks fit, make an order that the operation of the act or decision of the Registrar be stayed pending the determination of the appeal or until further order of the Full Commission.

(2) The Full Commission may take further evidence for the purposes of an appeal under this Division.

(3) On the determination of an appeal under this Division by the Full Commission, the Full Commission will make such order as it thinks fit and may confirm, quash or vary a decision of the Registrar.

These provisions had a counterpart in s. 88F of the Conciliation and Arbitration Act 1904 Cth which this Court construed as providing for an appeal by way of rehearing and as requiring the appeal tribunal to decide the appeal on the facts and law existing at the time of its decision [3] . Sections 104 and 105 should be construed in the same way. As an appeal under ss. 104 and 105 is determined by the making of such order as the Full Commission thinks fit, it is necessarily implied that the Full Commission should determine for itself whether to form the opinions entrusted to the Registrar by s. 121, although there is no express direction to do so [4] . The jurisdiction which the F.C.U. and the A.S.W.U. were seeking to invoke was a jurisdiction to rehear the whole matter in which the Registrar's decision had been given and to receive, if appropriate, further evidence on the issues falling for determination. A majority of the Full Commission did not understand this to be the scope of the Full Commission's appellate jurisdiction. 1. Re Coldham; Ex parte Brideson [No. 2] (1990), 170 C.L.R. 267, at pp. 272-275. 2. Stepney Borough Council v. Joffe, [1949] 1 K.B. 599; and see Sagnata Investments Ltd. v. Norwich Corporation, [1971] 2 Q.B. 614, at p. 637.

By a majority, the Full Commission decided not to grant leave to appeal. Deputy President Allan, with whom Commissioner Perry agreed, said:

In the present case, a reading of section 121 of the Act reveals immediately that the decision of the Registrar with which we are here concerned was a decision which involved an exercise of discretion. Sub-section (5) makes that clear. I think it is not putting it too highly to say that the discretion which the Registrar was exercising in this case was a wide one.

It is not easy for an appellant body to overturn an exercise of judicial discretion. It is not enough that the appellant body would have taken a different course if it had been in the position of the person exercising the discretion at first instance. It will not interfere unless it appears that some error has been made in the exercise of the discretion; that is, that the discretion has been exercised on a wrong principle, or that some irrelevant material has been taken into account, or that some relevant material has not been taken into account, or that there has been some mistake of fact or that, on the facts, the result of the exercise of the discretion is unreasonable or plainly unjust: House v. The King [5] . The appellant body will not interfere with the exercise of a judicial discretion merely because the person exercising the discretion has given inadequate or excessive weight to some factors unless the failure to give adequate weight or the giving of excessive weight amounts to a failure to exercise the discretion or a wrongful exercise of the discretion: Gronow v. Gronow [6] .

1. (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.

The respondents successfully challenged the decision of the Full Commission in the Supreme Court by way of judicial review. Rule 98.01 of the Rules of the Supreme Court of South Australia substitutes orders by way of judicial review for the prerogative writs of mandamus, prohibition and certiorari, but the scope of the remedies available by way of judicial review does not relevantly exceed the scope of the remedies theretofore available by the grant of those prerogative writs.

On this appeal, the P.S.A. submits that the Supreme Court was in error in making the orders which, to use the superseded terminology, granted certiorari to bring up and quash the order of the Full Commission and mandamus to compel the Full Commission to hear and determine afresh the applications by the F.C.U. and the A.S.W.U. for leave to appeal. The P.S.A. submits that any error of law on the part of the Full Commission was an error made within jurisdiction and that relief by way of judicial review to correct non-jurisdictional errors of law is excluded by s. 95 of the Act. That section provides:

(a) every award, order or decision of the Commission or a Committee is final and no such award, order or decision can be removed to any other court; and

(b) no award, order or proceeding of any kind of the Commission or a Committee can be challenged, appealed against, reviewed, quashed or called in question except on the ground of excess or want of jurisdiction.

Apart from the express exception ("excess or want of jurisdiction"), it would be necessary to determine whether the error of the Full Commission was jurisdictional or non-jurisdictional. Privative clauses which declare an order of a tribunal to be final and which exclude the quashing or calling in question of such an order are effective, unless the Constitution otherwise dictates, to oust certiorari for non-jurisdictional errors [8] . This Court has not accepted Lord Diplock's view that the distinction between jurisdictional and non-jurisdictional errors was for practical purposes abolished by the decision of the House of Lords in Anisminic Ltd. v. Foreign Compensation Commission [9] . That distinction was maintained by this Court in Houssein v. Under Secretary of Industrial Relations and Technology (N.S.W.) [10] ; Hockey v. Yelland; and Reg. v. Gray; Ex parte Marsh [11] , as it was by the Privy Council in South East Asia Fire Bricks Sdn. Bhd. v. Non-Metallic Mineral Products Manufacturing Employees Union [12] , a case decided shortly before Racal Communications.

1. Hockey v. Yelland (1984) 157 C.L.R. 124, at p. 130. 2. [1969] 2 A.C. 147: see In re Racal Communications Ltd., [1981] A.C. 374, at p. 383; O'Reilly v. Mackman, [1983] 2 A.C. 237, at pp. 278, 283. 3. (1982) 148 C.L.R. 88. 4. (1985) 157 C.L.R. 351. 5. [1981] A.C. 363.

Making the distinction between jurisdictional and non-jurisdictional errors, this Court construes general privative clauses as impliedly exempting certiorari for jurisdictional error from the ouster of supervisory jurisdiction. In construing s. 95, however, it is not appropriate to imply an exemption, for s. 95(b) expressly excepts from its operation any challenge, appeal, review, quashing or calling in question of an award, order or proceeding of the Commission "on the ground of excess or want of jurisdiction". The relevant inquiry is whether judicial review of the Full Commission's orders is ousted by the general provisions of s. 95 or whether judicial review of those orders is available because it is a review "on the ground of excess or want of jurisdiction".

Judicial review on the ground of excess or want of jurisdiction is available when a body purportedly acting in exercise of jurisdiction has no jurisdiction to act in the particular way. Judicial review on that ground stands in contrast with judicial review on the ground of a wrongful failure or refusal to exercise jurisdiction. In the former case, there is no jurisdiction to exercise; in the latter, there is jurisdiction but no exercise of it. The exception in s. 95(b) covers the former case; there is no acceptable canon of construction by which it can be extended to cover the latter case. Thus, s. 95(b) appears to permit erroneous assumptions of jurisdiction to be checked by judicial review, but not erroneous refusals to exercise jurisdiction.

This view, it must be conceded, is inconvenient and it gives s. 95 an unbalanced operation, as Bray C.J. observed in delivering the leading judgment of the Full Court in Reg. v. Industrial Commission of South Australia; Ex parte Minda Home Incorporated [13] :

Clearly s. 95(b) preserves the power of the Court to grant the prerogative writs on the ground of excess or want of jurisdiction. It says nothing about declining jurisdiction. It could be argued that this Court can interfere on jurisdictional grounds when the Commission is asked to do something which it has no jurisdiction to do (prohibition), or has purported to do something which it has no jurisdiction to do (certiorari), but not when it has refrained from doing something which it has jurisdiction to do under the erroneous belief that it had no such jurisdiction (mandamus).

Some degree of plausibility is lent to this argument by the words "excess or want of jurisdiction", which seem more apt to cover cases of going too far than cases of refusing to go far enough. But any such interpretation would produce a one-sided and partial result. It would mean in the present case, for example, that if the Commission had wrongly decided that there was a valid appeal before it we could interfere, but not if, as the Home alleges here, it had wrongly decided that there was no valid appeal before it.

This consideration led his Honour to hold [13] that - the words "save on the ground of excess or want of jurisdiction" should be given a wide meaning so as to include all the jurisdictional matters which at common law would have induced the Court of Queen's Bench to interfere by the machinery of the prerogative writs. However convenient this construction may be, I am respectfully unable to adopt it. The text of the exception in s. 95(b) does not support it. The difference between a purported exercise of jurisdiction when no jurisdiction exists and a failure to exercise a jurisdiction that does exist is too radical to permit assimilation of the differing cases into a single category to which the exception in s. 95(b) can apply. 1. (1975) 11 S.A.S.R. 333, at p. 337. 2. (1975) 11 S.A.S.R. 333, at p. 337.

The F.C.U. and the A.S.W.U. attack the Full Commission's order refusing leave to appeal not because the quashing of that order will give them any substantive relief but because it will permit the making of an order granting leave to appeal from the Registrar's decision. It is the substantive appeal which they wish to litigate. The gravamen of the case made by the F.C.U. and the A.S.W.U. is that the Full Commission wrongly refused to entertain that appeal. If the focus of the present case were to be placed on the Full Commission's refusal to entertain a substantive appeal, however, the case would not be brought within the s. 95(b) exception: a non-exercise of the appellate jurisdiction is not an "excess or want of jurisdiction"; it is the converse - a jurisdiction which goes unexercised. A tribunal which misconceives its jurisdiction and is thereby led to make an order which exceeds its jurisdiction may be prohibited from further proceeding on the order [14] but when a tribunal, misconceiving its jurisdiction, fails to exercise it the non-exercise of its jurisdiction does not amount to an excess of jurisdiction. The very hypothesis on which judicial review of an erroneous refusal to entertain an appeal must be sought is that the respondent body has jurisdiction to entertain the appeal: it cannot be sought "on the ground of excess or want of jurisdiction".

1. Reg. v. Dunphy; Ex parte Maynes (1978), 139 C.L.R. 482, at pp. 495-496.

However, the relevant focus of s. 95 in this case is not on the Full Commission's failure to entertain a substantive appeal but on the order refusing leave to appeal. That is the order which was judicially reviewed by the Supreme Court and, if the Supreme Court's intervention is to be upheld, the Full Commission's jurisdiction to make that order must be open to attack on the ground of excess or want of jurisdiction.

The essential relief which the F.C.U. and the A.S.W.U. sought and obtained by way of judicial review was an order requiring the Full Commission to hear and determine according to law the application for leave to appeal which, it was submitted, the Full Commission had constructively failed to determine. The foundation for relief of this kind is stated by Jordan C.J. inEx parte Hebburn Ltd.; Re Kearsley Shire Council [15] , in a passage cited by Aickin J. in Reg. v. Toohey; Ex parte Northern Land Council [16] :

I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health [17] . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply "a wrong and inadmissible test": Estate and Trust Agencies (1927) Ltd. v. Singapore Improvement Trust [18] ; or to "misconceive its duty", or "not to apply itself to the question which the law prescribes": R. v. War Pensions Entitlement Appeal Tribunal [19] ; or "to misunderstand the nature of the opinion which it is to form": R. v. Connell [20] , in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education [21] . 1. (1947) 47 S.R. (N.S.W.) 416, at p. 420. 2. (1981) 151 C.L.R. 170, at p. 268. 3. [1939] 1 K.B. 232, at pp. 245-246. 4. [1937] A.C. 898, at p. 917. 5. (1933) 50 C.L.R. 228, at pp. 242-243. 6. (1944) 69 C.L.R. 407, at p. 432. 7. [1910] 2 K.B. 165.

In this case the Full Commission's error lay in regarding the proposed appeal as involving no more than an appellate review of an unstructured discretion whereas, as we have seen, the proposed appeal required a rehearing on the merits of the issues arising under each of pars (a), (b) and (c) of s. 121(5) in the light of whatever evidence was placed before and received by the Full Commission. A consideration of leave to appeal to review an unstructured discretion is a different exercise from a consideration of leave to appeal to rehear the issues arising under each of pars (a), (b) and (c). The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to decide, namely, whether leave to appeal should be granted to permit a rehearing of the application on the merits. This was a jurisdictional error [22] . But does s. 95 permit the relief granted by the Supreme Court?

1. Hammond v. Hutt Valley & Bays Milk Board, [1958] N.Z.L.R. 720.

The orders made by the Supreme Court were, in the first place, orders in the nature of certiorari removing the order of the Full Commission into the Supreme Court, quashing it and remitting the matter to the Full Commission. The foundation of these orders is that, by reason of the jurisdictional error, the Full Commission had no jurisdiction to make the order it did. The orders in the nature of certiorari were therefore founded on excess or want of jurisdiction. They were validly made. But the order in the nature of a mandamus to hear and determine afresh the application for leave to appeal commands the exercise of a jurisdiction which the Full Commission undoubtedly possesses though it has constructively failed to exercise it. That order is not, in my view, founded on an excess or want of jurisdiction. Certiorari is required to quash an order made ultra vires; mandamus issues as an adjunct to compel the making of an intra vires order [23] . Although the exception in s. 95(b) did not authorize the making of the order in the nature of mandamus, once the validity of the orders in the nature of certiorari is upheld, there is no practical difference in the result. Indeed, as Professor Wade explains, the quashing of a decision on certiorari is frequently a sufficient relief without the issuing of a mandamus. Although, in strictness, the Supreme Court's order should be varied to delete the order in the nature of the mandamus, I would dismiss the appeal.

1. See Wade, Administrative Law, 6th ed. (1988), pp. 658-659. Deane J.

This appeal is from a judgment of the Full Court of the Supreme Court of South Australia removing into that court and quashing an order of the Full Commission of the Industrial Commission of that State refusing leave to appeal to the Full Commission from a decision of the Commission's Registrar. It involves three distinct questions. Two of them relate to the correctness of the reasoning of the majority of the Full Commission upon which its order refusing leave to appeal was based. The first of those questions is whether the members constituting the majority of the Full Commission were mistakenly of the view that the decision of the Registrar, which was that approval be given to an alteration of the eligibility rule of the appellant Public Service Association of South Australia ("the Association"), was made in the exercise of a broad and general discretion to grant or refuse such approval. The second is whether the Full Commission's decision was affected by an error as to the nature of the function which it would be called upon to discharge if it were to grant leave to appeal. The third question relates to the jurisdiction of the Full Court of the Supreme Court to entertain the proceedings before it and to make the orders which it made.

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.

There remains for consideration the question of the jurisdiction of the Full Court of the Supreme Court of South Australia to entertain the proceedings before it and to make the orders which it made. On that question, I have come to the conclusion that that jurisdiction was denied to the Supreme Court by s. 95 of the Industrial Conciliation and Arbitration Act 1972 S.A. ("the Act"). That section relevantly provides:

(a) every award, order or decision of the Commission is final and no such award, order or decision can be removed to any other court; and

(b) no award, order or proceeding of any kind of the Commission can be challenged, appealed against, reviewed, quashed or called in question except on the ground of excess or want of jurisdiction (emphasis added).

Clearly, the section was effective to deny to the Full Court jurisdiction to entertain the challenge to the Full Commission's order unless that challenge was "on the ground of excess or want of jurisdiction" and therefore within the exception contained in s. 95(b). Indeed, as I followed the argument, so much was common ground.

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.

1. See, e.g., Pt III of the Act. 2. See, e.g., s. 26. 3. See, e.g., s. 27. 4. See, e.g., Baxter v. New South Wales Clickers' Association (1909), 10 C.L.R. 114, at p. 161; Bank of N.S.W. v. United Bank Officers' Association and the Court of Industrial Arbitration (1921), 21 S.R. (N.S.W.) 593, at pp. 614-615.

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] .

1. See, e.g., Houssein v. Under Secretary of Industrial Relations and Technology (N.S.W.) (1982), 148 C.L.R. 88, at pp. 93-95. 2. Cf. Reg. v. Coldham; Ex parte Australian Workers' Union (1983), 153 C.L.R. 415, at pp. 418, 427-428. 3. [1969] 2 A.C. 147, at p. 171. 4. See, e.g., Houssein (1982), 148 C.L.R., at pp. 92, 93; and, generally, Amalgamated Society of Carpenters and Joiners v. Haberfield Proprietary Ltd. (1907), 5 C.L.R. 33.

That construction of the exception in s. 95(b) is consistent with the general legislative policy which s. 95(a) manifests, namely, that an award, order or decision made by the Commission is "final" and cannot be "removed" to any other court. That general unqualified legislative directive precludes certiorari for underlying error within jurisdiction since such certiorari involves removal of the impugned award, order or decision to the court in which the proceedings for certiorari are brought. It also accords with common sense in that there are obvious reasons why a legislative provision to the effect that the orders of a specialist industrial tribunal are immune from challenge in the ordinary courts should not be completely unqualified. The qualification introduced by the exception in s. 95(b) is, in effect, that the immunity from challenge or review of the awards, orders or proceedings of the Commission is confined to awards, orders or proceedings of the kind which the Commission is empowered to make or entertain in the particular circumstances. Indeed, even if such a qualification to exclude orders, awards and proceedings which the Commission had no authority to make or entertain had not been expressly included in s. 95(b), it would almost certainly have been implied [33] .

1. See, e.g., Houssein (1982), 148 C.L.R., at p. 94; Baxter v. New South Wales Clickers' Association (1909), 10 C.L.R., at pp. 131-132, 140-141.

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] :

It was clearly within the jurisdiction of the [Arbitration] Court to enter upon that inquiry, and, having determined that the relation of employer and employé did exist, the order inflicting penalties was founded on that determination. It discloses no want of jurisdiction on the face of it. Under the circumstances the decision of the Court, whether right or wrong in fact or in law, is conclusive, and beyond reach of inquiry by the Supreme Court or any other Court. In the same case, Isaacs J. [39] quoted as applicable to the proceedings of the New South Wales Arbitration Court, in the context of privative provisions comparable to s. 95, the comments of Crompton J. in Reg. v. Dayman [40] : It is not a case in which the existence of a fact determines whether the inferior tribunal had jurisdiction or not, as when title to land comes into controversy in a county court. Had this Act said that, as soon as there was a dispute as to whether the place was a new street, the jurisdiction should cease, it might give rise to different considerations. But in every cause that comes before any court there are matters of law and fact, and matters of mixed law and fact, which the prosecutor must establish, or else he fails. On such matters, under this Act, the magistrate finally decides. If he were to step wholly out of his jurisdiction, then, though the certiorari is taken away, we could bring up and quash his order. 1. See Pt II. 2. s. 8(2). 3. s. 14. 4. s. 12. 5. (1907) 5 C.L.R., at p. 52. 6. (1907) 5 C.L.R., at p. 55. 7. (1857) 7 El. & Bl. 672, at p. 678 [119 E.R. 1395, at p. 1397].

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] :

The distinction between an erroneous decision by a body having jurisdiction to deal with a particular subject-matter, and a decision by a body having no jurisdiction over the matter decided, is familiar to all lawyers, and must be steadily borne in mind in this case. 1. (1975) 11 S.A.S.R. 333, at pp. 337, 344. 2. (1978) 18 S.A.S.R. 65, at pp. 67-69. 3. [1904] A.C. 515, at p. 702.

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.

1. See, e.g., R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Broken Hill Proprietary Co. Ltd. (1909), 8 C.L.R. 419, at p. 453; Reg. v. Federal Court of Australia; Ex parte W.A. National Football League (1979), 143 C.L.R. 190, at p. 214. Dawson and Gaudron JJ.

The question that arises on this appeal is whether the Industrial Commission of South Australia ("the Commission") acted in excess of or in want of jurisdiction when, by majority, it refused leave to appeal from a decision of its Registrar. The Registrar had decided in favour of an application by the appellant, the Public Service Association of South Australia, to register a change to its eligibility rule so as to permit extension of its membership to employees of the Spastic Centres of South Australia Incorporated and the Crippled Children's Association of South Australia Incorporated.

The appellant is registered as an association of employees under the Industrial Conciliation and Arbitration Act 1972 S.A. ("the Act"). Registration of an alteration or amendment to the rules of a registered association is necessary before it can take effect [45] . The appellant's application to amend its eligibility rule was objected to by the respondents, the Federated Clerks' Union of Australia, South Australian Branch and the Australian Social Welfare Union, South Australian Branch. The respondents are also registered as associations of employees under the Act and each of them objected, among other grounds, that it was a registered association to which employees of the Spastic Centres and the Crippled Children's Association might conveniently belong and, thus, that the application should be refused by reason of s. 121(5)(b) of the Act. That objection and the issues it raised provide the major part of the setting for the arguments on this appeal.

The Registrar may refuse an application [by a registered association for the registration of an addition to, or the revocation or variation of, any of its rules] under this section -

(a) if, in the Registrar's opinion, the addition to, or revocation or variation of, the rules would prejudicially affect the members of the applicant association or any other registered association;

(b) for any reason for which an application by an association for registration could be refused; or

(c) if for any other reason it is, in the opinion of the Registrar, proper that the application should be refused.

There is an evident economy in the language of s. 121(5)(b) of the Act. However, it is common ground that that paragraph requires the Registrar to consider whether, if the rule change was made, the rules would be such that a hypothetical application for initial registration would or might be refused under s. 116(2) or (3) of the Act. Section 116(2) contains an exemption or exception with respect to associations that are, or are branches of or parts of, federally registered organizations. That exemption or exception has played no part in this case and it is convenient to deal with s. 116(2) and the issues it raises as if it were not present. On that basis, s. 116 relevantly provides in sub-ss. (2) and (3):

(2) 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 might conveniently belong

(3) Subject to this section, the Registrar must, if satisfied that -

(a) the association is eligible to be registered under this Part; and

(b) the prescribed conditions (insofar as compliance with them has not been waived) have been complied with,

register the association without fee and issue a certificate of registration.

The rule change sought by the appellant did not involve consideration of the matters raised by the combined operation of s. 121(5)(b) and s. 116(3) of the Act. Accordingly, the issues for the Registrar were confined to those arising under s. 121(5)(a) and (c) and the "conveniently belong" question raised by the combined operation of s. 121(5)(b) and s. 116(2). The Registrar held with respect to the issues under s. 121(5)(a) and (c) that, in his opinion, the rule change would not prejudicially affect the members of the appellant or any other registered association and that there was no other reason which, in his opinion, made it proper for the application to be refused. On the "conveniently belong" question, the Registrar held that "taking [the respondents] together they could not cover the majority of persons sought to be covered by [the appellant]" and that "[i]n [those] circumstances, it [was] unnecessary to turn to the factors which decide [that] question".

The respondents each applied for leave to appeal from the Registrar's decision pursuant to s. 104 of the Act. The powers of the Commission to confirm, quash or vary a decision of the Registrar are set out in s. 105. It seems that both applications for leave to appeal raised the same or substantially the same issues. What follows is taken from the application of the first respondent, that being the only application that was provided to the Court. That application sought to challenge the correctness of the various steps by which the Registrar arrived at his decision in favour of the rule change. As to the "conveniently belong" question, it sought, in Grounds 14, 15, 16, 18, 19 and 20, to challenge the Registrar's interpretation of the eligibility rule of the second respondent, which interpretation was, at least in part, the basis of his finding that "taking [the respondents] together they could not cover the majority of persons sought to be covered by [the appellant]". It also sought, in Grounds 6, 7 and 11, to challenge the Registrar's understanding of "the concept of "conveniently belong" " and the relevance of his finding that it was necessary for an objecting association or associations to cover the majority of persons affected by the application. Thus, as a matter of necessary implication, the application sought to raise the correctness of the Registrar's conclusion that it was unnecessary for him to form an opinion on the question of "conveniently belong". Additionally, it asserted in Ground 29 that "[t]he Registrar failed to address the question of why employees within the coverage of the two objecting associations could not conveniently belong to those associations."

The decision of the Commission refusing leave to appeal was based on the view that a decision under s. 121(5) of the Act relates to a single issue, namely, whether registration of a rule change should be refused, and that a decision on that issue is properly characterized as a discretionary decision. In the view of the majority a discretionary decision by the Registrar was to be equated with a judicial discretion in the exercise of which, although it may be necessary to take various matters into account and to exclude other matters from consideration, no particular matter and no particular combination of matters will dictate a particular result. It is established by House v. The King [46] that a judicial discretion of that type will not be interfered with on appeal unless the discretion has been exercised on a wrong principle, an irrelevant consideration has been taken into account, a relevant consideration has not been taken into account, there has been a mistake of fact, or, on the facts, the result of the exercise of the discretion is unreasonable or plainly unjust. It followed from the view of the majority that leave to appeal should be refused unless the respondents demonstrated "a real likelihood that the exercise of the discretion had miscarried". On the basis that they had not demonstrated that likelihood, leave was refused.

The respondents applied to the Full Court of the Supreme Court of South Australia for judicial review of the Commission's refusal of leave to appeal. That application had to surmount the hurdle of s. 95 of the Act which, subject to exceptions which are not presently relevant, provides with respect to proceedings of the Commission:

(a) every award, order or decision of the Commission is final and no such award, order or decision can be removed to any other court; and

(b) no award, order or proceeding of any kind of the Commission can be challenged, appealed against, reviewed, quashed or called in question except on the ground of excess or want of jurisdiction.

The Supreme Court held that the Commission's characterization of the Registrar's decision as a discretionary decision was erroneous in that it failed to take account of the questions to be asked by reason of pars (a), (b) and (c) of s. 121(5), the answers to which, in the view of that Court, determined whether a discretion arose. It further held that, in consequence of that error, the Commission acted in excess of or in want of jurisdiction. The present appeal is brought from that decision and from consequential orders setting aside the Commission's refusal of leave to appeal and remitting the applications to the Commission for further hearing.

The starting point for the determination of the present appeal is s. 121(5) of the Act. The fact that s. 121(5) is directed to a single question, namely, whether registration of a rule change should be refused, and the use of the words "may refuse" in its opening part suggest that the sub-section postulates a discretionary decision on a single issue, in the sense that, although the matters raised by pars (a), (b) and (c) must be taken into account, none of those matters and no combination of them will dictate the refusal of registration. However, a consideration of the several matters and issues raised by those paragraphs leads to the conclusion that that is an inaccurate description of the sub-section.

The subject matter of s. 121(5)(a) of the Act is the Registrar's opinion as to the prejudicial effect that the rule change would have on the members of the applicant or on members of other registered associations. That subject matter is of a kind frequently associated with decisions in the making of which some particular matter must be taken into account, although that matter will not necessarily lead to a particular result. That is not the case with s. 121(5)(c). The subject matter of that paragraph is the Registrar's opinion that it is proper that the application be refused. The usual approach to a provision of that kind is to treat the specified opinion or conclusion as one to which effect must be given. Thus, in Finance Facilities Pty. Ltd. v. Federal Commissioner of Taxation [47] it was held that, although s. 46(3) of the Income Tax Assessment Act 1936 Cth provided that "the Commissioner may allow a further rebate if having regard to all the circumstances, it would be reasonable [to do so]", the Commissioner's conclusion that it was reasonable to allow a further rebate imported an obligation to that effect. Section 121(5)(c) is to be construed in the same way so that the Registrar's opinion that it is proper that registration be refused dictates that consequence and negates any discretion which might otherwise be conferred by s. 121(5) of the Act.

It is not necessary in the present case to consider the precise nature of the questions raised by the combined operation of s. 121(5)(b) and s. 116(3) of the Act. That operation directs attention to those matters which bear on an association's eligibility for registration under the Act and on its compliance with the conditions prescribed for registration. However, it would be surprising, to say the least, if, by virtue of a discretion conferred by s. 121(5), the Registrar is able to register a rule change having the effect of negating conditions necessary for an association to be eligible for registration. It would be equally surprising if the direction in s. 116(2) to refuse registration, albeit that it is a qualified direction, can be set at nought by the exercise of a discretion on a subsequent application to register a change in the eligibility rule of a registered association.

Subject to a residual qualification or exception ("unless in all the circumstances it is, in the Registrar's opinion, undesirable to [refuse registration]"), s. 116(2) of the Act directs the refusal of registration ("The Registrar will refuse an application to register an association") if there is a registered association to which, in the Registrar's opinion, members of the applicant association might conveniently belong. Again subject to that residual qualification or exception, the sub-section is designed to avoid overlapping union coverage with its potential to generate demarcation disputes. Within the scheme of industrial regulation that obtains in this country the issue raised by s. 116(2) is one of considerable importance. And its importance is not diminished when it arises on an application to amend the eligibility rule of a registered association. Despite the words "may refuse" in the opening part of s. 121(5), the subject matter of s. 116(2) and its mandatory terms require that the combined operation of s. 121(5)(b) and s. 116(2) be seen as obliging the Registrar to refuse registration of a change to an association's eligibility rule if there is a registered association to which, in the opinion of the Registrar, its prospective new members might conveniently belong unless he is of the opinion that it is undesirable to do so. That being so and unless the residual qualification or exception is brought into operation, the question whether the members or the prospective members of an applicant association may conveniently belong to another registered association, if determined against an applicant association, also negates any discretion which might otherwise be conferred by s. 121(5) of the Act.

It is clear from what has been said that s. 121(5) of the Act is not accurately characterized as a provision requiring a discretionary decision in the sense that, although the matters raised by pars (a), (b) and (c) must be taken into account, none of them and no combination of them will dictate a particular result. It is more accurately characterized as a provision which will allow for the making of a discretionary decision if, but only if, certain questions are not answered in a way that negates that discretion. Certainly the answers to the "conveniently belong" question and to the question raised by s. 121(5)(c) may negate that discretion. And because of that, those questions are properly to be seen as discrete issues which must be determined before the Registrar can decide whether, as a matter of discretion, registration should be refused.

Thus far it has been convenient to refer to the issues raised by s. 116(2) of the Act as the "conveniently belong" question. It is, however, important to bear in mind that it involves three distinct issues. The first is whether there is a registered association to which the members or the prospective members of the applicant association might belong. That is a question of fact and of interpretation of the eligibility rule of the association to which it is said those members might belong. The second is that of convenience, a matter upon which the Registrar is required to form an opinion. The third is whether the Registrar is of the further opinion that it is undesirable to refuse registration.

The three distinct issues raised by s. 116(2) of the Act provide the context for the grounds by which the applications for leave to appeal sought to raise the correctness of the Registrar's decision so far as it involved that sub-section. By raising an issue as to the Registrar's interpretation of the eligibility rule of the second respondent and by raising the relevance of his finding that "taking [the respondents] together they could not cover the majority of persons sought to be covered by [the appellant]", it was being put, albeit obliquely, that, for one or both of these reasons, there was a constructive failure by the Registrar to form an opinion as to whether persons might conveniently belong to other organisations and, if so, to determine whether, on that account, registration must be refused [48] . Additionally, in so far as it was asserted that the Registrar "failed to address the question of why employees within the coverage of the [respondents] could not conveniently belong to those associations", it was being asserted that there was an actual failure to determine those same issues. And further, it was being asserted in other grounds of appeal that, if those issues were correctly decided, the result might be that the Registrar, so far from having a discretion, was obliged to refuse registration of the rule change.

1. See Re Coldham; Ex parte Brideson (1989), 166 C.L.R. 338, at p. 350; R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. (1944), 69 C.L.R. 407, at p. 432; and Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947), 47 S.R. (N.S.W.) 416, at p. 420.

The issues raised when it is complained that necessary issues have not been decided, and when it is asserted that, had they been decided, the result might have been different, are different from the issue that arises when it is contended that a discretionary decision is wrong. The Commission considered only whether leave to appeal should be granted to raise the latter question and, thus, failed to deal with the question whether leave should be granted to raise the different issues presented by the applications. To that extent, the Commission failed to exercise the jurisdiction conferred upon it by s. 104 of the Act.

A failure to exercise jurisdiction is a jurisdictional error, although, prima facie, it is not an error involving an excess of or want of jurisdiction as specified in s. 95(b) of the Act. The Supreme Court appears to have approached the present matter on the basis that jurisdictional error, including jurisdictional error of the type identified in Anisminic Ltd. v. Foreign Compensation Commission [49] , is sufficient to overcome the hurdle to judicial review contained in s. 95 of the Act. Certainly it referred to and said it was applying the test in that part of the speech of Lord Reid in Anisminic [50] , where there was identified as jurisdictional error that error involved when a tribunal has "based its decision on some matter which, under the provisions setting it up, it had no right to take into account".

Privative clauses such as s. 95 of the Act are construed by reference to a presumption that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied [51] . Thus, a clause which is expressed only in general terms may be construed so as to preserve the ordinary jurisdiction of a superior court to grant relief by way of the prerogative writs of mandamus or prohibition in the case of jurisdictional error constituted by failure to exercise jurisdiction or by an act in excess of jurisdiction.

1. See, e.g., Clancy v. Butchers' Shop Employés Union (1904), 1 C.L.R. 181, at p. 204, per O'Connor J.; Hockey v. Yelland (1984), 157 C.L.R. 124, at p. 130, per Gibbs C.J., and (1984) 157 C.L.R., at p. 142, per Wilson J. See also Anisminic [1969] 2 AC. at p. 170, per Lord Reid.

Section 95 of the Act is a clause which both excludes and, with some precision, allows for judicial review. Because it expressly allows for review on the grounds of excess or want of jurisdiction, it must be interpreted as allowing an "award, order or proceeding" to be reviewed only on those grounds. And those grounds are not made out if all that is established is that there was a refusal or failure to exercise jurisdiction.

The Commission's refusal of leave to appeal cannot be characterized as a mere refusal or failure to exercise jurisdiction. The jurisdiction of a court is exercisable only when it is called upon to take action [52] . The same is true of a body that is required to act judicially. Thus, where a court or tribunal determines some matter or issue which it was not called upon to determine, the determination is one which is beyond its jurisdiction.

1. Huddart, Parker & Co. Proprietary Ltd. v. Moorehead (1909), 8 C.L.R. 330, at p. 357.

Because the applications for leave to appeal raised the question whether, in the circumstances, the Registrar had a discretion, which question could not be answered until the "conveniently belong" question was determined, they did not call for the determination, at least at that stage, of any question as to the correctness of a discretionary decision. Rather, the purport of the applications was that that question could not then be determined. Even if the applications for leave to appeal raised an issue concerning the correct exercise of a discretion which the Registrar might or might not turn out to have, that point was not reached. By determining that issue when it did, the Commission was ahead of itself and thus acted in excess of jurisdiction. Accordingly and albeit for reasons that do not precisely equate with the reasons of the Supreme Court, that Court was correct to allow the appeal and to make the orders that it did.

It is not strictly necessary to consider the alternative argument of the respondents based on the assumption that the Registrar's decision was a discretionary decision in the sense earlier indicated. That argument was to the effect that the Commission erred in a way involving an excess or want of jurisdiction by considering only whether there was an arguable case that the discretion had miscarried. However, that issue was fully argued and it is appropriate that it be dealt with.

An appeal under s. 105 of the Act, at least so far as it concerns matters involving the registration of an association or of a change to the rules of a registered association, is an appeal from an administrative decision. The appeal is one in which further evidence may be received and in the determination of which the Commission is required to make "such order as it thinks fit" [53] .

In Re Coldham; Ex parte Brideson [No. 2] [54] this Court held that s. 88F of the Conciliation and Arbitration Act 1904 Cth, which is worded in terms that are not relevantly different from those of s. 105 and which provides for appeals from similar decisions, created an appeal requiring a decision on the facts and law existing at the date of the determination of the appeal. By reason of the practical identity of subject matter and wording, the appeal created by s. 105 of the Act is necessarily of the same nature as that created by s. 88F of the Conciliation and Arbitration Act.

The full purport of the decision in Brideson [No. 2] was that s. 88F created an appeal requiring the appellate tribunal to decide for itself what should be the result in a particular case. And of more particular relevance to the present matter, it was said in that case [55] that it was not correct to say, as had been said in Re Federated Miscellaneous Workers Union of Australia [56] , 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 that section.

1. ibid., at p. 275. 2. (1974) 157 C.A.R. 623, at p. 631.

In Brideson [No. 2] [55] it was also said that it would have been appropriate, in determining whether leave to appeal should be granted under s. 88F(1) of the Conciliation and Arbitration Act, to refuse leave unless there was an arguable case that the Registrar's decision involved an error of the type identified in House [57] .

What is required for the grant of leave to appeal necessarily depends upon the nature of the appeal in question. If the appeal is one, as here and as in Brideson [No. 2], requiring the appellate tribunal to decide for itself what should be done, then an applicant may seek leave to appeal from a discretionary decision on the basis that, even if there be no discernible error of the type identified in House , a different decision should be reached. If leave is sought on that basis, it is open to the tribunal to rule that, in the circumstances, it will not grant leave merely to substitute its decision for the decision under appeal. The practical consequence of a ruling to that effect is to condition the grant of leave to appeal on the existence of an arguable case that the discretion has miscarried. But the tribunal must consider and determine the issue raised, namely, whether leave should be granted on the basis sought. Brideson [No. 2] did not decide otherwise.

The applications for leave to appeal to the Commission were not examined in any detail in argument. However, some of the grounds in the application of the first respondent for leave to appeal from the Registrar's decision appear to raise the question whether, assuming the Registrar exercised a discretion, his decision was wrong in the sense that a different decision should be reached. Had it been necessary for the Commission to determine whether leave to appeal should be granted to enable a different decision to be reached, the Commission's failure to make that determination would also have amounted, to that extent, to a failure to exercise the jurisdiction conferred by s. 104 of the Act. But, putting to one side any issue that might arise if there were a denial of natural justice, failure to determine the issue would not have involved it in determining any matter it was not called upon to determine or doing any other act outside its jurisdiction. Its error would have been an error within jurisdiction and one which, by virtue of s. 95 of the Act, was not susceptible of review by the Supreme Court.

The facts, statutory provisions and contentions of the parties are set out in other judgments. Except to the extent necessary to explain my reasons, I will not repeat them.

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.

1. (1936) 55 C.L.R. 499. 2. (1990) 170 C.L.R. 267. 3. (1990) 170 C.L.R., at p. 275. 4. (1974) 157 C.A.R. 623, at p. 631.

The phrases "excess of jurisdiction" and "want of jurisdiction" are not terms of art. Nevertheless, they are frequently used by superior courts in describing acts of inferior courts or tribunals which have been done or carried out in breach of the conditions which circumscribe the powers and authorities of those courts or tribunals: as to the phrase "want of jurisdiction" [62] ; see as to the phrase "excess of jurisdiction" [63] . Speaking generally, it can be said that there is a "want of jurisdiction" when a court or tribunal does an act which is beyond its general power or authority and that there is an "excess of jurisdiction" when it does an act, the doing of which is within its general power or authority, but which was done in breach of the conditions which authorise the doing of acts of that class or nature. As the passages in the judgments in the foregoing cases demonstrate, however, it is not uncommon for superior courts to use the phrases "want of jurisdiction" and "excess of jurisdiction" interchangeably. Nevertheless, whichever phrase is used to describe the situation, an inferior court or tribunal can be said to have acted in excess or in want of jurisdiction only when the relevant act was done in breach of the conditions which define the ambit of the powers and authorities of that court or tribunal. That being so, a mere failure to exercise jurisdiction cannot constitute an "excess or want of jurisdiction".

1. See Yirrell v. Yirrell (1939), 62 C.L.R. 287, at pp. 294, 304; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Australian Workers' Union (1957), 99 C.L.R. 505, at p. 511; Reg. v. Federal Court of Australia; Ex parte W.A. National Football League (1979), 143 C.L.R. 190, at pp. 201, 202; and Reg. v. Ross-Jones; Ex parte Green (1984), 156 C.L.R. 185, at p. 194. 2. Commissioner for Railways (N.S.W.) v. Locke (1970), 122 C.L.R. 479, at p. 482; Brown v. Rezitis (1970), 127 C.L.R. 157, at p. 168; Reg. v. Federal Court of Australia; Ex parte W.A. National Football League (1979), 143 C.L.R., at pp. 202, 230; Reg. v. Ross-Jones; Ex parte Green (1984), 156 C.L.R., at pp. 194, 217; and Hockey v. Yelland (1984), 157 C.L.R. 124, at p. 130.

It follows from the foregoing analysis that I am unable to accept the correctness of the statement in Reg. v. Industrial Commission of South Australia; Ex parte Minda Home Incorporated [64] , and the statement to similar effect [65] , that the words "excess or want of jurisdiction" in s. 95 of the Act "should be given a wide meaning so as to include all the jurisdictional matters which at common law would have induced the Court of Queen's Bench to interfere by the machinery of the prerogative writs".

1. (1975) 11 S.A.S.R. 333, at p. 337. 2. ibid., at p. 344.

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.

1. See Houssein v. Under Secretary of Industrial Relations and Technology (N.S.W.) (1982), 148 C.L.R. 88; Hockey v. Yelland; Reg. v. Gray; Ex parte Marsh (1985), 157 C.L.R. 351.

Accordingly, in my opinion, the Commission did not make a jurisdictional error of any kind.

If, contrary to my view, the error or errors of the Commission constituted jurisdictional error of the kind which is amenable to an order of mandamus, that error or those errors did not constitute an "excess or want of jurisdiction" because the orders of the Commission were not made in breach of the conditions which define the ambit of the Commission's powers. At the highest, the errors of the Commission constituted a constructive failure to exercise the jurisdiction conferred by s. 104 of the Act. Any such error, therefore, was outside the limited scope of judicial review allowed by s. 95 of the Act.

Consequently, the Supreme Court erred in quashing the orders of the Commission refusing the applications of the respondents for leave to appeal against the decision of the Registrar.