Canberra, 1988, October 7; 1989, February 7. 7:2:1989

WILSON, DEANE and GAUDRON JJ. This matter arises out of an application for the registration of the Teachers' Association of Australia ("TAA") as an organization of employees pursuant to s.132 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). Membership of TAA is available to teachers employed in government and non-government schools throughout Australia. In September 1986, when the application for registration under the Act was heard, TAA had approximately 1,000 members, most of whom were employed in Victoria.

2. At the time of application for registration (3 November 1983) there was no registered organization of employees, membership of which was generally available to teachers. Nor was there any then pending application for registration of an association representing the industrial interests of teachers. However, two such applications were lodged shortly thereafter. On 7 February 1984, application was made for the registration of the Independent Teachers Federation ("ITF") whose membership is, in general terms, restricted to teachers employed in non-government schools. On 13 February 1984, application was made for the registration of the Australian Teachers' Union ("ATU") whose membership is, again in general terms, restricted to teachers in government schools.

3. The provisions relating to registration are to be found in Part VIII of the Act and in Part V of the Conciliation and Arbitration Regulations ("the Regulations"). The Act, in s.132(1)(b) and (c), defines the associations that may be registered as organizations of employees and provides that any such association "may, on compliance with the prescribed conditions, be registered in the manner prescribed as an organization". Section 132(2) provides, perhaps unnecessarily, that "(t)he conditions to be complied with by associations so applying for registration ... shall be as prescribed." The prescribed conditions are elaborated in reg.115 which in sub-reg.(1) states:

association be "voluntary and bona fide" (par.(a)), that it "shall be an association for furthering or protecting the interests of its members" (par.(b)), and that it not be formed, organized, supported, maintained or conducted for the purpose of opposing, injuring or prejudicing the interests of the members whose interests it purports to represent (par.(c)).

4. The power to register an organization is limited by s.142 which provides:

"The Registrar shall, unless in all the

circumstances he thinks it undesirable so to do,

refuse to register any association as an

organization if an organization, to which the

members of the association might conveniently

belong, has already been registered."

5. Regulations 116 to 126 prescribe the procedure for

registration. Regulation 117 requires that applications for registration "be dealt with, as far as practicable, in the order in which they are received." Regulation 119 relevantly provides, in sub-regs(1) and (2):

"(1) An organization or person may, within

thirty-five days after the advertisement of a

notice referred to in the last preceding

regulation, lodge with the Registrar a notice of

objection ... to the registration of the

association.

(2) The grounds of objection shall be set out in

the notice and may, without limiting the grounds

upon which an objection may be made, include one or

more of the following grounds:-

(a) that the association is not an

association capable of registration under

the Act;

(b) that a prescribed condition for

registration has not been complied with

by the association; or

(c) that an organization to which the members

of the association might conveniently

belong has already been registered."

Regulations 123 and 124 confer a right upon the applicant and the objectors (if any) to be heard. Regulation 123(2) provides that "(o)n the hearing, the Registrar shall hear the parties if they are present and desire to be heard, and, subject to the Act and these Regulations, shall decide the matter."

6. Objections were lodged to the registration of TAA, including by persons representing the interests of ITF and ATU. Objections were also lodged to the registration of ITF and ATU. The Registrar conducted separate hearings of the applications and objections as they related to each association, but the hearings were held more or less over the same period of time. On 2 October 1986, the Registrar, having concluded the hearing relating to the registration of TAA, announced that he would not refuse registration, but declined to specify whether he would allow registration nationally or confine it within geographical limits. On 22 October 1986 and on 5 November 1986, the Registrar announced, at the conclusion of the hearings relating to ITF and ATU respectively, that he would not refuse registration of ITF and would grant registration of ATU. On 17 December the Registrar handed down his decision in relation to all three associations.

7. Several objectors to the registration of TAA and ITF sought, pursuant to s.88F of the Act, leave to appeal from that part of the Registrar's decision allowing the registration of TAA and ITF. Those applications for leave to appeal were heard, as if appeals, by a Full Bench of the Conciliation and Arbitration Commission ("the Commission").

8. A preliminary point was taken in relation to the applications concerning the registration of TAA. That point was that, s.142 of the Act having no relevant operation at the time of application for registration of TAA, registration could not be refused if TAA was capable of registration (in the sense that it was an association of the type defined in s.132(1)(b) or (c) of the Act) and it had complied with the prescribed conditions specified in reg.115. That point was argued in terms of reg.119, it being contended that, notwithstanding the words "without limiting the grounds upon which an objection may be made" in reg.119(2), the only grounds available to be taken by an objector were those specified in pars (a), (b) and (c) of that sub-regulation, those grounds stating the only qualifications imposed by the Act and Regulations upon an association's right to become registered.

9. The Commission held that objections could be taken and registration refused on grounds other than those specified in pars (a), (b) and (c) of reg.119(2), provided that the grounds were not extraneous to the purposes of the Act. The Commission also found that the Registrar had erred in arriving at a decision that he would not refuse to register TAA before he had completed the hearings relating to the registration of ITF and ATU. Pursuant to the power conferred by s.88F(4) of the Act, the Commission proceeded to determine for itself whether TAA and ITF should be registered as organizations of employees under the Act. The Commission held, subject to some minor alterations of ITF's eligibility rule, that ITF should be registered but that the Registrar's decision to allow registration of TAA should be quashed.

10. The Commission's decision, so far as it related to TAA, was substantially based on the view that registration of TAA would create the potential for competition between it and ITF and ATU. It was also considered relevant that there would be difficulties in "the furtherance of the industrial interests of non-government and government teachers inter se" (per Coldham J. and Smith C.) and that "the small and geographically concentrated membership of TAA (would render) it significantly less capable than the ATU and the ITF of representing teachers industrially" (per Hancock D.P.).

11. The history of industrial regulation in this country has shown the desirability of ensuring that industrial representation is structured in the interests of employees and the industry in which they are engaged, both for the purpose of avoiding demarcation disputes and for the purpose of ensuring effective industrial representation. The decision reached by the Commission was designed to secure those ends. The question which now arises for determination is whether and, if so, to what extent the Act and the Regulations permit the Registrar and the Commission, when exercising the power conferred by s.88F(4) of the Act, to refuse to register an association by reference to those considerations. That question arises on the return of an order nisi for certiorari directed to the first, second and third respondents (they having constituted a Full Bench of the Commission for the hearing and determination of the various applications for leave to appeal) and for mandamus directed to the fourth respondent (the Registrar) commanding registration of TAA. The grounds relied upon and presently in issue (ancillary questions having been determined against the prosecutor at the conclusion of the hearing) are:

"1. The first, second and third Respondents should

have decided that the provisions of the

Conciliation and Arbitration Act 1904 ("the

Act") require that where an association meets

the requirements of section 132(1) of the Act,

and complies with the prescribed conditions

under the Act and under the Conciliation and

Arbitration Regulations, it is entitled as of

right to be registered as an organization

subject only to section 142 of the Act.

2. The first, second and third Respondents erred

in law in reaching the conclusion that the

provisions of Regulation 119(2) were not

inconsistent with section 132 of the Act or

with any other section of the Act.

3. In deciding whether to register an

organisation under the Act, having heard

objectors against an application for

registration and having given the Applicants

an opportunity of being heard in support of

it, the Industrial Registrar's duty is

confined to satisfying himself that the

prescribed conditions have been complied with

and that the requirements of section 142 of

the Act have been met."

12. Ground 2 may be disposed of shortly. It takes as its premise the proposition that the words "without limiting the grounds upon which an objection may be made" in reg.119(2) extend the grounds of objection beyond those otherwise allowed by the Act and Regulations. The words in question are a well-understood formula employed, when providing examples, to avoid any limitation which might otherwise be implied, for example, by application of the principle of construction embodied in the maxim expressio unius est exclusio alterius. As such, the words in reg.119(2) allow an objector to take a ground of objection available under the Act or Regulations, notwithstanding that it is not expressly permitted by the sub-regulation. If the grounds of objection are limited by the Act or by the Regulations the formula leaves those limits undisturbed. The use of the formula thus creates no inconsistency between reg.119(2) and the Act.

13. Regulation 119(2) gives expression, in pars (a), (b) and (c), to the only grounds which the Act (in ss.132 and 142) and the Regulations (in reg.115) expressly recognize as constituting impediments to the registration of an association. It was argued on behalf of those who appeared to oppose the order nisi being made absolute (they being persons who sought leave to appeal to the Commission from the Registrar's decision allowing registration of TAA) that "the prescribed conditions" referred to in s.132 include the condition of obtaining the approval of the Registrar. That approval, it is said, is not to be granted or withheld solely by reference to the matters as to which the Registrar must be satisfied before granting registration.

14. There are observations in Metropolitan Coal Co. of Sydney Ltd. v. Australian Coal and Shale Employees' Federation [1917] HCA 64; (1917) 24 CLR 85 ("the Coal Case") to the effect that, subject to a consideration of the matters now covered by s.142 of the Act, an association (not being a deregistered organization) is absolutely entitled to registration if it satisfies the requirements for registration as presently specified in s.132 and reg.115. However, that case was decided when the available grounds of objection were expressly confined to those now contained in reg.119(2)(a), (b) and (c): see the Coal Case, at pp101-102. Now that the grounds of objection are not expressly confined, it is argued, the discretion of the Registrar to grant or withhold approval is not relevantly distinguishable from that considered in R. v. Industrial Registrar; Ex parte Sulphide Corporation Ltd. [1918] HCA 80; (1918) 25 CLR 9 ("the Sulphide Case").

15. The provisions considered in the Sulphide Case bore certain similarities to those presently under consideration. Under the Act, as it then stood, it was provided by s.58A that:

"An organization may, in the prescribed manner, and

on compliance with the prescribed conditions,

change its name or change the constitution of the

organization including the description of the

industry in connexion with which it is registered,

and the Registrar shall thereupon record the

change in the register and upon the certificate of

registration."

By the Conciliation and Arbitration Regulations 1913 ("the 1913 Regulations") provision was made for the lodging of objections to an application by an organization to change its name or constitution. Regulation 17A(7) of the 1913 Regulations, introduced by amendment to those Regulations in 1915, provided, in relation to an application to change an organization's constitution, that:

"The Registrar shall fix a day for hearing the

application, and shall give notice thereof to the

applicants and the objectors. On the hearing the

Registrar shall hear the parties or their officers

if they are present and desire to be heard, and

shall decide the matter."

The object of reg.17A was stated in the joint judgment of Gavan Duffy and Powers JJ. (at p 27) as being "to interpose the discretion of the Registrar between the desire of the organization to change its constitution and the ministerial act of recording the desired change." In the opinion of their Honours, and in the opinion of Rich J. (at p 28), there was no limit to the objections that might be taken, and the duty of the Registrar, having considered the objec tions, was to determine whether, in his opinion, it was desirable that the change be made.

16. A legislative direction to decide does not, as a matter of ordinary statutory construction, import a discretion to give effect to that which, having regard to the scope and purposes of the legislation, is in the opinion of the decision-maker desirable. A discretion of that nature will be implied only if the context (including the subject matter to be decided) so necessitates as, for example, where the context provides no positive indication of the considerations by reference to which a decision is to be made. See Water Conservation and Irrigation Commission (N.S.W.) v. Browning [1947] HCA 21; (1947) 74 CLR 492, per Dixon J. at pp 504-505; Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty. Ltd. [1979] HCA 62; (1979) 144 CLR 45, at pp 49 and 50; Murphyores Incorporated Pty. Ltd. v. The Commonwealth (1976) 136 CLR 1, at pp 12-14 and 24.

17. Neither the Act, as it stood at the time of the decision in the Sulphide Case, nor the 1913 Regulations gave any positive indication as to the conditions upon which a change of constitution could be effected, the nature of the objections that might be taken, or the considerations to be taken into account by the Registrar in determining whether to allow the change. The present context is very different. Sections 132 and 142 and reg.115 identify the conditions necessary for registration. Regulation 119 identifies available grounds of objection, albeit that it does not exclude any ground of objection otherwise available under the Act or Regulations. The power to decide conferred upon the Registrar by reg.123 is expressly made "subject to the Act and these Regulations". The context does not permit, and the express subjection of the decision-making power to the Act and Regulations makes it impossible for reg.123 to be treated as the source of, a general discretion to do that which, in the opinion of the Registrar, is industrially desirable. If there is a general discretion allowed to the Registrar it must be found elsewhere.

18. The only other possible source of a general discretion to refuse registration is s.132(1) which posits that an association "may ... be registered ... as an organization". In its ordinary usage the word "may" is permissive or facultative. So it is in s.132. But s.132 does not refer (except indirectly) to what the Registrar may do. It refers to what an association may become viz. a registered organization. In that context s.132 must be seen as conferring, subject to s.142 of the Act, an entitlement to registration, if an association elects to become registered, upon the Registrar being satisfied that the requirements of the section (including the conditions prescribed by reg.115) have been met. That entitlement is also subject to the appellate power conferred on the Commission by s.88F of the Act.

19. It follows that the Commission erred in holding that registration could be refused by reference to considerations not expressly directed by the Act and Regulations. And, in so far as the Commission quashed the decision of the Registrar by reference to such considerations it did so by reference to impermissible considerations.

20. It does not follow merely from the identification of error on the part of the Commission that the order nisi should be made absolute. It is convenient to first consider the question of mandamus directed to the Registrar. The application for mandamus commanding the Registrar to register TAA assumes that entitlement to registration is automatic. It is not. That entitlement depends upon the Registrar being satisfied that the requirements for registration have been met. And, as mentioned above, that entitlement is qualified by the existence of the appellate power of the Commission. Even if the Commission's decision be quashed the applications for leave to appeal from the Registrar's decision allowing registration of TAA will remain extant. Those applications (if allowed) entitle the Commission to substitute in place of the decision of the Registrar its own decision that the requirements for registration have or have not been met: s.88F(4). If that decision be in the affirmative, the Commission will then need to direct its attention to the questions posed by s.142 of the Act. There is thus no basis for the grant of mandamus directed to the Registrar.

21. Different considerations arise in relation to certiorari. The jurisdiction of this Court to grant certiorari, other than as an ancillary remedy in proceedings otherwise within the original jurisdiction of the Court, is not free from doubt. See Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at pp 648 and 655; Reg. v. Cook; Ex parte Twigg [1980] HCA 36; (1980) 147 CLR 15, at pp 25-26 and pp 32-33; Reg. v. Bowen; Ex parte Federated Clerks Union [1984] HCA 30; (1984) 154 CLR 207, at p 211. To overcome this difficulty the prosecutor, during the course of argument, sought the issue of mandamus directed to the first, second and third respondents in the event of it being determined that the Commission had erred in holding that registration could be refused on grounds other than those allowed by ss.132 and 142 and reg.115, and identified as grounds of objection in reg.119(2)(a), (b) and (c). This course was not opposed by those who appeared in opposition to the order nisi being made absolute.

22. An error of construction will not of itself attract the grant of mandamus. It is otherwise if the error results in a constructive failure to exercise jurisdiction: Wade v. Burns [1966] HCA 35; (1966) 115 CLR 537, at pp 562 and 568-569; Reg. v. Toohey; Ex parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170, at pp 268-269. It is thus necessary to examine more closely the error made by the Commission.

23. The error of construction made by the Commission resulted in its having regard to a number of matters which were assumed in argument to be foreign to those directed by the Act and the Regulations. That assumption may not be well founded. The prescribed conditions necessitate some consideration of the nature of an applicant association. For example, prescribed condition (c) in reg.115(1) has long been understood to preclude the registration of an association of the type described in the Sulphide Case (at p 25) as "'an employers' union' - a union provided by employers to defeat the employees' union". Prescribed condition (b) requires a consideration of the wider issue of whether the association "shall be an association for furthering or protecting the interests of its members". That may well justify a consideration of the number and composition of its membership in the light of established patterns of industrial regulation. If prescribed condition (b) looks to the future it may well allow a consideration of the likely future relationship of the association with other organizations who will be representing the industrial interests of the class of employees eligible for membership of the applicant association. However, the consideration directed by prescribed condition (b) is essentially different from the consideration chiefly relied upon by the Commission to refuse registration of TAA viz. the desirability of preventing potential competition between it and ITF and ATU. The latter consideration is not one by reference to which registration may be refused.

24. Because the Act and the Regulations confer an entitlement to registration, qualified in the manner indicated, the Commission's task in exercising the power conferred by s.88F(4) of the Act was to determine whether the requirements for registration of TAA had been met. The Commission's wrong construction of the Act and the Regulations led it to believe that it had the quite different task of deciding whether in the circumstances it was desirable to allow the registration of TAA. In the result the Commission not only misunderstood the nature of its task, but it failed to perform the task which the Act and Regulations required. This amounted to a constructive failure to exercise jurisdiction. See R. v. Connell; Ex parte The Hetton Bellbird Collieries Ltd. [1944] HCA 42; (1944) 69 CLR 407, at p 432; Ex parte Hebburn Ltd. (1947) 47 SR(NSW) 416, at p 420.

25. Mandamus should issue to the first, second and third respondents commanding the hearing and determination in accordance with law of the applications for leave to appeal from the decision of the Registrar allowing the registration of TAA. As ancillary to the grant of mandamus the order nisi for certiorari should be made absolute. The order nisi for mandamus directed to the Registrar should be discharged.

Order that a writ of mandamus issue to the Honourable Mr Justice Peter Abernethy Coldham, Mr Deputy President Keith Jackson Hancock and Mr Commissioner Gregory Smith constituting the Australian Conciliation and Arbitration Commission directing them to proceed to deal in accordance with law with the applications for leave to appeal from the decision of the Industrial Registrar in matter number R 222 of 1983 allowing the registration of the Teachers' Association of Australia as an organization of employees under the Conciliation and Arbitration Act 1904 (Cth).

Order nisi for a writ of mandamus directed to the Industrial Registrar discharged.