R v Australian Industrial Court; Ex parte Maynes

I have had the advantage of reading the judgment of my brother Mason. I agree that for the reasons there appearing the order nisi for prohibition should be made absolute.

The Federated Clerks' Union of Australia ("the Union") is an organization of employees registered under the Conciliation and Arbitration Act 1904, as amended ("the Act"). The other prosecutors are respectively the Federal President, the Deputy Federal President, the Federal Secretary and the Assistant Federal Secretary of the Union. In proceedings in the Australian Industrial Court ("the Court") instituted by the respondent Clarke, who is a member of the Union, against all the prosecutors other than Wasson, declarations were sought to the effect that rr. 16 (1) and (7) of the Union rules contravened s. 140 (1) (a) and (c) of the Act. No other relief was sought. The proceedings culminated on 23rd December 1976 when the Court delivered judgment. The formal order of the Court as ultimately recorded was in these terms:

(a) The Court orders and declares that at the date of the making of the rule nisi herein, viz: 28th September 1976, rules 16 (1) and 16 (7) of the Federated Clerks' Union of Australia contravened section 140 (1) (a) of the Conciliation and Arbitration Act 1904 in that they failed to make a provision required by a provision of the Act and the Regulations under the Act in not providing for the election of the Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary to the Federal Council of the Organization in a manner conforming to section 133 (1) (a) of the Act as enacted by Act No. 138 of 1973.

(b) Pursuant to the decision of the majority of the Court per Dunphy A.C.J. and Joske J. the Court orders and declares that at the date of the making of the rule nisi herein, viz: 28th September 1976, rules 16(1) and 16(7) of the Federated Clerks' Union of Australia contravened section 140 (1) (a) of the Conciliation and Arbitration Act 1904 in that they failed to make a provision required by a provision of the Act and the Regulations under the Act in not providing for the election of the Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary to the Federal Council of the Organization in a manner conforming to regulation 115 (1) (d) (v) of the said Regulations as a result whereof purported elections of the Federal President, Federal Deputy President, Federal Secretary and Assistant Federal Secretary taking place between 2nd June 1972 and 28th September 1976 are totally null and void.

(c) In the view of the majority of the Court, per Dunphy A.C.J. and Joske J. it is unnecessary to deal with the matter of the compliance or non-compliance with section 140 (1) (c) of the Rules in question.

The prosecutors now seek to make absolute an order nisi for prohibition and, in the alternative, certiorari, made by Aickin J.

The matter is complicated by various considerations, not least of them being the circumstance that s. 133 of the Act was radically amended by the Conciliation and Arbitration Amendment Act (No. 2), No. 117 of 1976, which came into operation on 12th November 1976 after argument concluded and before the Court delivered judgment and made its formal order. The Court was not unaware of the existence of the amendment. Dunphy A.C.J. and Joske J. in their joint reasons specifically refer to it but discard it as irrelevant on the ground that it was not retrospective in operation. The order therefore relates to events as at the date of the order nisi, 28th September 1976.

This is not the only debatable element in the Court's order. Paragraph (a) of the order contains a finding that the two rules failed to conform to s. 133 (1) (a), yet the joint reasons are silent upon this question. One part of the Court's order, however, stands outside the realm of debate. It is the last part of par. (b) which declares that the elections held for the four named offices between 2nd June 1972 and 28th September 1976 "are totally null and void". The parties are agreed, and rightly so, that on no conceivable interpretation of the Act can this part of the order be sustained.

The rules of the Union provide a convenient point of entry into the jungle that lies beyond. Rule 16 (1) was in these terms when the proceedings commenced:

(1) Subject to the provisions of Rule 32 the supreme control of the Union shall be vested in a Council, the members of which shall be the Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary, and the Councillors elected by each Branch on the following basis: - Branches having 1500 or less members - 1 Councillor;

Branches having 1501 to 3500 members - 2 Councillors;

Branches having 3501 to 6500 members - 3 Councillors;

Branches having 6501 to 9500 members - 4 Councillors;

Branches having 9501 to 12500 members - 5 Councillors;

Branches having 12501 and over members - 6 Councillors;

Like the statute it was also amended during the course of the proceedings. The amendment was made on 14th October 1976 and certified by the Registrar on 17th November in that year. The amended sub-rule was in substantially similar form, making some alterations to the bases on which larger branches could elect Councillors and imposing a maximum limit of seven Councillors for any one branch. It continued to include the four officers in the membership of Council and to provide for a system of election of one or more Councillors by each branch, the members of a branch having no vote in respect of Councillors to be elected by another branch.

It was common ground between the parties that r. 16 (7) was at all material times in these terms:

The Federal President, the Federal Deputy President, the Federal Secretary and the Assistant Federal Secretary shall not be entitled to be elected by any Branch as a Federal Councillor. Other rules provided that the Federal President, the Deputy Federal President, the Federal Secretary and the Assistant Federal Secretary should be elected by and from the members of Council.

The respondent Clarke's case in the Court below was (inter alia) that rr. 16 (1) and (7) contravened s. 140 (1) (a) in that they were contrary to or failed to make a provision required by s. 133 (1) (a) and reg. 115 (1) (d) (v). The respondent proceeded on the footing that these provisions required the rules of an organization to provide for a direct election by the members of the Union, in the case of s. 133 (1) (a) of Federal Councillors and the four office-holders, and in the case of reg. 115 (1) (d) (v) of the Federal Councillors. The Court's order seems to indicate that the respondent's construction of the two provisions was accepted by the Court.

Before we turn to them, it is necessary to look at s. 140. Section 140 (1) of the Act provides:

(a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law;

(b) shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award;

(c) shall not impose upon applicants for membership, or members, or the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration or organizations under this Act, are oppressive, unreasonable or unjust; and

(d) shall be such as to provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in any State industrial conciliation and arbitration system.

Section 140 (2) goes on to provide that a member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes s. 140 (1) or declaring that the rules of the organization contravene that sub-section in a specified respect. The Court is given jurisdiction to hear and determine such an application (s. 140 (3)). Where an order declares that the whole or part of a rule contravenes sub-s. (1) the rule or part of the rule, as the case may be, shall be deemed to be void from the date of the order (s. 140 (5)). Where the Court makes a declaration under s. 140 "in relation to the rules of an organization" and at the expiration of three months from the date of the declaration the rules have not been amended in a manner which, in the opinion of the Industrial Registrar, brings them into conformity with the requirements of sub-s. (1) "as regards the matters that give rise to the declaration", the Industrial Registrar shall determine such alterations of the rules as will in his opinion bring them into conformity with those requirements (s. 140 (7)).

Section 140 (1), (2) and (5) have had a somewhat turbulent history - see Cameron v. Australian Workers' Union [11] and Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (Shearer's Case) [1] . The provisions were subsequently amended so as to overcome limitations revealed by those decisions. Without resorting to the legislation in its earlier form and to the interpretation accorded to it by the cases, I now conclude from the terms of the section that (a) a rule or part of a rule contravenes s. 140 (1) (a) if it is contrary to or fails to make a provision required by a provision of the Act, the regulations or an award or if it is otherwise contrary to a law; and (b) that a distinction must be made between cases in which the whole or part of a particular rule contravenes s. 140 (1) and cases in which the rules as a whole so contravene.

1. (1959) 2 F.L.R. 45. 2. (1960) 103 C.L.R. 368.

It will be seen that s. 140 (5), which deems a rule or part of a rule to be void from the date of the declaration that it contravenes sub-s. (1), has no application to an order which declares that the rules of an organization contravene sub-s. (1) in a specified respect. When an order is made containing a declaration in the latter form the rules continue to have a valid operation, subject to action being taken in accordance with sub-s. (7). In many cases it is a nice question whether it is a particular rule, rather than the rules as a whole, which fails to make a provision required by the Act or the regulations. What is more, it is an important question because on its outcome depends the form of order which will be made and the operation of s. 140 (5).

In considering s. 133 it is necessary to look, not only at the content of s. 133 (1) (a), but also at some of the succeeding sub-sections, because the interrelationship of s. 140 and s. 133 has an important influence on the resolution of this case.

As it stood at the commencement of the proceedings before the Court s. 133 (1) (a), as enacted by Act No. 138 of 1973, required that the rules of an organization

shall provide for the election of the holder of each office within the association or organization at an election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote.

Had this provision stood in isolation, the Court would have been justified in concluding that it required the rules to provide for a direct election by all financial members of Federal officers, including Councillors, and that rr. 16 (1) and (7) contravened the sub-section or failed to make the provision it required. I say this because r. 16 (1) restricted branch members to voting for some only of the total number of Councillors to be elected and because r. 16 (7) denied members the right to vote for the four Federal officers.

The significant feature of the succeeding sub-sections is that they demonstrate very clearly that organizations registered before Act No. 138 of 1973 came into operation on 13th November 1973 (and the Union was one of them) were to have time to bring their rules into conformity with s. 133 (1). By sub-s. (3) such an organization was allowed twelve months after that date or such longer period as the Industrial Registrar might determine, within which to bring its rules into conformity. After that time the Industrial Registrar might determine such alterations as would in his opinion bring the rules into conformity (s. 133 (4)). And where before 13th November 1973 the rules provided for the election of an office-holder otherwise than directly by the members who would be entitled to vote if the rules accorded with s. 133 (1) (a), but by a procedure in which those members indirectly took part, the organization was allowed a period of three years after that date within which to bring its rules, so far as they related to that office, into conformity (s. 133 (4A)). After the expiration of that time the Industrial Registrar might determine the alterations appropriate to achieve conformity (s. 133 (4B)).

At this point it is convenient to observe that the electoral system provided for by rr. 16 (1) and (7) is one which provides for the election of office-holders by a procedure in which members indirectly take part. It was therefore a case to which s. 133 (4A) applied, with the consequence that the Union had until 13th November 1976 to bring its rules into conformity. This being the effect of s. 133 (4A), it is not easy to see how it could be said that rr. 16 (1) and (7) contravened s. 133 (1) (a) or failed to make a provision required by it within the meaning of s. 140 (1). The latter sub-section provides a foundation for obtaining orders the effect of which is to invalidate rules or to empower the Industrial Registrar to determine alterations after the expiration of three months from the date of the Court's order. The sub-section, which is in general terms, could not have been intended to disturb the operation of s. 133 which deals with a specific subject matter. Section 133 provides in effect that disconformity may continue in the circumstances and for the times mentioned. In this respect it differs from s. 140 (7) which permits the continuation of the disconformity for a shorter period of time. Section 133 and s. 140 provide two different and independent regimes in the case of disconformities which are permitted to continue pending remedial action. Accordingly, a departure from the requirements of s. 133 (1) (a) does not fall within s. 140 (1) so long as the time prescribed by s. 133 (4A) has not expired.

For my part, then, I am unable to perceive that on the material before it the Court could correctly conclude that the two rules infringed s. 140 (1) (a) by virtue of disconformity with s. 133 (1) (a) as at 28th September 1976. Nor is my task facilitated by the Court's failure to express its reasons for that conclusion.

Before I turn to the amendments which were made to s. 133 (1) (a) in 1976, it is convenient to examine par. (b) of the order and reg. 115 (1) (d) (v) because the effect of the regulation is somewhat similar to that of s. 133 (1) (a) and it is to be inferred that the Court considered that the reasons which led it to conclude that the two rules failed to comply with the regulation inevitably dictated the further conclusion that they failed to comply with s. 133 (1) (a). As I have said, the last part of par. (b) of the order, commencing with the words "as a result whereof", cannot be sustained. Although s. 140 (5) operates so as to render a rule or part of a rule void as from the date of the order, it does not authorize an order avoiding what is done pursuant to a rule, let alone what has been done pursuant to a rule before the order declaring that the rule or part of it contravenes s. 140 (1).

By virtue of reg. 115 (2) the conditions prescribed in reg. 115 (1) must be complied with by registered organizations. Regulation 115 (1) (d) requires that -

the affairs of the association shall be regulated by rules providing, in relation to the association, for -

(v) the control of committees of the association and its branches by the members of the association and the members of the branches, respectively;

The joint judgment proceeded upon the view that the rules contravened reg. 115 (1) (d) (v) "by reason of their not providing for control by rank and file membership of the election of federal officers" and goes on to state, "it is not, in our opinion, necessary to consider whether they [that is, the rules] may be invalid and void for other reasons".

Whether reg. 115 (1) (d) (v) is directed to the control by the members of the composition of committees or the activities of committees or both is a question of construction and as such it was an issue which the Court had to determine in the exercise of its jurisdiction. It decided this issue by concluding that the regulation required the direct election of committees by members of an organization. In so doing it accorded to the regulation an interpretation similar to the construction which I have placed on s. 133 (1) (a). No doubt the Court appreciated that there was this identity between the two provisions and, accordingly, in its formal order included par. (a) as well as par. (b). The reasons which it advanced in respect of the regulation serve as a statement of its reasons for the conclusion which it expressed in relation to s. 133 (1) (a).

The precise relationship which existed between s. 133 (1) (a) before it was amended by Act No. 117 of 1976 and reg. 115 (1) (d) (v) is by no means evident. I discard the faint suggestion made in argument, and not elaborated, that the regulation was void for uncertainty. But there was, for the reasons which I have already expressed, a very real question whether the non-compliance with the regulation brought the two rules within s. 140 (1) (a). If the effect of s. 133 (4A) was to permit the Union to keep its rules on foot for the time there specified, I have some difficulty in seeing how non-compliance with the regulation, involving a disconformity which is identical with that involved in s. 133 (1) (a), can fall within s. 140 (1) when non-compliance with s. 133 (1) (a) is permitted by s. 133 (4A). The point once again is that s. 140 (1) has no application to a disconformity with the Act, or for that matter the regulations, for so long as the disconformity is sanctioned by the Act or the regulations.

At this stage I should refer to the amendments made to s. 133 by Act No. 117 of 1976. For the requirement that the rules should provide for a direct election of office-holders by members it substituted the alternative of direct election by members or a one-tier collegiate electoral system. And it contained new provisions regulating the time within which a registered organization was to bring its rules into conformity with the new requirements. The new sub-s. (1) (a) required that the rules of an organization -

shall provide for the election of the holder of each office within the association or organization either by -

(ii) a collegiate electoral system being, in the case of an office the duties of which are of a full-time nature, a one-tier collegiate electoral system.

This provision needs to be read with the following definitions introduced into s. 4 of the Principal Act: "Collegiate electoral system", in relation to an election for an office in an organization, means a method of election comprising a first stage, at which persons are elected to a number of offices by a direct voting system, and a subsequent stage or subsequent stages at which persons are elected by and from the persons elected at the next preceding stage;

"Direct voting system", in relation to an election for an office in an organization, means a method of election at which all financial members, or all financial members included in such branch, section or other division, or in such class, as is appropriate, having regard to the nature of the office, are, subject to reasonable provisions with respect to enrolment, eligible to vote;

"One-tier collegiate electoral system" means a collegiate electoral system comprising only one stage after the first stage.

A new s. 4 (5) was added. It was in these terms: For the purposes of the application of the definition of collegiate electoral system in sub-section (1) in relation to an election for an office in an organization, an electoral system that otherwise complies with that definition shall be deemed to comply with that definition notwithstanding that the persons comprising a body of persons by and from whom persons are elected at any stage subsequent to the first stage include persons (not exceeding in number 15 per centum of the total number of the body) who are the holders of offices entitling the holders to membership of that body (which may include the office to which the election relates) but are not members of that body by virtue of an election in accordance with that definition, being persons each of whom has held such an office (whether the one office or not) at all times since being elected to such an office under a collegiate electoral system, or a direct voting system, as defined in sub-section (1).

For the prosecutors it was submitted that the method of election provided for by rr. 16 (1) and (7) is a one-tier collegiate electoral system within the meaning of s. 133 (1) (a) as amended and in accordance with the requirements of the Act. There is, I think, much to commend this view. Its correctness turns on the concluding words of s. 4 (5). The question is whether s. 4 (5) is again applied in determining whether the persons who held such offices were elected to those offices "under a collegiate electoral system as defined in sub-section (1)". My own disposition would be to answer the question in the affirmative, in which case the Union's rules have complied with the requirements of the Act, at least since 12th November 1976.

In place of some of the sub-sections of s. 133 the following new provisions were introduced by Act No. 117 of 1976:

(3) An organization that became registered before the date of commencement of this Act is allowed a period of 2 years after that date, or such longer period as the Industrial Registrar determines, within which to bring its rules into conformity with the requirements of paragraph (a) of sub-section (1).

The expression "this Act" is somewhat inapt. As it means something other than the Principal Act, I take it to mean Act No. 117 of 1976 or the Principal Act as amended by the 1976 Act. On this reading sub-s. (3) allows a registered association two years at least from 12th November 1976 within which to bring its rules into conformity with the new requirements of s. 133 (1) (a). The new sub-s. (4) then empowers the Industrial Registrar to determine appropriate alterations to the rules to bring them into conformity with s. 133 (1) (a), after the expiration of the time prescribed in sub-s. (3). To the extent to which they are relevant to this case these are the new provisions which replace the former s. 133 (1) (a), (3), (4), (4A) and (4B).

Although Act No. 117 of 1976 is not expressed to have a retrospective operation its effect was to repeal, on 12th November 1976, the old provisions in s. 133 on which the respondent relied and to enact in their place the provisions to which I have referred. From that date onwards rr. 16 (1) and (7) complied with the requirements of s. 133 (1) (a) or, if they did not, the Union had two years at least within which to reform them and in that time the continued existence of the rules in their present form would not fall within s. 140 (1) (a).

What basis was there, then, for the Court to make an order relating to events as they stood at 28th September 1976 when the order nisi was granted? In general the order of a court speaks as to the rights of the parties as at the commencement of the proceedings in which the order is made. But there are strong reasons why declarations made under s. 140 should be held to stand in a different position. The section empowers the Court to make an order that a rule contravenes s. 140 (1) or that the rules so contravene in a specified respect. In each instance the order manifests the existence of a contravention; in one case the rule or part of it is deemed void and in the other case, though the rule is not deemed to be void, a procedure is prescribed with a view to the taking of remedial action. The Court's judgment decides whether there is an existing compliance with the statutory requirements and in the event of non-compliance certain consequences attach and they will ultimately result in compliance with the statutory requirements.

In this context, despite the contrary view of Windeyer J. expressed in Shearer's Case [2] , it is my opinion that the Court's order in accordance with s. 140 (2) and (3) speaks as to the rules as at the date of the order. An order should not be made by the Court unless it is satisfied that the relevant contravention exists at the date of the order. It is from then that a rule declared to contravene s. 140 (1) is deemed to be void and it is from then that time runs under s. 140 (7).

It would be strange indeed if the Court could make an order that a rule contravened s. 140 (1) (a) unless it was satisfied that the contravention persisted to the date of the order. For if the contravention has been rectified or has been terminated between the commencement of the proceedings and the date of the order, it would nevertheless be deemed to be void by virtue of s. 140 (5) as from the date of an order declaring the contravention.

All that I have said leads to the result that the Court was in error in making the order which in fact it made. Of course, it does not follow that the prosecutors are entitled to relief by way of prohibition or certiorari, for the existence of error in the judgment or order of an inferior court or tribunal is not a sufficient title to relief by way of prohibition or certiorari. However, in two respects at least the errors to which I have referred went to the jurisdiction of the Court to make the order which was in fact made. First, the Court failed to satisfy itself that the alleged contraventions identified in pars. (a) and (b) of the order subsisted at the date of the order and in this respect the Court misconstrued the provisions of s. 140 (1) (a), (2) and (3) and therefore misconceived the jurisdiction which s. 140 conferred upon it. Secondly, the Court misconstrued s. 140 (1) (a) by giving it an application to rr. 16 (1) and (7) when those rules, though failing to conform to the requirements of the Act and the regulations, were permitted by the Act to remain in their existing form for a prescribed period of time. It may be said that the Court through misconceiving the jurisdiction with which it was entrusted addressed itself to the wrong issue and therefore exceeded its jurisdiction (see Seereelall Jhuggroo v. Central Arbitration and Control Board [3] ; Anisminic Ltd. v. Foreign Compensation Commission [4] ).

1. [1953] A.C. 151, at pp. 162-163. 2. [1969] 2 A.C. 147, at pp. 171, 195.

On these grounds the order nisi for prohibition should be made absolute.

Apart from the order which is consented to, I would discharge this order nisi for prohibition. Section 75 of the Constitution states:

(v) In which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction. Section 73 of the Constitution states: The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals from all judgments, decrees, orders and sentences -

and the judgment of the High Court in all such cases shall be final and conclusive.

Parliament has made an exception under s. 73 to exclude appeals from orders of the Australian Industrial Court under Pt VIII of the Conciliation and Arbitration Act 1904 Cth, as amended. This is such an order. Therefore there is no appeal from it to this Court.

Although cast in the form of prohibition, this application in substance seeks to invoke an appellate process which has been denied by the Parliament. There is no doubt that the Australian Industrial Court was entitled to enter upon the issues which it determined. These concerned recent amendments to the Conciliation and Arbitration Act which are extremely complicated. The amendments were made against a background of many years of judicial decisions by the Australian Industrial Court on the provisions of the Act and its application to the rules of organizations. The interpretation placed on these provisions by the Australian Industrial Court was fairly open to it. At the most, it has made some error in interpreting them. It stretches the concepts of jurisdiction too far to treat the decision as having been made without jurisdiction. This converts prohibition into appeal. If an error of law by a federal court can be so easily treated as a misconception of its own jurisdiction and therefore an absence of jurisdiction, this Court assumes a free-wheeling power to interfere by way of prohibition whenever it appears to it that some error of law has been made by a federal court. See R. v. Taylor; Ex parte Professional Officers' Association - Commonwealth Public Service [5] ; Reg. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section [6] ; Transport and Motor Operators' Union of Workers, Perth v. Western Australian Government Tramways, Motor Omnibuses, River Ferries and Fremantle Tramway Employees' Union of Workers [7] .

1. (1951) 82 C.L.R. 177, at p. 186. 2. (1953) 89 C.L.R. 636, at pp. 647-648. 3. (1958) 100 C.L.R. 436, at p. 444.

It was open to the Australian Industrial Court to hold that the challenged rules did not conform with reg. 115 (1) (d) (v), and to hold, independently or as a consequence of that holding, that these rules did not conform with s. 133 (1) (a).

The holding in regard to reg. 115 (1) (d) (v) was sufficient to enable the Court to declare that the rules contravened s. 140 (1) (a). Even if the amendments to the Act (which allow time to bring certain non-conforming rules into conformity) were applicable, this did not detract from the jurisdiction to declare that the rules contravened s. 140 (1) (a), either at the date of the rule nisi or at the date of the order.

Whether or not the Act in its amended state operated to make the rules void did not affect the Court's jurisdiction to make the declaration. The fact that any avoidance by force of the Act would operate only from the date of the declaration did not remove the Court's jurisdiction to make the declarations.

I have had the advantage of reading the reasons for judgment of my brother Mason. I agree with those reasons and his conclusion.