R v Commonwealth Industrial Court

R v Commonwealth Industrial Court - [1960] HCA 46 - HCA 1960 case summary — Zoe

[7]

Section 140 provides a judicial procedure which can be pursued only in the Industrial Court. Such procedure is a condition precedent to the annulment under the section by direct legislative action of a rule in respect of which the Court has made a declaration that it contravenes sub-s. (1). The judicial procedure is separate from and antecedent to the legislative action and involves the exercise only of judicial discretion. It is a power to declare upon the application of a member of an organization and after hearing the organization if it chooses to appear, that a rule of the organization contravenes sub-s. (1), if the court is of the opinion that the rule does so. The express power which is given to the Industrial Court by sub-s. (6) to adjourn the proceedings to give the organization an opportunity to alter its rules is an incident of the procedure. It does not make the Court an administrative agency. Section 140 invokes the aid of the Industrial Court merely to determine whether a rule which a member calls into question offends against s. 140 sub-s. (1). But the section does not give the Industrial Court the additional power to avoid or otherwise annul or disallow a rule or part of a rule which it declares to be a contravention of s. 140 sub-s. (1). If the section gave the Court that additional power it would be open to attack for being a means for providing for the disallowance or annulment of rules of organization by judicial action. The function of disallowance or annulment of such rules partakes of an administrative not a judicial quality: Penton v. Australian Journalists' Association [1] ; The Builders' Labourers' Case [2] . An order of the Industrial Court under the section merely declares as between the parties that a rule contravenes sub-s. (1). Section 140 does not intend that it should have any further operation. But sub-s. (5) provides that a rule or part of a rule declared by the Industrial Court to be a contravention of sub-s. (1) should be "deemed to be void from the date of the Order". The Parliament has power under s. 51 (xxxv) and (xxxix) of the Constitution to invalidate a rule of a registered organization. Sub-section (5) gives an extra force, which is legislative, to an order of the Industrial Court declaring that a rule contravenes sub-s. (1). But the Parliament has not attempted by anything provided in s. 140 to extend the judicial operation of an order made by the court under that section or to make the court a legislative or administrative agency. The provision of sub-s. (5), in question, is an exercise of the power conferred by s. 51 (xxxv) and (xxxix) of the Constitution. The orders which the Industrial Court is empowered to make pursuant to s. 140 are strictly judicial orders.

[16]

So far I have been looking at the matter apart from sub-s. (5). It is now necessary to consider that sub-section, which creates a real difficulty. The first part of it, which says that an order under the section "may declare that a rule contravenes sub-s. (1)" seems at first sight to be superfluous in view of sub-ss. (2) and (3), which have already clearly given jurisdiction to make such an order. But sub-s. (5) goes on to say that, where a declaratory order is made, "the rule shall be deemed to be void from the date of the order." This latter part of sub-s. (5) does lend colour to an argument that, although the first four sub-sections, if they stood alone, would give a power of decision which is plainly judicial, sub-s. (5) shows that sub-s. (1) cannot be construed as laying down a legal criterion to be applied in arriving at a judicial decision. Apart from sub-s. (5), the position is simply that sub-s. (1) makes unlawful, and therefore void, any rule having any of the specified characteristics, and sub-ss. (2), (3) and (4) provide for a judicial determination as to whether any given rule "contravenes" sub-s. (1) and is therefore void. (One would think that a rule which fell within par. (a) would certainly, and that a rule which fell within par. (b) would probably, be void apart from any express statutory provision). But, when sub-s. (5) is added, it may be argued that the whole enactment assumes a radically different character. The first part of sub-s. (5) is not, it may be said, superfluous: the permissive "may" is introduced to indicate that it is all a matter of discretion, that no order need be made even if the Court is satisfied that a rule "contravenes" sub-s. (1). And the effect of the second part of sub-s. (5) is that, if, in the exercise of the discretion, an order is made, the order has no effect whatever as a judicial determination: it is merely a factum upon which sub-s. (5) operates in futurum, and in futurum only, to nullify the rule. We are thus back where we were under the old s. 140. The judicial trappings with which the function of the Court is clothed are merely a disguise, and what the Court is really being empowered to do differs in no substantial respect from the "disallowance" for which the old s. 140 provided.

[19]

Again, I do not think it is right to regard the latter part of sub-s. (5) as intended to qualify in any way anything that has gone before. It is a mistake, in my opinion, to treat sub-s. (5) as limiting by reference to time the effect of a declaratory order. On the contrary its purpose is, I think, to enlarge the effect which, in the absence of sub-s. (5), such an order would have. What I conceive to be the general effect of the new s. 140 is this. Sub-section (1) forbids an organization to have any rule which possesses one or more of certain specified characteristics. (Some of the rules prohibited would be unlawful without express enactment). Rules which fall within the forbidden classes are void. This, as it seems to me, must be so: I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub-s. (1), they are invalid and void. The question of the validity of such a rule may arise in a variety of ways before a variety of tribunals, including the Commonwealth Industrial Court itself. If it does so arise, it is for the tribunal before which it arises to determine whether it falls within the forbidden classes, and the decision can affect only the parties to the proceeding. This would be the position, if sub-s. (1) stood alone. But sub-s. (1) does not stand alone. It is followed by sub-ss. (2) and (3), which give to the Commonwealth Industrial Court a special jurisdiction to determine, on the application of a member of an organization and after hearing the organization, the question whether a particular rule is among those prohibited and invalidated by sub-s. (1). But, in the absence of any further provision, an order declaring that a rule contravenes sub-s. (1) would still have binding effect only as between the applicant and the organization. Then sub-s. (5) comes in and gives a wider effect to the order by saying in effect that for all purposes and in all proceedings the rule is to be deemed to be void. But the order is to have that final and conclusive effect only as from the date of its making. It is not to affect anything done in the past, or any decision given by any tribunal in the past. The extension by sub-s. (5) of the effect of a declaratory order does not affect the character of the process which leads to the making of the order, or the character of the order. The process is a judicial process and the order is a judicial order.

[26]

From the provision that where the order is made the rule (or part of a rule) is to be deemed to be void from the date of the order, the implication seems to me to be clear that until that date the rule (or part) is not intended to be void for contravention of sub-s. (1). That is not to say that it may not be void for some other cause, such as conflict with another provision of a federal statute. But as I read the section an essential feature of its plan is that contravention of sub-s. (1) is not per se a cause of invalidity. No doubt if that sub-section were to be considered by itself, it might well be understood as intending to make void for illegality rules contravening its provisions. But the section considered as a whole appears to me to embody a coherent plan for which the whole function of sub-s. (1) is to take an essential preliminary step. The step is to lay down propositions in relation to which the rest of the section is to operate, propositions in the form of prohibitions to be observed by every rule on pain of a liability to invalidation by the operation of sub-s. (5) upon the non-observance being judicially declared in proceedings brought for the purpose by a member, rather than to enact absolute prohibitions intended to have a separate and independent invalidating effect. If the contrary had been intended, the culmination of a proceeding under the section would surely have been a declaration of the pre-existing invalidity of the inconsistent rule, instead of being an order which says nothing at all about invalidity but fulfils a condition which the section prescribes for the statutory avoidance of the rule for the future. The view I have expressed seems to me to find support in the nature of some of the prohibitions themselves. I need refer only to the provision of par. (b), that a rule shall not be such as to prevent or hinder members from observing the provisions of an award. Whether a particular rule contravenes this paragraph is a question which may require different answers at different times, having regard to the terms of the awards in force for the time being and the industrial situations to which they relate. The intention can hardly be that invalidity shall attach to a rule as soon as a situation arises in which the rule fills the description, shall endure while the situation lasts, and shall cease when the situation comes to an end. It is a much more likely intention that when the Court finds a contravention of sub-s. (1) existing at a particular time, and the organization, if given an opportunity to alter the contravening rule, has not altered it, the rule shall thereupon become void.

[29]

But there the resemblance ends. The recasting which has resulted in the new provision has been sufficiently radical to remove one major disadvantage under which the former section laboured when it was challenged in the Australian Builders' Labourers' Case [1] : it was still in the very form which had led to its being characterized as conferring non-judicial power in the earlier case of Consolidated Press Limited v. Australian Journalists' Association [2] . The present section is new in form and for the most part new in language, and it must be characterized now for the first time. The principal act which the section empowers the Court to do is differently described and is different in substance. The word "disallow", which was the word used by the former section, was peculiarly appropriate to the exercise by the Court of a choice as to whether or not a rule should be left in force. Now the Court is given no power to do anything to a rule; its power is to hear an application for an order; to determine a question concerning an existing situation; and, if it determines that question adversely to the rule, to declare what is the situation that it finds. When one turns to the indications relevant to the question whether the section intends the Court to make its decision as a judicial tribunal adjudicating upon a justiciable issue or as an administrative body exercising a supervisory function in the interests of industrial peace, the differences between the two sections are striking. If they are placed side by side the fact becomes obvious that in the drafting of the new section the endeavour has been to eliminate all the features of the old section which were regarded in the Australian Builders' Labourers' Case [1] as indicating an intention to give a power of administrative disallowance. Foremost among these was a provision which made it inevitable that the word "may" in the grant of power should be treated as merely permissive, so that the duty inherent in true jurisdiction should not attach. It was a provision enabling the Court to act of its own motion. There is no such provision now. A typically judicial procedure is laid down. An application must be made; it must be made by a member, that is to say a person who has an interest to procure the elimination of any legally objectionable provision from the rules of his organization, whether the provision has a direct disadvantageous impact upon him or not. The Court's function is described as a jurisdiction. The process which it is to follow is described as hearing and determining an application. The organization must be given an opportunity of being heard. And the process is confined to the ascertainment of a pre-existing state of affairs, the question for decision being only whether a rule is or is not contrary to provisions of the Act or regulations or of the law as found elsewhere, or whether its operation is or is not of one of the described kinds. The order to be made is in terms merely declaratory, and does not purport to effect any change in the legal situation.

[32]

Emphasis has been placed by the prosecutors upon the scope which there is in some of the provisions of sub-s. (1) for uncertainty of opinion. It must be conceded that the words "oppressive", "unreasonable" and "unjust", in relation to conditions, obligations or restrictions imposed by a rule upon applicants for membership or upon members, describe attributes which are not demonstrable with mathematical precision, and are to be recognized only by means of moral judgments according to generally acknowledged standards. There is a degree of vagueness about them which, in the context of the former section, assisted the conclusion that the intention was to confer on the Court a general administrative discretion for the amelioration of rules. But the notions which the words convey, more readily to be associated with administrative than with judicial decisions though they be, must be conceded, having regard to the nature of criteria with which courts are familiar in other fields, to be not so indefinite as to be insusceptible of strictly judicial application; and their employment in the present context is not sufficient to show, against the strong indications which there are to the contrary, that the Court is intended to exercise its power under the section otherwise than judicially. It must not be overlooked that the adjudication which the Court is required to make in regard to the indicated standards is to be made having regard to the objects of the Act and the purposes of the registration of organizations under it. A contention we have to consider is that this requirement infects the section with one of the ills which beset its predecessor. In the Australian Builders' Labourers' Case [1] it was considered that the Court was intended to look to the effect which the existence or non-existence of a challenged rule might be expected to have upon the working of the machinery of conciliation and arbitration, so that it should disallow the rule, cause it to be altered, or leave it in force, in the exercise of a discretionary judgment as what would best serve the purposes of the Act. But what is provided in the present section does not make the objects of the Act and the purposes of registration considerations governing or affecting the Court in the exercise of a discretion as to how a rule shall be dealt with, for the Court is given no such discretion. The provision merely makes explicit what in any case would be implicit, that the objects and purposes are to be recognized as germane to the question whether the rule is oppressive, unreasonable or unjust to persons having the character, and in the character, of members or applicants for membership of one of the bodies for which the Act provides, and which it regulates, for the better serving of its purposes. Far from pointing to an intention to confer a discretion of an administrative character, the words in question make the issue which is presented for the Court's decision, if anything, more concrete and more clearly justiciable.

[34]

The second application relates to a proceeding in the Commonwealth Industrial Court in which the same member of an organization is seeking, under s. 141 of the Conciliation and Arbitration Act 1904-1959 Cth, an order directing the persons who are prosecutors here, being members of the organization, to perform and observe the rules of the organization by treating the member who seeks the order as duly elected to an office, and by treating as null and void a purported decision of the Commonwealth Council of the organization that he be disqualified as a candidate in the election for that office. Section 141 empowers the Commonwealth Industrial Court to make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe them. The issue involved in the pending case is whether a particular rule, containing a prohibition for breach of which a candidate for election to an office may be disqualified by the Commonwealth Council, is void as contravening one of the provisions of s. 140 (1). In substance, two grounds are relied upon for prohibition. The first is that s. 140 is void for the reason which I have already discussed and rejected. The second is that, if s. 140 is valid, s. 141 does not give the Commonwealth Industrial Court jurisdiction to determine whether a rule is void by reason of its contravening s. 140 (1), the only jurisdiction to determine that question (leaving aside s. 143, which does not apply) being that which s. 140 itself confers. (No doubt a similar point would be made if it should be held that sub-ss. (2)-(6) of s. 140 are void, but that sub-s. (1) of that section, having an independent operation invalidating contravening rules, is valid.) I have already stated my opinion that sub-s. (1) of s. 140 does not operate to invalidate a rule which contravenes its provisions. If that opinion is correct, the point does not arise. But it does arise if that opinion is incorrect and the whole of s. 140 is valid. It does not appear to me, however, to be a point of any substance. In an application under s. 141 the Court would be bound to hold void a rule as to which a declaration had been made under s. 140 (5). To that extent at least it must have the power which the argument denies it. The question must be, then, whether an implication is to be found in s. 140, to the effect that no adjudication that a rule contravenes sub-s. (1) may be made otherwise than in the proceedings for which the section itself (or s. 143) provides. I can see nothing to support such an implication once the assumption is made that sub-s. (1) of s. 140 has an independent invalidating operation of its own. The prosecutors' argument must mean that the invalidation of a rule by force of sub-s. (1) can never be judicially recognized until a second invalidation has been brought about by the application of sub-s. (5). The section cannot possibly mean that. Accordingly, in my opinion, the second rule nisi, like the first, should be discharged.

[41]

In the first place, sub-s. (1) does lay down mandatory - although in some respects general - standards to which each rule of an organization must conform as a condition of its validity. The language is imperative and I find it impossible to treat the sub-section as nothing more than a direction to the registrar or to anyone else about what rules must not contain if they are to be acceptable as rules; the sub-section is a statement that the rules of an organization shall not be of a character specified and any infringement of the prohibition therein contained must, it seems to me, result in invalidity from the time of the coming into force of the section. Sub-section (1) is, I think, a valid exercise of the power given to the Parliament by s. 51 of the Constitution. In the second place, the Court is given jurisdiction to declare whether or not a particular rule does contravene sub-s. (1) and any order that it makes - it seems to me - binds the parties to the litigation, but it binds no one else. The part played by the Court is, therefore, judicial and the provisions conferring its jurisdiction stem from Pt. III of the Constitution. This is so notwithstanding the express power to grant an adjournment to give an organization an opportunity to remedy a contravention of the Act: such a discretion is not something foreign to the exercise of judicial power. Finally, when the Court has made an order declaring that there is a contravention of sub-s. (1), it is sought by the section to effect a consequential result, i.e., by the provision in sub-s. (5) that when the Court makes an order that there is a contravention of sub-s. (1), "the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order", so that the question of its future validity is no longer a question open in any proceedings before any Court. What is attempted, as I understand it, is not to give an order of the Court inter partes a binding effect as against the world; it is rather to treat a judicial order as a step in a legislative process of invalidating rules for the future whether or not the order was correctly made. The validity of this must depend upon s. 51 of the Constitution, but it is not necessary here to determine whether what is attempted is effective; it is sufficient for present purposes to say that the latter part of sub-s. (5) does not indicate that an order of the Court which is the occasion for its operation is otherwise than judicial.

[46]

I do not think it necessary to determine the effect of the latter part of sub-s. (5) in relation to the rest of the section, further than to say that I do not regard sub-ss. (5) and (6) as impairing the judicial character of the curial proceedings under the section for a declaration that a rule contravenes sub-s. (1). Whether or not a rule contravenes sub-s. (1) depends, I think, upon the terms or effect of the rule considered in relation to circumstances prevailing at a particular date - to the then provisions of the Act or of an award or to other circumstances then existing. I do not think that the matter is to be determined by considering whether at the date a rule was made it contravened sub-s. (1), but rather whether it does so at a date in relation to which its observance is challenged. A change in an award, or other circumstances occurring in the meantime, could result in a rule that was a contravention of sub-s. (1) before such change being no longer objectionable on that ground at the date its validity came into question. The effect of sub-s. (5) is to make a rule, or part of a rule, that has been declared to contravene sub-s. (1) void as from the date of the order, in the sense, that as from that date, it can have no more operation than if it had been on that date repealed. If circumstances should so change that such a rule would no longer be objectionable, then it could be formally re-enacted; but it would not come into operation because of the changed circumstances. So read, sub-s. (5) does not seem to me necessarily inconsistent with the view that, although no declaratory order had been made by the Industrial Court under the section, nevertheless a member of an organization, against whom it was sought to enforce a rule, could rely upon the fact that it contravened sub-s. (1). It may well be that he would have to seek a declaration from the Industrial Court pursuant to sub-s. (2), and could not raise the matter directly in some other court. Yet, assuming that to be so, I am inclined to think that it would be open to the Industrial Court to declare that at the date of the member's application the challenged rule contravened sub-s. (1); and that it would then be unenforceable against him, notwithstanding that the general avoidance of it, effected by sub-s. (5), would date only from the date of the Court's order and not from the date of the applicant's challenge to its validity.

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Judgment (48 paragraphs)

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