Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31

1. The ATAEA was originally registered under the name "Australian Federated Stage Employees' Association" but it is convenient to refer to it as the ATAEA throughout. 2. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 3. It appears that the ATAUE has now amalgamated with the Australian Workers' Union of Employees, Queensland (the AWUEQ), but it is convenient to refer to the ATAUE as if it were still in existence.

Attached to the application for registration of the ATAUE was a list of members of the Queensland branch of the ATAEA. The rules lodged with the application were the printed rules of the ATAEA with one handwritten alteration relating to the contributions payable by Queensland members. The rules were divided into "Federal Rules" and "State Rules", provision being made for a branch in each State. Under the rules, no new rules were to be made nor were any of the rules of a branch to be altered except by the Federal Council or Committee of Management.

Also attached to the application for registration of the ATAUE was a copy of a "Resolution passed in accordance with rules of the Q'land Br of the Australian Theatrical & Amusement Employees Association by a majority of the members present at a general meeting of the branch". The resolution was "that the Q'land Branch of the Australian Theatrical & Amusement Employees Association register under the Q'land Arbitration Act of 1916".

Until about 1979 the Queensland branch of the ATAEA and the ATAUE were administered as if they were one and the same entity. Appearances were made in the Conciliation and Arbitration Commission and in the Queensland Industrial Commission to procure and vary awards made by those tribunals to which the ATAEA and ATAUE were parties. No separate accounts were kept and, with one exception, when the rules of the ATAEA were amended, identical amendments were lodged with the Queensland industrial registrar as amendments to the rules of the ATAUE. The one exception was an amendment to a rule governing eligibility for membership which the Queensland industrial registrar refused to accept.

However, when in 1978 the ATAEA adopted an almost completely new set of rules, and perhaps prompted by that event, there appear to have been discussions between the Queensland industrial registrar and the secretary of the ATAUE in the course of which the industrial registrar advised that the ATAUE required a separate set of rules "which do not refer in any way to the Federal body". In 1979 an application was made to the industrial registrar for the registration of a new set of rules for the ATAUE. It does not appear that the new rules were adopted by the Federal Council or Committee of Management of the ATAEA. Nevertheless, the new rules were certified on 20 November 1979. Thereafter, the affairs of the Queensland branch of the ATAEA and the affairs of the ATAUE were conducted separately and separate accounts and financial records were kept.

Applications for membership of the Queensland branch of the ATAEA and of the ATAUE were then treated separately. As a result, by 1992 the Queensland branch of the ATAEA had a financial membership of 148 persons and the ATAUE had a financial membership of approximately 480 persons. There were ten persons who were members of both the Queensland branch of the ATAEA and the ATAUE, six of whom were members of the executive of both the Queensland branch of the ATAEA and of the ATAUE.

On 21 February 1991, an application was filed in the Queensland Industrial Relations Commission for approval of an amalgamation between the ATAUE and the Australian Workers' Union of Employees, Queensland (the AWUEQ). The submission of the application to ballot was approved.

The ATAEA, having resolved to take steps to amalgamate with the Australian Journalists' Association and Actors' Equity, opposed the proposed amalgamation of the ATAUE and the AWUEQ and directed the officers of the ATAUE "being the Queensland branch of this organisation" to "take all steps to discontinue the purported amalgamation with the state registered AWU". The officers of the ATAUE did not comply with the direction.

The amalgamation day fixed under s 253Q(2) of the Industrial Relations Act 1988 Cth for the amalgamation of the ATAEA, the Australian Journalists' Association and Actors' Equity was 18 May 1992. On that day the amalgamation took effect and the amalgamating organisations became de-registered, their members becoming members of the amalgamated organisation, namely, the Alliance [3] . Section 253R provides:

(1) On the amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.

(2) For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day.

On 3 June 1992 the Federal Management Committee of the Alliance directed certain officers of "the Queensland Branch of the former Australian Theatrical and Amusement Association (registered in the Queensland system of industrial regulation as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees)" to transfer the property of the ATAUE to the Alliance and to discontinue the proceedings in Queensland for its amalgamation with the AWUEQ.

Save for handing over some documents and other property which had admittedly belonged to the ATAEA, the officers of the ATAUE did not comply with the direction given by the Federal Management Committee of the Alliance. The Alliance and two individual applicants then sought relief of various kinds in the Federal Court, including a declaration that the Queensland branch of the ATAEA was one and the same as the ATAUE, a declaration that assets held in the name of the ATAUE were assets of the Alliance, a declaration that the amalgamation of the ATAUE and the AWUEQ was void and of no effect and a direction that the assets of the ATAUE be transferred to the Alliance. Relief was also sought against certain officers of the ATAUE.

The jurisdiction of the Federal Court was said to be based upon ss 253X and 253ZC of the Commonwealth Industrial Relations Act. Section 253X provides:

(1) The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Subdivision in relation to the amalgamation, are fully effective.

(2) The Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

(1) Where any difficulty arises in relation to the application of this Subdivision to a particular matter, the Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty.

(2) An order made under subsection (1) has effect despite anything contained in this Act or in any other Commonwealth law or any State or Territory law.

The court referred to in both of these sections was the Federal Court of Australia although by amendment to s 4(1) it is now the Industrial Relations Court of Australia [4] . 1. See Industrial Relations Reform Act 1993 Cth, s 58.

At first instance Ryan J held [5] that the ATAUE was an entity which, because of the corporate personality it acquired by registration under the Queensland legislation in 1917, had an existence separate from that of its members. For that reason it was, in his view, unaffected by the amalgamation of the ATAEA and the other organisations which resulted in the emergence of the Alliance. Ryan J concluded that s 253X of the Industrial Relations Act had no application because the ATAUE formed no part of the amalgamated organisation, the Alliance, which was the organisation upon which the section imposed an obligation to take steps to ensure that the amalgamation was fully effective. Similarly, he considered that there was no "difficulty arising" under s 253ZC in relation to the application of the relevant subdivision. That subdivision is Subdiv F, headed "Amalgamation taking effect", which is part of Div 7 of Pt IX of the Act headed "Amalgamation of organisations". Any difficulty which arose was, upon the view taken by Ryan J, because of the separate corporate existence of the ATAUE and that was something upon which the subdivision had nothing to say.

An appeal by the Alliance to a Full Court of the Federal Court (Black CJ, Keely, Wilcox and Gray JJ, Northrop J dissenting) was allowed [6] upon the basis, variously expressed in the judgments, that, notwithstanding the corporate status which the Queensland Act purported to confer upon the ATAUE, it remained the Queensland branch of the ATAEA. The respondents were ordered to take all actions open to them to vest in the Alliance all the assets of the ATAUE.

Section 432 [7] of the Industrial Relations Act 1988 Cth gave a right of appeal to this Court, with leave, from a judgment of the Full Court of the Federal Court, but excluded an appeal in a matter arising under the relevant provisions of Pt IX of the Act. For that reason, the prosecutors seek in this Court to contest the decision of the majority of the Full Court of the Federal Court by claiming prerogative relief. As a result, the argument in this Court centred upon the question of the jurisdiction of the Federal Court to entertain the applications which it did, but it is convenient to turn first to the other questions with which that court dealt.

1. This was previously s 57 of the Industrial Relations Act 1988 Cth, but was renumbered by Act No 98 of 1993 [the Industrial Relations Reform Act].

The view taken by the majority in the Federal Court was that the Queensland branch of the ATAEA, being an entity which was distinct from its members, was not capable of registration under the Queensland Act or did not achieve corporate personality upon registration under that Act. That view cannot, in our opinion, be sustained. Although the condition upon which registration of an industrial union could be granted under s 26(1) of the Queensland Act was that it answer the description of an "industrial association" or a "trade union of employees", neither of those terms, by itself, connotes the existence of a legal entity. The terms "association" or "union" connote a relationship among persons "associated" or "united" for a common purpose or to share a common interest. These are terms descriptive of a relationship (typically, a contractual relationship) between persons; they are not descriptive of entities invested with a legal personality. Of course, when the law governs a relationship among persons, its operation (and sometimes its expression) may be mistaken for a law which prescribes the capacities of an artificial person. Thus we may speak of the assets and liabilities of a partnership, though legal personality is an attribute only of the members of the partnership, not of the partnership. The term "partnership" connotes the relationship between the partners, not an entity different from them [8] . Pollock observes that "[i]n the case of an ordinary partnership the firm is treated by mercantile usage as an artificial person, though not recognised as such by English law; and other voluntary and unincorporated associations are constantly treated as artificial persons in the language and transactions of everyday life". Unless the references of ordinary speech and the legal conception of a corporation are distinguished, confusion arises as to the meaning of terms such as "association" or "union". When the Queensland Act provided for the registration and consequent incorporation of "any industrial association or trade union of employees", it authorised registration to be effected when there were a number of persons associated or united for an industrial purpose or to share an industrial interest [9] .

1. Winfield, Pollock's Principles of Contract, 13th ed (1950), p 91. 2. See the definition of Trade Union in the Trade Union Act 1915 Q.

A branch of a federal industrial organisation is not a person; it has no existence apart from that of the members of the branch. The word "branch" in that context is no more than a collective noun which, although singular in form, is used with a plural implication. That was made clear in Williams v Hursey [10] by Fullagar J, with whom Dixon CJ and Kitto J agreed, when he pointed out that a branch of a federally registered organisation has no corporate character and no separate existence as a juristic person [11] . He said of the Hobart branch of the Waterside Workers' Federation of Australia that it [12] :

is not an "unincorporated society, fellowship, club or association". It has no separate identity - no existence apart from the registered organisation, of which it is an integral and inseverable part. Its members are merely a section of the total membership of the federation - locally organised for the sake of convenience, but in no respect independent of the federation, and in all respects subject to the control of the federation. 1. (1959) 103 CLR 30 at 54-55. 2. See also Allen v Sideris (1984) 3 FCR 548 at 5609 IR 68 at 78. 3. Williams v Hursey (1959) 103 CLR 30 at 54-55

There was an obvious convenience in the members of a federal organisation in a State - a State branch - becoming registered under the industrial laws of the State in order to derive the advantages which flowed from State registration. The State registered organisation was better placed to participate in the State system of industrial regulation and to pursue improved terms and conditions for its members without any requirement that they be involved in an interstate industrial dispute. But considerable confusion arose from speaking of the registration as the registration of the State branch of a federal organisation [13] . The confusion arose because, in so speaking, the misconception which was laid to rest in Williams v Hursey was resurrected, namely, the misconception that the use of the term "branch" in relation to a federal organisation signifies an entity with an existence apart from its members rather than merely identifying those members collectively.

On the other hand, when under State legislation the State branch of a federal organisation - that is, the branch members - became registered and, by reason of the registration became incorporated, what emerged was a new corporate body with a legal personality which was separate and distinct from its own members. That corporate body was not a State branch of the federal organisation, notwithstanding that, initially at least, its own members were also members of the State branch of the federal organisation. In the absence of some fiduciary obligation, the assets which it acquired in its name were its own and not the assets of the federal organisation.

The difficulties arising from the failure to appreciate the effect of the incorporation under State legislation of a State branch of a federal organisation were adverted to in Moore v Doyle [14] . As a result, a report was obtained by the Commonwealth [15] which recommended that State branches of federal organisations be able to obtain registration under State legislation but without acquiring corporate personality. This recommendation led to the insertion in 1974 of s 136A in the Conciliation and Arbitration Act 1904 Cth. Sub-section (1) of that section provided:

Where it is not contrary to the rules of an organisation to do so, it may participate in the systems of conciliation and arbitration or of wages boards or like systems established under the law of a State, and for that purpose a branch of an organisation may become registered under a law of a State so long as that registration does not involve the branch in becoming incorporated, or otherwise becoming a legal entity, under the law of a State. Corresponding provisions are now to be found in s 293 of and Sch 4 to the Industrial Relations Act 1988 Cth. However, the operation of s 136A and of the corresponding provisions in the Industrial Relations Act 1988 Cth has been dependent upon the existence of State legislation providing for the registration of an organisation which does not carry corporate personality with it. Since the enactment of the Commonwealth provision, South Australia is the only State to have passed the required complementary legislation [16] . 1. (1969) 15 FLR 59 at 120-124. 2. The Sweeney Report, Report of the Committee of Inquiry on Co-ordinated Industrial Organisations (1974). 3. See Industrial and Employee Relations Act 1994 SA, Ch 4, Pt 3 and Industrial Relations Regulations (Cth), reg 119a and reg 119b.

Nor has the misconception, to which we have referred above, disappeared. That is to be seen in the present case and in other decisions of the Federal Court [17] . However, it is plain that the ATAUE is a body with a legal personality which is distinct from that of the ATAEA and that it is not the Queensland branch of the ATAEA. That is consistent with s 26(1) of the Queensland Act which in speaking of the registration of a "branch of a trade union" is clearly using the term "branch" in the sense in which we have explained it. Whether the Queensland branch of the ATAEA could itself be described as a trade union within the meaning of s 26(1) of the Queensland Act is of no consequence, for there can be no doubt that it was an industrial association and capable of registration as such under that sub-section. No submission was made that the registration of the ATAUE under the Queensland Act was invalid. However inappropriate the rules of the federal organisation, with which the ATAUE was registered, were to govern the latter body, it was not suggested that they were ineffective [18] and, in any event, they were replaced by the registration of a new set of rules in 1979, the certificate of registration under s 31 of the Queensland Act being conclusive evidence of their validity.

1. See Bailey v Krantz (1985) 13 IR 339 Frizziero v Rice (1992) 36 FCR 449cf Sharpe v Goodhew (1990) 33 IR 23896 ALR 251. 2. See Egan v Shop Distributive & Allied Employees' Federation of Australia, NSW (1979) 143 CLR 325 at 351

Once it is appreciated that the ATAUE became, upon registration under the Queensland Act, a body which was separate and distinct from the ATAEA, it can be seen that the provisions of the Queensland Act involved no inconsistency under s 109 of the Constitution with the provisions of the Conciliation and Arbitration Act 1904 Cth. Indeed, the latter provisions were predicated upon the existence of State systems for the regulation of industrial relations [19] . Section 109 is, of course, concerned with inconsistency between a law of a State and a law of the Commonwealth. There is no inconsistency in this sense merely because one individual is a member at the same time of both a State registered and a federally registered organisation, whatever conflict there might be between the rules of the respective organisations. The Queensland legislation providing for the registration of organisations in aid of the State system did not purport to annul or qualify any of the powers of an organisation registered under the Commonwealth legislation which were bestowed upon it by virtue of its registration [20] . The organisations performed different functions within different systems. Of course, by reason of s 65 [21] of the Conciliation and Arbitration Act 1904 Cth an award made under that Act prevailed against any inconsistent order, award, decision or determination of a State industrial authority, but that was to deal with inconsistency of a different kind, not raised by State legislation providing for State registered organisations which were to be co-existent with federally registered organisations.

1. See, eg, Conciliation and Arbitration Act 1904 Cth, ss 65, 66, 67, 133A, 136A. 2. See Williams v Hursey (1959) 103 CLR 30 at 68-69 3. Now s 152 of the Industrial Relations Act 1988 Cth.

With that background, it is possible to turn to the question of the jurisdiction of the Federal Court. Section 253X(1) of the Industrial Relations Act 1988 Cth requires the amalgamated organisation - in this case the Alliance - to take such steps as are necessary to ensure that the amalgamation is fully effective and sub-s (2) empowers the court to make orders to ensure that sub-s (1) is given effect. But it was the Alliance which sought orders under s 253X, not directed to itself but to the ATAUE. The ATAUE was not, for the reasons already given, any part of the amalgamated organisation and s 253X(1) did not require it to take any steps with respect to the amalgamation. In other words, s 253X(1) did not have any application to the ATAUE and s 253X(2) cannot be construed as conferring any jurisdiction upon the court to make orders in respect of the ATAUE or its officers or the AWUEQ. Any such order could not be "to ensure that subsection (1) is given effect to".

Section 253ZC raises a different problem. The jurisdiction of the court under that section is conditional upon a "difficulty arising" in relation to the application of Subdiv F to a particular matter. Whatever may answer the description of a "difficulty", it is not every difficulty arising in the course of, or consequent upon, an amalgamation which constitutes a difficulty within the meaning of the section. The difficulty must arise in relation to the application of the subdivision to a "particular matter". In this case the only relevant difficulty which arose was in relation to the ownership of assets claimed by both the Alliance and the ATAUE. That was not a difficulty in relation to the application of Subdiv F to a particular matter. Either the ATAUE owns the assets which it claims or it does not. But since it is unaffected by the amalgamation resulting in the emergence of the Alliance and since it has an existence quite independent of that organisation, the subdivision has no application in the resolution of the question of ownership. That is to say, no difficulty arises in relation to the application of the subdivision to the particular matter of ownership because, in the circumstances, the subdivision has nothing to say on the matter.

In allowing the appeal, the Full Court of the Federal Court made various declarations and orders affecting the ATAUE and the AWUEQ. It follows from what we have said that in our view it had no jurisdiction to make those declarations or orders either under s 253X or under s 253ZC. It was not contended that the court otherwise had jurisdiction, save that reliance was placed upon s 21 of the Federal Court of Australia Act 1976 Cth. That section provides that the court may, in relation to a matter in which it has original jurisdiction, "make binding declarations of right". However, there being no jurisdiction under s 253X or s 253ZC, the court had no original jurisdiction and s 21 had no application.

It is well established that prohibition will lie to the Federal Court because, notwithstanding that it is declared to be a superior court of record [22] , it is a court of limited jurisdiction [23] . Prohibition lies to prevent a court from exceeding its jurisdiction, but a court may be empowered to determine the facts upon the existence of which its jurisdiction depends and, provided those facts do not mark the constitutional limits of the power to confer jurisdiction, prohibition will ordinarily not lie to correct a wrong determination [24] . The errors made by the Federal Court in this case were not, however, confined to error as to the existence of jurisdictional facts or error of law within the exercise of jurisdiction. They involved error of law about the nature and scope of the jurisdiction conferred by s 253ZC and error of law about whether the ATAUE was within the reach of the jurisdiction conferred by s 253X. The result of those errors was that the exercise which was undertaken by the court lay wholly outside the scope of either s 253X or s 253ZC and amounted to a wrongful assumption of jurisdiction in circumstances where none existed rather than an erroneous decision in the exercise of a jurisdiction which the court possessed. Having regard to the absence of any appeal from the decision of the Full Court, the discretionary aspect of the remedy should be determined in favour of making the orders sought. We would make absolute the orders nisi for writs of prohibition. No separate case was made for writs of certiorari, and prohibition is a sufficient remedy in the circumstances.

1. See Federal Court of Australia Act 1976 Cth, s 25(2). 2. See R v Gray; Ex parte Marsh (1985) 157 CLR 351 3. See Craig v South Australia (1995) 184 CLR 163 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391 R v Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 at 214 Toohey, McHugh and Gummow JJ.

This is the return of two orders nisi for prohibition and certiorari made by Mason CJ on 20 May 1994. The prosecutors seek to ventilate issues which concern the interrelation of federal and Queensland legislation dealing with incorporation and amalgamation of industrial organisations, and the legal status of a "branch" of such an organisation. They complain of the decision upon these matters of the Full Court of the Federal Court. The Full Court allowed an appeal from a judge of the Federal Court (Ryan J).

The respondents are identical in each case. The prosecutor in Matter No B17 of 1994 is the Minister for Employment, Training and Industrial Relations for the State of Queensland. In the second matter, Matter No B18 of 1994, there are seven prosecutors. The first is the Australian Workers' Union of Employees, Queensland (AWUEQ). This is a Queensland State industrial union, registered in 1917 under the Industrial Arbitration Act 1916 Q (the 1916 State Act). Section 37 of the 1916 State Act provides that upon and during registration every industrial union becomes and is, for the purposes of the Act, a body corporate by its registered name, having perpetual succession and a common seal. The 1916 State Act was repealed by s 4 of the Industrial Conciliation and Arbitration Act 1929 Q but it (in s 4) and succeeding statutes have contained savings provisions [25] .

1. See the Industrial Conciliation and Arbitration Acts 1932 Q, s 3; the Industrial Conciliation and Arbitration Acts 1961 Q, s 4; and the Industrial Relations Act 1990 Q, ss 1.4, 1.5.

On 10 December 1992, the Industrial Relations Commission, acting pursuant to the Industrial Relations Act 1990 Q (the 1990 State Act) approved an application for amalgamation with the AWUEQ of an entity identified as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees (the ATAUE). This was the name under which the ATAUE had been registered on 18 March 1917, under the 1916 State Act. On 19 December 1992, the amalgamation took effect. The ATAUE was de-registered and by force of the 1990 State Act the members of the ATAUE became memberss of the AWUEQ. The Court was informed by their counsel that the remaining six individual prosecutors in Matter No B18 had been officers in control of the ATAUE.

The preceding paragraphs have outlined the registration of the ATAUE and its amalgamation with the AWUEQ. We turn now to refer to amalgamations under federal legislation. Division 7 of Pt IX (ss 233-253ZG) of the Industrial Relations Act 1988 Cth (the 1988 Federal Act) deals with the amalgamation of organisations registered under that statute. Such an organisation is a body corporate by force of s 192. Subdivision F of Div 7 (ss 253Q-253ZC) is headed "Amalgamation taking effect".

Pursuant to s 253Q of the 1988 Federal Act, and with effect on 18 May 1992, three organisations registered under that statute, the Australian Theatrical and Amusement Employees' Association (the ATAEA), the Australian Journalists' Association and Actors' Equity, were amalgamated to form an organisation under the name "Media, Entertainment and Arts Alliance" (the Alliance). The Alliance is one of the second respondents to each order nisi. The individual second respondents are the federal president of the Alliance, Mr Livingstone, and a member of the Alliance. The ATAEA initially had been registered under the Conciliation and Arbitration Act 1904 Cth (the 1904 Federal Act). Section 58 of the 1904 Federal Act provided for incorporation of organisations registered under it [26] . Section 58 stated that it had effect "for the purposes of this Act". However, this phrase probably was intended to do no more than explain the reason for the incorporation and it does not qualify the statutory conferral of a distinct legal personality [27] .

1. Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 336, 355. 2. Williams v Hursey (1959) 103 CLR 30 at 52

The ATAEA was registered in 1910 under the name "Australian Federated Stage Employees Association" but nothing turns upon the later change of name. When registered, the ATAEA had six branches, including a Queensland branch. For many years and up to 1979, the Queensland Branch of the federally registered union and the ATAUE were administered as one. There was an identical membership, the same officers and a common set of accounts. In 1979, there commenced what Ryan J described as an "administrative bifurcation" [28] . Separate meetings of the executive of the ATAUE and the Queensland Branch of the ATAEA were held. Separate financial records were maintained and separately audited. The membership of the two bodies diverged. In 1991 and 1992, steps under the 1990 State Act were taken, some of which we have described, to amalgamate the ATAUE with the AWUEQ. These steps were opposed by the ATAEA and, after the federal amalgamation on 18 May 1992, by the Alliance.

The present litigation is the product of that disagreement. There has been a dispute as to the provision to the Alliance of all accounts of the former Queensland Branch of the ATAEA and the payment of funds to the Alliance. In particular, the Alliance contends that what are claimed to be assets of the ATAUE were in truth assets of the Branch and hence are now assets of the Alliance. Counsel for the AWUEQ informed the Court that the funds in question are now held on deposit in the name of his client and that, questions of title apart, the only real issue is whether there are any sums to be deducted for expenses, and some related matters.

The 1988 Federal Act (ss 250-253P) provided for the submission of the federal amalgamation to ballot. At that time the Queensland Branch of the ATAEA had a financial membership of 148 persons and the ATAUE had a financial membership of approximately 480 persons. There were ten persons who were members of both the Queensland Branch and the ATAUE, of whom six were members of both executives. In the result, the Court was informed that there were approximately 476 members of the ATAUE who had not been admitted to, nor paid membership fees in respect of, membership of the Queensland Branch. Only the 148 financial members of the Queensland Branch (including the ten persons who were also financial members of the ATAUE) were permitted to vote in the federal amalgamation ballot. The members of the ATAUE who were not members of the Queensland Branch of the federal body were not permitted to vote in the federal amalgamation ballot.

The first respondents to each order nisi (who submit to any order to be made by this Court) are the Chief Justice and four judges of the Federal Court who in McJannet v White [29] allowed the appeal from the decision of Ryan J [30] . The appeal was brought by the Alliance and the two individual present second respondents against Ryan J's rejection of their application. The first respondents to that application were the six office holders who are now prosecutors in Matter No B18. The AWUEQ was not named as a respondent to the application. Instead, the Alliance named as second respondent the "Queensland Branch of the Australian Theatrical & Amusement Union of Employees". Thus, a curiosity of the proceeding in the Federal Court was the joinder by the Alliance of a party whose lack of separate legal personality the Alliance sought to establish in that very proceeding.

1. (1994) 48 FCR 453. 2. McJannet v White (1992) 39 FCR 1

The applicants before Ryan J sought, without success, a declaration that "the former Queensland Branch of the Australian Theatrical and Amusement Employees' Association is one and the same as the Queensland Branch of the Australian Theatrical and Amusement Union of Employees registered under the Industrial Relations Act (Queensland)" and that all the assets and interests in any property held in the name of "the Queensland Branch of the Australian Theatrical and Amusement Union of Employees are the assets of the [Alliance]". His Honour also dismissed an application for an order restraining "the respondents" [that is to say, including the second respondent identified as "Queensland Branch of the Australian Theatrical and Amusement Union of Employees"] from taking any further steps to implement a purported amalgamation "between the former Queensland Branch of the Australian Theatrical and Amusement Employees' Association (registered in the Queensland system of industrial regulation under the name of the Queensland Branch of the Australian Theatrical and Amusement Union of Employees) and the [AWUEQ]".

However, the Full Federal Court [31] held that (a) immediately prior to the federal amalgamation in May 1992 any assets held in the name of the ATAUE were the assets of the ATAEA and that, upon the amalgamation, they became assets of the Alliance; and (b) the purported incorporation of the Queensland Branch of the ATAEA gave rise to a conflict between federal and State laws so that, in so far as s 37 of the 1916 State Act purported to incorporate associations registered pursuant to it, it was inapplicable to branches of organisations registered under the 1904 Federal Act. Two members of the Full Court also held that registration and incorporation of associations under the 1916 State Act were not "severable concepts", so that the purported registration of the ATAUE in 1917 was invalid [32] . The Full Court implemented these conclusions by an order that those who are now the prosecutors in Matter No B18:

take all actions open to them to vest in [the Alliance] all assets and interests in property held by, or on behalf of, the entity called Queensland Branch of the Australian Theatrical and Amusement Union of Employees at the date of the purported amalgamation of that entity and the [AWUEQ] and all assets and interests and property acquired by, or on behalf of, the amalgamated body out of such assets and interests and property acquired by, or on behalf of, the amalgamated body out of such assets or interests. The Full Court also made declarations as follows:

(a) the industrial association the subject of a purported registration pursuant to the Industrial Arbitration Act 1916 Qld on 18th March 1917, under the name "Queensland Branch of the Australian Theatrical and Amusement Union of Employees", was then, and thereafter remained, the Queensland Branch of the Australian Theatrical and Amusement Employees Association;

(b) all assets and interests in property held by, or on behalf of, the entity called Queensland Branch of the Australian Theatrical and Amusement Union of Employees immediately prior to its purported amalgamation with the [AWUEQ] were assets and interests belonging to [the Alliance]; and

(c) the purported amalgamation between the Queensland Branch of the Australian Theatrical and Amusement Union of Employees and the [AWUEQ] pursuant to the Industrial Relations Act 1990 Qld is void and of no effect.

1. Black CJ, Keely, Wilcox and Gray JJ, Northrop J dissenting. 2. Black CJ and Wilcox J, Keely and Gray JJ contra, Northrop J expressing no opinion.

The application dismissed by Ryan J had been expressed as being made pursuant to ss 253X and 253ZC of the 1988 Federal Act. These state:

(1) The amalgamated organisation must take such steps as are necessary to ensure that the amalgamation, and the operation of this Subdivision in relation to the amalgamation, are fully effective.

(2) The Court may, on the application of an interested person, make such orders as it considers appropriate to ensure that subsection (1) is given effect to.

(1) Where any difficulty arises in relation to the application of this Subdivision to a particular matter, the Court may, on the application of an interested person, make such order as it considers proper to resolve the difficulty.

(2) An order made under subsection (1) has effect despite anything contained in this Act or in any other Commonwealth law or any State or Territory law.

Section 19 of the Federal Court of Australia Act 1976 Cth (the Federal Court Act) provides that the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament. Section 50 of the 1988 Federal Act was such a law. Sub-section (1)(a) stated that "[t]he Court" has jurisdiction "with respect to matters arising under" the 1988 Federal Act "in relation to which applications may be made to it" under that statute. The term "Court" was defined in s 4 of the 1988 Federal Act as meaning "the Federal Court of Australia". Further, s 15C of the Acts Interpretation Act 1901 Cth (the Interpretation Act) provides that, where a provision of a statute either expressly or by implication authorises a civil proceeding to be instituted in a particular court in relation to a matter, that provision shall be deemed to vest that court with jurisdiction in that matter. In addition, s 32 of the Federal Court Act, as construed in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [33] , confers jurisdiction in respect of matters of federal jurisdiction which are "associated" with such other matters in respect of which jurisdiction is conferred by another law, such as s 50 of the 1988 Federal Act.

1. (1981) 148 CLR 457 at 478-479, 495-496, 501, 516, 518, 547.

However, significant changes to the 1988 Federal Act have been made by the Industrial Relations Reform Act 1993 Cth (the 1993 Federal Act), with effect from 30 March 1994. The decision of the Full Federal Court allowing the appeal from the decision of Ryan J was delivered on 4 May 1994 and the orders nisi in this Court were granted on 20 May 1994. Section 50 of the 1988 Federal Act had been included in Pt III (ss 50-61). Part III was repealed by s 59 of the 1993 Federal Act. Part 7 (ss 55-67) of the 1993 Federal Act provides for the creation of the Industrial Relations Court of Australia. Section 59 came into force on 30 March 1994, during the pendency of the appeal to the Full Court. However, the transitional provisions (ss 63-67) of the 1993 Federal Act, which also came into force on 30 March 1994, include a provision (s 65) that the Federal Court may complete the hearing and determination of a part-heard proceeding and that the Federal Court and its judges continue to have in respect of that matter all the jurisdiction and powers they would have had if Pt 7 of the 1993 Federal Act had not been enacted.

Sections 50-56 of the 1988 Federal Act conferred jurisdiction upon the Federal Court with respect to matters arising under that Act and in many respects rendered that jurisdiction exclusive. Further, s 57(3) provided that, unless the judgment was made, given or pronounced in relation to a prosecution for an offence or in relation to contempt, an appeal did not lie to this Court from a judgment of a Full Court of the Federal Court in a matter arising under Pt IX. There were qualifications to this in respect of Subdiv G of Div 7 (ss 253ZD-253ZG) and Div 8 (ss 254-260), neither of which are applicable to the present litigation.

In the points of contention filed by the applicants in the Federal Court proceeding, it was asserted that, to the extent that any State statute permitted the amalgamation between the ATAUE and the AWUEQ, that statute was "ineffective and inoperative by virtue of [certain provisions] of the Federal Act" and "section 109 of the Constitution ". That contention failed before Ryan J but, as we have indicated, the Full Federal Court did hold that, by reason of s 109 of the Constitution, in so far as s 37 of the 1916 State Act purported to incorporate associations registered pursuant to it, it was inapplicable to branches of organisations registered under the 1904 Federal Act. Thus, in addition to construing and applying the 1988 Federal Act, Ryan J was invited to, and the Full Court did, determine an issue involving the interpretation of the Constitution, within the meaning of s 76(i) of the Constitution. Accordingly, the controversy in the Federal Court involved two heads of federal jurisdiction.

The jurisdiction of the Federal Court was defined by the provisions to which we have referred earlier in these reasons with respect to a matter arising under a law made by the Parliament, namely the 1988 Federal Act itself. The jurisdiction was not defined with respect to a matter arising under the Constitution or involving its interpretation. Nevertheless, such an issue did fall for determination. When jurisdiction to determine a matter which falls within s 76(ii) of the Constitution is conferred, that jurisdiction may be exercised to hear and determine a matter which answers that description whether or not it also answers the description contained in s 76(i) [34] . Furthermore, s 32 of the Federal Court Act confers jurisdiction in a federal matter associated with another federal matter in which the Federal Court has otherwise been given jurisdiction.

1. Re Tooth & Co Ltd [No 2] (1978) 34 FLR 112 at 139-140 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 307

However, whichever path is followed, it remains the case that there is no law of the Parliament defining the jurisdiction of the Federal Court, by direct means, with respect to matters arising under s 76(i) of the Constitution. Accordingly, if what one might describe as the primary conferral of jurisdiction is exceeded, the jurisdictional error will have a consequence that there also is no scope for the exercise of jurisdiction otherwise conferred, in a secondary sense, in respect of a matter arising under s 76(i). Hence the concentration in the submissions of the prosecutors upon alleged excess of jurisdiction with respect to the matter arising under s 76(ii) of the Constitution.

The disputed amalgamation comes before this Court, not upon an application for special leave to appeal against the declarations and orders of the Full Court, but upon the return of orders nisi made by Mason CJ.

We have referred to the provisions of the 1988 Federal Act which indicate that an appeal did not lie to this Court from the judgment of the Full Federal Court because it was given in a matter arising under Pt IX of that statute. Those provisions modify what otherwise would be the operation of s 33 of the Federal Court Act to provide an appeal to this Court by special leave [35] . They may be supported as the prescription by the Parliament of an exception, within the meaning of s 73 of the Constitution, to the appellate jurisdiction of the High Court, but, as was said in Cockle v Isaksen [36] , not "so as to destroy the general rule, in relation to any court or tribunal or class of courts or tribunals comprised within s 73, that an appeal shall lie from its judgments decrees orders or sentences".

1. Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25 at 83 2. (1957) 99 CLR 155 at 165; see also Smith Kline & French Laboratories (Aust) Ltd v The Commonwealth (1991) 173 CLR 194 at 216-217In constitutional matters, s 75(iii) may confer on the High Court an entrenched original jurisdiction in proceedings against the Commonwealth: Mutual Pools & Staff Pty Ltd v The Commonwealth (1994) 179 CLR 155 at 216

However, where, as in this litigation, a matter arising under Pt IX of the 1988 Federal Act also answers the description of a matter involving the interpretation of the Constitution, it may be a question whether these provisions can validly operate to destroy what, in the passage in Cockle v Isaksen [37] to which we have referred, is described as the general rule in s 73 of the Constitution. In this litigation no challenge has been made to the effectiveness of the provisions in question to bar an appeal from the Federal Court. Accordingly, it is unnecessary to say anything further on the subject.

Finally, as to the proceedings initiated in this Court for prerogative relief in reliance upon s 75(v) of the Constitution, the presence in that controversy of a matter involving the interpretation of the Constitution would appear to attract the jurisdiction of this Court on an additional footing, namely s 76(i) of the Constitution as implemented by s 30 of the Judiciary Act 1903 Cth. This, together with s 32 of that statute, would provide a foundation for the issue of certiorari, if that remedy were otherwise appropriate [38] .

1. See Aitken, Certiorari and jurisdictional error in the Federal Courts, Australian Law Journal, vol 69 (1995) 784.

The prosecutors seek prohibition to restrain the judges of the Federal Court from acting upon or giving effect to, proceeding further upon or enforcing "the decision" of the Federal Court made on 4 May 1994. They also seek certiorari to quash that "decision". There is alleged to be jurisdictional error in that the Full Court wrongly held that (1) the provisions of the 1904 Federal Act, in force in 1917, and s 109 of the Constitution prevented the attainment of corporate status upon registration of the ATAUE under the 1916 State Act; (2) the ATAUE was not a body corporate incorporated pursuant to the 1916 State Act but was and remained at all times the Queensland Branch of the ATAEA; and (3) the ATAUE was a body in respect of whose property and assets orders could be made under s 253X of the 1988 Federal Act. Holding (3) is said to be a consequence of the Full Court's erroneous conclusion that the ATAUE was not a body separate and distinct in law from the ATAEA and, after federal amalgamation, the Alliance.

The application of s 75(v) to federal judicial officers has several distinctive aspects not relevant to its application to other officers of the Commonwealth.

It is established by authority that a judge of a court created by the Parliament pursuant to s 71 of the Constitution is an "officer" of the Commonwealth for the purposes of s 75(v) of the Constitution and that, therefore, it is within the original jurisdiction of the High Court to order the issue of a writ of prohibition directed to such a judge in a case involving an assertion of jurisdiction which is not possessed by the court.

The Federal Court of Australia is created by s 5 of the Federal Court Act as a superior court of record. However, the above propositions apply even though the court of which the judges are members is created by the Parliament as a superior court of record [39] .

1. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 399

Nevertheless, remarks by Isaacs J in the Tramways Case [No 1] [40] are in point. 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. Nor, it may be added, have the State Supreme Courts been courts of unlimited jurisdiction. This has been so certainly since the commencement of the Judiciary Act [41] and, in particular, the rendering by s 38 of the jurisdiction of the High Court exclusive of that of the Courts of the States with respect to various matters.

1. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co Ltd (1914) 18 CLR 54 at 75 2. Moorgate Tobacco Co Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 479

Accordingly, as Deane J pointed out in R v Gray; Ex parte Marsh [42] , the amenability of a judge of a federal court to a writ of prohibition issued by this Court depends not upon the court of which the judge is a member being an "inferior" court but upon the jurisdiction conferred upon the court by the Parliament being limited.

Further, in respect of such a federal court, the power of the Parliament given by s 77 of the Constitution is to make laws "[d]efining the jurisdiction" of the court "[w]ith respect to any of the matters" which are "mentioned" in ss 75 and 76. Accordingly, where the jurisdictional error said to attract a remedy under s 75(v) is that of judges of a federal court, "jurisdiction" is not simply a concept of the general law. It is a constitutional term.

The matters mentioned in ss 75 and 76 identify federal jurisdiction by such characteristics as identity of parties (s 75(iii), (iv)), remedy sought (s 75(v) itself), content (interpretation of the Constitution - s 76(i)), and source of the rights and liabilities which are in contention (ss 75(i), 76(ii)). (The constitutional term "matter" also extends to include accrued and pendent claims and pendent parties, but for immediate purposes nothing turns on this.) For this litigation, the particular jurisdiction of the Federal Court invoked by the applicants had been defined by the Parliament with respect to matters arising under laws made by it (s 76(ii)). The question then becomes one of identifying the metes and bounds of any matter said so to arise.

Where the jurisdiction of a federal court is made by the Parliament to depend upon the actual or "objective" occurrence of some fact, event or circumstance, then the judges thereof will be subject to prohibition under s 75(v) if they wrongly decide that question [43] . In such cases it is not uncommon to use the phrases "want of jurisdiction" and "excess of jurisdiction" interchangeably, but the real question is whether there has been a breach of the legislative conditions which, pursuant to s 77 of the Constitution, so define the ambit of the powers or authority of the Federal Court [44] .

1. R v Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190 at 202, 214, 225-226, 238; DMW v CGW (1982) 151 CLR 491 at 507 R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 373, 375, 379, 391, 394; Craig v South Australia (1995) 184 CLR 163 at 177-178 2. cf Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132 at 164

An example is Re LSH; Ex parte RTF [45] . This Court decided that the relevant provisions of the Family Law Act 1975 Cth had the effect that a child of a marriage, on his or her adoption by two third parties or by a natural parent and a third party, ceased in law to be a child of the first marriage. The result was that the Family Court of Australia thereafter lacked jurisdiction to determine questions of custody, access and guardianship relating to the child on the footing that it was still a child of the first marriage [46] .

1. (1987) 164 CLR 91. 2. Re LSH; Ex parte RTF (1987) 164 CLR 91 at 102, 111, 116, 125. See also R v Cook; Ex parte C (1985) 156 CLR 249 Re F; Ex parte F (1986) 161 CLR 376, which also turned upon the statutory expansion of the phrase "a child of the marriage" to found the jurisdiction of the Family Court in respect of a matrimonial cause.

On the other hand, in Ex parte Marsh, the Court divided upon the question whether the Federal Court might determine conclusively the criterion upon which its jurisdiction depended. This was, as specified in s 159 of the 1904 Federal Act, the making of a claim that an irregularity had occurred in an election conducted under s 170 of the 1904 Federal Act, subject to the Federal Court satisfying itself that there was a reasonable ground for the application before it proceeded with the inquiry.

In this case, the prosecutors contend that, unless the ATAUE was part of an amalgamating organisation, no "difficulty" could arise in terms of s 253ZC(1) and there could be no relevant "steps" to be taken for the purposes of s 253X(1). They submit that it is only the assets of the organisations de-registered in consequence of amalgamation that vest in the amalgamated organisation; the assets of no other person or body are subjected to such transmission by operation of law. In particular, they say that the assets of a union registered under the 1916 State Act are unaffected by the federal amalgamation.

In that regard, s 253R of the 1988 Federal Act states:

(1) On the amalgamation day, all assets and liabilities of a de-registered organisation cease to be assets and liabilities of that organisation and become assets and liabilities of the amalgamated organisation.

(2) For all purposes and in all proceedings, an asset or liability of a de-registered organisation existing immediately before the amalgamation day is taken to have become an asset or liability of the amalgamated organisation on that day.

Further, a person who immediately before the amalgamation day was a member of a proposed de-registering organisation becomes, by force of s 253Q, and without payment of entrance fee, a member of the proposed amalgamated organisation on the amalgamation day.

The prosecutors' argument is that the relevant de-registered organisation was the ATAEA, the assets and members of the ATAUE were not assets or members of the ATAEA, the Full Federal Court erred in deciding to the contrary and, accordingly, it wrongly decided a question as to the state of things or circumstance upon which its jurisdiction under ss 253X and 253ZC depended. The jurisdiction depended upon this state of things or circumstance because, without it, there could be no "difficulty" or "steps" to be taken.

The jurisdiction of the Federal Court was conferred by s 50(1)(a) of the 1988 Federal Act, perhaps in combination with s 15C of the Interpretation Act. Section 21 of the Federal Court Act empowers the Court, in relation to a matter in which it has original jurisdiction, to make binding declarations of right and s 23 gives the Court power in relation to such matters to make orders of such kinds and to issue or direct the issue of writs of such kinds, as the Court thinks appropriate.

But this is an incomplete statement of the position. Section 50(1)(a) of the 1988 Federal Act confers jurisdiction with respect to "matters arising under" federal law "in relation to which applications may be made" to the Court under that law. Applications may be made to the Federal Court under ss 253X(2) and 253ZC(1). In each case the application is to be made by "an interested person". The expression "interested person" is not defined; it must take its meaning from the context. The relevant "matter" will be the controversy, the parameters of which are marked out by the other criteria specified in the sections.

The sections are awkwardly expressed. They have the double function, as it were, of dealing with substantive liabilities or substantive legal relations and of granting jurisdiction with reference to them, something described by Dixon J in Ex parte Barrett as a "trick of drafting" [47] . Nevertheless, Ex parte Barrett decided that such laws operate to define the jurisdiction of the relevant federal court with respect to matters arising under laws made by the Parliament, within the meaning of ss 76 and 77 of the Constitution [48] . The Court upheld the validity of s 58E of the 1904 Federal Act which stated:

(1) The Court may, upon complaint by any member of an organisation and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

(2) Any person who fails to comply with such directions shall be guilty of an offence.

The court referred to was the Commonwealth Court of Conciliation and Arbitration. 1. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 166 2. Ex parte Barrett (1945) 70 CLR 141 at 154-156, 160, 166-169. Ex parte Barrett has been applied in a number of cases in this Court, including Vitzdamm-Jones v Vitzdamm-Jones (1981) 148 CLR 383 at 411, 425, 429 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 495, 533-534.

We turn to consider s 253X as a source, with s 50(1)(a), of the jurisdiction of the Federal Court. The Chief Justice [49] favoured what he described as a "broader view" of the construction of s 253X. His Honour explained that view as follows:

[T]he focus is not upon the amalgamated organisation, although it certainly has a duty to ensure that the amalgamation is fully effective, but upon the object of ensuring that the amalgamation and the operation of Subdiv F [ss 253Q-253ZC] in relation to the amalgamation are in fact fully effective in a practical sense. In my judgment, the language of the section readily permits this broader view and it is the view to be preferred. The end of a fully effective amalgamation is what Div 7 and the whole of Subdiv F are aimed at. The broader view advances this object, and also the specific statutory object of facilitating the amalgamation of organisations (see s 3(j)) to which attention is directly drawn by s 233, the section with which Div 7 begins. Moreover, it advances the intention of the Parliament, expressed in s 233(b) that the application of the [1988 Federal] Act in relation to amalgamations should be, amongst other things, practical. I conclude therefore that the Court does have jurisdiction to make the orders sought by the [second respondents], it being clear that at least the President of the Alliance and the Alliance itself are interested persons within the meaning of s 253X(2). Another member of the majority, Gray J [50] , said: There would be no point in a provision such as s 253X(1) if "fully effective" were to be construed as meaning only fully effective in the legal sense. What must have been intended by the provision is that an amalgamated organisation must take steps to ensure that the amalgamation is fully effective in a practical sense. Thus, if there are assets of a former organisation which has been deregistered on the amalgamation day, which assets have not been placed under the control of the amalgamated organisation, the amalgamation could not be said to have been fully effective. Nor could the operation of Subdiv F, and particularly of s 253R(1), be said to be fully effective in relation to the amalgamation in such circumstances. The amalgamated organisation therefore has a duty to pursue such assets. If it is unsuccessful, s 253X(2) permits application to be made for orders which will make the amalgamation fully effective in a practical sense.

There can be no doubt that the amalgamated organisation is an interested person, within the meaning of s 253X(2), in the making of such an application. Nor can there be any doubt that the appellant Mr Livingstone has the requisite interest as federal president of the Alliance.

On the other hand, in his dissenting judgment, Northrop J stated that it was difficult to see why the application had sought orders under s 253X, saying [51] : The Alliance is the amalgamated organisation. No orders are being sought against it. In fact it was named as an applicant. 1. McJannet v White (1994) 48 FCR 453 at 457-458 2. McJannet v White (1994) 48 FCR 453 at 501 3. McJannet v White (1994) 48 FCR 453 at 460

The proper construction of s 253X will be assisted by consideration of its context, the other provisions of Subdiv F of Div 7 of Pt IX. Section 253R, the text of which has been set out earlier, achieves a transmission of title by operation of law by providing that, of its own force, on the amalgamation day the assets and liabilities of a de-registered organisation become assets and liabilities of the amalgamated organisation. That, however, is not to say that the transmission of title will be fully effective in a legal sense, without the taking of consequential steps. The statute recognises this by making further provision. This includes such matters as deeming to have been given any consent by a third party which is necessary to give effect to the subdivision in any particular respect (s 253W(3)), and obliging registrars of land title systems, the Australian Securities Commission and companies dealing with instruments of transfer of shares and debentures, and other such authorities, to give effect in the relevant registers to the change of title (ss 253Y, 253Z, 253ZA, 253ZB). In these situations, the registering authority is required by the legislation to act upon a certificate signed by an authorised person which states that the amalgamated organisation has, under Subdiv F, become the holder or owner of the asset in question. Further, it will be for the amalgamated organisation to seek to obtain payment, by legal process or otherwise, of moneys owing to it as successor to the de-registered organisation. Pending proceedings are to continue as if the amalgamated organisation were and always had been the de-registered organisation (s 253V).

The situation to which s 253X is directed thus is analogous to the duty imposed upon a new trustee to get in all the trust property. This duty includes an obligation to perfect title by, for example, notifying the debtor of assignment of a debt and securing registration as a shareholder [52] .

1. Ford and Lee, Principles of the Law of Trusts, 2nd ed (1990), par 905.

It is by consideration of such matters that one may perceive the content of the expression "fully effective" in s 253X. The section imposes an obligation upon the amalgamated organisation to take steps which are necessary to ensure the full effectiveness of the amalgamation and the operation of Subdiv F in relation to it. That obligation is enforceable by the Federal Court against the amalgamated organisation on the application of "an interested person". The section illustrates the significance of the "double function" referred to by Dixon J in Ex parte Barrett. First, it deals with substantive liabilities and substantive legal relations by imposing upon the amalgamated organisation the requirement that it take the steps referred to in s 253X(1). That is a law made by the Parliament.

The jurisdiction of the Federal Court is defined in the sense of s 77 of the Constitution by reference to matters arising under s 253X(1). But it is conditioned upon or requires an application of an interested person seeking orders appropriate to ensure that the amalgamated organisation takes the steps referred to in s 253X(1). Contrary to the conclusion reached by Black CJ and by Gray J, the moving party may not be the amalgamated organisation for it is the body against which an order is sought. It may well be that a member of the amalgamated organisation, who seeks to have that body take the necessary steps to ensure that the amalgamation is fully effective, would be an interested person. It is not necessary for us to decide the point because in the present case the other condition for jurisdiction under s 253X was not met, namely that the order be against the amalgamated organisation. As we have explained, the amalgamated organisation is the Alliance, not the ATAUE and s 253X(1) could not, relevantly, impose any obligation upon the ATAUE.

We turn next to consider s 253ZC. This provision takes as what one might call the substantive element of the law the existence of what might properly be characterised as a "difficulty" which has "arisen" in a particular circumstance, namely "in relation to the application of [Subdiv F] to a particular matter". Jurisdiction is conferred in respect of an application made to the Federal Court by "an interested person". The remedy which may be given is that which the Court considers proper to resolve the difficulty. The section thus is cast in a form appropriate to include the case where the amalgamated organisation has encountered a difficulty in relation to the application of the subdivision in relation to a particular matter. An example would be performance by the relevant title authority of the obligations imposed by ss 253Y, 253Z, 253ZA or 253ZB. The order which the Court may make will have effect, by force of s 253ZC(2), despite anything contained in any other law of the Commonwealth or any State or Territory law.

The jurisdiction of the Federal Court thus is defined by s 253ZC so as to depend upon a particular fact, event or circumstance, namely the existence of a "difficulty". That term is given further content in the section by requiring that it have arisen "in relation to" the application of Subdiv F "to a particular matter". Neither the quoted phrases nor the ordinary meaning of the term "difficulty", as a hindrance to action or something hard to do or to overcome, is narrow in scope. In any given case, further characterisation will be necessary to decide whether what is put forward as a relevant "difficulty" answers that description as a condition of jurisdiction. This is not a case (as was Ex parte Marsh [53] ) where the jurisdiction is conditioned merely upon an assertion or claim that there is a "difficulty" which has arisen in relation to the application of Subdiv F to a particular matter.

In order to identify the event or circumstance upon the occurrence or existence of which jurisdiction depends, it will be appropriate in any given controversy to identify the essential event or circumstance without which there is no "difficulty" in relation to the application of Subdiv F to a particular matter. In the present case the existence of a difficulty depended upon whether the ATAUE was or was not part of an organisation, the ATAEA, which, with two other organisations, was amalgamated into the Alliance, pursuant to Subdiv F. If the Federal Court wrongly decided that issue, then, in our view, there was jurisdictional error to attract prohibition under s 75(v) of the Constitution.

It follows that we accept the submissions of the prosecutors on the first branch of the case. It remains to consider whether the Full Court did err in its conclusions as to the nature and status of the Queensland Branch of the ATAEA and the relationship to it of the ATAUE.

Ryan J made detailed factual findings as to the history of the matter. The Full Court drew certain inferences from them and also developed particular views as to the juristic nature of a branch of an organisation registered under the 1904 Federal Act.

Involved in this aspect of the case are some basic issues concerning the attribution, by the general law (including the rules of private international law) and statute, of legal personality.

From comparatively early times the English courts accepted the attribution of legal personality by the lex causae to entities which had no counterpart under the law of the forum [54] .

1. Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd (1947) 74 CLR 375 at 385, 387; Arab Monetary Fund v Hashim [No 3] [1991] 2 AC 114 at 161-162

In the introduction to his work Unincorporated Non-Profit Associations [55] , Professor Ford says:

A legal system by its very nature requires units upon which it can bring its influence to bear in the business of regulating relations. These units have often been called legal persons. The expression is not a happy one Law being an instrument of social regulation it very often has human beings as its units but there may be occasions when the legal system must determine that something which is not a human being is a legal unit. Oft-quoted examples of this are ships and idols [56] . When human beings act in concert and the legal system approves the group enterprise to the extent of being prepared to provide facilities for its fulfilment, it may, for the more effective provision of these facilities, find it convenient to bracket the collection of individuals behind a smaller unit. Here a mere abstraction, the idea of an entity arising from the association, is treated as a unit. 1. (1959), pp xx-xxi. 2. See Pramatha Nath Mullick v Pradyumna Kumar Mullick (1925) LR 52Ind App 245.

In the present case, the particular aspect of the law of legal personality which is involved concerns the creation by the domestic legislature of an entity which is a "corporation" or, more precisely, has been endowed with that characteristic which Fullagar J identified as the most fundamental difference between a corporation and an unincorporated body. This is perpetual succession, described by his Honour as the maintenance by the entity of its legal personality notwithstanding changes in membership, so that its property does not belong to its members from time to time [57] .

Some reference should be made here to the series of cases arising under the Trade Union Act 1871 UK, culminating in the decision of the House of Lords in Bonsor v Musicians' Union [58] . It was held that (1) a trade union registered under the 1871 legislation, although not an incorporated body, was capable of entering into contracts and of being sued as a legal entity, distinct from its individual members [59] , and (2) the legal characteristics of such a trade union differentiated it from other voluntary associations and might entitle it to be called a legal entity, whilst at the same time remaining an unincorporated association of individuals [60] . The views, apparently to the contrary, in Taff Vale Railway v Amalgamated Society of Railway Servants [61] of Lord Macnaghten [62] and Lord Lindley [63] that the registered trade unions remained no more than unincorporated societies, were not accepted. In Williams v Hursey , Fullagar J, with whom Dixon CJ and Kitto J agreed, stated [64] :

The notion of qualified legal capacity is intelligible, but the notion of qualified legal personality is not. His Honour continued with a discussion of Taff Vale Railway and Bonsor [65] and confessed difficulty with the notion that statute might endow an entity created by or pursuant to it with the essential characteristics of a distinct juristic person, which yet was not a corporation. 1. [1956] AC 104. 2. Bonsor v Musicians' Union [1956] AC 104 at 127, 130-131. 3. Bonsor v Musicians' Union [1956] AC 104 at 149 4. [1901] AC 426. 5. Taff Vale Railway [1901] AC 426 at 439-440. 6. Taff Vale Railway [1901] AC 426 at 445. 7. Williams v Hursey (1959) 103 CLR 30 at 52 8. Williams v Hursey (1959) 103 CLR 30 at 53

It will always be a question of whether, on its true construction, the statute creates or provides for the creation (eg, by registration) of a body with a legal personality distinct from that of its members.

The crucial holding of the majority of the Full Court is expressed as follows in the judgment of the Chief Justice [66] :

[T]he Queensland Branch of the ATAEA was incapable of amalgamating, independently of the larger organisation, with the Australian Workers Union of Employees or any other body. It remained part of the federal organisation, and assets held in its name were assets of the federal organisation. Upon amalgamation of the federal organisation the assets became those of the Alliance by reason of s 253R of the [1988 Federal] Act. Another member of the majority, Wilcox J, said that, having regard to the evidence, it would be perverse, if the matter were considered as an issue of fact, "to hold other than that the association registered in 1917 was the Queensland Branch of the federal organisation" [67] . His Honour said [68] : Ordinarily, a newly incorporated body is a free-standing entity, separate and distinct from any other corporation. The reason is that, ordinarily, an entity presented for incorporation is not part of another entity. But what if it is? Does incorporation have the effect of hiving off the newly-incorporated part so that it is no longer part of the larger corporation? If so, how and why? And, if so, what is the implication of that result for the application of State legislation that permits the incorporation of part of an entity constituted under federal law? These are the real questions in the case. Wilcox J pointed out that, provided only that it acts within its constitutional power, the Parliament of a State can confer corporate status on any entity it wishes and he gave examples of bodies which have acquired corporate status from two legislative sources [69] . His Honour resolved the "fundamental issue in the case" by concluding that the association which presented for registration under the 1916 State Act was "the Queensland Branch of the federal organisation". Further, it was this Queensland Branch which was registered in 1917 and it both "acquired no separate existence by virtue of registration" and "remained part of the federal organisation", with the result that it was incapable of amalgamating, independently of the larger organisation, with any other body [70] . 1. McJannet v White (1994) 48 FCR 453 at 456 2. McJannet (1994) 48 FCR 453 at 486 3. McJannet (1994) 48 FCR 453 at 487 4. McJannet (1994) 48 FCR 453 at 489-490 5. McJannet (1994) 48 FCR 453 at 490

There are two respects in which we would not agree with these conclusions. First, in our view, the evidence shows that what was presented for registration was an "industrial association", within the meaning of the 1916 State Act, which comprised members of the Queensland Branch of the ATAEA.

Section 26 of the 1916 State Act provided that, on application made as prescribed, the registrar may register as an industrial union under the statute "any industrial association or trade union of employees". The section contemplated an application by a branch of a trade union if it was a "bonâ fide branch of sufficient importance to be registered separately" (s 26(6)). The term "industrial association" was not defined. The registrar might require evidence, upon an application, that "the persons on whose behalf the application is made" should not join an industrial union which already had been registered (s 26(3)(b)).

The Trade Union Act 1915 Q provided for registration under that statute of a "trade union" and, in the present case, Ryan J, in our view correctly, said [71] :

In my view, trade union in s 26 of the [1916 State] Act connotes a trade union registered under the Trade Union Act 1916 Qld [sic], and "industrial association" in the same Act comprehends all other associations of employees having as their objects the protection and advancement of the industrial interests and conditions of those employees. In that sense, "industrial association" was capable of referring to a "trade union" in the acceptation of that term as a matter of ordinary usage: see, eg, Albion Quarrying Co Pty Ltd v Associated Quarries Pty Ltd [72]

The members of a trade union in that wider sense, including the members of a federally-registered organisation, gathered for administrative purposes in a branch, could also have been regarded collectively as an industrial association registrable under the [1916 State] Act.

1. McJannet v White (1992) 39 FCR 1 at 16 2. [1945] VLR 1 at 21.

The application was accompanied by a list headed "Members of the Q'land Branch of the Australian Theatrical & Amusement Association". This answered the requirement in the prescribed form under s 26 of the 1916 State Act to provide a list of members of the industrial association of employees seeking registration. The form spoke of "Industrial Association [or Trade Union] of employees". However, the words "[or Trade Union]" were struck out in five places on the form. The form also called for a copy of the resolution in favour of registration under the statute, passed by "a majority of the members present at a general meeting" or "by other competent authority". The document put forward as a copy of the resolution stated:

Resolution passed in accordance with rules of the Q'land Br of the Australian Theatrical & Amusement Employees Association by a majority of the members present at a general meeting of the branch is as follows:

"That the Q'land Branch of the Australian Theatrical & Amusement Employees Association register under the Q'land Arbitration Act of 1916".

To say that the body which presented itself for registration was the "Queensland Branch" of the federal organisation is unexceptionable if construed to mean the application was made by an association comprised by those members at that time of the Queensland Branch. But, in accordance with authority, it is fundamental that those members did not themselves, by virtue of federal law, enjoy any distinct corporate status or legal personality [73] . Such a "branch" is the aggregation of the members of the organisation allocated to that branch by the rules of the organisation, and the branch has no separate legal personality [74] . The intention of those who passed the resolution to register under the 1916 State Act should be construed as being to achieve that which was open to them to achieve as members of the Queensland Branch.

1. See Williams v Hursey (1959) 103 CLR 30 at 53-54, 89-90, 130. 2. Allen v Sideris (1984) 3 FCR 548 at 560, 565; Imlach v Daley (1985) 7 FCR 457 at 462 Bacon v O'Dea (1989) 25 FCR 495 at 507-508 Frizziero v Rice (1992) 36 FCR 449 at 474-475

Secondly, it is unhelpful to speak of the Queensland Branch having "remained part of the federal organisation". This suggests the existence of a distinct federal entity which maintained its identity and its personality notwithstanding changes to its membership, so that it had "perpetual succession" in the sense used by Fullagar J [75] .

As we have indicated, the effect of the federal legislation, both the 1904 Federal Act and the present statute, has been to confer distinct legal personality, with perpetual succession, only pursuant to specific provision made in respect of organisations registered under the legislation. There was no such registration in respect of the Queensland Branch. It is not suggested that the ATAEA itself was the "industrial association or trade union of employees" which made application under s 26 of the 1916 State Act. The Queensland Branch remained what it had always been, part of a federal organisation but itself having no corporate existence.

It is true that the legislature may modify what would be considered orthodox notions of the nature of a corporation. In the same way, it may modify the generally accepted characteristics of a private trust, by, for example, creating a trust for statutory purposes, with no ascertained beneficiary to enjoy beneficial ownership [76] .

1. Fouche v Superannuation Fund Board (1952) 88 CLR 609 at 640 Harmer v Federal Commissioner of Taxation (1991) 173 CLR 264 at 274See also Registrar of the Accident Compensation Tribunal v Federal Commissioner of Taxation (1993) 178 CLR 145 at 161-162

Further, the legislature may provide for the creation of a body which, as distinct from the natural persons composing it, has legal personality, whether or not the legislature chooses to identify its creature by the term "corporation" [77] . Indeed, s 58 of the 1904 Federal Act was, as we have indicated, construed as having that effect even though the term "corporation" was not used in it. The creation of a distinct legal personality flowed from the endowment of registered organisations with perpetual succession, capacity to purchase and deal with property and the requirement of a common seal. But no such provisions were found in the 1904 Federal Act in relation to branches of such registered organisations.

1. Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd (1947) 74 CLR 375 at 384-386, 389-390, 391. See also Arab Monetary Fund v Hashim [No 3] [1991] 2 AC 114 at 123, 161-162, 181 where the reasoning in Chaff and Hay Acquisition Committee was applied to an issue of recognition as a competent plaintiff in England of an entity endowed with juridical personality by foreign law.

It follows that what was presented for registration under the 1916 State Act was an unincorporated association whose membership comprised those who then were members of the Queensland Branch. Further, the body thus endowed with separate legal personality by s 37 of the 1916 State Act never was and did not remain in any relevant legal sense "part of" the ATAEA [78] .

There was nothing in the 1904 Federal Act which prevented a group of persons, who were members of an organisation registered under that statute and assigned to a particular branch, seeking to establish an industrial union of employees by registration under the 1916 State Act. It may have been that such persons were not empowered by the rules of the ATAEA to take such a step. However, even if that had been the case (which it is unnecessary to decide here) that would mean no more than that the ATAEA was not bound by what was done. It is not a case of the 1904 Federal Act in some way covering a field to preclude the operation of a State law which permitted persons who were also members of a federal organisation from banding together to seek registration under the 1916 State Act, with the consequences as to corporate personality which would follow. It would only mean that some persons were members of two industrial organisations. The federal organisation would co-exist with the new corporation. Section 109 of the Constitution therefore has nothing to say on the matter.

Nor, in our view, is there substance in the view taken by two members of the Full Court [79] that incorporation was not an integral part of the operation of the 1916 State Act and could be "severed" from registration thereunder. It is true that s 26 deals with registration and s 36 with cancellation of registration, whilst incorporation is dealt with separately in s 37. Nevertheless, s 37 states that every industrial union "shall, upon and during registration, become and be" a body corporate. The legislation provides for incorporation by and upon registration, not for registration without incorporation. Thus there is no ground for a submission that registration under the 1916 State Act involved some form of licensing of the Queensland Branch of the ATAEA so that it might proceed to enjoy the advantages bestowed under the 1916 State Act. A new entity was created which derived its status and powers from the 1916 State Act.

1. McJannet v White (1994) 48 FCR 453 at 477, per Keely J; at 510-511, per Gray J.

Prohibition should issue upon each order nisi. The prosecutors advanced no argument to us as to the need for certiorari, in addition to prohibition.