R v Federal Court of Australia; Ex p WA National Football League

R v Federal Court of Australia; Ex p WA National Football League - [1979] HCA 6 - HCA 1979 case summary — Zoe

[60]

The prosecutors' principal submission in this connexion was that only corporations, incorporated as trading corporations - whatever that might mean - could fall within the description of that paragraph. Trading must be the purpose of its incorporation, according to the submission. It would not be enough that the corporation did in fact trade either as its exclusive activity or as one of its substantial activities. Counsel sought to extract support for this proposition from views expressed by the majority in R. v. Trade Practices Tribunal; Ex parte St. George County Council [16] . In my opinion, however, those views do not support the proposition. It was there said by the majority, as I read their reasons, that a corporation formed in the sphere of local government and for its purposes could not relevantly be a trading corporation. The case was not decided, as I view it, on the footing that in general the current activities of a corporation can be ignored when deciding whether or no it is a trading corporation but rather that the particular origin and the statutory association of that county council with local government precluded the conclusion that it was a trading corporation, albeit that all the council did was to trade and, indeed, that trading in electricity and electrical goods was at least its principal if not the sole purpose of its incorporation. The majority seems also to have denied the trading quality of what the council was doing on the ground that the supply of electricity was a public service. I might be permitted to remark that until quite recent times in Australia electricity was supplied by non-government bodies which clearly were trading in electricity. But its quality as a public service in the view of the majority seems to have been derived from the fact that it was supplied by a statutory or "government" body. There were thus in the St. George County Council Case [16] special considerations upon which the majority founded their views. Consequently, I do not regard the decision of the case as supporting the general proposition put forward on behalf of the prosecution.

[77]

It follows that if the prosecutors are to be subject to the provisions of s. 45 of the Act, that can only be because each is a "trading corporation" within the definition contained in s. 4 of the Act. It is obvious that the Act is intended to be an exercise of the powers conferred by s. 51 (xx.) of the Constitution, inter alia, and that the words of the definition which I have quoted are intended to have the same meaning as those of s. 51 (xx.) of the Constitution. We must therefore turn to consider the meaning of the latter provision. I do not dissent from the proposition that the words of the Constitution should not be restrictively construed, and it can hardly be doubted that the application of particular terms is not restricted to those things known in 1901. However, the words themselves cannot be ignored; it is their meaning that has to be determined. I have already expressed my views as to the meaning of the words "trading corporations" where they appear in s. 51 (xx.) in Reg. v. Trade Practices Tribunal; Ex parte St. George County Council [23] and I adhere to what I there said. The present case is of course quite distinguishable on its facts from the St. George County Council Case [23] . However, in that case at least four of the members of the Court held that the words "trading corporation" do not simply mean any corporation which trades [24] , and the decision to that effect should in my opinion be followed. The words of par. (xx.) when read together leave no doubt in my mind that the word "trading", like the words "foreign" and "financial", is used in that paragraph as an epithet describing a particular kind of corporation, and is not simply referring to what a corporation does, or to what its main activities happen to be. Of course, what a corporation does may throw light on what it is, and I do not intend to suggest that the memorandum of association, or other constitutional document, of a corporation, is the sole source of information as to whether it was formed for the purpose of trading. If, contrary to my opinion, the activities of a corporation at the relevant time determine whether it satisfies the constitutional test, it is the "predominant and characteristic activity" that has to be considered: St. George County Council Case [25] . In my opinion, on any view of the construction of s. 51 (xx.), the prosecutors are not trading corporations within that provision, and they therefore are not corporations within s. 45 of the Act. I agree with what my brother Stephen has written in support of this conclusion, and could not usefully add to what he has said.

[125]

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. His Honour went on to say [45] : And the terms of s. 51 (xxxv.) of the Constitution are such that it "[the power to make an award]" 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.). 1. (1950) 82 C.L.R. 54. 2. (1950) 82 C.L.R., at pp. 88-89. 3. (1950) 82 C.L.R., at p. 89.

[132]

A person against whom a non-existent jurisdiction is invoked is not bound to wait until the tribunal decides for itself whether it has jurisdiction or obtains a decision of the question by a reference or case stated or the like. He may move at once for a prohibition. This comment was directed to the situation of the prosecutor. It does not in my opinion adequately or correctly reflect the approach to be taken by this Court when application is made for a prohibition before the lower court or tribunal has had an opportunity to consider the jurisdictional question. The approach to be adopted in such a case was in my view correctly enunciated by Dixon C.J., Williams, Webb and Fullagar JJ. in Reg. v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. [49] . There the Court considered the application of s. 23 of the Stevedoring Industry Act 1949 which provided that, where after such inquiry as it thinks fit, the Board is satisfied that an employer is unfit to continue to be registered or has acted in a manner prejudicial to the proper performance of stevedoring operations, it may cancel or suspend his registration. Their Honours said [50] : it must always be open to the board or its delegate to investigate the question whether a case exists for the exercise of its powers. There can be nothing wrong or unlawful in the board or its delegate entering upon an inquiry into any of the matters described by the three paragraphs of s. 23 (1). It is therefore evident that no prohibition could go to restrain the holding of an inquiry directed to any one or more of those issues. There can be no foundation for a writ of prohibition unless and until it appears, whether from the course of the inquiry or from the preliminary statement of the matters to which the inquiry is directed, that there can be no basis for the exercise of the power conferred by s. 23 (1) or that an erroneous test of the liability of the employer to the cancellation or suspension of his registration will be applied or that some abuse of authority is likely. In any such case a writ of prohibition may lie but it must be a writ restraining the ordering of cancellation or suspension. Their Honours went on to say [51] : At common law a prosecutor is expected to apply at the earliest stage at which his right to a writ arises, but he is not entitled to the remedy quia timet, that is before the tribunal is invoked or assumes a jurisdiction or authority over the matter and, where the complaint is that an order may be made in excess of power or notwithstanding that the power has not attached, the prosecutor must show a real likelihood or danger of such an order being made. 1. (1949) 77 C.L.R. 432, at p. 445. 2. (1953) 88 C.L.R. 100. 3. (1953) 88 C.L.R., at pp. 117-118. 4. (1953) 88 C.L.R., at p. 119.

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Judgment (181 paragraphs)

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