Re Australian Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [1977] HCA 72

(a) all matters or things affecting or relating to work done or to be done;

(b) the privileges, rights and duties of employers and employees;

(i) the employment of children or young persons, or of any persons or class of persons;

(j) the preferential employment or the non-employment of any particular person or class of persons or of persons being or not being members of an organization;

(k) the right to dismiss or to refuse to employ, or the duty to reinstate in employment, a particular person or class of persons;

(n) any question arising between two or more organizations or within an organization as to the rights, status or functions of the members of those organizations or of that organization or otherwise, in relation to the employment of those members;

(p) any question as to the demarcation of functions of employees whether as between employers and employees or between members of different organizations;

and includes all questions of what is right and fair in relation to an industrial matter having regard to the interests of the persons immediately concerned and of society as a whole.

The claim was for a monopoly of the work for members of the Federated Miscellaneous Workers' Union of Australia ("MWU"), to the exclusion of the members of the other two unions, the Transport Workers' Union ("TWU") and the Federated Engine Drivers' and Firemen's Association ("FEDFA"). No non-unionist was engaged in the disputed work and in the prevailing circumstances there was no prospect of this happening. The employers' claims were not concerned with non-union labour. There was a problem of whether the preference claimed was intended to apply in favour of MWU members who belonged to no other union or also in favour of MWU members who were members of one or both of the other unions. This problem does not affect the Commission's jurisdiction to settle the disputes arising from the non-acceptance of the claims. On either view, these were statutory industrial disputes which concerned "matters pertaining to the relations of employers and employees" and also fell within pars (a), (b), (h), (n) and (p) of the definition of "industrial matters".

However, the prosecutor contends that the claims should be interpreted to mean the exclusion of non-unionists from employment. Neither the respondent employers nor the Commission put this interpretation on the claims. So interpreted these would (unless the prosecutor's other contentions are correct) still give rise to industrial disputes which concerned "matters pertaining to the relations of employers and employees" and also fall within pars (a), (b), (h), (i), (j), (k), (n) and (p). The prosecutor's contentions (which assume the correctness of this interpretation) proceeded upon the premise that there can be no statutory industrial dispute unless the Commission is authorized to award the claims whose rejection gives rise to the dispute. It then contended that, by reason of s. 47 of the Act, the rejected claims could not be awarded by the Commission. Evatt J., however, held (as a single Justice) in Australian Tramway & Motor Omnibus Employees' Association v. Commissioner for Road Transport and Tramways (N.S.W.) [33] that, although a demand in a log cannot be embodied in an award, it can form the subject of an industrial dispute. He also said [34] that the decision in Anthony Hordern & Sons Ltd. v. Amalgamated Clothing & Allied Trades Union of Australia assumed rightly that "there was a genuine dispute as to the preference described in the log, notwithstanding that the statute prevented the arbitrator from making an award in the terms of the log" [35] .

1. (1938) 58 C.L.R. 436. 2. (1938) 58 C.L.R., at p. 445. 3. (1932) 47 C.L.R. 1.

In Metal Trades Employers' Association v. Amalgamated Engineering Union [36] , Latham C.J. said of s. 40 (the earlier form of the present s. 47):

The power to grant preference to unionists is not found in sec. 40. That section assumes the existence of such a power and prescribes conditions affecting its exercise. The power is to be found in the definitions of industrial dispute and industrial matters, and in the sections which give the Court jurisdiction to settle such disputes by the method of arbitration. In R. v. Wallis, Dixon J. said in relation to s. 56 (another form of s. 47) [37] : the question what may be the subject of an industrial dispute and the question what powers will be conferred upon the conciliation commissioners to deal with industrial disputes were two distinct matters for legislative consideration. To take a very obvious example, s. 55 forbids the inclusion in an award of provisions requiring a person claiming the benefit of an award to notify his employer that he belongs to an organization or enabling the employer to forfeit any part of an employee's wages. Section 56 deals with a form of remedy or relief that the arbitrator may apply. However widely the definition of "industrial dispute" may be interpreted it appears to me still to remain true that the specific grant of power made by s. 56 (1) and (2) is inconsistent with an inference that under the general power conferred by s. 38 the conciliation commissioner or arbitrator may wield a much more comprehensive and drastic power upon the same matter or upon matters ejusdem generis. Again, in Reg. v. Holmes; Ex parte Altona Petrochemical Co. Ltd. [38] ("the Containers Case"), Menzies J., with whom Owen J. agreed, said: When a demand is analysed, it must be to ascertain whether it relates to an industrial matter rather than whether, if an award did no more than follow the demand, it would be a valid award having regard to s. 47 Section 47 does not deal with claims; it deals with directions that may be made when an industrial dispute comprehends the matter of preferential employment of certain persons. I think it would be wrong to import the requirements stated in s. 47 into the terms of par. (j) of the definition of industrial matters in s. 4. There are, of course, statements to the contrary, but in my opinion the meaning of industrial dispute and industrial matters in s. 4 should not be limited by reference to s. 47 of the Act. 1. (1935) 54 C.L.R. 387, at p. 405. 2. (1949) 78 C.L.R., at p. 553. 3. (1972) 126 C.L.R. 529, at pp. 559-560.

There were thus industrial disputes before the Commission and it was empowered to settle the disputes. Even if the prosecutor is correct in the contention that the Commission may not make an award in terms of the claims, the Commission is not deprived of power to settle the dispute; it would mean that, if the Commission makes an award, it should not grant the claims. If the definition of industrial disputes is limited by the power to make an award, then the absence of power to make an award would also deprive the Commission of power to conciliate (referred to in ss. 18, 26 and 27). Suppose that an industrial claim which was the basis or part of the basis of dispute could not be awarded because of some provision of the Act: the intention of the Act is that the Commission would still be empowered to settle the dispute by conciliation which might lead, for example, to some agreement or modification or withdrawal of the claim (perhaps in consideration of some other concession).

The prosecutor argues that the grant in s. 47 of a specific power to award preference prevents not only the award of preference in any other way but also the award of what is not preference. But, if what is claimed is preference within the meaning of s. 47, there is an industrial dispute (it was not contended otherwise); if what is claimed is not preference, s. 47 has nothing to do with the case. If s. 47 is confined to what it deals with, it is in practice not very important.

The correct view of s. 47 is that expressed by Starke J. (in relation to s. 40 of the earlier Act) in Waterside Workers' Federation of Australia v. Gilchrist, Watt and Sanderson Ltd. [39] :

That section is not a limitation but an expansion of the authority of the Arbitration Court: it is a substantive grant of authority to the Court in connection with industrial disputes of which it has congizance, whether preference has or has not been put in dispute by the parties, or claimed in the proceedings before it. It may be exerted even after an award has been made, on the application of any organization or person bound by the award, and whenever, in the opinion of the Court, it is necessary for the prevention or settlement of an industrial dispute or for the maintenance of industrial peace or for the welfare of society. 1. (1924) 34 C.L.R. 482, at p. 549.

In the Anthony Hordern Case, Starke J. adhered to the earlier view and stated [40] :

Several of the Justices of this Court have expressed the opinion that sec. 40 empowers the Court to grant preference to unionists though preference be not in dispute: Griffith C.J., Isaacs, Higgins and Rich JJ. and I were all, I think, of this opinion, though Griffith C.J. was disposed to think that the provision contravened the Constitution and was invalid (Tramways Case [No. 2] [41] ; Australian Workers' Union v. Pastoralists' Federal Council [42] ; Waterside Workers' Federation v. Gilchrist, Watt & Sanderson Ltd. [43] ). An industrial dispute is necessary to found the jurisdiction of the Court, but sec. 40 is valid because it provides a remedy which may be used by the Court for the purpose of preventing or settling industrial disputes. If preference or a minimum wage - the subjects of sec. 40 - be the very matter of dispute, the provisions of secs. 18, 24 and 38 give the Court ample power to determine either. But if neither be the subject of dispute, nor within the range of the industrial dispute submitted to the Court, what is to happen if the dispute cannot be prevented or settled except by provision being made for preference or a minimum wage? Here sec. 40 operates. The remedy may be given by the Court when it makes its award, or at any time thereafter on the application of any organization or person bound by the award. Evatt J. took the same view, pointing out that to treat the then s. 40 as a limitation upon the general power to settle disputes would deprive the Arbitration Court altogether of power to settle disputes over preference to unions extending interstate in which the disputants were trade and industrial unions not registered under the Act. He described this as an "absurd result" [44] . 1. (1932) 47 C.L.R., at p. 10. 2. (1914) 19 C.L.R. at p. 81. 3. (1911) 5 C.A.R. 48, at pp. 98, 99. 4. (1924) 34 C.L.R., at p. 549. 5. (1932) 47 C.L.R., at p. 16.

Section 47 as an ancillary power of the Commission falls well within the legislative competence of the Parliament under pars (xxxv.) and (xxxix.) of s. 51, and of course in relation to the territories under s. 122 of the Constitution. However, the decisions have departed from this early exposition of the preference section as a simple ancillary power. It has become a cancerous growth.

In the Anthony Hordern Case [45] , the Court decided that the general power to settle disputes was qualified so that preference could be awarded (whether there was an antecedent interstate dispute over preference or not) only in accordance with the conditions which were then in s. 40 (that is, to apply in circumstances of "other things being equal" and so as not to affect the children of employers). But in R. v. Wallis [46] and R. v. Findlay [47] , the then s. 56 (from which the restrictions concerning "other things being equal" and the children of employers were delated) was construed in such a way that it affected not only preference but other matters such as exclusion of non-unionists (referred to as "compulsory unionism").

1. (1932) 47 C.L.R. 1. 2. (1949) 78 C.L.R. 529. 3. (1950) 81 C.L.R. 537.

In R. v. Wallis, Latham C.J. considered that even if a claim for exclusion of non-unionists was within the words of s. 4 it was impliedly excluded by s. 56, because it was difficult to attribute to Parliament an intention to go further than preference. But definitions in s. 4 apply "except where otherwise clearly intended". Such a meaning is hardly clearly intended in view of the decisions of the early Justices of this Court on s. 40.

Latham C.J. found support in the former s. 55 for implying absence of claims for exclusion of non-unionists from the definition of industrial matters. Section 55 provided that:

the Court or a Conciliation Commissioner shall not include in an order or award a provision -

(a) requiring a person claiming the benefit of an award to notify his employer that he is a member of an organisation bound by the award.

He said [48] : This provision shows that it was intended by Parliament that an employer should not be placed in a position to differentiate between unionists and non-unionists. He also referred to the then provisions of the Act which show that it was intended by Parliament that workers should not be compelled to disclose to an employer whether or not they are members of a union and that an employer should have no right as of course to find out (even by inspecting a list which might or might not be kept up to date) whether they were members of a union or not. These provisions show that, in practice, it would be difficult and almost impossible to give effective operation to provisions for the exclusion of non-unionists. 1. (1949) 78 C.L.R., at p. 544.

In the existing Act, there is no counterpart to the old s. 55 (it was repealed by Act No. 103 of 1956) and the Act provides for a register of members to be kept up to date by a union and copies filed with the Industrial Registrar (ss. 152 and 156) with provisions for inspection. Further, the conclusion that Parliament did not intend to place an employer in a position to differentiate between unionists and non-unionists is not consistent with the preference section, s. 47, which contemplates exactly that. Dixon J. stated [49] :

But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course. In the passage cited earlier from the same case, Dixon J. concluded that s. 56 was inconsistent with a more comprehensive and drastic power upon the same matter or upon matters ejusdem generis. 1. (1949) 78 C.L.R., at p. 550.

In relation to the same matter, that is preference, the power in s. 56 was quite comprehensive and drastic. The limiting conditions which were in the earlier s. 40 have been removed. The reference to "matters ejusdem generis" is in my opinion not warranted by the principle of interpretation relied on, which refer to "the same matter". Further, as was stated in Wallis' Case, exclusion of non-unionists is a matter of a different kind from preference to unionists. Thus Latham C.J. said [50] : "A monopoly of work for unionists, and a fortiori for members of one particular union, and the consequent exclusion of non-unionists or of members of other unions from work in accordance with the terms of an award goes beyond preference to unionists." Dixon J. said [51] : "the claim is for exclusion, the exclusion from employment of all who do not belong to the Federated Clerks Union of Australia. This goes far beyond preference." McTiernan J. said [52] : "a demand that the employers should not engage or retain in employment any person who is a member of the union is different from a demand for preference." Webb J. [53] also distinguished preference from exclusion of persons from employment. In Findlay's Case, Latham C.J. said [54] : "preference to unionists is different in kind from a monopoly of employment for unionists." Dixon J. stated that a claim that no one except financial members of the union should be employed on work covered by the log did not raise an industrial dispute covering preference in employment to the members of the union [55] . Webb J. said the award to this effect went beyond preference as commonly understood [56] .

1. (1949) 78 C.L.R., at pp. 543-544. 2. (1949) 78 C.L.R., at p. 552. 3. (1949) 78 C.L.R., at p. 554. 4. (1949) 78 C.L.R., at p. 556. 5. (1950) 81 C.L.R., at p. 546. 6. (1950) 81 C.L.R., at p. 550. 7. (1950) 81 C.L.R., at p. 553.

The conclusion that "the same matter" (preference to unionists) "is not to be done according to some other course" has thus been used to justify the introduction of an implication that a different "matter" (exclusion of non-unionists) is not to be "done" at all.

The straightforward construction of the Act which was adopted in the very early cases seems to me to be correct. The departure from it in cases such as R. v. Wallis was based on reasons which are unconvincing to me, and also depended to some extent on an unduly narrow approach to the constitutional power (see R. v. Wallis [57] ). The result of the construction in R. v. Wallis and R. v. Findlay is awkward, aggravates the atmosphere of technicality in which the Commission has to function and tends to frustrate the Commission's general powers to prevent and settle disputes. The difficulties in its application have been apparent in more recent cases (see the Containers Case). The argument that the legislature, by carrying over the preference section into the new Act, has confirmed the interpretation placed upon it was discounted by Dixon J. in R. v. Wallis [51] where he described it as: "a somewhat artificial doctrine and the mechanics of law-making no longer provide it with the foundation of probability which it is supposed once to have possessed". Therefore, even if the prosecutor's interpretation of the claims was accepted the Commission would not be deprived of authority to deal with the disputes.

1. (1949) 78 C.L.R., at pp. 549-550. 2. (1949) 78 C.L.R., at p. 552.

There can be no question in this case of the Commission exceeding the limits of jurisdiction which the Parliament could constitutionally authorize (because of the plenary nature of s. 122 of the Constitution). In view of Parliament's persistence in attempting as far as it can to prevent this Court's interference with the Commission, I incline to the view (but it is not necessary to decide) that, assuming s. 60 must be read down by reference to s. 51 (xxxv.) of the Constitution when reliance on that power is necessary, the words in the section are not to be read down by reference to s. 51 (xxxv.) when applied to the Northern Territory by virtue of the Northern Territory (Administration) Act.

In this matter the Transport Workers' Union of Australia (TWU) seeks a writ of prohibition against the Conciliation and Arbitration Commission and Mr. J. H. Portus, a member of that Commission, and against Peko Mines Ltd. (Peko) and Australian Development Ltd. (ADL). Peko and ADL each served on the Federated Miscellaneous Workers' Union of Australia (MWU), the Federated Engine Drivers' and Firemen's Association of Australasia (FEDFA) and TWU a log of claims to cover employment by it of persons in the performance of work "in or in connexion with the mining, milling, smelting and refining of ores at establishments in or about Tennant Creek and adjacent areas in the Northern Territory". Each log states that it arises following claims by the three unions in relation to the operation of power houses, winding engines, mechanical and mobile equipment units, motor vehicles and the like operated in connexion with mining and associated operations in the Northern Territory. It then refers to claims made by each of the unions and to various discussions. The demand made in the log delivered by Peko is a demand made of the MWU, the FEDFA and the TWU that:

Peko Mines Ltd. demands of the Federated Miscellaneous Workers' Union of Australia (the M.W.U.), the Federated Engine Drivers' and Firemen's Association of Australasia (the F.E.D. & F.A.) and the Transport Workers' Union (the T.W.U.) that the said unions agree that in the performance of work by employees in or in connexion with the mining, milling, smelting and refining of ores at the establishments of the employer in the Northern Territory, all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D. & F.A.

The employer further demands that the M.W.U., the F.E.D. & F.A. and the T.W.U. each recognize and accept the right of the employer to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation.

ADL delivered a log of claims to the same three unions in identical terms. The delivery of these logs of claims was followed by notification of disputes.

On 2nd March 1976 Mr. Commissioner Portus heard argument on the question of whether the logs of claims could be the basis of an industrial dispute for the purposes of the Conciliation and Arbitration Act 1904-1905, ("the Act"). He decided that an industrial dispute did exist between Peko and the three unions and between ADL and the same three unions. An appeal from that finding was made to the Conciliation and Arbitration Commission and on 24th September 1976 the Commission by majority upheld the finding that there was an industrial dispute.

Section 4 of the Act defines "industrial dispute" as meaning (inter alia) "a dispute (including a threatened, impending or probable dispute) as to industrial matters which extends beyond the limits of any one State". For present purposes that definition must be read with the provisions of s. 6 (1) of the Northern Territory Administration Act 1910-1973, which provides:

The Conciliation and Arbitration Act 1904-1972 applies to industrial disputes in the Territory as if -

(a) from paragraph (a) of the definition of Industrial dispute in section 4 of that Act the words "which extends beyond the limits of any one State" were omitted;

(b) from paragraph (b) of that definition the words "which so extends" were omitted; and

(c) from the definitions of industrial dispute in sub-section (1) of section 71 and sub-section (1) of section 81 of that Act the words "which extends beyond the limits of any one State" were omitted.

"Industrial matters" is defined in s. 4 of the Act as meaning: matters pertaining to the relations of employers and employees and, without limiting the generality of the foregoing, includes -

(p) any question as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organizations.

Section 5 (1) (a) of the Act provides as follows: An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstances that the employee -

(a) is or has been, or proposes, or has at any time proposed, to become, an officer, delegate or member of an organization, or of an association that has applied to be registered as an organization; or

Section 47 (1) of the Act provides as follows: The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or order, be given to such organizations or members of organizations as are specified in the award or order.

A number of grounds were relied upon in support of the proposition that these logs could not give rise to an industrial dispute. The argument began with reliance on the decisions in this Court in R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers [59] and R. v. Findlay; Ex parte Victorian Chamber of Manufactures [60] for the proposition that there is no power to include a provision requiring compulsory unionism in an award. The point may be expressed somewhat differently by saying that if a log of claims demands exclusion from employment of non-unionists then the dispute arising on non-acceptance of such a log is one which the Commission has no jurisdiction to consider. It was said that the present logs required that none of the relevant work be performed by anyone other than members of the MWU. Thus the submission was that the principal demand was an attempt to give a monopoly of work to members of the MWU, excluding not only members of the TWU and members of the FEDFA but also members of any other union and non-unionists, and in addition those members of the MWU who were also members of one or both of the other two unions.

1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537.

The second submission was that an award in terms of the log could not be supported under s. 47 because it would give rise to complete exclusion of all employees of the employer who happened to be members of the TWU or the FEDFA. It was said that if the log of claims was concerned only with matters as between the members of the three unions and had no application to or effect upon non-unionists, it still did not give rise to an industrial dispute.

It was further said that such a clause did not provide for demarcation because, although it purported to define classes of employees for the purposes of demarcation within par. (p), the work was in fact so divided that the members of one union would get it all and non-members would get none. It was contended that such a result was contrary to the decisions in R. v. Wallis and R. v. Findlay. Such an award would be by way of absolute exclusion of all other persons, not preference to the MWU. The employer would be absolutely prohibited by the terms of such an award from employing any other person even if he could not find members of the MWU to do the work.

For the respondent employers and the respondent MWU it was argued that the case was covered by the decision of this Court in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Transport Workers' Union of Australia [61] ("the Containers' Case") and some reliance was also placed on s. 60 of the Act.

It is first necessary to deal with the meaning of the log of claims in so far as it requires agreement that "all such work shall be performed by or shall continue to be performed by members of the M.W.U. and such work shall not be allocated to employees members of the T.W.U. or the F.E.D.F.A." In my opinion those words require the agreement of the three unions that the whole of the work shall be performed by members of the M.W.U., to the exclusion not only of members of the other two unions but also of all other persons whether non-unionists or members of other unions. The addition of the words "and such work shall not be allocated to employees members of the T.W.U. or the F.E.D.F.A." are apt to cover the case of employees who are members of the T.W.U. and/or the F.E.D.F.A. as well as being members of the M.W.U. Grammatically those words qualify the expression "members of the M.W.U." It was argued that the effect of those words was not to deal with the problem of dual membership but to make it clear that the demand did not affect the position of non-unionists. I do not think that the words are capable of bearing that meaning. Logs of claims must of course be construed liberally and not as if they were pleadings, but it does not follow that a meaning may be forced upon them which the words cannot bear. Resort to the context of the dispute points in favour of what I regard as the ordinary meaning because the question of dual membership was an existing problem at Tennant Creek. It was also sought to establish that there would be implied into the phrase "members of the T.W.U. or the F.E.D.F.A." the word "only" after the word "members". I can see no sound reason for reading in that word when the expression involves no ambiguity and in its literal form deals with a known practical problem existing at the time. Moreover such an implication would be unnecessary in view of the preceding words.

In R. v. Wallis [62] the Court dealt with an application for a writ of prohibition to prohibit proceedings before a conciliation commissioner for a variation of two awards. In one case the union claimed that the award should be varied so as to include a clause that no person should be continued in employment beyond a period of twenty-eight days from the date of the award unless such person was (a) a member of the Federated Clerks' Union or (b) within the period of twenty-eight days made application for membership and otherwise complied with the membership requirements and that no person should continue in employment for a period beyond twenty-eight days after ceasing to be a member. In the other case the variation sought was the insertion of a clause providing that a register of all persons entitled to be employed as wharf clerks should be kept by the union and that no employer should engage or employ or continue to engage or employ any person as a wharf clerk whose name was not in the register, and that no employer should permit a person not so registered to do the work of a wharf clerk and that no person should be entitled to be registered or remain on the register unless he was a financial member of the union. It was held by the Court that the Act in its then form (1948) did not authorize an award giving a monopoly of employment in an industry to the members of an organization of employees and that s. 56 (now s. 47) did not confer such a power. Latham C.J. said [63] :

A monopoly of work for unionists, and a fortiori for members of one particular union, and the consequent exclusion of non-unionists or of members of other unions from work in accordance with the terms of an award goes beyond preference to unionists. The provisions of s. 56 do not authorize more than preference to unionists. They do not enable a commissioner to declare non-unionists black so that they cannot get work in the industry to which they belong. If there is, however, power to exclude non-unionists, the exclusion may be partial or complete. Partial exclusion is preference to others. There would be no rational reason for Parliament carefully prescribing conditions in relation to preference, i.e. partial exclusion, if it were intended that there should be an unlimited power to order complete exclusion in any case. Accordingly, in my opinion, the definition of "industrial matters" should not be so interpreted and applied as to authorize the making of an award for complete exclusion. It was argued in that case that the initial words of the definition of industrial matters, quite apart from the specific paragraphs including what is now par. (j), were sufficiently wide to cover a dispute as to whether an employer should be at liberty to employ persons who were not members of the claimant union. Latham C.J. said [64] : In the first place, what has already been said about the specific provisions of s. 56, limiting as they do the power to make an award giving persons a preference in employment, shows that it was not intended by Parliament that this part of the definition of "industrial matters", any more than pars. (h) (i) (j) and (k) of the definition, should create a power to make an award excluding non-unionists from the possibility of employment. With respect to par. (j) Rich J. said [65] : The "non-employment" referred to in s. 4 (j) does not mean a non-employment of employees enforced upon employers The provision challenged in the proposed awards provides for a monopoly in favour of the Federated Clerks' Union and a wholesale exclusion of other persons whether or not members of an organization from a wide sphere of employment and a corresponding obligation on employers to employ only members of the union. 1. (1949) 78 C.L.R. 529. 2. (1949) 78 C.L.R., at pp. 543-544. 3. (1949) 78 C.L.R., at p. 545. 4. (1949) 78 C.L.R., at pp. 547-548.

Dixon J. said that it was not necessary to consider whether there was constitutional power under s. 51 (xxxv.) to authorize a commissioner to make an award embodying a claim by an organization that no one should be employed in a particular pursuit or calling except its members, or its members whom it chose to place upon a list because "I am clearly of opinion that the Parliament has not purported to confer upon him an authority which would extend so far". He said [66] :

The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.

But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.

After referring to various paragraphs in the definition of industrial dispute, he said [67] that: Upon the foregoing the contention is founded that the employment of a class of persons and the non-employment of persons not being members of an organization are contemplated as subjects of dispute and that they are distinguished from preferential employment. Therefore it is said the power to determine the dispute must include making an award or order that there shall be "non-employment" of all persons who are not members of a particular organization, that is to say forbidding employers to employ them. There are in my opinion two answers to the contention. The first is that the question what may be the subject of an industrial dispute and the question what powers will be conferred upon the conciliation commissioners to deal with industrial disputes were two distinct matters for legislative consideration. To take a very obvious example, s. 55 forbids the inclusion in an award of provisions requiring a person claiming the benefit of an award to notify his employer that he belongs to an organization or enabling the employer to forfeit any part of an employee's wages. Section 56 deals with a form of remedy or relief that the arbitrator may apply. However widely the definition of "industrial dispute" may be interpreted it appears to me still to remain true that the specific grant of power made by s. 56 (1) and (2) is inconsistent with an inference that under the general power conferred by s. 38 the conciliation commissioner or arbitrator may wield a much more comprehensive and drastic power upon the same matter or upon matters ejusdem generis. He also rejected the argument that the use of the expression "non-employment" in par. (j) of the definition of industrial matters authorized the particular provision sought. 1. (1949) 78 C.L.R., at pp. 549-550. 2. (1949) 78 C.L.R., at p. 553.

McTiernan J. said [1] that an award purporting really to impose compulsory membership of the union on employees would not be an award in respect of any industrial matter, notwithstanding the terms of par. (j) of the definition in s. 4, because "The gist of the demand is not preference to members of the union but exclusion of persons who are not members of it as a sanction to ensure that all employees are members of the union". Webb J. said [2] that:

Section 56 of the Act limits the authority to award preference otherwise given by s. 4 (j), as it limits preference to organizations and members of organizations. It indicates the intention of Parliament that preference should be so limited, notwithstanding the earlier provision in s. 4 (j). But preference does not require the exclusion of non-preferred persons from employment when the preferred class are not available and willing to do the work. That is not the meaning of preference. 1. (1949) 78 C.L.R., at p. 554. 2. (1949) 78 C.L.R., at pp. 555-556.

In R. v. Findlay [3] the Court dealt with an application for a writ of prohibition prohibiting the enforcement of and further proceedings in respect of a provision in the Clothing Trades Award. The award contained the following provision:

61. Subject to the provisions of the Re-establishment and Employment Act 1945, the following conditions shall apply in respect of employment in the industry: - (a) In employing and dismissing employees, an employer bound by the terms of this award shall give preference of employment to members of the Clothing and Allied Trades Union of Australia. (b) Without derogating from the generality or operation of sub-clause (a) hereof - (i) An employer who is bound by this award shall not employ any person who is not a member of the said Union if a person who - (1) works in the class of work in question, and (2) is a member of the said Union is available for and willing to accept such employment. (ii) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraphs (1) and (2) of paragraph (i) hereof is available for and willing to accept the employment in question) employ any person who is not a member of the said Union unless the said employer first notifies the said Union by sending a registered letter or telegram addressed to the nearest office of the said Union in the State in which the employee is to be employed that no such person is available for and willing to accept such employment and the said Union does not within forty-eight hours after the receipt of the said notice notify to the said employer by sending by registered letter or telegram the name and address of a member of the said Union who works in the class of work in question and is available for and willing to accept such employment. (iii) An employer who is bound by this award shall not continue to employ any person who is not a member of the said union if - (1) the said Union sends notice by registered post or telegram to the said employer that such person is not a member of the said Union; and (2) such person does not become a member of the said Union within fourteen days from the receipt by the said employer of the said notice; and (3) a person who - (a) works in the class of work in which the said employee works; and (b) is a member of the said Union is available for and willing to accept such employment. (iv) An employer who is bound by this award shall not (on the ground that no such person as is described in sub-paragraph (3) of paragraph (iii) hereof is available for and willing to accept the employment in question) continue to employ an employee for more than fourteen days after the receipt of the notice referred to in paragraph (iii) hereof unless the said employer first notifies the said Union by registered letter or telegram addressed to the nearest office of the said Union in the State in which the said person is employed that no such person is available and willing as aforesaid and the said Union does not within fourteen days after the receipt of the said notice send notice to the said employer by registered letter or telegram of the name and address of a person described in sub-paragraph (3) of paragraph (iii) hereof who is available for and willing to accept such employment. (c) Any notice sent by registered post or telegram pursuant to any of the above sub-clauses shall be deemed to have been received at the time when it would have been received in the ordinary course of delivery by the Postmaster-General's Department. It was held by the whole Court that a demand for the exclusion from employment of persons not belonging to a given union is not an industrial matter within the definition in s. 4 and, since the only demand in the union log had been a claim for compulsory unionism, and not for preference to unionists, there was no dispute to the settlement of which an award directing preference to unionists under s. 56 (now s. 47) could be appropriate.
    1. (1950) 81 C.L.R. 537.

Apart from what has already been said as to the complete ineffectiveness for all relevant purposes of the inclusion of the claim for compulsory unionism in the log, preference to unionists is different in kind from a monopoly of employment for unionists: see Metal Trades Employers' Association v. Amalgamated Engineering Union [5] ; R. v. Wallis [6] . For this reason the claim for compulsory unionism contained in the log cannot be relied upon to support an award for preference to unionists. He also said [7] : The legal operation of par. (b) (iii) and (iv) is to require an employer to dismiss a non-unionist upon receipt of a statement from the union that there is a unionist who is available and willing to accept "such employment". The award does not purport to provide that a member of a union may be compelled by the union or by a potential employer to allow himself to be nominated for employment by a particular employer, or that he must work for an employer selected by a union officer. It is not suggested that the nominated person is bound to accept the employment or that the employer is bound to employ him. The nominated person may be incompetent or dishonest, but, apart from such considerations, it is clear that the operation of this part of the award does not bring about as a legal result the employment of any person. These provisions operate, as a matter of legal effect, simply to bring about the dismissal of non-unionists and not to secure the employment, preferential or otherwise, of unionists. Such a result cannot be properly described as preference to unionists. Dixon J. said [8] : To support the clause reliance is placed upon s. 56 (1) and (2) of the Commonwealth Conciliation and Arbitration Act 1904-1949. In R. v. Wallis; Ex parte Employers' Association of Wool Selling Brokers this Court decided that s. 56 is the source of the power of conciliation commissioners to make any award or order with respect to a question how far employment is to be available to persons who are not members of an organization. It follows that to be valid a clause dealing with such a matter must conform with the requirements of s. 56. In the present case cl. 61 is attacked as failing to fulfil this condition. But there is a prior question. Before the power given by s. 56 becomes exercisable there must be an industrial dispute of such a kind that a provision under s. 56 in the award is appropriate or relevant to its settlement. I am aware that in Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd. [9] Starke J. expressed the view that s. 40 of the Act of 1904-1921 was a substantive grant of authority to the Arbitration Court in connection with industrial disputes, of which it has cognizance, whether preference has or has not been put in dispute by the parties or claimed in the proceedings before it. But I do not think that this view can be pressed so far as to make it unnecessary that an industrial dispute should exist and that the subject of the dispute should be one to which an award of preference may be related as appropriate, incidental or relevant to its settlement. In other words, behind the exercise of the power conferred now by s. 56, there must be a question at issue in a two-State industrial dispute which would support an award of preference. Now in the present case there was no dispute about preference in terms. A log of claims was delivered by the union containing a demand that no employer (subject to the provisions of any relevant Commonwealth law in force) should employ any person on work covered by the log unless such person were a financial member of the union. To this claim the employers did not accede.

Does such a claim raise an industrial dispute covering preference in employment to the members of the union?

In my opinion it does not and for two reasons. The first is that such a demand is for the exclusion of all but members of the union from employment in the industry and such a demand is not in respect of an "industrial matter" within the definition contained in s. 4 of the Commonwealth Conciliation and Arbitration Act 1904-1949. To fall within that definition the matter must pertain to the relations of employers and employees or else fall within one or other of the paragraphs lettered a to q which follow the general words of the definition. As I read the judgments in R. v. Wallis the Court was of opinion that such a claim pertained, not to the relation of employers and employees, but to the relation of employees to the union, and that it was not covered by the lettered paragraphs.

This demand in the log was therefore not capable of raising a dispute falling within the Act.

In the second place I think that cl. 61 as framed in the award is outside the demand in the log. It is a detailed provision intricate in its plan and involving a variety of situations. It produces a result substantially different from anything the demand could be regarded as contemplating.

McTiernan J. [10] said: The respondent union demanded in effect that the employers should use their economic power over their employees to compel those who were not members of the union to join it. The power to award preference implies the existence of two groups, unionists and non-unionists. The effect of the union's demand, if conceded by the employers, would have been to eliminate the second group from the industry. When the employers had complied with the demand, members of that group would either have been absorbed by the former group or have been expelled from the industry. It is one thing for a union to demand "preference": it is another to demand that all the employees shall qualify for "preference". The latter demand cuts across the principle of preference to unionists. Webb J. said, after referring to R. v. Wallis, that the clause of the award was not directed to ensuring an absolute monopoly of employment to unionists [11] : However, it exceeds what, in my opinion, is preference within the ordinary acceptation of the term. Preference, as I understand it, pre-supposes an employer who needs the services of an employee, and who is able to secure those of a unionist who is not only qualified for the particular task but who is also available to perform it when required, which may be immediately. A clause which, like clause 61, has the effect of making an employer await the union's nomination of a unionist, no matter how urgently the services of an employee may be required, and then to select an unqualified unionist, if the union sees fit to nominate one, and which also has the effect of requiring the employer to dismiss a qualified non-unionist and employ in his place an unqualified unionist nominated by the union, might necessarily lead to the termination of an employer's operations. Such a clause is as objectionable as the clauses held invalid in Wallis' Case; and in any event is, I think, also invalid as going beyond preference as commonly understood. It was not submitted for the respondent union that clause 61 should be read down to any extent. Kitto J. agreed with Latham C.J. and Dixon J. in the conclusion that the commissioner had no power in view of the terms of the dispute to make the award that he had. He went on to deal with the requirements of s. 56 (now s. 47) and concluded that the clause in the award did not comply with that provision because it failed for want of specification of the manner in which preference is to be given. 1. (1950) 81 C.L.R., at p. 546. 2. (1935) 54 C.L.R. 387. 3. (1949) 78 C.L.R. 529. 4. (1950) 81 C.L.R., at pp. 547-548. 5. (1950) 81 C.L.R., at pp. 549-550. 6. (1924) 34 C.L.R. 482, at p. 549. 7. (1950) 81 C.L.R., at p. 552. 8. (1950) 81 C.L.R., at p. 553.

The argument for the respondents was that those cases do not apply to the present circumstances because they are governed by the decision in the Containers' Case [12] . It is necessary therefore to consider what was the situation dealt with in that case and what was the basis of the majority view which upheld that particular award.

In the Containers' Case a dispute was created by the non-acceptance of a log of claims made by employers on certain unions which specified the work to be performed at various premises of named employers by members of the unions to which it was addressed. It sought an award under which the unions would recognize and accept the allocation of work by the employers in accordance with the demarcation set out in the log as between the functions to be performed by the members of the relevant unions. It was argued that it was a matter within par. (p) of the definition of industrial matters, as being one "as to the demarcation of functions of employees or classes of employees, whether as between employers and employees or between members of different organizations" and that such a dispute was a matter "pertaining to the relations of employers and employees" within the meaning of the opening words of s. 4 (1) of the Act. It was further argued that a dispute about demarcation, even if determined by reference to membership of organizations, was not a dispute about preference.

It is thus important to examine the reasoning of the majority judgments in the Containers' Case in order to determine its application in the present case. The terms of the award which were challenged in that case are set out in the judgment of the Chief Justice [13] . They need not be set out again here but the scheme which is there embodied must be noted. Clause 4 listed four container depots located at specified places in Victoria, New South Wales and Western Australia and conducted by two specified employers. One employer was Liner Services Pty. Ltd. which operated one depot in New South Wales. The other was Seatainer Terminals Ltd. which operated the other depot in New South Wales and the depots in Victoria and Western Australia. The award provided that "the following demarcation of work shall be observed in the performance of work by employees of employers parties to the Award". It then set out the names of the four unions involved and under each name it listed various descriptions of work in or in relation to each of the specified container depots. Clause 5 of the award provided that "Each union party to this Award shall recognize and accept the right of the employers parties to this Award to allocate work as between their members and as between the classes of employees which they represent in accordance with the foregoing demarcation and shall accept in relation to employment with the said employers the exclusive right of each of the other unions to represent and protect the industrial interest of employees performing the work allocated to the members of the Union in accordance with such demarcation."

The majority (Barwick C.J., Menzies and Windeyer JJ.) rejected a submission that the dispute was not an "industrial dispute" and did not relate to an "industrial matter" within the meaning of s. 4. Barwick C.J. said that the principal argument was that the award was not an award effecting a demarcation of function as between one workman and another or one class of workman and another class but effected no more than the delimitation of areas of influence or representation of the unions as between themselves. He said [14] :

On the other hand, it must be conceded, as I have already indicated, that the assignment by an employer of specific work to an employee to be done in his employment is a matter which pertains to the relations of employer and employee and directly relates to work to be done. It must also be conceded that a dispute between employer and employee, or between an employer and a registered organization of employees, or between a registered organization of employers and a registered organization of employees as to which employee or which class of employee shall be assigned particular work in an employment can be an industrial dispute within the meaning and operation of the Act. Such a dispute may exist between an employer or employers or a registered organization of employers on the one hand and more than one registered organization of employees on the other, for example, where the work to be assigned is claimed by more than one of such organizations to be proper to be performed by employees following some particular trade or calling. More than one of such organizations may have members of the one trade or calling; or some one or more may not have such members but be claiming that the work in question is work to be performed by employees following another trade or calling of which class of employee they have members. In my opinion, an award which settles any such dispute by a demarcation of the functions of particular employees or of a class or classes of employees in an employment would clearly be valid whilst it effects its demarcation by reference to a class of employees, or by reference to a trade or calling, or by sex or by age or by some other description. The identification of the employee to do the specified work by any of these descriptions would not be a departure from the demarcation of function which was the substantive subject matter, and constituted the substantial operation, of any such award. That conclusion, in my opinion, would not appear to be disputed by the prosecutor. Nor would the prosecutor seem to dispute, and in my opinion it could not successfully dispute, that the employer or registered organization of employers could initiate such a dispute by a suitable log of claims served upon a registered organization or upon several organizations of employees, with respect to the allocation of work amongst its employees or the employees of its members. Whether an employer or a registered organization of employers could thus create a dispute with respect to such of its employees as were not members of any registered organization need not presently be considered for, in my opinion, the log of claims in this matter properly understood seeks only a demarcation of functions as between such of the employees of the respondents as are members of one or more of the respondent organizations of employees. He also said [15] : In my opinion, the log of claims sought a demarcation of function of such of the employees employed or to be employed by the employers' parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served. It sought no agreement as to the allocation of work amongst other employees. It sought the concurrence of the unions on behalf of their members and on their own behalf to the proposed allocation of work as between such employees. That allocation of work according to membership of an organization contains implicitly a reference to the employees' trade or calling. This, it seems to me, must be so because at least some of the respondent organizations would have members for whom the allotted work would obviously be inappropriate. Thus, for example, a reference to members of the prosecutor in the log and the award is in reality, in my opinion, a reference to transport workers who are members of the prosecutor. He then rejected an argument that the overlapping of membership eligibility as between the unions concerned prevented the creation of a dispute as to demarcation of function. He then referred to cl. 5 of the log of claims, and of the award and said that, although standing alone it would not represent a demand in relation to an industrial matter, it was nonetheless ancillary to the demand for an agreement as to the demarcation of function of certain of the employees in the employers' employment. "It is in form a clause which presupposes the demarcation to have been made at least in part according to membership of an organization of employees and that there is overlapping in the membership eligibility of two or more of such organizations. The clause, in my opinion, is in its nature, protective of such a demarcation." 1. (1969) 119 C.L.R., at pp. 539-540. 2. (1969) 119 C.L.R., at pp. 540-541.

Thus the Chief Justice construed the log of claims and the award as seeking "a demarcation of function of such of the employees employed or to be employed by the employers parties to the log of claims as were members of one or more of the registered organizations of employees upon whom the log was served" [16] . Accordingly, questions as to compulsory unionism and exclusion of non-unionists did not arise.

Kitto J. took the view that the log did not relate to an industrial matter as defined in the Act and said that, even if it did, it would be outside the jurisdiction of the Commission by reason of s. 47. Menzies J. concluded that the dispute fell within par. (p) of the definition. He held that the dispute did not relate to preference so as to fall within s. 47 or the limitations flowing from that section, and thus distinguished R. v. Wallis [17] and R. v. Findlay [18] . He regarded cl. 5 as merely providing machinery enabling effect to be given to the award. Windeyer J. held that the dispute was as to an industrial matter as defined. He also held that s. 47 did not preclude the making of the award. He said [19] :

The award does not give members of a union a monopoly of employment in an industry to the exclusion of non-unionists: rather, it distributes different phases and parts of the work in an industry among members of different unions. 1. (1949) 78 C.L.R. 529. 2. (1950) 81 C.L.R. 537. 3. (1969) 119 C.L.R., at p. 556.

Thus the majority of the Court said that the decision in R. v. Wallis had no application to the circumstances. Barwick C.J. said [20] :

As I have already indicated, the log of claims, in my opinion, cannot be read as being or including a demand that only members of one of the named organizations shall be employed to do specified work., and pointed out that the Court in R. v. Wallis dealt exclusively with questions relating to preference and the effect of s. 47 upon the other provisions of the Act. 1. (1969) 119 C.L.R., at p. 546.

Although the present logs likewise do not expressly seek preference, their nature may be contrasted with the logs and award in the Containers' Case [21] . Here each of the logs sought the agreement of the three unions that all work (save certain exceptions) carried out in operations in the Northern Territory for the employer should be performed by members of the MWU and no others, thus excluding all persons members of other unions and all non-unionists. That is something which the majority in the Containers' Case expressly said the award there made did not do.

In my opinion the logs of claims delivered by Peko and ADL were not concerned with demarcation or distribution of work. One of the effects of those demands, if acceded to or made the subject of an award, would be that when the employer engaged new employees he would be bound to engage only members of the MWU. Such a provision effects neither demarcation nor a preference. Moreover on the construction of the log which I regard as correct, a further effect is that the employer could no longer employ such of its present employees as were members of the TWU, the FEDFA or any other union. The employer would therefore be obliged to dismiss such employees, notwithstanding that to do so would be to commit an offence under s. 5 (1) (a) of the Act. I would regard it as contrary to the provisions of the Act for an award to purport to require an employer to commit such an offence, and such an award would in my opinion be beyond the jurisdiction of the Commission. There is nothing in the Containers' Case dealing with this aspect.

The critical effect of the logs is that, on either construction of the reference to members of the TWU and of the FEDFA, it requires employment only of members of the MWU. That leaves no room for employment of other persons in any circumstance, present or future.

Accordingly the present case is not governed by the decision in the Containers' Case and the nature of the alleged dispute must be considered on that basis in relation to the various provisions of the Act.

Counsel for Peko submitted that the log was in effect "an offer by the employer to subject itself to a condition that if the three unions accept the proposed demarcation of functions as between themselves and their respective members, the employer will exclude non-unionists from the area of employment", a position said to lie midway between those dealt with in Metal Trades Employers' Association v. Amalgamated Engineering Union [22] and Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union [23] . This argument, even if otherwise sound, which I very much doubt, must fail because that description does not fit the log, in particular because what it demands is not demarcation.

1. (1935) 54 C.L.R. 387. 2. (1956) 96 C.L.R. 317.

A further argument on the construction of the logs was that when viewed in the light of the surrounding circumstances they were revealed as being concerned only with the members of the three unions and were not in any way concerned with non-unionists. An examination of the background, as well as the recitals to the demands, shows that the problem confronting the employers was the desire of the MWU to retain or to obtain a monopoly for its members. When discussions broke down, the employers made their demands in the terms set out above. I do not consider that the logs are capable of bearing the meaning contended for or that the background can support the contention put forward.

It was argued, but faintly, that these logs of claims might, notwithstanding their terms, give rise to a valid award. This is contrary to both principle and authority. If there is no industrial matter in dispute there is no jurisdiction to make any award. This is clearly established by R. v. Findlay [24] .

It was further argued that R. v. Wallis [25] and R. v. Findlay were distinguishable as being concerned with employees' logs and not employers' logs. No reason was advanced for this distinction and in my opinion there is no such distinction.

The passages which I have quoted above from R. v. Wallis and R. v. Findlay demonstrate that, as a matter of construction, the Act does not authorize the making of an award requiring compulsory unionism because that is not an industrial matter. These logs of claims fall precisely within the language used by all members of the Court in R. v. Wallis andR. v. Findlay in dealing with logs of claims not materially different in their meaning and operation from those delivered by Peko and ADL.

For those reasons I am satisfied that there was here no industrial dispute within the meaning of the Act and that Commissioner Portus and the Commission have no jurisdiction to deal with the alleged dispute.

Counsel for Peko also relied on s. 60 of the Act and contended that the effect of that section when coupled with s. 6 (1) of the Northern Territory Administration Act 1910-1973, as amended, was to make the finding by the Commission that there was an industrial dispute within the meaning of the Act (as modified by the deletion of the words "which extends beyond the limits of any one State") not capable of being challenged in this Court. This argument was said to be supported by an application of s. 15A of the Acts Interpretation Act 1901-1973. In my opinion s. 15A cannot assist this argument. It is true that s. 60 has been treated as not capable of producing the result that this Court's jurisdiction to issue prerogative writs to the Commission is wholly excluded. The use of s. 15A however will not produce a deemed operation which would make a finding by the Commission on the existence of an industrial dispute unchallengeable. Section 6 of the Northern Territory Administration Act 1910-1973 does no more than amend the definition of industrial dispute in so far as the Act applies in the Northern Territory alone. In all other respects the Act applies in the Northern Territory in exactly the same form and manner as that in which it applies throughout the rest of the Commonwealth, with the same tribunals exercising the same and no greater power than they have in relation to industrial disputes within the constitution power conferred by s. 51 (xxxv.) and subject to whatever other constitutional restrictions are generally applicable to the powers of the Commission. As said by Mason J. in Reg. v. Heagney; Ex parte A.C.T. Employers' Federation [26] , in relation to a submission that s. 24 of the Act empowered the Commission to determine conclusively whether an industrial dispute existed:

The submission was entirely misconceived, overlooking as it did the circumstance that the existence or threat of an industrial dispute is a jurisdictional fact within s. 51 (xxxv.) and that a tribunal not exercising the judicial power of the Commonwealth cannot be given power to determine such a fact conclusively. The same is true of the existence of an industrial dispute within the amended definition applicable in the Northern Territory, which is a jurisdictional fact which the Commission as established under the Act has no power to determine conclusively. 1. (1976) 137 C.L.R., at p. 104.

There is a further reason why s. 60 does not assist the contention that the finding of the Commission cannot be the subject of challenge by way of application for a prerogative writ. Sub-section (1) of s. 60 deals with awards and provides that they are to be free from challenge in the manner there set out, including par. (c) which provides that an award "is not subject to prohibition, mandamus or injunction in any court on any account". Sub-section (2) however makes no reference to prerogative writs or injunctions but provides that "a determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question". Not only does the express reference to prerogative writs in sub-s. (1) provide a marked contrast with sub-s. (2) and suggest that sub-s. (2) is not intended to exclude the prerogative writs but the words of sub-s. (2) do not themselves, even in the absence of such a context, suggest an intention to exclude the prerogative writs. The words used in that sub-section are not materially different from those used in the first version of the predecessor to s. 60 (1), namely s. 31 of the Commonwealth Conciliation and Arbitration Act 1904 which provided that "No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever". In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. [27] those words were held not to be intended to exclude challenge by way of prerogative writs. Since that decision many cases have been decided dealing with the effect and proper construction of privative clauses but none of them appear to me to require a different construction to be applied to sub-s. (2) of s. 60 in its present context. In expressing that view I do not overlook the observations made in R. v. Blakeley; Ex parte Association of Architects, Engineers, Surveyors and Draughtsmen of Australia [28] .

1. (1910) 11 C.L.R. 1. 2. (1950) 82 C.L.R. 54.

For both those reasons I am of opinion that no reliance can be placed on s. 60 in order to exclude the jurisdiction of this Court to consider whether the relevant jurisdictional fact, i.e. the existence of a dispute about an "industrial matter" as defined in s. 4 of the Act as affected by s. 6 (1) of the Northern Territory Administration Act 1910-1973.

Accordingly I am of opinion that the rule nisi should be made absolute.