Re Jarman; Ex parte Cook (No_1) [1997] HCA 13

High Court of Australia|1995-10-20|Before: Brennan CJ, Kirby JJ, Moore J

The application was heard by the Full Court on 13 March 1996. The remitter question was isolated by the Court as a preliminary issue. After hearing submissions from the parties, including the Commonwealth intervening in support of the prosecutor, the Court indicated that it would not exercise any remitter power which it may have [50] . I concluded that this Court did have the power to remit the application to the Industrial Court but in the exercise of its discretion the Court should not remit the matter. What follows are my reasons for these conclusions.

Because the Court adopted this course, and because the writ of certiorari was not sought independently of the writ of mandamus, it is not necessary to consider issues appertaining to the power of this Court to grant certiorari in pursuance of its s 75(v) jurisdiction.

The Industrial Act has been renamed the Workplace Relations Act 1996 Cth and has undergone substantial modifications since the current proceedings were initiated. My discussion is limited to the Act as it applied at the relevant time.

Following a series of direction hearings, on 8 May 1995 the prosecutor sought interlocutory orders including, pursuant to s 221(1)(c) of the Industrial Act:

That the current office holders of the State Committee of Management in the Communications, Electricians & Plumbers Union ("the CEPU") remain in office until a final determination has been made in this matter, or until further order of the court.

In the alternative to the above, that the ballot relating to the State Committee of Management in the CEPU be suspended until a final determination has been made in this matter, or until further order of the court.

(The Communications, Electricians & Plumbers Union resulted from an amalgamation of the Union with another organisation after the commencement of the s 219(b) inquiry.)

Moore J dismissed the application for interlocutory orders on the ground that the Industrial Court lacked the jurisdiction to make orders of the type sought [52] . Because the order was made pursuant to an inquiry instituted under s 219, no appeal lay from that decision to the Full Court of the Industrial Court [53] . In an attempt to seek a review of Moore J's decision, the prosecutor applied to this Court, relying upon s 75(v) of the Constitution, for writs of mandamus and certiorari to test the correctness of his Honour's ruling. On 17 October 1995, Gummow J directed that the application be made by notice of motion to the Full Court.

Re Communication Workers' Union (1995) 62 IR 462 2. s 421 of the Industrial Act. Wilcox CJ has expressed concern as to the undesirability of limiting rights of appeal in election inquiries in this fashion: see Re Keely; Ex parte Kingham (1995) 1 IRCR 311 at 341-342129 ALR 412 at 280-281.

The answer to the question whether this Court had the power to remit the issues in these proceedings lies in the relationship between various provisions of the Constitution, the Judiciary Act 1903 Cth and the Industrial Act. It is necessary to set out some of these provisions in detail.

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

With respect to any of the matters mentioned in the last two sections the Parliament may make laws -

(i) Defining the jurisdiction of any federal court other than the High Court;

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

Section 38 of the Judiciary Act is a law made under s 77(ii) of the Constitution. Paragraph (e) of s 38 is particularly relevant to the application, but it is instructive to set the section out in full:

Subject to section 44, the jurisdiction of the High Court shall be exclusive of the jurisdiction of the several Courts of the States in the following matters:

(b) suits between States, or between persons suing or being sued on behalf of different States, or between a State and a person suing or being sued on behalf of another State;

(c) suits by the Commonwealth, or any person suing on behalf of the Commonwealth, against a State, or any person being sued on behalf of a State;

(d) suits by a State, or any person suing on behalf of a State, against the Commonwealth or any person being sued on behalf of the Commonwealth;

(e) matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court.

As is clear from the opening words of s 38, the operation of that section is subject to s 44 of the Judiciary Act. Section 44 regulates the remitter power of this Court and is expressed in the following terms:

(1) Any matter other than a matter to which subsection (2) applies that is at any time pending in the High Court, whether originally commenced in the High Court or not, or any part of such a matter, may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter or in that part of the matter, as the case may be, shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia or any court of a State or Territory.

(2a) Where a matter in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter, or any part of the matter, to the Federal Court of Australia.

(3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.

The remitter power in this case flows from s 44(1) of the Judiciary Act and sub-ss (2) and (3) of s 412 of the Industrial Act

The prosecutor submitted that s 44(2) of the Judiciary Act was the only possible source of this Court's power to remit the application to the Industrial Court. However in my opinion, this argument is mistaken. Section 44(2) does not empower the Court to remit a s 38(e) matter. Although it expressly supports a remittal of proceedings brought in this Court's exclusive jurisdiction pursuant to pars (a), (b), (c) and (d) of s 38, it pointedly omits any reference to par (e) of that section. Moreover, the Federal Court of Australia could not entertain any remitter of the current proceedings under s 44(2). This is made clear by the terms of s 39B of the Judiciary Act, a law made pursuant to s 77(i) of the Constitution. Section 39B, as at the relevant date, relevantly provided:

(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia.

The determination of Moore J, who of course is a "Judge of the Industrial Relations Court of Australia", is clearly not susceptible to any application for prerogative or injunctive relief in the Federal Court.

However, the prosecutor's submission overlooks that s 44(2), while containing the grant of power to remit the matters specified in that sub-section, does not detract from whatever power the federal Parliament has given this Court in s 44(1). The fact that no remitter of a s 38(e) matter is possible under sub-s (2) of s 44 does not mean that the power to remit such a matter is not authorised by sub-s (1). As Toohey J observed in Bowtell v Commonwealth [54] in reference to s 44(2A), which is analogous to s 44(2) for the purpose of assessing the prosecutor's submission that that sub-section is the only possible source of remitter power [55] : "The sub-section is additional to the [sub-section] that [precedes] it; it does not override [it]."

(1989) 63 ALJR 465 at 467; 86 ALR 31 at 33. 2. This analogous nature of s 44(2) and (2A) is implicit in s 44(3).

On its face, the power to remit under s 44(1) applies to any matter pending in the High Court other than a matter to which s 44(2) applies. That is to say, it applies to any matter other than a matter referred to in pars (a), (b), (c) and (d) of s 38. Section 44(1) therefore prima facie applies to a matter referred to in par (e) of s 38 of the Judiciary Act.

However, the real issue is whether, notwithstanding the literal meaning of s 44(1), the sub-section empowers this Court to remit an application for writs of mandamus and certiorari brought in reliance upon s 75(v) of the Constitution to the same court as that in which the judge, against whom the writs are sought, holds office. It is to this issue that I now turn.

Section 412 of the Industrial Act and s 44(1) of the Judiciary Act give this Court the power to remit the application

Section 77 of the Constitution empowers the Commonwealth Parliament to confer jurisdiction on federal courts in respect of the matters listed in ss 75 and 76 of the Constitution. Relevantly, s 77 grants the federal Parliament the power to confer both original and appellate jurisdiction [56] on the Industrial Court in respect of ss 75 and 76 matters. Section 412 of the Industrial Act is in part directed towards proceedings which may be remitted to the Industrial Court pursuant to s 44 of the Judiciary Act. It provides:

(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(e) penalties may be sued for and recovered under this Act; or

(f) prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.

(2) For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946.

(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.

(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament.

Ah Yick v Lehmert (1905) 2 CLR 593 at 603-604 New South Wales v The Commonwealth (1915) 20 CLR 54 at 90

Sub-sections (2) and (3) of s 412 of the Industrial Act are valid laws made pursuant to s 77(i) of the Constitution. Their operation has the effect of enlivening the jurisdiction of the Industrial Court to hear matters remitted to it by this Court pursuant to s 44 of the Judiciary Act provided certain requirements discussed below are met.

The relationship between sub-ss (2) and (3) of s 412 is curious yet clear. The first sub-section is a general provision establishing the jurisdiction of the Industrial Court to hear prerogative writs sought against officers of the Commonwealth holding office under the Industrial Act or the Coal Industry Act 1946 Cth for the purposes of proceedings brought into the Industrial Court pursuant to s 44 of the Judiciary Act. The second sub-section establishes the Industrial Court's "coextensive" [57] jurisdiction to hear matters remitted to it under s 44 and is activated by the act of remitter by this Court. In this sense, it is sub-s (3) which invests jurisdiction in the Industrial Court when there is an exercise by this Court of its s 44 jurisdiction; sub-s (2) simply deems the Industrial Court to have jurisdiction for certain purposes germane to the s 44 jurisdiction.

Johnstone v The Commonwealth (1979) 143 CLR 398 at 408

The question then becomes whether s 44(1) of the Judiciary Act authorises this Court to remit matters which fall within the Court's exclusive s 38(e) jurisdiction to the Industrial Court. In my opinion, it does.

First, as I have explained above, s 412(3) of the Industrial Act invests jurisdiction in the Industrial Court when there is an exercise by this Court of its remitter power under s 44(1) of the Judiciary Act. It follows that, if this Court had remitted the present application, the Industrial Court would have had jurisdiction to determine it.

Second, the Industrial Court has, in accordance with the terms of s 44(1), "jurisdiction with respect to the subject-matter and the parties". The meaning of this phrase was explained by Gibbs J, with whom Murphy and Aickin JJ agreed (Stephen and Jacobs JJ dissenting), in Johnstone v The Commonwealth [58] . In the course of holding that s 44 empowered the Court to remit an action against the Commonwealth in tort to the Supreme Court of any State, Gibbs J stressed that "[t]here is no reason to give s 44 a narrow, restrictive construction" [59] . In accordance with this beneficial construction, his Honour held that the phrase "jurisdiction with respect to the subject-matter and the parties" did not require the court to which the matter was to be remitted to have had jurisdiction if the proceedings had been instituted in that court in the first instance. Rather, using the example of a tort action brought against the Commonwealth, he said that all that was necessary was that the court to which the proceedings were to be remitted should have "jurisdiction in tort and in matters in which the Commonwealth is a defendant" [60] . Murphy J succinctly made a similar point [61] : "The words, "subject-matter", in s 44 should not be construed as meaning "the matter"."

(1979) 143 CLR 398. 2. Johnstone (1979) 143 CLR 398 at 402see also Murphy J (at 407): "[t]he section should be construed beneficially rather than narrowly." 3. Johnstone (1979) 143 CLR 398 at 402 4. Johnstone (1979) 143 CLR 398 at 407

Does the Industrial Court have jurisdiction over the subject matter and the parties in the instant application? In my opinion, a literal reading of sub-ss (2) and (3) of s 412, the operation of which I have explained above, demands an affirmative answer. The prosecutor submitted that such a conclusion was erroneous because, contrary to the requirement in s 412(2), Moore J was not "an officer of the Commonwealth holding office under [the Industrial] Act". It was argued that his Honour held office under the Constitution and not under the Industrial Act. But this submission ignored the express terms of the Act. Section 361(3) makes it plain that "[t]he [Industrial] Court consists of a Chief Justice and as many other Judges as hold office under [the Industrial] Act " (emphasis added). It is also beyond question that Moore J is an officer of the Commonwealth [62] . The prosecutor's submission must be rejected.

R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 385 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652

The Commonwealth did not dispute that a literal reading of s 412 requires the conclusion that this Court does have the power to remit a s 38(e) application to the Industrial Court [63] . However, it contended that the "practical operation" of s 412 requires that the operation of that section in terms of a s 38(e) remitter be limited to officers of the Commonwealth holding office under the Industrial Act other than judges of the Industrial Court. The primary reason advanced for giving s 412 this limited application was the supervisory or non-reflexive nature of prerogative writs and the repugnance of a court directing such a remedy to itself or any member or members of the same court.

This is also the conclusion that was reached by Wilcox CJ in Re Keely (1995) 1 IRCR 311 at 316129 ALR 255 at 257-258.

The supervisory or non-reflexive character of prerogative writs has been commented upon in both academic writings [64] and judicial decisions [65] . In R v Justices of the Central Criminal Court; Ex parte London County Council [66] Lord Hewart CJ rejected the notion that, by issuing a prerogative writ to itself, a superior court could quash an act which it had done. He commented [67] :

[T]he process involves the rather ludicrous position that it calls upon judges to show cause to themselves why they should not be directed to remove, so that it may be quashed, something which they themselves have determined. In the same application, Avory J said [68] : At first sight one would say that it cannot be correct to assert that any Court can issue a writ of certiorari directed to itself to quash an order made by itself. 1. See The Laws of Australia, Title 2.6, par 106. 2. eg, R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 Marriage of Bizannes (1977) 3 Fam LR 11,555; Bird v Free (1994) 126 ALR 475 3. [1925] 2 KB 43. 4. Justices of the Central Criminal Court [1925] 2 KB 43 at 58-59. 5. Justices of the Central Criminal Court [1925] 2 KB 43 at 60.

Similar sentiments have been expressed in Australian decisions. In R v Murray and Cormie; Ex parte The Commonwealth [69] , Isaacs J said that "the inherent nature of prohibition or mandamus requires that the officer [who the writ is sought against] must be someone not a member of the tribunal to which the application is made, or superior to it". In Marriage of Bizannes [70] , the Full Court of the Family Court of Australia (Evatt CJ, Asche and Lusink JJ), having set out s 75(v) of the Constitution and s 34 of the Family Law Act 1975 Cth, which relevantly provided that the Family Court "has power, in relation to matters in which it has jurisdiction, to direct the issue of, writs of such kinds, as the court thinks appropriate", stated [71] :

Even if there were power under the Constitution to do so it is difficult to read s 34 as giving to judges of the Family Court power to issue writs of prohibition against any other judge of that court. The clearest expression would be needed before deciding that such a power was created, since prohibition is normally issued by a superior court to an inferior court. 1. (1916) 22 CLR 437 at 453. 2. (1977) 3 Fam LR 11,555. 3. Marriage of Bizannes (1977) 3 Fam LR 11,555 at 11,562.

But in the instant application, the applicability of these authorities has to be measured in light of the statutory framework within which the application is brought. Those decisions that I have cited above which tend to support the so-called non-reflexive nature of prerogative writs were determined in the absence of legislative provisions commensurate to s 412 of the Industrial Act. That section is, using the terminology of Marriage of Bizannes [72] , a "clear expression" that, provided the application for prerogative relief is remitted by this Court pursuant to s 44 of the Judiciary Act, the Industrial Court has jurisdiction [73] .

(1977) 3 Fam LR 11,555 at 11,562. 2. These observations are also apposite to Drummond J's discussion of similar issues pertinent to the Federal Court of Australia: see Bird (1994) 126 ALR 475 at 478-480

It is also worth noting the comments of Isaacs J in the Tramways Case [No 1] [74] as to the application of English pre-Judicature common law prerogative relief jurisprudence to Australian federal courts. In Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) [75] , Toohey and Gummow JJ and myself summarised Isaacs J's thinking as follows:

The tenor of what his Honour said is that notions derived from the position of the pre-Judicature common law courts of Queen's Bench, Common Pleas and Exchequer, as courts of the widest jurisdiction with respect to subject matter and identity of parties and therefore superior courts, have no ready application in Australia to federal courts. These owe their existence and their jurisdiction to the Constitution and to laws made by the Parliament. Accordingly, decisions, which refer to the non-reflexive nature of prerogative writs and which invariably focus on the notion that such relief can only be directed at "inferior" courts or tribunals [76] , must be read with caution when the unique nature of Australia's federal judicature, as created by the Constitution and the laws of the Commonwealth Parliament, is understood [77] . 1. (1914) 18 CLR 54 at 75. cf R v Federal Court of Australia; Ex parte WA National Football League (1979) 143 CLR 190 at 201 2. (1995) 184 CLR 620 at 652-653. 3. See Murray and Cormie (1916) 22 CLR 437 at 453; Justices of the Central Criminal Court [1925] 2 KB 43 at 58-59, 60; Bizannes (1977) 3 FamLR 11,555 at 11,562. 4. R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 384-385, per Deane J; McJannet (1995) 184 CLR 620 at 652-653

Moreover, an understanding of the true nature of this Court's s 44 remitter power demonstrates that concerns as to the repugnance of a member or members of one court granting prerogative relief against a member or members of that same court may be more illusory than real. If this Court had remitted the application to the Industrial Court, the matter would have gone to the Industrial Court only after this Court had exercised its original jurisdiction invoked pursuant to s 75(v) of the Constitution. The jurisdiction which the Industrial Court would have exercised would have been "coextensive with the jurisdiction of this Court" [78] . The nature of this jurisdiction, whereby the Industrial Court would "[stand] in the jurisdictional shoes of this Court" [79] , is quite different from the Industrial Court's original or appellate jurisdiction [80] .

Johnstone (1979) 143 CLR 398 at 408 2. McCauley v Hamilton Island Enterprises Pty Ltd (1986) 61 ALJR 235 at 23869 ALR 270 at 275. 3. In this sense, the heading "Original jurisdiction" for Subdiv A of Div 5 of Pt XIV of the Industrial Act is misleading, at least in so far as it relates to the Industrial Court's s 412(3) jurisdiction when enlivened by a remitter by this Court pursuant to s 44 of the Judiciary Act.

It remains only to deal briefly with one further submission that was put by the Commonwealth as to why this Court does not have the power to remit the application. The Commonwealth submitted that the terms of s 415(2)(d) of the Industrial Act implied that the Industrial Court has no jurisdiction to issue prerogative writs directed to its own members. That section provides that the jurisdiction of the Industrial Court is to be exercised by a Full Court in relation to matters in which a writ of mandamus or prohibition is sought against a Presidential member of the Australian Industrial Relations Commission (the Commission) or officers of the Commonwealth at least one of whom is a Presidential member. The Commonwealth contended that, if s 412 was intended to mean that the Industrial Court has jurisdiction to issue prerogative writs directed to its own members, it would be likely that s 415(2)(d) would refer also to matters in which such writs are sought against a member of that Court. It also contended that, in the absence of such a reference in s 415(2)(b), the issue of such writs would result in anomalous situations. A single member of the Industrial Court, for example, would be able to issue writs directed to a judge of the Industrial Court but only a Full Court would be able to issue a writ directed to a Presidential member of the Commission.

This submission reads too much into the terms of s 415 which merely regulates the business of the Industrial Court. It also ignores the fact that the section regulates the Industrial Court's original jurisdiction which, as I have explained, is not identical to the jurisdiction that the Industrial Court exercises when this Court remits an application pursuant to s 44. Further, any supposed anomaly of the type posited by the Commonwealth could be ameliorated by a suitable direction that the remitted application be heard by a Full Court of the Industrial Court. There is certainly no legislative provision that expressly or by implication prohibits such a direction. Indeed, s 44(1) of the Judiciary Act expresses the ability of the court to which the matter is remitted to control those proceedings to be "subject to any directions of the High Court".

Accordingly, pursuant to s 44 of the Judiciary Act, this Court had power to remit an application for writs of certiorari and mandamus to the Industrial Court where that application was brought in reliance upon s 75(v) of the Constitution and was directed against a decision of a single judge of the Industrial Court.

In the present case, however, the parties were before the Court ready to argue the merits of the case and had to argue the jurisdictional question in this Court before a decision on remitter could be made. That being so, I thought that questions of cost and convenience made it proper for the Court in the exercise of its discretion to refuse to remit the matter.

The prosecutor seeks the issue of a writ of certiorari directed to a judge (Moore J) of the Industrial Relations Court of Australia (the IRC) and others removing into this Court to be quashed a decision of that judge delivered 1 June 1995. His Honour dismissed a notice of motion by the prosecutor, filed 8 May 1995, seeking interim orders under s 221(1) of the Industrial Relations Act 1988 (the Act) [81] . Section 221(1) provides for the making of various interim orders where there has been instituted an inquiry in relation to an election for offices in an organisation registered under the Act or a branch thereof. An application under s 218, for such an inquiry, had been lodged on 27 July 1994. Moore J dismissed the application under s 221(1) on the ground that, in particular, par (c) thereof did not confer upon the IRC authority to grant the relief sought. In this Court, the prosecutor also seeks the issue of a writ of mandamus directing Moore J to hear and determine the application by the prosecutor pursuant to s 221(1)(c) of the Act.

The short title of the Act was changed to the Workplace Relations Act 1996 Cth by Sch 19 to the Workplace Relations and Other Legislation Amendment Act 1996 Cth (the 1996 Act). Schedule 16 provides for the transfer to the Federal Court of Australia of the jurisdiction of the IRC and of certain pending proceedings in the IRC. Save where expressly indicated, references in the judgment are made to the legislation in its earlier form.

On 17 October 1995 I directed that the application by the prosecutor for mandamus and certiorari, which included an application for an extension of time under O 55, r 30 of the High Court Rules, be made by notice of motion to the Full Court.

In addition to the issue of the proper construction of par (c) of s 221(1) of the Act, there was a threshold question. It was whether this Court might remit the application to the IRC. That question in turn involved issues of construction of other provisions of the Act and of the Judiciary Act 1903 Cth.

On 13 March 1996, after hearing submissions, the Court announced that it would not exercise the power to remit, if any, which it might have. The Court was then reconstituted to hear the remainder of the application on its merits.

What follows are my reasons for the conclusion that the Court lacked any power to remit the application to the IRC.

It first should be observed that the occasion for litigation in this Court is provided by the denial by the Act of any right of appeal to a Full Court of the IRC from the decision of Moore J in which he construed par (c) of s 221(1) in a manner adversely to the interests of the prosecutor. Section 420 confers appellate jurisdiction upon the IRC to hear and determine appeals from judgments of that Court constituted by a single judge, with the proviso that an appeal does not lie from an interlocutory judgment without a grant of leave to appeal. However, the effect of s 421 is that, notwithstanding s 420, an appeal does not lie to a Full Court from a judgment of a single judge in an election inquiry [82] . Further, s 432(1) states that an appeal does not lie to the High Court from a judgment of a single judge of the IRC under the Act.

Schedule 16 to the 1996 Act provides for the repeal of s 421 and the substitution of a new s 421. This new section provides that an appeal from a judgment by a judge of the Federal Court in an election inquiry does not lie to the Full Court of that Court except in accordance with leave granted by that Court. The provision with respect to leave is a significant change in the statutory scheme.

Section 423(5) empowers the IRC constituted by a single judge to state a case or reserve a question concerning a matter for consideration of a Full Court but only if an appeal would lie to a Full Court from a judgment of the judge with respect to that matter. However, s 416(1) provides that at any stage of a proceeding in a matter arising under the Act a single judge may refer a question of law for the opinion of a Full Court and may, of the judge's own motion or on the application of a party, refer the matter to a Full Court to be heard and determined. That procedure was not adopted in respect of the application for interim relief under s 221(1). As I have indicated, his Honour proceeded to determine the questions of law which arose and dismissed the application.

If the course had been taken under s 416(1) of referring questions of law for the opinion of a Full Court, there would have been no appeal from the judgment of the Full Court to the High Court. That state of affairs is brought about by s 432(3).

It may be noted that, anomalously, where there is an avenue of appeal to this Court from a Full Court of the IRC, s 432(2) conditions it upon the grant by this Court not of special leave but of leave. The category of appeals by leave, rather than special leave, was removed from the Judiciary Act in 1976 when s 6 of the Judiciary Amendment Act 1976 Cth (the 1976 Act) repealed s 35 as it then stood. This had required special leave in some cases and merely leave in others. The distinction had been analysed in Ex parte Bucknell [83] .

The application to this Court for mandamus is made in reliance upon s 75(v) of the Constitution and that for certiorari upon s 31 of the Judiciary Act or the accrued jurisdiction attracted by the s 75(v) matter. There does not arise the jurisdictional difficulty that may be encountered where certiorari is sought independently of a claim for other relief for which provision is made in s 75(v) [84] .

See R v Cook; Ex parte Twigg (1980) 147 CLR 15 at 25-26, 33-34; Re Coldham; Ex parte Brideson (1989) 166 CLR 338 at 348-349 Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), p 51.

I turn to consider the provisions upon which turn the question of remitter. These show, and this was accepted in the submissions made in this case, that the only possible candidate for remitter is the IRC itself. No question can arise of remitter to a State court or to the Federal Court of Australia (the Federal Court). I turn to consider why this is so. Reference is required to s 39B and ss 38, 39 and 44 of the Judiciary Act.

Section 39B of the Judiciary Act is addressed to the Federal Court and is a law made pursuant to s 77(i) of the Constitution. It defines, within the terms of s 77(i), the jurisdiction of a federal court other than the High Court with respect to a matter mentioned in s 75(v) of the Constitution. Section 39B confers s 75(v) jurisdiction, but pars (a) and (aa) of sub-s (2) are presently significant qualifications. It states:

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or

(b) a Judge or Judges of the Family Court of Australia.

The explicit exclusion from the conferral of jurisdiction by s 39B of the Judiciary Act of judges of the IRC was achieved by the insertion in s 39B(2) of par (aa) by Sch 4 to the Industrial Relations Reform Act 1993 Cth (the 1993 Act). Section 56 of the 1993 Act amended the Act by the addition of a new Pt XIV (ss 360-487) which established the IRC.

It will be observed that the exclusions in s 39B(2) do not specify the judges of the Federal Court themselves. However, in Bird v Free [85] , a judge of the Federal Court held that, notwithstanding the limited categories explicitly excluded by s 39B(2), one judge of the Federal Court had no jurisdiction under s 39B(1) to issue a writ of mandamus or prohibition or an injunction against another judge of that Court acting as such. The reasoning to that conclusion appears in the following passage from the judgment of Drummond J [86] :

It was unnecessary for the Parliament to also expressly exclude from the jurisdiction of the Federal Court authority to issue prerogative writs and injunctions against judges of that same court. By s 19(1) [of] the Federal Court of Australia Act 1976 Cth the Federal Court has such original jurisdiction as is vested in it by laws made by the Commonwealth Parliament. This includes the jurisdiction vested in the court by s 39B [of] the Judiciary Act.

The Federal Court of Australia consists of the judges of the court: s 5(3) of the Federal Court of Australia Act. The original jurisdiction of the court is exercised by a single judge: s 20(1). But when a single judge hears an application that invokes the jurisdiction of the Federal Court, he or she is not exercising an authority vested in him or her as an individual, but rather the authority which is vested in that judge and all the other judges of the court, as a group. To say that a judge of the Federal Court can prohibit or enjoin another judge of the court acting as such would mean that the authority vested only in all the judges as a group can be treated, as occasion arises, as an authority vested in all save one of the judges and exercisable against that one judge, by the rest. Section 39B of the Judiciary Act does not permit of such a segmented or divisible exercise of the authority it confers. It permits only the exercise of the authority vested by the statute in the court, ie, in all the judges who make up the court. It matters not that the authority vested only in the group is by force of s 20(1) of the Federal Court of Australia Act exercisable by a single member of the group: the single judge is still exercising the authority that is vested not in him or her, but in that judge together with all of the other judges of the court.

(1994) 126 ALR 475. 2. Bird v Free (1994) 126 ALR 475 at 478-479

Section 38(e) of the Judiciary Act renders, subject to s 44, exclusive of the jurisdiction of the several courts of the States, the jurisdiction of the High Court in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court. This is a law made under s 77(ii) of the Constitution. It defines, within the meaning of that provision, the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States.

Section 38 of the Judiciary Act, in addition to the matters identified in par (e), renders the jurisdiction of the High Court exclusive of the several courts of the States in the matters identified in pars (a), (b), (c) and (d). These deal with such matters as those arising directly under any treaty, suits between States, suits by the Commonwealth against a State, and suits by a State against the Commonwealth. The general investment of State courts with federal jurisdiction in civil matters which is effected by s 39 operates, as s 39(1) provides, only in respect of that jurisdiction of the High Court which is not rendered exclusive by s 38. However, where a matter referred to in one of pars (a), (b), (c) or (d) of s 38 is at any time pending in the High Court, the High Court may, upon application of a party or of the High Court's own motion, remit the matter, or part of it, to the Federal Court or to any court of a State or Territory. Section 44(2) of the Judiciary Act so provides.

As will be apparent, there is no such authority conferred by s 44(2) for remitter of matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court, as provided in par (e) of s 38. Nor does the remitter power conferred by s 44(2A) apply to a matter pending in the High Court in which a writ of mandamus or prohibition is sought as specified in par (e) of s 38. The power of remitter in s 44(2A) is one to remit the matter or any part of it to the Federal Court where the matter pending in this Court is one in which the Commonwealth or a person suing or being sued on behalf of the Commonwealth is a party.

Section 44 should now be set out in full. It states [87] :

(3) Where the High Court remits a matter, or any part of a matter, under subsection (2) or (2A) to a court:

(a) that court has jurisdiction in the matter, or in that part of the matter, as the case may be; and

(b) subject to any directions of the High Court, further proceedings in the matter, or in that part of the matter, as the case may be, shall be as directed by that court.

Previously, s 45(1) of the Judiciary Act had provided: "Any matter which is at any time pending in the High Court, whether originally commenced in the High Court or not, may be remitted for trial to any Court of a State which has federal jurisdiction with regard to the subject-matter and the parties." Section 45 was repealed by s 9 of the 1976 Act which substituted a new Pt VII, including the first version of the present s 44.

It should be observed that where, pursuant to s 44(2) or (2A), the High Court remits a matter or part of a matter, s 44(3) states that the receiving court "has jurisdiction in the matter, or in that part of the matter". Section 44(3) thus operates, as appropriate to the case, as a law under s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, or as a law under s 77(iii) of the Constitution investing any court of a State with federal jurisdiction. It is unnecessary for present purposes to explore the difficult subject of the precise source of the constitutional authority for the Parliament to invest the courts of a Territory with federal jurisdiction.

What is presently significant is that s 44(3) operates to confer jurisdiction upon a federal court or to invest a State court with federal jurisdiction, as the case may be, upon fulfilment of a condition in the particular case, namely, the making by this Court of an order of remitter under s 44(2) or (2A). In McCauley v Hamilton Island Enterprises Pty Ltd [88] , Mason J described the proposed remitter to the Federal Court as one in which that Court "relevantly stands in the jurisdictional shoes of this Court by virtue of a remitter under s 44(2A) of the Judiciary Act ". That may be an apt description, in practical terms, of what transpires. But it should not be taken to obscure the necessary analysis, conformably with s 77 of the Constitution, of the operation of s 44(3) as the legislative source of the conferral or investment of jurisdiction. The term "remitter" is to be understood as comprising the distinct steps and processes I have identified.

(1986) 61 ALJR 235 at 238; 69 ALR 270 at 275-276.

It is true that the Judiciary Act proceeds on the footing that, as a first step, the original jurisdiction of this Court has been regularly invoked whether directly pursuant to s 75 of the Constitution or pursuant to a law made by the Parliament under s 76 thereof. It is true also that the usual consequence of the remitter is that this Court chooses not to exercise further that original jurisdiction where the whole of the matter has been remitted. In due course the appellate jurisdiction of this Court under s 73 of the Constitution may be invoked, but that will be as a final step in the sequence following the investment or conferral of original jurisdiction in the federal or State court, by operation of s 44(3) of the Judiciary Act.

The Judiciary Act proceeds on the footing that this Court, in these cases, may desist from the further exercise of its original jurisdiction in the matter where there is another court with a relevant grant of federal jurisdiction [89] .

See R v Langdon; Ex parte Langdon (1953) 88 CLR 158 at 161, 163; Barwick, The Australian Judicial System: The Proposed New Federal Superior Court, Federal Law Review, vol 1 (1964) 1, at pp 9-15; cf Cowen and Zines, Federal Jurisdiction in Australia, 2nd ed (1978), pp 75-81.

The Supreme Court of the United States has developed a comparable doctrine whereby it refuses leave to commence suits in its original jurisdiction under Art III of the United States Constitution, particularly suits in which a State is a party. The Supreme Court may refuse leave if there is an alternative forum "where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had" and to ensure "that our increasing duties with the appellate docket will not suffer" [90] . This doctrine has developed notwithstanding that Harlan J identified as the "time-honored maxim of the Anglo-American common-law tradition that a court possessed of jurisdiction generally must exercise it" [91] .

Illinois v City of Milwaukee (1972) 406 US 91 at 93-94See also Ohio v Wyandotte Chemicals Corp (1971) 401 US 493 Wright, Law of Federal Courts, 5th ed (1994), pp 809-811; Chemerinsky, Federal Jurisdiction, 2nd ed (1994), pp 582-584; McKusick, Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961, Maine Law Review, vol 45 (1993) 185, at pp 201-202. The Supreme Court exercises a discretion even where, as in actions between States, its Art III jurisdiction is exclusive: Wyoming v Oklahoma (1992) 117 LawEd 2d 1 at 19-20, 35-36. 2. Ohio v Wyandotte Chemicals Corp (1971) 401 US 493 at 496-497

Further, as Aickin J pointed out in Johnstone v The Commonwealth [92] , under the remitter system jurisdiction is not conferred by the High Court itself upon the courts to which the remitter is made. The jurisdiction of those courts is conferred or invested by the Parliament, the conferral or investment operating in those instances where the High Court is authorised by the Parliament to remit and does in fact so remit.

However, it follows from what has been said that neither s 39B nor s 44(2) or (2A) provides authority for remitter of the present matter pending in this Court to any court other than the IRC.

Reliance for remitter to the IRC is placed upon s 44(1). This operates in respect of matters other than a matter to which s 44(2) applies. Section 44(3) does not confer or invest jurisdiction in the court receiving the remitter. Rather, s 44(1) requires that the federal, State or Territory court otherwise have "jurisdiction with respect to the subject-matter and the parties". It was submitted before this Court that the IRC is such a court. Reliance for that proposition is placed upon s 412 of the Act. This states:

(1) The Court has jurisdiction with respect to matters arising under this Act in relation to which:

(a) applications may be made to it under this Act; or

(b) actions may be brought in it under this Act; or

(e) penalties may be sued for and recovered under this Act; or

(f) prosecutions may be instituted for offences against this Act, other than a prosecution under section 407 or 485.

(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.

(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament.

Section 412(2) renders the IRC a candidate for remitter under s 44(1), thereby enlivening the power of this Court under that sub-section. Section 412(3) may be compared with s 44(3) of the Judiciary Act, to which I have referred above as having no operation in respect of s 44(1). The operation of s 412(3) is as a law made by the Parliament, within the meaning of s 77(i) of the Constitution defining the jurisdiction of a federal court other than the High Court, namely the IRC.

The question then is whether, upon their proper construction, these provisions have sufficient strength to achieve the result that the IRC has conferred upon it a jurisdiction, activated by remitter by this Court, in a matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth, being a judge or judges themselves constituting the IRC.

I have referred to the establishment by Bird v Free [93] , as regards the Federal Court, of the proposition that the conferral upon that Court of original jurisdiction by s 39B of the Judiciary Act does not extend so far as to authorise, as an intra-mural dispute, a claim to relief of the nature specified in s 75(v) against a judge of the Federal Court. In the present case, those parties resisting the remitter to the IRC pray in aid, by way of analogy, the reasoning in that case.

It should also be noted that early in the history of this Court it was established that the jurisdiction conferred on this Court by s 75(v) of the Constitution did not include such relief directed to the High Court itself. This was because the inherent nature of prohibition and mandamus requires that the officer in question not be a member of the tribunal to which the application for such relief is made [94] .

Federated Engine Drivers' and Firemen's Association of Australasia v Colonial Sugar Refining Co Ltd (1916) 22 CLR 103 at 117 R v Murray and Cormie; Ex parte The Commonwealth (1916) 22 CLR 437 at 452-453See also Re Brennan; Ex parte Muldowney (1993) 67 ALJR 837116 ALR 619.

It has been pointed out on several occasions that the nature of this Court's jurisdiction under s 75(v) of the Constitution to issue prohibition or mandamus to a superior federal court, especially the purpose of the exercise of that jurisdiction, distinguishes it from the supervisory jurisdiction over courts of limited jurisdiction which traditionally was exercised in England chiefly by the Court of King's Bench [95] . However, in the present case it is largely traditional concepts which provide the starting point for an assessment of the particular provisions of the Act which are relied upon to support a construction favouring conferral upon the IRC of jurisdiction, enlivened by remitter from this Court, of a supervisory nature over a judge or judges of the IRC itself.

The Tramways Case [No 1] (1914) 18 CLR 54 at 75; R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 217-218 R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 384-385 Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652-653

One begins with the construction and organisation of the IRC. It is a federal court created by the Parliament by the 1993 Act in exercise of the power conferred by s 71 of the Constitution. Section 56 of the 1993 Act inserted in the Act Pt XIV (ss 360-487), headed " Industrial Relations Court of Australia ". Section 361(2) of the Act creates the IRC as a court of law and equity and "a superior court of record". The IRC "consists of a Chief Justice and as many other Judges as hold office under this Act" (s 361(3)). For the purposes of exercising its jurisdiction, the IRC may be constituted by a single judge or as a Full Court (s 370(1)). Subject to a requirement for exercise of original jurisdiction by a Full Court in certain cases (s 415(2)), the original jurisdiction of the IRC may be exercised by a single judge (s 415(1)). With certain exceptions, the appellate jurisdiction of the IRC is to be exercised by a Full Court (s 423(1)).

It may be noted that the jurisdiction of the IRC in matters in which a writ of mandamus or prohibition or an injunction is sought against the President, a Vice President, a Senior Deputy President or a Deputy President of the Australian Industrial Relations Commission (the Commission) or against officers of the Commonwealth at least one of whom is such a person, is to be exercised by a Full Court (s 415(2)(d)). There is no such express statement dealing with the exercise of jurisdiction in matters in which a writ of mandamus or prohibition or an injunction is sought against a judge of the IRC itself. Further, the reference in s 412(2) to the operation of s 44 of the Judiciary Act in respect of matters in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth "holding office under this Act" may readily be seen as applying to members of the Commission. They are appointed by the Governor-General by commission under s 9 of the Act.

The establishment of the IRC as a superior court of record would, without further legislative provision as to the exercise of its original jurisdiction, have brought with it the common law tradition that after the trial by jury a superior court of record sat in banc in the next term for the entry of judgment; this was on the footing that the authority to enter judgment was vested in the judges of the court as a body [96] .

Musgrove v McDonald (1905) 3 CLR 132 at 147-148 Kotsis v Kotsis (1970) 122 CLR 69 at 91Judgment was entered on the roll or record of the court unless within the first four days of the next term a motion had been made to the court in banc for arrest of judgment for intrinsic cause apparent on the face of the record, for entry of judgment non obstante veredicto, or for a new trial before another jury: Blackstone, Commentaries on the Laws of England, 1st ed (1765-1769), vol 3, pp 389-395; see also Bennet v Holbech (1670) 2 WmsSaund 309 at 319, n (h) [85 ER 1108 at 1118-1120]; R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 at 372-373 Gasperini v Center for Humanities Inc (1996) 135 LawEd 2d 659 at 691. The court in banc also dealt with special cases and points reserved at the trial: Shepherd v Felt & Textiles of Australia Ltd (1931) 45 CLR 359 at 379 Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd (1995) 184 CLR 453 at 483-484The right of appeal, as now understood, was unknown in the common law courts and is the creature of s 73 of the Constitution or of statute: Davern v Messel (1984) 155 CLR 21 at 47

Hence the repugnance, in a technical sense, involved in any proposition that the prerogative writs might issue out of a superior court of record as an act of self-supervision. Such a process would involve "the rather ludicrous position" that the court call upon its judges to show cause themselves why they should not be directed to remove, so that it might be quashed, their own determination as to the presence of jurisdiction or lack of it [97] .

R v Justices of the Central Criminal Court; Ex parte London County Council [1925] 2 KB 43 at 58-59

To this it might be answered that such an absurdity would be less apparent where, as in the present case, the original jurisdiction of the IRC had been exercised by a single judge thereof and what was sought was prerogative relief, on remitter, from a Full Court of the IRC. To this there are two answers.

The first commences with the proposition that to grant prerogative relief of the nature in issue here would be an exercise of original rather than appellate jurisdiction. One looks, therefore, to some provision in the Act which specifies the exercise of original jurisdiction by a Full Court of the IRC. As I have indicated, such provision is found in par (d) of s 415(2) but only as regards matters in which a writ of mandamus or prohibition is sought against certain members of the Commission. Otherwise, s 415(1) merely provides that, subject to s 415(2) and s 423, the jurisdiction of the IRC "may be exercised by a single Judge". Section 423 is not relevant for present purposes. It empowers (s 423(2)) a single judge to hear certain applications in relation to appeals. Section 423(5) provides for a single judge to state a case or reserve a question for consideration of a Full Court concerning a matter if an appeal would lie to a Full Court from a judgment of the judge with respect to that matter. That provision does not answer the basic objection that, other than in s 415(2)(d), there is no express dedication to a Full Court of any jurisdiction of the IRC in matters in which a writ of mandamus or prohibition or an injunction is sought.

The second answer is that, even if in respect of an application, on remitter, for prerogative relief against a single judge of the IRC the Act provided an imperative mechanism for the exercise of original jurisdiction by a Full Court, there would remain cases where the activity, supervision of which was sought by prerogative relief, was that of a Full Court. An example might arise in exercise of the original jurisdiction with which a Full Court is endowed by s 415(2). There is scarcely to be contemplated, unless the conclusion is inescapable, a construction of the legislation whereby, on remitter from this Court, one Full Court of the IRC directs prohibition against another Full Court of the IRC. The incongruity would be present whether or not each Full Court was composed in whole or part of the same members.

These considerations perhaps are best seen as reflections of a basic concern with the construction of the legislation which would permit remitter in the present case. This is that, in the present case, a judge of the Court determined that, on the proper construction of the relevant provision of the Act (s 221(1)(c)), the Court had no jurisdiction to make the interim order sought by application before it. His Honour accordingly ordered that the application be dismissed. It does not appear whether the order has been entered. The application was for interim relief. Nevertheless, there has been a finding, relevantly, as to the absence of jurisdiction and a consequential order was made. That order was made in exercise of the jurisdiction of the Court by a single judge as provided in s 415(1). It stands as a determination by the IRC of lack of jurisdiction. The IRC "consists" of its judges (s 361(3)). There is a denial by s 421 of an appeal to a Full Court and a denial by s 432(1) of a direct appeal to this Court from the judgment of the single judge. There is a patent incongruity, rising to repugnancy, in so construing the legislation as to empower the IRC itself to deny its own determination as to lack of jurisdiction.

The legislation does not require any such conclusion. As I have indicated, the crucial provisions, in conjunction with s 44(1) of the Judiciary Act, are those in sub-ss (2) and (3) of s 412 of the Act. A sensible application of the reference in s 412(2) to those officers of the Commonwealth holding office under the Act is readily apparent. This is supported by the particular provision then made in s 415(2) for the exercise of the jurisdiction of the Court, by a Full Court, in relation to matters in which a writ of mandamus or prohibition or an injunction is sought against certain members of the Commission.

For the above reasons, I concluded that there was no power of remitter of the application then before the Full Court of this Court.

The motion before the Court, returned by an order of Gummow J, calls upon the respondents to show cause why writs of mandamus and certiorari should not be issued. The prosecutor is Mr Quentin Cook. The respondents are Moore J of the Industrial Relations Court of Australia (the Industrial Relations Court), Mr Alan Jarman, the Communication Workers' Union of Australia (the union) and the Australian Electoral Commission. Moore J and the Commission have submitted. The substantive contest has been between the prosecutor, the union and Mr Jarman.

The Court isolated and first heard argument on the question of whether there was power to remit the matter to the Industrial Relations Court. Remittal was a course which Dawson J had adopted, apparently without contrary argument, in Re Keely; Ex parte Kingham [98] . In that case, a Full Court of the Industrial Relations Court issued writs of prohibition, mandamus and certiorari to Keely J, a member of that Court [99] . However, both before Gummow J and before us, the prosecutor (supported, before the Full Court supported by the Commonwealth, intervening) contested the power of this Court to remit the matter.

Unreported; High Court of Australia; 13 December 1994. The proceedings in the Industrial Relations Court of Australia are reported as Re Keely; Ex parte Kingham (1995) 1 IRCR 311129 ALR 255. 2. Re Keely; Ex parte Kingham (1995) 1 IRCR 311129 ALR 255.

At the end of argument, the Court indicated that it would not exercise any power to remit that it might have. The Court was then reconstituted to hear the merits of the motion. That determination is separately dealt with [100] . These reasons deal with the power of remittal. In my view there was no such power.

Re Jarman; Ex parte Cook [No 2] (1996) 70 ALJR 550136 ALR 233.

The Industrial Relations Court declines jurisdiction

It is unnecessary to say a great deal about the facts. At the time of the hearing before this Court Moore J was engaged in an inquiry into an election concerning various offices in the union. In July 1994 Mr Noel Battese, who was heard as an intervener in these proceedings, applied for the inquiry, alleging electoral irregularities. Moore J found that there was a reasonable ground for the application [101] . The inquiry was protracted.

On 8 May 1995, the prosecutor sought orders that certain office-holders in the union remain in office until a final determination had been made on the inquiry or until further order. In the alternative, he sought an order that the ballot relating to the State Committee of Management in the union be suspended until a final determination had been made in the inquiry. The given reason for the application was to ensure that certain part-time officer-holders continue in office pending the outcome of the inquiry.

By reference to the Industrial Relations Act 1988 (the Act) [102] , s 221(1), Moore J held that the only power of the Court was to make orders preserving or altering the status quo in respect of the election which was the subject of the inquiry. He therefore held that he had no power to make the orders sought by the prosecutor and dismissed the application [103] .

The Industrial Relations Act 1988 Cth was renamed the Workplace Relations Act 1996 Cth by the Workplace Relations and Other Legislation Amendment Act 1996 Cth, Sch 19. References to "the Act" in these reasons are to the Act as it previously applied. 2. Re Communication Workers' Union (1995) 62 IR 462 at 465-466

The prosecutor argued that this opinion evidenced an erroneous understanding of the jurisdiction of the Industrial Relations Court. No appeal to a Full Court of that Court lay from Moore J's order. Section 421 of the Act excluded such an appeal as did its predecessor in the Conciliation and Arbitration Act 1904 Cth [104] . The revision of the Act since these proceedings were heard has altered the statutory scheme in a way referred to in the reasons of other members of this Court [105] . I will deal with the legislation as it was at the time of the Court's decision.

Section 118B(1)(a). The desirability of a facility of appeal was noted in Re Keely (1995) 1 IRCR 311 at 341-342129 ALR 255 at 280-281, per Wilcox CJ; cf Ince Bros & Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464 2. See now Workplace Relations Act 1996 Cth, s 421. By the Workplace Relations and Other Legislation Amendment Act 1996 Cth, Sch 16, the jurisdiction previously conferred upon the Industrial Relations Court is (save for exceptions immaterial to the present proceedings) returned to the Federal Court of Australia.

Although in disposing of the substance of the motion, the Court subsequently concluded that Moore J did not err and that relief should be denied, the procedural questions concerning remittal were considered by the Court on the hypothesis that the prosecutor could establish an erroneous refusal to exercise jurisdiction which the law conferred on Moore J. Upon that hypothesis, was this Court empowered to remit the prosecutor's claim for relief to the Industrial Relations Court of Australia? If so, why should it not have done so in this case?

The prosecutor invoked s 75(v) of the Constitution which provides, relevantly:

(v) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction. By s 77 of the Constitution it is provided: With respect to any of the matters mentioned in the last two sections the Parliament may make laws -

(i) Defining the jurisdiction of any federal court other than the High Court;

(ii) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States;

(iii) Investing any court of a State with federal jurisdiction.

In apparent reliance upon s 77 of the Constitution, the Judiciary Act 1903 Cth provides, in Pt VI, for "Exclusive and Invested Jurisdiction". Section 38 provides for matters in which the jurisdiction of the High Court is to be exclusive. Those matters include, in pars (a)-(d), certain of the matters specified in s 75 of the Constitution. In par (e) the section refers to: "matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth or a federal court." This conferral of exclusive jurisdiction is expressed by the opening words of s 38 to be "subject to section 44". It is that section which is chiefly in question in these proceedings. It provides, relevantly, for remittal of matters by the High Court to other courts:

(1) Any matter other than a matter to which sub-section (2) applies that is at any time pending in the High Court may, upon the application of a party or of the High Court's own motion, be remitted by the High Court to any federal court, court of a State or court of a Territory that has jurisdiction with respect to the subject-matter and the parties, and, subject to any directions of the High Court, further proceedings in the matter shall be as directed by the court to which it is remitted.

(2) Where a matter referred to in paragraph 38(a), (b), (c) or (d) is at any time pending in the High Court, the High Court may, upon the application of a party or of the High Court's own motion, remit the matter to the Federal Court of Australia or any court of a State or Territory.

(3) Where the High Court remits a matter under sub-section (2) to a court:

(a) that court has jurisdiction in the matter ; and

(b) subject to any directions of the High Court, further proceedings in the matter, shall be as directed by that court.

Various other sections of the Judiciary Act, as it stood at the relevant time, may be noted [106] . Only one need be mentioned. It concerns the original jurisdiction of the Federal Court of Australia:

7B(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in subsection (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding an office under the Industrial Relations Act 1988 or the Coal Industry Act 1946; or

(aa) without limiting paragraph (a) of this subsection, a Judge or Judges of the Industrial Relations Court of Australia; or

Several provisions of the Act, as it stood at the relevant time, should also be noted. Part XIV provides for the Industrial Relations Court. The Court is created by s 361 of that Act. So far as its composition is concerned, it is enacted:

(3) The Court consists of a Chief Justice and as many other judges as hold office under this Act.

Section 412 is a general provision relating to the Court's jurisdiction. It contains the following subsections:

(3) The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903.

(4) The Court has such other jurisdiction as is vested in it by this Act or other laws made by the Parliament.

The respondents' argument that this Court had the power to remit a matter to the Industrial Relations Court was simple. It has long been held that judges of federal courts (and thus of the Industrial Relations Court) are, for the purposes of s 75(v) of the Constitution, "officers of the Commonwealth" [107] . The same words, when appearing in s 412(2) of the Act, should be given the same meaning. This was especially so because of the reference in that sub-section to s 44 of the Judiciary Act and the obvious intention to affirm the plenary operation of the remittal power under the Judiciary Act. The practical reasons for conferring such a power on a court below the High Court were obvious. It had been recognised by the Parliament [108] . It had been assumed in Re Keely [109] that the power existed. It had been exercised there appropriately and beneficially. By reason of s 412(2), the Industrial Relations Court had, within the language of s 44(1) of the Judiciary Act, "jurisdiction with respect to the subject matter and the parties". Therefore, this Court had the power to remit the matter to the Industrial Relations Court. By s 44 it also had the power to give "directions". It should therefore give a direction that the matter remitted should be heard by a Full Court of the Industrial Relations Court, just as it had done in Keely . In this way there would be no risk that embarrassment would arise within that Court. Effectively, the High Court would ensure that a Full Court of that Court, rather than the High Court itself, would, in the first instance, review the correctness of Moore J's determination as to that Court's jurisdiction and his powers. 1. R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 193, 203, 207-208, 215; Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Q) (1995) 184 CLR 620 at 652 2. Johnstone v The Commonwealth (1979) 143 CLR 398 at 402 3. (1995) 1 IRCR 311; 129 ALR 255.

In support of their arguments, the respondents pointed to the following considerations:

The power of remittal is designed to facilitate the course of litigation. It should not be construed restrictively [110] .

The power exists to save this Court from being overburdened and to conserve the scarce time of this Court to matters appropriate to the jurisdiction of the supreme constitutional and appellate court of the nation [111] .

The power also exists to ensure that, in discharging its functions, the High Court will now ordinarily have the advantage of an opinion of another court [112] .

In the case of a court of specialised jurisdiction, there may be particular reasons, in the scheme of the legislation, as to why the Parliament would provide that remedies by way of appeal and judicial review should first be exhausted within the specialised jurisdiction before the jurisdiction of this Court is invoked [113] .

This purpose would more readily be inferred in the area of industrial relations because of the high desirability of the speedy resolution of disputes in that area, given their potential to cause unrest, disturbance and public inconvenience [114] .

State Bank of NSW v Commonwealth Savings Bank (1984) 154 CLR 579 at 583-584 2. Johnstone v The Commonwealth (1980) 143 CLR 398 at 407cf State Bank of NSW v Commonwealth Savings Bank (1984) 154 CLR 579 at 583 3. Re Sutton; Ex parte Victoria (1995) 69 ALJR 563See also Deane J dissenting in R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 223 4. R v Ross-Jones; Ex parte Green (1984) 156 CLR 185 at 223-224 5. Ince Bros & Cambridge Manufacturing Co Pty Ltd v Federated Clothing and Allied Trades Union (1924) 34 CLR 457 at 464See also Re Griffin; Ex parte Professional Radio and Electronics Institute (Aust) (1988) 167 CLR 37 at 40

The foregoing arguments are persuasive. They are clearly relevant to the approach which should be taken in construing the legislation. However, in the end, whatever beneficial construction is placed on that legislation, it does not, in my view, sustain a power in this Court to remit the proceedings to the Industrial Relations Court.

The considerations which lead me to the conclusion that this Court does not have the power of remittal are as follows:

No express power of remittal of proceedings properly brought within s 75(v) of the Constitution is conferred by the Constitution itself. In argument, I raised a question as to whether such a power should be implied because of the scope of the jurisdiction conferred on this Court by the Constitution and the potential need for the Court to protect itself against burdens of a jurisdiction which could impede the proper discharge of its functions. The argument that the Parliament has already relieved this Court, to some extent, of such burdens [115] does not touch the existence of such an implied power in the Court itself. However, no party sought to rely upon any such implication. There is a suggestion that the power provided in the Judiciary Act is an exhaustive statement of the High Court's power to remit matters to other courts [116] . Without deciding the point, I am content to assume that the power to remit, if it exists, must be found, in this case, in the combined operation of ss 75(v) and 77(i) of the Constitution and s 44 of the Judiciary Act read with any relevant provisions of the Act.

Doubts have been expressed as to whether s 77 affords to the Parliament the power to enact a provision such as s 44 of the Judiciary Act [117] . It is unnecessary in these proceedings to explore that question. None of the parties raised it. The procedures necessary for the resolution of such a question were not followed. The prosecutor, who would have had reason to raise any constitutional objection, disclaimed the point. Remittal, including in respect of the constitutional writs, has been ordered in the past. Clearly, it is envisaged, by the conferral of concurrent jurisdiction upon the Federal Court of Australia and the Industrial Relations Court, that they would exercise, in the defined instances, jurisdiction similar to that provided to this Court by s 75(v) of the Constitution [118] . Such jurisdiction was conferred on those Courts by the Parliament. It was not conferred by any action of this Court [119] . This Court is not compelled to remit any of its constitutional jurisdiction, including that under s 75(v), to any court. It is simply permitted to do so in the cases provided for, if it so decides [120] . This Court has said that the Parliament may, by appropriate legislation, limit the cases in which the remedies appearing in s 75(v) of the Constitution are available to the High Court [121] . Those remedies cannot be removed entirely. But this is not what s 44 of the Judiciary Act purports to do. It therefore seems safe to assume that the Parliament may validly enact a power of remittal. Plainly, it is highly desirable that the Court should enjoy such a power.

The power invoked in this case must be derived ultimately from s 44 of the Judiciary Act, construed beneficially. In finding the meaning of the section, the Court must apply the usual rules for the construction of legislation, deriving the statutory purpose from the language used by the Parliament, read in its context. The matter pending in the High Court includes the prosecutor's claim to a writ of certiorari. This is not one of the writs expressly mentioned in s 75(v) of the Constitution. Questions have arisen in the past as to whether that writ is available out of this Court [122] . If it were not, a purported remittal of that claim to another court would arguably be beyond power. However, the better opinion appears to be that the writ of certiorari may issue where it is necessary to make effective one of the constitutional writs provided for by s 75(v) [123] . A writ of certiorari may not be available if it is the only relief sought in this Court [124] . In the present case, that controversy and another related to the scope of the writ of prohibition [125] can be put to one side. The prosecutor sought a writ of mandamus which is certainly one of those permitted by the Constitution. His claim for a writ of certiorari was purely ancillary. I am prepared to assume that, once proceedings are remitted to another court under s 44 of the Judiciary Act, that court enjoys a jurisdiction "coextensive with" that of this Court [126] . That court then stands in the jurisdictional shoes, as it has been put, of this Court [127] . But the question remains whether, in this case, the power to remit may be spelt out of s 44 of the Judiciary Act?

At a glance

Court

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Judgment (220 paragraphs)

Cases Cited (48)