R v Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia

The first step towards the prevention or settlement of an industrial dispute which is expressly authorized by the Act is a compulsory conference. Section 15 gives a Conciliation Commissioner power to summon such a conference. It may be summoned by the Commissioner whenever in his opinion it is desirable to do so for the purpose of preventing an industrial dispute or upon application made by any party to the dispute. It seems from the considerations laid down in sub-s. (2) of s. 15 for the guidance of the Commissioner in summoning the conference that its object is "to negotiate for" the settlement of the dispute.

Upon the refusal of the employers to accede to the demand of the applicant organization the respondent Commissioner summoned a compulsory conference at the instance of the organization. It appears that after the parties met in conference the respondent Commissioner found that there was "no possibility of agreement between the parties" and "prima-facie disputes existed".

The Commissioner's finding that "prima-facie disputes existed" means, I apprehend, that the knowledge he then had of the relations between the parties was sufficient, in his opinion, to establish the fact that industrial disputes existed between the parties unless rebutted by other evidence or matters which might be brought to his knowledge.

It was the duty of the Commissioner to proceed beyond the compulsory conference until he exhausted the authority which the Act gave him to deal with industrial disputes.

Section 34 provides that a Conciliation Commissioner may exercise any of his powers, duties or functions under the Act of his own motion or on the application of any party to an industrial dispute.

I assume that in this case the applicant organization duly applied to the respondent Commissioner to "hear and determine the dispute" constituted by the making of the demand and its refusal. Mandamus is sought to direct the respondent Commissioner to do so. The first duty of a Commissioner when called upon to exercise his arbitral authority is one of inquiry. This duty is prescribed by s. 36. In so far as the section applies to a Conciliation Commissioner it says that he shall, in such manner as he thinks fit, carefully and expeditiously hear, inquire into and investigate every industrial dispute which is before him and all matters affecting the merits of the dispute and the right settlement thereof. It is clear that this section extends to any industrial dispute which was the subject of a compulsory conference held under s. 15 but not settled at the conference.

When a Conciliation Commissioner enters upon his duty under s. 36, he may begin anew, although the dispute was the subject of a compulsory conference. It is his duty under s. 36 to hear, inquire into and investigate not only the dispute but also all matters affecting its merits. The section requires the Commissioner, in the first instance, to endeavour to reconcile the parties to the industrial dispute before him and to bring about its settlement by "amicable agreement". If this method of settling the dispute fails then the Commissioner must take the course prescribed by s. 38. This section says that the Commissioner "shall, by an order or award, determine the dispute".

In the present case, when the compulsory conference failed, the respondent Commissioner operated under the powers conferred upon him by s. 36. It appears that when he entered upon the exercise of his authority under this section, at the outset, the question raised was whether there was a real and genuine dispute. On this question he ruled against the applicant organization and proceeded no further. If it were within the powers of the Commissioner to find that the dispute was not real and genuine, there could be no doubt that he did not omit to perform any duty entrusted to him in not making an award.

It is not clear whether the writ of mandamus which is sought is to direct the Commissioner to hear and determine the question whether a dispute existed or to direct the Commissioner to determine the dispute by an award.

The duties of Conciliation Commissioners which it is necessary to consider are those prescribed by ss. 36 and 38 respectively.

The duties prescribed by s. 36 have been mentioned. These duties are to hear, inquire into and investigate the dispute and all matters affecting its merits. The question whether an industrial dispute is real and genuine affects the merits of the dispute. It has long been a settled principle that matters which assume the form of an industrial dispute do not properly call for settlement by the processes of the Act if they are not real and genuine industrial disputes.

A Conciliation Commissioner has not jurisdiction to decide finally and conclusively whether an industrial dispute exists. He is not vested with jurisdiction to make a decision binding on the parties as to the scope of the jurisdiction entrusted to him. For example, he has not jurisdiction to define finally and conclusively whether a matter is an industrial dispute under the Act. If under a misconception of what the Act intends by the term "an industrial dispute" he meddles with a matter which is not such a statutory industrial dispute, he may be exposed to prohibition. On the other hand, if he improperly refuses to exercise his statutory duties in relation to a matter which is such a dispute he would be exposed to mandamus. The question in the present case is broadly whether the respondent Commissioner failed to perform the duty which the Act entrusts to him to settle industrial disputes. If he has misconceived what is meant by an industrial dispute or applied a wrong criterion in deciding whether such a dispute existed, he would have brought himself within the scope of the remedy of mandamus. Although a Commissioner has no jurisdiction to give a decision binding on the parties whether an industrial dispute exists or not, he is not liable to mandamus whenever he decides that such a dispute does not exist, merely because this Court would on the facts brought before it, if it were within the province of the Court to decide the issue, reach a different conclusion.

It was within the authority vested in the respondent Commissioner by the Act to inquire into and investigate the question whether the industrial dispute which appeared to result from the refusal and demand was a real and genuine dispute. The demand and refusal were not necessarily conclusive of that question. The respondent Commissioner took into consideration a number of collateral facts and it was upon those facts he found that the dispute was not real and genuine. It is necessary to consider whether he took into consideration any fact which had no legal relevance to the question which he had to determine. It was his duty to determine the question according to law. If he did so, mandamus would not lie.

The Commissioner has set out the facts which he took into consideration. In my opinion those facts were relevant to the question whether the dispute was real and genuine. These facts were that the demand was promoted by the Federal Council of the organization. It was persisted in against the express wishes of a large majority of the members. Only a small proportion of the remainder of members evinced any interest in the promotion of the demand or exhibited dissatisfaction with their existing conditions.

The organization was made up of autonomous State divisions. The membership of the divisions in New South Wales was much larger than that of the total membership of all the other Divisions. The members of the organization in New South Wales expressly dissociated themselves from the demand made by the Federal Council. They desired that a State not a Federal award be made. The evidence showed that the demand had only relatively insignificant support among the members in other States.

In my opinion these facts and considerations were highly relevant on the question whether, although the making of the demand by the Federal Council and its refusal created an issue between the organization and its members which had the semblance of an industrial dispute, it was a real and genuine dispute. The respondent Commissioner found that the issue was not a real and genuine industrial dispute. Having reached that conclusion he was justified in proceeding no further. Mandamus does not lie against him. The principles which apply are those stated in R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1] .

The application for the writ is founded upon s. 75 of the Constitution. This constitutional writ lies to command an officer of the Commonwealth to fulfil some duty of a public nature which he has failed to perform. The question whether the respondent Commissioner, who is an officer of the Commonwealth, failed to perform any duty entrusted to him by law can be properly determined upon the principles laid down in Bott's Case [2] . The result of applying those principles in this case must be the refusal of the writ.

This application for a mandamus cannot be dealt with as if it were an appeal from the decision of the respondent Commissioner. "The function of a mandamus is to direct the person to whom it is addressed, whether a magistrate or anyone else, to do his duty, but not to direct him to do his duty in any particular mode" (R. v. Kennedy [3] ).

The present case is different from the case of R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [4] in this respect. There mandamus was granted because the Arbitration Court did not correctly interpret s. 25 (b) of the Act and failed to perform the duty entrusted to it by that provision.

This is an application to make absolute an order nisi for a mandamus directing Arthur Blakeley, a Conciliation Commissioner under the Commonwealth Conciliation and Arbitration Act 1904-1949, to hear and determine disputes Nos. 339 of 1949 and 351 of 1949, alleged to exist between the prosecutor and the respondents other than the Commissioner and claimed to be disputes within the meaning of that Act. The prosecutor is the Association of Architects, Engineers, Surveyors and Draughtsmen of Australia, an organization of employees registered pursuant to the Commonwealth Conciliation and Arbitration Act. It served a log of salaries and working conditions upon a number of employers of its members in Queensland, Victoria, South Australia, West Australia and Tasmania, claiming that there was a dispute with these employers in the Australian Capital Territory and all States of the Commonwealth of Australia as to the salaries and working conditions of its members and all other persons employed by them, whether members of the Association or not. It also served nine employers in New South Wales, but refrained from serving any other employers in that State at the request of the New South Wales Division of the Association, which desires to make an independent application for an award for its members to the Industrial Commission of New South Wales.

The prosecutor made applications to the Commissioner under s. 15 (1) of the Commonwealth Conciliation and Arbitration Act to direct employers on whom the log had been served to attend at a conference presided over by himself. This was done and the applications came on for hearing on 21st July 1949 when it appeared to the Commissioner that there was no possibility of agreement between the parties and he thereupon found that the disputes prima facie existed. The two applications came on again for hearing at Melbourne on 22nd August 1949 and on subsequent dates. There were twelve sittings, all of which were confined to submissions and argument as to whether or not real and genuine disputes existed between the parties. On 16th November 1949 the Commissioner gave his decision upon the question whether such disputes existed and found in the negative. He therefore dismissed both applications.

He gave two reasons for his decision - (1) that if originally there was a real, genuine and substantial dispute, that dispute ceased to exist when the New South Wales Division decided against the general service of the log in that State; (2) that even if the New South Wales Division had participated in the serving of the log in that State, the comparatively small number of members of the Association in private industry attending and voting at general meetings held in the various States in June and October 1948 to approve the log, did not, in his opinion, indicate the necessary interest and dissatisfaction necessary to establish a real, genuine and substantial dispute.

The application to this Court is not an appeal. There is no appeal to any Court from the finding of the Commissioner. Further, s. 16 of the Commonwealth Conciliation and Arbitration Act provides that an award or order of a Conciliation Commissioner shall not be challenged, appealed against, reviewed, quashed or called in question, or be subject to prohibition mandamus or injunction in any court on any account whatever. A Conciliation Commissioner is, however, an officer of the Commonwealth and s. 16 cannot oust the constitutional right of this Court under s. 75 (v.) of the Constitution to grant a mandamus against such an officer in a proper case. But this is not, in my opinion, such a case.

The nature of the writ of mandamus and the circumstances in which it is granted have been discussed in this Court in several cases, including R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1] ; R. v. Trebilco; Ex parte F. S. Falkiner & Sons Ltd. [2] ; Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts (Vict.) [3] ; R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [4] ; Water Conservation and Irrigation Commission (N.S.W.) v. Browning [5] . The general powers of a Conciliation Commissioner with respect to industrial disputes, that is, disputes as to industrial matters which extend beyond the limits of any one State, are contained in Part IV, comprising ss. 34 to 58 of the Commonwealth Conciliation and Arbitration Act. Section 36 provides, so far as material, that a Conciliation Commissioner shall carefully and expeditiously hear, inquire into and investigate every industrial dispute which is before him. The same section provides that he shall do so by attempting to reconcile the parties and inducing settlement of the dispute by amicable agreement in the first instance. Section 38 provides that if no agreement as to the whole dispute is arrived at, he shall by order or award determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement. The first inquiry which a Conciliation Commissioner has to make under Part IV is whether there is an industrial dispute before him because that is the subject-matter with which he is concerned. This is an issue of fact. The Commissioner has not declined to hear and determine this issue. He has heard and determined it. It is not a collateral fact. It is a fact for his determination. The prosecutor must therefore show "that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal have not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void" (Bott's Case [1] ).

1. (1933) 50 C.L.R. 228. 2. (1936) 56 C.L.R. 20. 3. (1938) 60 C.L.R. 741. 4. (1949) 78 C.L.R. 389. 5. (1949) 74 C.L.R. 492. 6. (1933) 50 C.L.R., at pp. 242, 243.

The Commissioner has applied himself to the question which the law prescribed, so that it must be shown that in purporting to decide it he was actuated by extraneous considerations or in some other respect has so proceeded that his determination is nugatory and void. The matters which the Commissioner took into consideration and which are discussed in his decision are not matters altogether extraneous to the question whether a real and genuine dispute existed or not. Prima facie the request made with the log is to be considered as real and genuine and intended to be pressed by any appropriate means, but it is always open to the respondent to prove the contrary: Federated Engine-Drivers' and Firemen's Association of Australasia v. Caledonian Coal Co. Ltd. [2] ; The Felt Hatters' Case [3] ; Burwood Cinema Ltd. v. Australian Theatrical and Amusement Employees' Association [4] ; Metal Trades Employers' Association v. Amalgamated Engineering Union [5] ; Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [6] . Where an Association such as the prosecutor applies for an award, it is not irrelevant, as these citations indicate, to inquire whether the alleged dispute has the support or not of its members. The facts that the meetings of June and October were sparsely attended and that subsequently the New South Wales Division of the Association which contains more than half its members employed in private industry preferred to seek a State award, cannot be said to be altogether irrelevant on this question.

1. (1910) 4 C.A.R. 52. 2. (1914) 18 C.L.R., at pp. 109, 111, 112. 3. (1925) 35 C.L.R., at p. 533. 4. (1935) 54 C.L.R., at pp. 415, 442. 5. (1938) 58 C.L.R., at p. 442.

It may well be that this Court, if it had to decide this question for itself, would not attach the same weight to these considerations as the Commissioner, but this Court must be careful not to substitute its opinion for that of the Commissioner. The prosecutor is really seeking to do the very thing which it is said in Bott's Case [7] a prosecutor is not entitled to do, that is to say, ask this Court to enter upon an examination of the correctness of the tribunal's decision, and the sufficiency of the evidence supporting it, and the weight of the evidence against it. As is there said: "The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies." In R. v. Dayman [1] Lord Campbell C.J., in a case where a police magistrate had to decide whether a street was a new street within the meaning of a certain Act, said: - "He was bound to hear and to adjudicate upon this. I think he did do so; the question was whether Dawson Place was or was not a new street; on that issue was joined. He heard the parties and the evidence, and gave a solemn judgment that it was not a new street. Could we, supposing we should think that he was wrong in so determining, make an order that he shall give an opposite judgment? I think that we cannot do so. We have no authority to do more than order him to hear and adjudicate" [2] . In my opinion that case is on all fours with the present case. At one stage this Court had power under s. 21AA of the Act to determine the question of fact whether an industrial dispute or any part thereof existed, or was threatened or impending or probable, as an industrial dispute extending beyond the limits of any one State. But this statutory power was taken away when s. 21AA was repealed by the Commonwealth Conciliation and Arbitration Act 1947 which came into force on 10th October 1947. The repeal of that section and the general structure of the present Act and the language of some of its specific provisions, particularly s. 16, indicate to my mind an intention on the part of the legislature so far as it can to empower a Conciliation Commissioner conclusively to decide whether or not there is before him an industrial dispute extending beyond the limits of any one State, just as in Dayman's Case [1] it was for the magistrate conclusively to decide whether a street was or was not a new street. The prosecutor is really asking the Court to act as though s. 21AA was still in the Act.

1. (1933) 50 C.L.R., at p. 243. 2. (1857) 7 El. & Bl. 672 [119 E.R. 1395]. 3. (1857) 7 El. & Bl., at p. 675 [119 E.R., at p. 1396]. 4. (1857) 7 El. & Bl. 672 [119 E.R. 1395].

In conferring on a Conciliation Commissioner the power to determine whether there is an industrial dispute before him, the legislature has attempted to make his decision final as far as it can. But the Commonwealth Conciliation and Arbitration Act is an exercise by the legislature of the power conferred by s. 51, par. xxxv., of the Constitution to make laws with respect to conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State. The legislature cannot confer on a Conciliation Commissioner power to settle a dispute unless such an industrial dispute in fact exists. If a Commissioner wrongly decides that such a dispute exists when it does not, he has exceeded any power which the legislature can validly confer upon him. If the Commonwealth Conciliation and Arbitration Act is in terms wide enough to include such a power, it must be read down to that extent under s. 15A of the Acts Interpretation Act 1901-1949. On an application for a prohibition on the ground that a Commissioner has wrongly decided that an industrial dispute exists when in fact it does not, this Court must decide the fact for itself, because, unless it does so, the Conciliation Commissioner or the Court of Conciliation and Arbitration will have exceeded any jurisdiction which the Commonwealth Parliament has power to confer upon a tribunal under s. 51, par. xxxv., of the Constitution. In the present case no question of the over-exercise of jurisdiction arises. If the Commissioner has erred, he has erred within the limits of his jurisdiction. He has not exceeded it. He has not declined jurisdiction, he has purported to exercise it and, in my opinion, the prosecutor has not established that he has done anything which so vitiates its exercise that in law it is not an exercise at all.

For these reasons I would discharge the order nisi.

If the Commonwealth Parliament had and exercised authority under s. 51 (xxxv.) of the Commonwealth Constitution to confer on a conciliation commissioner power finally to determine whether an industrial dispute existed, then, in the circumstances of this case, I think the only question for our determination would be whether he had misconceived his duty (R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1] ). But Parliament has not conferred such authority on a conciliation commissioner. Sections 14, 36, 37 and 38 of the Commonwealth Conciliation and Arbitration Act 1904-1949 do not purport to go that far. The commissioner is authorized to make an order or award in settlement of an inter-State dispute only if in fact the dispute exists.

Then on this application for a writ of mandamus under s. 75 (v.) of the Commonwealth Constitution the question is whether the dispute did in fact exist. This Court must determine that question for itself on the evidence before it, although in so doing it will consider the commissioner's finding and may give some weight to it. Nothing in s. 16 of the Commonwealth Conciliation and Arbitration Act can affect the power and the duty of this Court under s. 75 (v.) of the Constitution.

As to the facts, the defection of the New South Wales employees reduced the area of the dispute, but did not terminate the dispute. It continued as regards the other five States. As to those other five States, however, the commissioner thought that, as so little interest had been displayed by the employees concerned, i.e., those in private industry, there was in fact no real dispute. In coming to this conclusion he was guided by attendances at meetings of employees held in June and October 1948 in all the States. The June meetings were held to decide whether the claims should be pressed. Employees other than those concerned attended, but it appears that in the five States other than New South Wales at least 138 of those concerned voted on the question whether the claim should be pressed and that in all five States except Queensland the voting was unanimous or without dissent. In Queensland there was a substantial minority against pressing the claims; but we do not know whether those concerned voted. The October meetings were held in four States. There was no meeting in Queensland. The attendance at all meetings of those concerned was only forty-two; but those meetings were not held to decide whether the claims should be pressed, but merely to consider the form of the claims. Under those circumstances the reduced attendances in October did not necessarily indicate any change of attitude since the previous June.

Such being the facts I think the proper conclusion is that there was always a real dispute before the commissioner, and that he should be required to proceed to determine it, subject to his authority to apply s. 40 (d) of the Commonwealth Conciliation and Arbitration Act if the circumstances warrant that course.

The prosecutor in this case is an organization of employees registered under the Commonwealth Conciliation and Arbitration Act 1904-1949. It seeks the issue of a writ of mandamus directing Arthur Blakeley, a Conciliation Commissioner under the Act, to hear and determine two industrial disputes which are alleged to exist between itself and a number of employers. The first essential is to obtain as clear an understanding of the facts as possible. The material put before the Court is far from being as clear as it should be, but the following seem to be the relevant facts.

At some time prior to June 1948 an attempt had been made by the council or executive of the Association to obtain from a Conciliation Commissioner an award in an alleged dispute as to salaries and other conditions of employment between the Association and certain employers. Mr. Wallis, a Conciliation Commissioner, decided that no real and genuine industrial dispute existed and, accordingly, declined jurisdiction in the matter. It does not appear on what ground or grounds Mr. Wallis based his decision, but it seems probable that he was not satisfied that the Association had authority, either derived from its rules, or expressly given by members, to make the claims which were said to be the subject matter of a dispute. That this is probable appears, I think, from the fact that in and about June 1948 meetings of members of the Association were held in all States except Queensland, at which meetings resolutions in very similar terms were adopted. It may be noted in passing that the meetings were sparsely attended by members concerned. All the resolutions in effect (a) expressed grave concern at the decision of Mr. Commissioner Wallis that no real dispute existed at the time of the serving of the log, (b) declared that there had existed and was still existing dissatisfaction with salaries and working conditions, and (c) desired the Federal executive of the Association to prepare and serve a fresh log claiming, so far as salaries were concerned, higher rates than had been claimed by the log which had come before Mr. Commissioner Wallis. In Queensland a referendum was held at which 363 members voted in favour of, and thirty against, a resolution expressing dissatisfaction with salaries and conditions of employment and urging the Federal executive to take action to have conditions speedily improved.

The executive or a committee thereof seems thereupon to have prepared a new log of claims relating to salaries and conditions of employment in all States and in the Australian Capital Territory. This log was served on or about 23rd March 1949 upon A.C.I. Engineering Pty. Ltd. and numerous persons and bodies in all the States other than New South Wales. The same log was served on or about 29th April 1949 upon William Adams & Co. Ltd. and numerous other persons in the State of New South Wales and other States. In each case the log was accompanied by a letter intimating that unless the terms of the log were granted within twenty-one days steps would be taken to have the log brought before the Commonwealth Court of Conciliation and Arbitration. Actually the log was served only upon nine persons in New South Wales. Of those nine persons seven were what may be described as governmental instrumentalities. The remaining two were engaged in what is described as private industry. Those two were the Australian Gas Light Co. and the North Shore Gas Co. Ltd. However, on 13th May 1949 the New South Wales Divisional Council of the Association passed a resolution "that in view of the opinion of our Legal Adviser we inform Federal Executive that the P.I. Log of Claims shall not be served in N.S.W. at present." This resolution was apparently communicated to the Federal executive.

None of the persons served agreed to the conditions claimed by the log, and a compulsory conference was called and held at which Mr. Blakeley presided. It would appear that representatives of the Association and of employers who had been served attended the conference. But Mr. Blakeley himself says that it became apparent that there was no possibility of agreement between the parties and he found that prima-facie disputes existed. (The reason for the plural "disputes" is not clear to me, since the same log appears to have been served on all persons who were in fact served, but for some reason it seems to have been taken that there was one dispute between the Association and the persons served on or about 23rd March 1949 and another dispute between the Association and the persons served on or about 29th April 1949.)

Notices to appear as parties to the disputes were then served by the Association. What followed is very surprising. An argument which extended over twelve days took place before Mr. Blakeley on the question whether a dispute existed. Ultimately Mr. Blakeley decided that no dispute existed. He accordingly refused to consider the claim contained in the Association's log and to make an award thereon. The present application for amendment seeks to compel him to consider the Association's claims in accordance with the Act and to make an award thereon.

The principal sections of the Act which confer jurisdiction upon the Commissioner are ss. 14, 36 and 38. It is s. 38, I think, that is really invoked. Section 38 uses the word "shall": it is imperative in terms. It assumes the existence of an industrial dispute extending beyond the limits of one State, but if such a dispute exists, it imposes a duty of a public character on an officer of the Commonwealth, and such a duty is prima facie enforceable by mandamus in pursuance of s. 75 (v.) of the Constitution. The Commissioner has decided in the present case that no dispute exists, that he has no jurisdiction to make an award and is therefore, of course, under no duty to proceed.

The power given to this Court to issue mandamus or prohibition is derived from the Constitution, and, as has often been said, cannot be taken away by the Parliament. But a jurisdiction, the exercise of which may be compelled by mandamus or the excess of which may be restrained by prohibition, may, within the limits set by the Constitution, be defined by the Parliament in whatever way it thinks fit. In particular, within those limits, the Parliament may, in conferring jurisdiction upon a person or body, enact that that person or body shall have power to determine conclusively a question upon which the jurisdiction is made to depend, and the effect of so enacting may be that neither mandamus nor prohibition will lie to that person or body. If that effect follows, it is not because any power is taken away from this Court but because no situation justifying the issue of mandamus or prohibition ever comes into existence. But power to determine conclusively a question upon which jurisdiction is made to depend cannot validly be conferred upon a person or body in such manner as to enable a jurisdiction to be exercised which would exceed the limits of constitutional power.

The result of the above considerations may very well be, as Mr. Eggleston argued, that the Parliament may, in legislation conferring a jurisdiction upon a person or body, create a state of affairs in which mandamus will not lie where the person or body has wrongly determined that there is no jurisdiction, although prohibition will lie, and cannot be excluded, where he or it has wrongly determined that there is jurisdiction. So under the Commonwealth Conciliation and Arbitration Act the jurisdiction of the Court or a Conciliation Commissioner to make an award is conditioned by the existence of an industrial dispute. And the terms of s. 51 (xxxv.) of the Constitution are such that it cannot validly be conferred except by reference to an industrial dispute. If Parliament purports to make the decision of the Court or a Commissioner conclusive as to the existence or non-existence of an industrial dispute, the Court or a Commissioner may determine in any particular case that a dispute does not exist or that a dispute does exist. If it or he determines, though wrongly, that a dispute does not exist and declines to make an award there is no transgression of the limits of s. 51 (xxxv.). If, however, it or he determines wrongly that an industrial dispute does exist and proceeds towards the making of an award, there will or may be a transgression of the limits of s. 51 (xxxv.). In the former case, Mr. Eggleston said, the statutory denial of mandamus will be valid. In the latter case, he said, the statutory denial of prohibition will be invalid.

So far as the Court is concerned, the position is governed by s. 32 (2) of the Act and Mr. Eggleston's argument is not affected by R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1] . That sub-section however does not deal with Conciliation Commissioners. With regard to Commissioners the relevant provisions are contained in s. 16 though s. 14 (5) was also referred to. In the case of Commissioners the position may be complicated by considerations relating to judicial power but I do not think it necessary to consider whether this is so because I do not think that s. 16 (1) can be made to apply to the present case. Here the Commissioner has not made any award or order: he has simply refused to make an award or order. In the absence of some special definition (such as is to be found in s. 4 of the Victorian Justices Act 1948) or some special context the word "order" does not include a refusal to adjudicate (see Boulter v. Kent Justices [2] ). It may be said that the very inclusion of mandamus in s. 16 (1) shows that the word "order" is used in an extended sense, but it is not impossible that mandamus should be an appropriate remedy where an order in the normal sense of the word has been made. The expression "award or order" occurs in many places in the Act, and in no other place, I think, could it be construed as including a mere refusal to make an order. I do not think that the position is affected by the fact that the Commissioner has said that both applications are "dismissed". They have not been dismissed on the merits. The Commissioner has simply held that he has no jurisdiction and has declined to adjudicate.

1. (1949) 78 C.L.R. 389. 2. (1897) A.C. 556, at pp. 567, 569 (per Lord Herschell).

The position, then, seems to me to be that s. 38 has imposed a duty upon the Commissioner, if a dispute exists, to determine the dispute by order or award. The condition of his jurisdiction is that a dispute should exist, and he has held that no dispute exists. I can find nothing in the Act to exclude the remedy of mandamus if he is wrong in holding that the condition of jurisdiction does not exist.

Generally speaking, when a tribunal, other than a superior Court in the technical sense, is called upon to exercise jurisdiction, it must, of necessity, begin by considering for itself the preliminary question whether it possesses the jurisdiction invoked. That question may depend on questions of law or questions of fact or on questions both of law and of fact. As Griffith C.J. said in Federated Engine-Drivers' and Firemen's Association of Australasia v. Broken Hill Pty. Co. Ltd. [3] : - " the first duty of every judicial officer is to satisfy himself that he has jurisdiction, if only to avoid putting the parties to unnecessary risk and expense." In the same case Barton J. said: - "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the court of first instance" [1] . But the important point is that the decision or finding with regard to the existence of jurisdiction, whether it be affirmative or negative, stands in a radically different position from a decision or finding given or made within jurisdiction on the merits of the case. The latter is conclusive and binding subject only to any appeal that may be given: if no appeal is given, it is absolutely conclusive and binding. The former is not conclusive or binding at all. It is open, if it be affirmative and wrong, to prohibition. It is open, if it be negative and wrong, to mandamus. The position is very clearly put by Coleridge J. in Bunbury v. Fuller [2] , in a passage quoted by Isaacs J. in the Engine-Drivers' Case [3] . His Lordship said: - "Suppose a Judge with jurisdiction limited to a particular hundred, and a matter is brought before him as having arisen within it, but the party charged contends that it arose in another hundred, this is clearly a collateral matter independent of the merits; and on its being presented, the Judge must not immediately forbear to proceed, but must inquire into its truth or falsehood, and for the time decide it, and either proceed or not proceed with the principal subject-matter according as he finds on that point; but this decision must be open to question, and if he has improperly either forborne or proceeded on the main matter in consequence of an error, on this the Court of Queen's Bench will issue its mandamus or prohibition to correct his mistake."

1. (1911) 12 C.L.R., at p. 415. 2. (1911) 12 C.L.R., at p. 428. 3. (1853) 9 Ex., at pp. 140, 141 [156 E.R. at p. 60]. 4. (1911) 12 C.L.R., at p. 454.

When this Court is invited to issue mandamus or prohibition under s. 75 (v.), it is its original jurisdiction that is invoked and not its appellate jurisdiction. It has the task of deciding for itself on the material placed before it every question of law and every question of fact on which jurisdiction depends. It is entitled and, indeed, bound to consider all relevant material put before it, whether that material was before the inferior tribunal or not. In the case of prohibition (which goes as of right) I would think that generally speaking it would not matter (except as affecting costs) whether the material before the superior court was before the inferior court or not. In the case of mandamus it might often affect the grant or refusal of the remedy, but this would be only because mandamus is discretionary and because of the rule that a clear demand for the exercise of the jurisdiction based on proper materials must be made to the inferior tribunal before mandamus to exercise jurisdiction will be granted. If the jurisdiction was not shown before the inferior tribunal but was shown before the superior tribunal, the latter would, I should think, apart from very special circumstances, refuse the writ and leave the prosecutor to make another application to the inferior tribunal.

While, as I have said, the superior court which is invited to issue mandamus or prohibition must decide for itself on the material before it every question of law and every question of fact, there must, almost of necessity, be a difference in its attitude to the decision of the inferior court according as the question of jurisdiction depends on matter of law or matter of fact. If it depends on matter of law the question of law must simply be decided like any other question of law. But, if the jurisdiction depends on matter of fact, considerable weight is attached to the view of the facts taken by the inferior court. The position is clearly indicated in two passages quoted by Isaacs J. in Caledonian Collieries Ltd. v. Australasian Coal & Shale Employees' Federation [1] . The first is taken from the judgment of Kennedy L.J. in R. v. Assessment Committee of Metropolitan Borough of Shoreditch; Ex parte Morgan [2] , and is as follows: - "Where the evidence upon which the inferior tribunal has decided in exercising or refusing to exercise jurisdiction, is conflicting, that circumstance, though not conclusive upon the Court so as absolutely to deprive it of the discretionary power of granting the prohibition or the mandamus, will so far influence the Court that very strong grounds will be required before it interferes with the decision. " The second is from the judgment of Griffith C.J. in R. v. Yaldwyn [3] and is as follows: - "If the decision of justices on a question on which their jurisdiction depends is manifestly wrong, the Court will not pay any attention to their finding; if it manifestly proceeded upon a wrong notion of the law, the Court would not pay any attention to their finding; but if the facts upon which their jurisdiction depends were investigated by them, and their finding was not manifestly wrong, the Court will hesitate very much before it will interfere. That does not import that the Court abrogates its right to inquire into the jurisdiction of inferior Courts, but that it will decline to interfere when it is very doubtful whether the facts are different from what the inferior Courts have found. " After quoting, Isaacs J., referring to an arbitrator or a judge of an inferior court said: - "If he errs in law that is manifest. As to fact a doubt as to error is resolved in favour of jurisdiction" [1] . The case which was under consideration was a case of prohibition, and it may be that Isaacs J. had not in mind a case of mandamus. It may be more correct to say that, as to fact, a doubt as to error is resolved in favour of the decision of the inferior tribunal.

1. (1930) 42 C.L.R., at p. 547. 2. (1910) 2 K.B. 859, at p. 888. 3. (1899) 9 Q.L.J. 242, at p. 244. 4. (1930) 42 C.L.R., at p. 548.

There is one other point which ought to be mentioned before proceeding to consider the position in the present case, although it follows clearly from what I have already said. If the fact which the Commissioner has determined were a fact on which he had power to give a binding decision, mandamus could not go to direct him to decide it otherwise, even though this Court thought his finding erroneous. Mandamus could only go to direct him to reconsider the matter, and could only go if this Court thought that he had misdirected himself as to the real question to be decided or had taken into account some irrelevant matter or that for some other reason his decision could not be regarded as a real decision. See generally per Dixon J. in Cuming Campbell Investments Pty. Ltd. v. Collector of Imposts (Vict.) [2] . But where, as here, the fact which the Commissioner has determined is a fact on which his jurisdiction depends and therefore a fact on which he has no power to give a binding decision, the position is wholly different. This Court must in such a case consider the position for itself, and, if satisfied that he was wrong, will not normally direct him to hear and determine the question of jurisdiction again, but will direct him to proceed or to abstain from proceeding with the substantive matter before him. In the present case the substantive matter before him was an application for an award as to wages and conditions of employment in the terms of the log served by the Association.

The Commissioner has decided that there was not a real and genuine dispute and has refused to deal with the application for an award. What he has decided is a jurisdictional fact, and this Court must examine his finding and decide whether it is correct or not, though, since the question is a question of fact, or at least involves questions of fact, it will, as I have said, regard with respect the Commissioner's view and will not grant mandamus unless satisfied that he was wrong. But, on the material before us, I feel satisfied that he was wrong. A log of claims was served on employers, and that claim was rejected or not granted. Whatever other view may initially have been open, it is now well settled that a demand and refusal of this kind is sufficient prima facie to constitute a dispute. In The Felt Hatters' Case [1] Higgins J. said: - "There was an industrial dispute, as the employees had demanded and the employers had (in effect) refused the letter of demand of 2nd August 1912." In the Burwood Cinema Case [2] , Knox C.J. and Gavan Duffy J., in the course of a joint judgment, said: "The dispute referred to the Arbitration Court was constituted by the refusal of the employers on whom the log was served to comply with the demands contained in it". In Australian Tramway and Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [3] , Evatt J. said: - "It need not be shown that in making the demand the demandants were ready to enforce it by strike or lock-out.". Of course the demand must be genuine in the sense that it is seriously put forward for serious consideration. Evatt J., in the case cited and on the same page, said that the question to be asked was whether the demand upon the respondents in two or more States was genuine or was a sham or pretended demand. He added: - "If, after considering all the circumstances, it is determined that the demands were genuinely made in the interests of an organization or its members, and they have not been acceded to, then, so long as the geographical limits of one State are exceeded, there is a dispute extending beyond the limits of one State" [4] .

1. (1914) 18 C.L.R., at p. 111. 2. (1925) 35 C.L.R., at p. 535. 3. (1938) 58 C.L.R., at p. 442. 4. (1938) 58 C.L.R., at pp. 442, 443.

Here the Commissioner rightly, as I think, took the view that the demand followed by refusal or failure to comply showed that prima facie a dispute existed. He nevertheless held that there was not a "real, genuine and substantial dispute". He gave two reasons for this view. The first is that "if originally there was a real, genuine and substantial dispute, that dispute ceased to exist when the New South Wales Division decided against the general service of the log in that State." The second is that "even if the New South Wales Division had participated in the serving of the log in that State, the comparatively small number of members in private industry attending and voting at the meetings of June and October, 1948, did not, in my opinion, indicate the necessary interest and dissatisfaction necessary to establish a real, genuine and substantial dispute". No other reasons are given by the Commissioner, or were stated in argument before this Court, for saying that the prima-facie view that a dispute existed was displaced.

Neither of the reasons given for the decision reached can, in my opinion, be supported. The log had been served on employers in all States. It had been in effect rejected, and prima facie there was a dispute extending beyond the limits of one State. In this state of affairs I can find nothing in the rules of the Association authorizing the New South Wales Divisional Council to withdraw from the dispute if the Federal Council, which is the "supreme governing body", chose to proceed with it on behalf of members in New South Wales. But, if as a matter of policy the Federal executive decided not to press the claims except as to two employers in New South Wales, the withdrawal of New South Wales from the scope of the dispute could not annihilate the dispute. The dispute continued to exist as to the other five States. Even if we say that technically it is a different dispute, there is still a dispute and it extends beyond the limits of one State. The second reason is, I think, equally irrelevant. The disputing party is the organization which is represented under its rules by the Federal council or the Federal executive. The existence of a dispute cannot depend on the degree or extent of dissatisfaction or discontent with existing conditions. If it were shown that the council or executive was acting without the authority of the organization or its members or against the wishes of the majority of the members, the position might well indeed be different. But, apart from the fact that thirty Queensland members out of a total of about 400 who voted were against proceeding with the claims, there is no evidence whatever that the action of the council or executive did not command the approval and support of members. The mere fact that meetings were sparsely attended is perfectly consistent with the view that members generally were quite content to leave matters in the hands of the council and executive.

Mr. Eggleston objected that it was not shown that any employer who had been served with the log was named as a respondent to this application for mandamus. It would appear, however, that two companies, the Australian Gas Light Co. and the North Shore Gas Co. Ltd., were served with the log, and both were also served with the order nisi for mandamus in this case and were represented before us by Mr. Eggleston.

In my opinion mandamus should go. I do not, however, think that in this case it should be peremptory in the first instance. The order should, I think, be in accordance with the first paragraph of Order XLVII, rule 15. This will give an opportunity of raising any other objections to the jurisdiction which may exist. None, as I have said, were stated before us, but there was a suggestion that it was desired to raise other points.

I may add that it has occurred to me to wonder whether members of the prosecuting Association are engaged in industry within the meaning of the Constitution and of the Commonwealth Conciliation and Arbitration Act. That question, however, has not been raised in these proceedings.

Section 36 (1) of the Commonwealth Conciliation and Arbitration Act 1904-1949 provides that a Conciliation Commissioner shall, in such manner as he thinks fit, carefully and expeditiously hear, inquire into and investigate every industrial dispute which is before him and all matters affecting the merits of the dispute and the right settlement thereof. Section 37 provides what is to be done if an agreement is arrived at; and s. 38 provides that if no agreement between the parties as to the whole of the dispute is arrived at, the Commissioner shall, by an order or award, determine the dispute, or (if an agreement has been arrived at as to a part of the dispute) so much of the dispute as is not settled by the agreement.

It has already been held by this Court that s. 38 imperatively requires that in the absence of agreement the Conciliation Commissioner shall subject to the Act determine a dispute which comes before him, and also that this Court has jurisdiction, by virtue of s. 75 (v.) of the Constitution and notwithstanding a statutory provision such as s. 16 of the Commonwealth Conciliation and Arbitration Act 1904-1949, to issue a writ of mandamus directing the performance of the positive duty thus created (R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust.) Ltd. [1] ).

The prosecutor organization brought before the respondent Conciliation Commissioner two alleged disputes which it contended had arisen by reason of the failure of a large number of employers to agree to certain claims, in respect of salaries and working conditions, contained in a log served upon them by the prosecutor. The service of the log and the failure of the employers served to agree to the claims made thereby were proved, and indeed were not denied, before the Commissioner and before this Court. The employers concerned were persons and bodies in all States of the Commonwealth, and the claims contained in the log were expressed to be made for the members of the prosecutor organization employed by these persons and bodies, and for other persons employed. Industrial disputes within the meaning of the Act were thus prima facie established, and the Commissioner so found; but, after hearing the parties at twelve sittings, he formed the opinion that there was no "real, genuine and substantial dispute", and he declined to proceed further.

It was contended for the respondent employers on the hearing of this application that the Commissioner applied himself to the correct question, that he was not actuated by any extraneous or irrelevant consideration, and that he did not in any other respect so proceed that his decision was nugatory and void; and it was argued that, that being so, the Commissioner cannot be held to have declined any duty cast upon him by s. 38, and that accordingly no case for mandamus is made out.

This argument rests upon the view that s. 38 empowers the Commissioner to decide whether a dispute within the meaning of the Act exists, and imposes no duty upon him to determine a dispute, which exists in fact, if he decides validly, though wrongly, that it does not exist. It is necessary to consider whether this is the correct view of the section.

The cases are legion which deal with "the perpetually recurring question whether a tribunal is or is not intended to decide upon a particular matter which is a condition of its power to act. The question is whether or not the opinion of the tribunal is made the test of the existence of the relevant matter" (R. v. Commissioner of Patents; Ex parte Weiss [1] ). This question is of fundamental importance in an application for one of the prerogative writs, because upon the answer to it depends the attitude which the Court must adopt towards a finding of the tribunal upon the matter which forms the condition of the tribunal's power and duty.

On the one hand, if the existence of a particular state of things, though essential to the validity of a purported exercise of power by the tribunal, is committed by the relevant legislation to the decision of the tribunal itself, a finding by the tribunal that that state of things does or does not exist provides the answer to the question whether an occasion for the exercise of power has arisen. In such a case a superior court, upon an application for prohibition or mandamus, has no other function than to decide whether the finding of the tribunal is a valid finding; it has not to make any finding of its own as to the existence or non-existence of the particular state of things.

On the other hand, if, upon the true construction of the legislation, the power of the tribunal depends, not upon the existence of a state of things as ascertained by the opinion of the tribunal, but upon its existence in point of fact, the function of a superior court upon an application for prohibition or mandamus is to ascertain for itself whether the state of things exists. It must perform that function by considering the evidence placed before it, together, of course, with any matters of which it is entitled to take judicial notice; and, whatever may be the persuasive value properly to be allowed to the decision of the tribunal upon contested facts, the superior court must make its own finding. To limit its consideration to the question whether for some reason the finding of the tribunal is invalid would be to mistake the purpose both of the investigation undertaken by the tribunal and of the investigation which the Court itself has to make. The tribunal may, and should, inquire whether the state of things exists upon which its power depends, but only for the purpose of deciding whether it will act on the basis that its power is exercisable or on the basis that it is not. The superior court, however, inquires whether the fact exists, for the purpose of giving a binding decision on the question; and it does not discharge its responsibility if it accepts the finding of the tribunal, however clear it may be that the finding was not vitiated by a misconception of the relevant question, or by attention to extraneous considerations, or otherwise.

The distinction between the two classes of cases is established and illustrated by a long line of decisions, of which some of the more important were reviewed by Isaacs J. in Amalgamated Society of Carpenters and Joiners v. Haberfield Pty. Ltd. [1] , and by Jordan C.J. in Ex parte Mullen; Re Hood [2] , and Ex parte Redgrave; Re Bennett [3] .

1. (1907) 5 C.L.R. 33, at pp. 52, 55. 2. (1935) 35 S.R. (N.S.W.) 289, at pp. 298-301; 52 W.N. 84, at p. 85. 3. (1945) 46 S.R. (N.S.W.) 122, at pp. 124, 125; 63 W.N. 31, at p. 32.

Then, does s. 38 require a Conciliation Commissioner to make an order or award whenever he concludes that a real and genuine dispute exists, or does it require him to do so whenever a real and genuine dispute exists in fact and comes before him? In my opinion it is the latter question and not the former which must be answered in the affirmative. In the first place a duty to determine a "dispute", i.e., an industrial dispute as defined in s. 4, could not be validly created except in relation to a "dispute" actually existing. (I omit any reference to threatened or impending or probable disputes, as having no relevance in this case). This follows from the limitation upon legislative power inherent in s. 51 (xxxv.) of the Constitution. In the second place, s. 35, which makes a certificate by the registrar that an industrial dispute exists, as an industrial dispute extending beyond the limits of any one State, prima-facie evidence that the fact is as stated, suggests strongly that the sections which follow are intended to apply where the fact is that a dispute exists. Thirdly, s. 36 in terms applies to every industrial dispute which is before a Conciliation Commissioner, i.e., which is in fact before him. Fourthly, s. 37 plainly operates in respect of every dispute as to the whole or part of which an agreement is arrived at, and therefore presupposes a dispute in fact. And finally, the language of s. 38 itself, and particularly that portion of it which refers to so much of a dispute as is not settled by agreement, is inapt to make the operation of the section conditional upon a finding by the Arbitration Court or the Commissioner that the dispute exists.

It follows, in my opinion, that, in a case where there are no special circumstances affecting the discretion of the Court, mandamus must go to direct a Conciliation Commissioner to determine a dispute which this Court finds to exist, if the dispute has come before the Commissioner, and otherwise than in accordance with the Act he has refused or failed, actually or constructively, to determine it. Where an authority charged with a duty has purported to perform his duty, it may be found that he has constructively failed to do so, because the ostensible performance of his duty is in law not a performance of it at all. The principle to be applied in a case of alleged constructive failure is the same as that by which the validity of a finding of fact is decided in a case where jurisdiction depends upon the finding (see R. v. War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1] , and Ex parte Belling; Re Woollahra Council [2] ). But the present case is not one of constructive failure to determine a dispute; the Conciliation Commissioner has expressly declined to proceed. The principle of the authorities last cited is therefore inapplicable.

1. (1933) 50 C.L.R. 228. 2. (1946) 47 S.R. (N.S.W.) 166, at pp. 169, 170; 63 W.N. 295, at p. 297.

Accordingly, in my opinion, the question which this Court has to decide in this case is whether or not the alleged disputes actually exist as real and genuine disputes; and for the reasons I have given I am of opinion the Court is bound to decide this question in the same manner as it would decide it if the case were one of prohibition, namely by ascertaining for itself what is the proper conclusion upon the evidence adduced before the Court. It is not dealing with an appeal from the Commissioner's finding, nor has it to decide whether that finding should be treated as a nullity by reason of some invalidating circumstance; it has to decide what is the fact concerning a matter which is a condition of the Commissioner's duty and as to which the Commissioner himself had no authority to give a decision binding upon the parties.

I have thought it right to state for myself the reasons which have led me to reject a method of approach which I regard as inadmissible in the present case. For the rest, it is enough to say that after full consideration I find myself in agreement with the judgment of the Chief Justice, and in my opinion the order nisi should be made absolute as proposed by him.