Adamson, R.M. v Amalgamated Metals Foundry & Shipwrights Union

[1985] FCA 685

JUDGMENT No. . & . ~ J ~

Industrial law - registered organizations - whether pawer to

conduct inquiry into election validlv conferred on court -

Conciliation and Arbitration Act 1904, Part IX, S . 118B(l)(a), S .

140, S . 143, S . 171C, S . 4(1), S . 40(1)

Commonwealth Electoral Act 1918, S . 361

Judiciarv Act 1903, S. 78B,

Acts Interpretation Act 1901, S . 15A,

Federal Court Rules 0. 16 R. 4(2), 0. 6 R. 8 , 0. 33 R. 3 .

R. v. Xirbv; Ex parte Boilermakers' Societv of Australia (1956)

94 C.L.R. 254;

Attornev-General of the Commonwealth v. R. (1957) 95 C.L.R. 529;

R. v. Commonwealth Court of Conciliation and Arbitration: Ex

parte Grant (1950) 81 C.L.R. 27;

R. v. Spicer; Ex parte Australian Builders' Labourers'

Federation (1957) 100 C.L.R. 277;

Re Application bv Prichard for an Inquirv into an Election in the

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South Australian Branch of the Federated Clerks’ Union of

Australia (Federal Court of Australia, G r a y J.,	2nd April 1985,
unreported);

Re Application bv Prichard for an Incruirv into an Election in the

South Australian Branch of the Federated Clerks’ Union of

Australia (Federal Court of Australia, Gray J.,	26th February
1985, unreported);

R. v. Joske; Ex parte Australian Buildins Construction Emplovees

and Builders’ Labourers‘ Federation (1974) 130 C.L.R. 87;

R. v. Joske; Ex parte Shop Distributive and Allied Emplovees’

Association (1976) 135 C.L.R. 194;

Holmes v. Anqwin (1906) 4 C.L.R. 297;

Learv v. Australian Builders’ Labourers’ Federation (1961) 2

F.L.R. 342.

IN THE MATER OF AN APPLICATION BY ROBEXT McCOLL ADAMSON FOR AN

INQUIRY I N T O AN ELECTION IN THE AMALGAMATED METALS FOUNDRY AND

SHIPWRIGHTS UNION.

GRAY J.

SYDNEY

17TH JUNE, 1985

I N T I E m o f a n

application by ROHERT McCOLL

-ON for an Inquiry into

an Election in the

AMALGAMATE0 METALS FOUNDRY

AND SHIPWRI- UNION.

JUDGE: GRAY J.

- DATE : 17" JUNE 1985

REASONS FOR JUDGMENT

On 30th August 1984, Robert McCo11 Adamson ("the

applicant") lodged with the Industrial Registrar an application

for an inquiry into an election for the office of National Organiser - Division 4 in the Amalgamated Metals Foundry and Shipwrights Union ("the Union"), an organization of employees

registered pursuant to the Conciliation and Arbitration Act 1904

("the Act"). On 5th September 1984, the Industrial Registrar

referred the application to the court, pursuant to S. 159(4)(a)

of the Act, the election having been	conducted pursuant to S. 170
of the Act.

When the matter was first called before the Court, the

applicant was given leave to be represented. Similar leave was

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given to Charles Karoly Bali, uho was the successful candidate in

the election, and to the Union. There was also an appearance by

a solicitor on behalf of the Australian Electoral Commission.

Leave was even to the Australian Electoral Commission to withdrav from the proceeding, when it became apparent tbat no live issue concerning the conduct of the election by the Australian Electoral Commission remained. Counsel appearing for

Mr. Bali also appeared for one Ralph Benson Marsh. Although Mr.

Marsh was not a candidate in the election, a subpeona has been directed to him, calling for the production of certain documents.

The history of the matter can be gleaned from certain judgments already delivered. In a judgment delivered on 5th

October 1984, reported at 56 A.L.R. 351, the Court held that the

application was made within the time laid down by the Act. In a

further judgment delivered on 2nd November 1984, reported at 57 A.L.R. 280, the Court held that the allegations made by the

applicant were arguably capable of amounting to an

"irregularity", within the meaning of the Act. This latter judgment was the subject of a purported appeal, rejected by the

Full Court as incompetent on 11th March 1985.

Mr. Bali and Mr. Marsh now wish to contend that the

provisions of Part IX of the Act are beyond the power of the Parliament of the Commonwealth and invalid, in that the jurisdiction which those provisions purport to vest in the Federal Court of Australia is not part of the judicial power of the Commonwealth, or incidental or ancillary to the exercise by the Court of any of its judicial functions, and accordingly the

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Court has M jurisdiction to make any order in this matter. Steps have been taken to obtain from the High Court of Australia writs of prohibition and certiorari, upcm the footing that this Court lacks jurisdiction. At present, the High Court has not granted an order nisi for either of these writs. For a short

time, the High Court did order that proceedings in this matter be stayed, but it has refused to extend that stay.

The policy expressed in Part IX of the Act is plainly that inquiries into elections should be conducted as expeditiously as is reasonably practicable. For this reason, it seemed to me that I should proceed with the inquiry, notwithstanding the existence of the proceedings of the High Court. It therefore becomes necessary for me to consider for myself whether the Court has jurisdiction under Part IX. In doing so, I am not intending any disrespect to the High Court. Whilst it is true that, in normal circumstances, parties should not be expected to litigate in two courts at once, that factor is outweighed in the present circumstances by the need to proceed

quickly in respect of the inquiry. There is also the

consideration that, if I hold that the provisions of Part IX of the Act contain an invalid grant of non-judicial power to the Court, the necessity for Mr. Bali and Mr. Marsh to proceed in the

High Court will disappear.

Argument on the jurisdictional point took place before me on 6th and 7th June 1985. Mr. McCarthy appeared with Mr.

Watson for Mr. Bali and Mr. Marsh. Mr. Madgwick P.C. appeared with Mr. Uoore and Ms. Schurr for the Applicant. Mr. Shaw and

J

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Mr. Rothman appeared for the U n i o n , and Mr. G~mmaw and Mr.

Robertaon appeared €or the Attorney-General for the Commonwealth,

who intervened in the proceeding as a result of notice given

pursuant to a. 78B of the Judicia- Act 1903.

It is necessary to describe the nature of an election inquiry under Part IX of the Act. The word "irregularity" is defined in E. 4(1) of the Act, in a way which is not exhaustive. See the judgment reported at 57 A.L.R. 280, and the remarks of

St. John and Wilcox JJ. in the judgment of the Full Court

delivered on 11th March 1985. By S . 159(1), a right is given to a member of an organization, or a person who has been a member within the preceding twelve months, and who claims that there has been an irregularity in or in connection with an election for an office in the organization, or a branch thereof, to make an application for an inquiry. The application is lodged with the Industrial Registrar, under S. 159(2)(b). khat the Industrial Registrar does with it is determined upon whether the election has been conducted under S. 165A (pursuant to an order of the Court in a previous inquiry), or S. 170 (upon a request by the organization or branch concerned, or a number of its members, to the Industrial Registrar), or is conducted independently of these provisions. In the case of elections conducted under S. 165A or S. 170, the Industrial Registrar is obliged by S. 159(4)(a) to

refer an application directly to the Court. In other cases, S. 160(1) obliges the Industrial Registrar to be satisfied that there are reasonable grounds for an inquiry and that the circumstances of the matter justify an inquiry, before referring the matter to the Court.

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Once a reference has taken place, an inquiry is d e@

to have been instituted. In cases where the election the subject

of the inquiry has been conducted purauant to S. 16- or 6 . 170,

8 . 159(4)(b) pravidee that the Court is not required to proceed

with the inquiry unless it is satisfied that there is reasonable

ground for the application. Hhen an inquiry has been instituted,

S. 162 requires a Judge to fix a time and place for conducting

the inquiry, and to give directions to ensure that all persons who are or may be justly entitled to appear or be represented are notified of the time and place. Sections 164 and 165 of the Act should be set out in full:

"164(1) The Court shall allow to appear or be represented at an inquiry all persons who apply to the Court for leave to appear or be represented, being persons who appear to the Court to be justly entitled to be heard, and the Court may order any other persons so to appear or be represented.

( 2 ) The persons appearing or represented, or ordered

to appear or be represented, at an inquiry shall be

deemed to be parties to the proceedings.

( 3 ) The Attorney-General may, at any stage of an inquiry, intervene by counsel, solicitor or agent on behalf of the Commonwealth.

(4) For the purposes of this Part-

(a)	the procedure of the Court is, subject to
this Act and the regulations, within the

discretion of the Court; and

(b) the Court is not bound to act in a formal

manner and is not bound by any rules of

evidence but may inform itself on any matter

in such manner as it thinks just.

(1) At an inquiry the Court shall inquire into and determine the question whether any irregularity has occurred in or in connection with the election, and such further questions concerning the conduct and results of the election as the Court thinks necessary.

( 2 ) In the course of conducting an inquiry the Court may make such orders (including an order for the

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recount&-& votes) as the Court thinks necessary for

---‘ --. ..

rprrrpprea.of	. ..	the inquiry.
..

(3)’.If the Court f inds that an irregularity has

occurred, the Court may, subject to sub-section (41,

.e .-:or :more of the f olloving orders:

(a) an order declaring the election, or any

step in or in connection with the election,

t o be void;

(b) an order declaring a person purporting to

have been elected not to have been elected,

and declaring another person to have been

elected;

(C)	an order directing the Industrial Registrar
to make arrangements-

in the case of an uncompleted election - for any step in or in connection with the election

(including the submission of

nominations) to be taken again and for the uncompleted steps in the election to be taken; or

in the case of a completed election - for any step in or in connection with the election (including the submission of nominations) to be taken again or for a new election to be held;

(d)	an order (including an order modifying the
operation of the rules of the organization to the extent necessary to enable a new
election to be held, a step in or in
connection with an election to be taken

again or an uncompleted step in an election to be taken) incidental or supplementary to, or consequential upon,

any order under this section.

( 4 ) The Court shall not declare an election, or any

step taken in or in connection with an election, to be void, or declare that a person was not elected, unless the Court is of opinion that, having regard to the irregularity found, and any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur, the result of the election may have been affected, or may be affected, by irregularities.

The Court is given various other powers during the conduct of an

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inquiry. By 5. 162A, the Court may authorize the Industrial Registrar to exercise povers to inspect relevant documents, and to enter premises, require delivery of documents, take possession

of them and retain them. Section 162A(2) requires that the Court

'if it is of opinion that, having regard to all the

circumstances, any person should be given an opportunity of objecting to the proposed action, give such an opportunity to that person." Section 163 contains a number of powers under which the Court may stop the conduct of elections, and make provision for the filling of offices. These provisions are normally used on an interim basis, but are not expressly so

limited. Section 166 should also be set out in full:

"166(1) The Court may make such orders for injunctions (including mandatory injunctions) as it thinks necessary for the effectual exercise of its powers and functions and the enforcement of its orders under this Part.

( 2 ) A person shall not refuse or fail to comply with an order of the Court under this Part or hinder or obstruct the carrying out of any such order.

Penalty: $500 or imprisonment for 6 months, or both.

(3) Nothing in this section shall affect the powers

of the Court in relation to the punishment of contempts

of the Court. I'

Section 167 saves acts done by persons purporting to act in offices where the court has declared void the election of those persons, but gives to the court a discretion to declare any act to have been void. Section 168 makes certain provisions as to the obtaining of assistance towards the costs of the applicant for an inquiry, and of other persons.

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Provisions relating to inquiries into elections in

organizations were first introduced into the Act by Act No. 28 of

1949. Those provisions were then Division 3 of Part VI of the

Act. Many of the original provisions have been preserved intact,

some with minor changes of spelling. In some other respects, the

provisions have been amended.

Mr. McCarthy drew attention to the creation of this Court under Chapter I11 of the Constitution, and to the continued

binding authority of the Boilermakers' case (R. v. Kirbv: Ex parte Boilermakers' Society of Australia (1956) 94 C.L.R. 254 and Attorney-General of the Commonwealth v. R. (1957) 95 C.L.R. 529), to the effect that the Parliament of the Commonwealth lacks the power to combine in one tribunal judicial power with power of a non-judicial kind that is not incidental or ancillary to the

exercise of judicial power. These propositions, of course, must

be accepted: the Boilermakers' case binds this Court. In arguing that the powers given by Part IX of the Act should be characterized as non-judicial, Mr. McCarthy pursued two lines. In the first place, his argument was that the question is directly concluded by authority. He made a detailed comparison between the provisions of the old Division 3 of Part VI of the Act and the provisions of the present Part IX, for the purpose of showing that very few changes had occurred. He then referred the Court to judgments of the High Court of Australia, in which the view has been expressed that the earlier provisions gave powers of a non-judicial character. The second line of the argument involved an examination of a number of features of the present legislation, for the purpose of showing that they make the Court

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both "actor and judge", or are otheruise features outside those

normally to be found in legislation granting judicial power to a

court.

In support of his first line of argument, Mr. McCarthy referred to two passages in judgments of the High Court. The

first was in the judgment of Fullagar J. in R. v. Commonwealth

Court of Conciliation and Arbitration: Ex parte Grant (1950) 81

C.L.R. 27, at page 58, where his Honour said:

"The court, although it is not, in inquiring into an election, exercising judicial power, is a court which possesses certain judicial power..."

The next passage was in the judgment of the majority of the High

Court in the Boilermakers' case in 94 C.L.R. at page 287-288:

"It is better to mention the provisions which either are or may be thought to be capable of reference only to the judicial power of the Commonwealth. Conspicuous among these are S. 119, S. 29 (1) (a) and S. 29A. These plainly confer jurisdictions which belong to judicial

power. Section 29A is not directed to what, in the

language used in Barton v. Tavlor L(1886) 11 App. Cas.,

at p. 2033, may be called the protective and self-defensive powers of the Arbitration Court. It is punitive. Section 119 is an ill-framed attempt to vest summary jurisdiction over offences. Paragraph (a) of S.

29 (1) is but a version of S . 38 (d) of the Act of

1904-1946 empowering the court to impose penalties for breach or non-observance of an order or award. Section 29A gives power to punish for contempts of all descriptions. These provisions plainly must rest upon

chap. 111. Section 59, which was formerly S. 44,

includes the Arbitration Court among other courts which it mentions and gives them severally jurisdiction to impose penalties for breach or non-observance of an order or award. This provision is in the same category. it is to be noticed that the invalidity of such provisions affects the operation, according to its own terms, of S. 86. The provisions of Div. 3 of Pt. VI relating to disputed elections in organizations seem for the most part to depend on S. 51 ( - . l , including what

is incidental to that paragraph and not to be touched by

Chap. 111. This may be true of much of S. 96G but sub-S. (3) (a) and (b) of that section and S. 96H, with

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which B. 96J .is linked, may be thought to be cast in the

-mould of jrpdicial paaet w e n although the same purpose

ray be achieved by provisions differently conceived.

But that is not a matter now before us. "

Sub-sections (1) and ( 2 ) of 6. 165 of the present Act are in exactly the same terms as were S. 96G(1) and (21, save that the spelling of "connexion" has been amended to "connection". In the original 6 . 96G(3), the words "in its discretion" appeared after

the word "may"; those words have been removed from S. 165(3).

Paragraphs (a) and (b) of S. 165(3) are in the same terms as were the equivalent provisions in S . 96G, save for the same spelling

amendment as was made in S. 165(1). Section 96H is now S . 166,

with changes which do not affect its substance. Section 96J is now S . 167, with a spelling amendment similar to that made in S. 165(1).

The comment of Fullagar J. in Grant's case was in the context of a description of the powers of the Industrial Registrar. The High Court was called upon to determine whether

an application for an inquiry, which was lodged prior to the

coming into operation of regulations prescribing the form of such

an application, was properly lodged. Fullagar J. applied the

principle often applied to judicial tribunals, that a statutory jurisdiction is to be exercised, notwithstanding the absence of rules of court providing for the manner of its exercise. His

Honour took the view that, although the powers of the Industrial

Registrar were not judicial, he was an officer of a tribunal with

some judicial powers. His Honour's comment (which, of course,

was made about the Court of Conciliation and Aribitration) was in

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the nature of a passing obeerrration. Counsel for the

Attorney-General of-the Commomalth in Grant's case did submit that t h e provisions of S. 966 were of an administrative character, and prima facie arbitral functions, but full argrnent on the point did not occur. The statement of Fullagar J. was not

essential to his Honour's reasoning. The other members of the

court reached the same conclusion, without following the

reasoning of Fullagar J. Their comments do not echo those of

Fullagar J. as to	the nature of the power to inquire into
elections.

The comments of the majority in the Boilermakers' case

were, however, part of the reasoning upon which their Honours'

judgment was based. As part of the process of determining whether the Court of Conciliation and Arbitration was capable of exercising judicial power, their Honours analyzed its powers to determine whether they were substantially judicial or substantially non-judicial. The conclusion was reached that they were substantially non-judicial. The passage which I have quoted occurs as part of this examination.

It does not follow, however, that I should simply apply what was said by the majority of the High Court in the

Boilermakers' case to the present S . 165(1) and ( 2 ) . The remarks of the majority themselves tend to indicate that they were not reaching a fully reasoned conclusion as to each of the powers examined. There was no full argument on the question. In

addition, there have been significant changes to the legislation

since the Boilermakers' case. In the original S. 96P(5), the

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provisions of S. 39 of the Act -re expressly made applicable to

proceedings under Division 3 of Part VI. Section 39 then

contained the provisions which are now found in S. 40( l), relating to the proceedings of the Australian Conciliation and Arbitration Commission. Paragraph (c) of those provisions requires the Commission to "act according to equity, good conscience and the substantial merits of the case, without regard to technicalities and legal forms. "

When the legislation was re-cast after the Boilermakers' in dealing with election inquiries; it was reproduced in S . 164(4)(c). In the review of the allocation of functions, as between the Commonwealth Conciliation and Arbitration Commission and the Commonwealth Industrial Court, which took place after the High Court's decision in R. v. SDicer: Ex Darte Australian Builders' Labourers' Federation (1957) 100 C.L.R. 277, this

U, this provision was expressly made applicable to the court

paragraph (c) was removed. The effect of that was to require the

court, in dealing with inquiries into elections, to act according

to law. The second major change in the legislation, which also came about in 1957, was a substantial change in S . 165(3)(c) and

(d). The majority of the High Court in the Boilermakers' case had excepted from its characterization of S. 96G as non-judicial paragraphs (a) and (b) of sub-S. (3). Those powers, were, as I

have said, left untouched. The remaining powers in sub-S. (3)

were revised, to remove what might have been thought to be administrative elements in them. In particular, the original paragraph (d) permitted the court to direct the taking of safeguards against irregularities, to appoint its own returning

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officer in conjuuction with the returning officer acting under the rules of the organization or branch concerned, and to authorize such appointed returning officer to exercise such powers as the court directed. Under the present legislation, the Court has lost its administrative role, and is confined to directing the Industrial Registrar to make arrangements for the conduct of new elections or steps in elections, and to modifying the operation of the rules to any extent necessary.

It has been held frequently that there are many functions which the Parliament may choose to allocate either to a judicial or to a non-judicial tribunal, and which take their character from the nature of the tribunal to which they are

allocated. See R. v. Davison (1954) 90 C.L.R. 353, at pages

369-370 per Dixon C.J. and McTiernan J., Cominos v. Cominos

(1972) 127 C.L.R. 588, at pages 606-7 per Mason J., R. v. Joske; Ex parte Australian Buildincr Construction Emplovees and Builders'

Labourers' Federation (1974) 130 C.L.R. 87, at page 95 per Barwick C.J. and page 99 per Gibbs J. (as he then was), R. v. guinn: Ex parte Consolidated Foods Corporation (1977) 138 C.L.R.

1, at page 6 per Gibbs J. (as he then was) and pages 9-10 per

Jacobs J., with whom Stephen and Mason JJ. concurred, and R. v. Heqarty: Ex parte Citv of Salisbury (1981) 147 C.L.R. 617, at page 628 per Mason J., with whom Gibbs C.J., Stephen and Wilson

JJ. concurred. The intention of the Parliament to allocate to

the Court the function of inquiring into elections within organizations is plain. The fact that the Parliament has also made it clear that, in conducting such inquiries, the Court is to act according to law is a powerful indication that such inquiries

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are now to be regarded as judicial. The removal from amnnget the Court's powers of those aspects which formerly permitted the Court of Conciliation and Arbitration to adopt a supervisory role over the conduct of further steps in elections, or of new elections, is another indication to the same effect. In m y view, the legislation is significantly different from that which was pronounced upon by the majority of the High Court in the

Boilermakers' case.

The first limb of Mr. McCarthy's argument is unduly

narrow. It concentrates upon sub-ss. (1) and ( 2 ) of S . 165, and singles them out as having been dealt with specifically by the majority in the Boilermakers' case. Those provisions, however, must been seen in the context of Part IX of the Act. If their context has changed, it may be that the nature of the functions

has also changed. Accordingly, I do not regard the question

which I now have to determine as being the subject of conclusive authority. It is therefore necessary to examine the second limb of Mr. McCarthy's argument.

This limb of the argument placed heavy reliance upon what was said by the Privy Council in the Boilermakers' case, at page 542, as to the extent to which it was legitimate for the Commonwealth Parliament to join non-judicial with judicial powers in the same tribunal. There the Privy Council excluded from such a conjunction of powers "any combination of functions in which a tribunal might be both actor and judge". Mr. McCarthy pointed to a number of features of Part IX of the Act, and contended that they made the Court both actor and judge. The unusual, and even

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unique, nature of many of the provisions of Part M was also

relied upan.

In the first place, attention was directed to the manner in which an inquiry is commenced, by application to the Industrial Registrar, and reference of the application by him tu the Court. It was said that this placed a barrier in the way of a potential litigant in coming to the Court, a barrier of a kind not normally found in judicial tribunals. Once the matter is before the Court, it was said, even an applicant does not have the right to appear as a party; leave must be granted to him or her, as it must to any other person. Particular emphasis was given to the power of the Court to order persons to appear or be represented. This was said to place the Court in the position of selecting parties, and to be a most unusual and significant intrusion into the rights of people.

Attention was then directed to S. 165(1). In its terms,

this imposes upon the Court a duty to inquire into and determine

the question whether any irregularity has occurred in or in

connection with the subject election. The function of

determining a question was pointed to as being unusual. More

importantly, it was contended that the duty to inquire is imposed without reference to any issues which might be raised by the applicant, or indeed by any other party; the Court is required to investigate at large the occurrence of any irregularities. It

has been held that, in conducting an inquiry under Part IX, the

Court is not limited to the grounds raised in the application. See Re Elections for Offices in Australasian Meat Industrx

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EmDloveee union (1963) 5 F.L.R. 260, at page 265, Jutte v.

h l a a m n t e d m e e r i n U union. Australian Section (1967) 10

F.L.R. 195, at pages 201-201, Re Australian Postal and

Telecommunications Union: Ex w r t e Hilson (1979) 28 A.L.R. 330,

at page 333, and Re Aswlications bv Braau and Others for Inauiries into Elections in the Australasian Societv of hoineers. South Australian Branch (Federal Court of Australia,

Gray J., 21st August 1984, unreported). Further, the duty to inquire seems to extend to the occurrence of irregularities of all kinds, including those which would not have been capable of affecting the result of the election concerned and which by reason of the provisions of S. 165(4), could not lead to any order. It was this duty which was relied upon most strongly as demonstrating the role of the Court as an actor. In the same sense, the duty of the Court to inquire into "such further

questions...as the Court thinks necessary" in S . 165(1) was said

to make the Court, rather than the parties, the determiner of

what issues it would address.

In Re ADDlication bv Prichard for an Insuirv into an Election in the South Australian Branch of the Federated Clerks Union of Australia (Federal Court of Australia, Gray J., 2nd April 1985, unreported), it was held that an inquiry under Part IX of the Act must continue, even though the original applicant withdraws from the proceeding. Mr. McCarthy relied upon this feature as distinguishing the proceedings under Part IX from ordinary judicial proceedings.

Reliance was also placed on the breadth of the power

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under s. 165(2) to make "such orders...as the Court thinks

necessary for the purposes of the inquiry", and the discretionary

nature of the powers given by ss. 165(3) and 163(1).

In the case of elections conducted under S. 165A or S.

170, reference was made to the power of the Court to terminate the proceeding early, unless it is satisfied that there is no reasonable ground for the application. It was argued that this power again pointed to the lack of control which an applicant has over the direction of an inquiry.

In Re Application by Prichard for an Insuirv into an Election in the South Australian Branch of the Federated Clerks Union of Australia (Federal Court of Australia, Gray J., 26th February 1985, unreported), the Court held that an inquiry under Part IX is not affected by S. 60(2) of the Bankruptcv Act 1966 if the original applicant is adjudicated bankrupt. In the course of that judgment, I said:

"There can be no doubt that the conduct by the court of

an inquiry concerning an election is a "civil

proceeding" in a broad sense. It does not in any sense involve reliance on any cause of action given by common

law or equity. Nor is there any cause of action given

to an applicant by the statute; as I have said, the conduct of the inquiry is in the hands of the Court, and the applicant for such an inquiry is given no statutory right to proceed for any relief or remedy. The provisions of Part IX of the Act are in marked contrast to those of other sections of the Act which do give such a right directly to a member of an organization, e.g.

ss. 140 and 141. For these reasons, I do not regard an inquiry under Part IX of the Act as a "civil proceeding, whether at law or in equity" within the meaning of 6. 6 0 ( 5 ) of the BankruDtcv Act 1966. Such an inquiry is not, therefore, stayed by operation of 5. 60(2) of the last-mentioned Act.

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Mr. HcCarthy relied upon these statements as authority for the

proposition that, in inquiring into an election, the Court uas applying administrative or policy considerations, rather than

legal considewations .

The fact that S . 164(4) of the Act gives the Court a

discretion as to the procedure to be followed at an inquiry, and

dispenses with the need to comply with the rules of evidence, was said by Mr. McCarthy to point against the exercise of judicial power.

Finally, Mr. McCarthy pointed to the absence of any

, right of appeal from an election inquiry, by virture of S.

118B(l)(a) of the Act.

As can been seen from the foregoing summary of the

second limb of Mr. McCarthy's argument, that argument rested upon an examination of specific features of the legislation, each of which was said to indicate the exercise of a non-judicial power, followed by the conclusion that there were sufficient of these non-judicial features to render the whole process non-judicial.

In my view, there are three considerable flaws in this argument.

In the first place, the concentration upon specifics means that the argument does not look at the whole process which the Court undertakes in an election inquiry. The controversy before the Court in such an inquiry is the issue whether any irregularity has occurred in or in connection with the subject

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election. The machinery for determining this contrwersy is set in motion by an applicant frm the specified classes of persons. Provided that there is substance in his or her allegations, the Court then proceeds to determine the controversy. The unusual nature of the subject matter may be thought to lend itself to the procedures laid down by Part IX. An applicant's knowledge of the extent of irregularities in an election may be incomplete; the Parliament plainly considered that to confine the proceedings to matters within an applicant's knowledge would be too narrow. Natural justice requires that interested parties be given a hearing. Unlike a Royal Commission, the Court does not have counsel assigned to assist it in conducting an inquiry; it must

do the best it can to ascertain the evidence from those who become parties to the inquiry, and, if necessary, by calling upon the Industrial Registrar to use his powers of investigation. Its procedures are intended to be flexible, and its task of ascertaining the facts is intended to be, so far as is possible, uninhibited. The technique of inquiry, however, is merely a means of ascertaining the facts. When the controversy is determined, and irregularities are found to have occurred, the Court must then address itself to the question whether those irregularities may affect, or may have affected the result of the

election. If so, the Court has a wide range of orders from which

to choose, to give effect to its findings. These order6 are based on findings as to the antecedent legal rights of persons involved in the election. They do not involve the making of new rules for the future. It is in the making of orders that the Court will principally affect the participants in an election.

To concentrate upon the process of finding the facts, and to

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ignore the process of orders is to look only at a small

part of the function	of the Court in conducting an inquiry into
an election.

The second flaw in Mr. McCarthy's argument is that, in selecting specific features of the legislation, it fails to ask

the question of each such feature whether it is fundamental to the power exercised by the Court, or merely incidental or ancillary thereto. If the process of an inquiry is viewed as one involving the determination of a controversy, followed by the making of orders to give effect to the legal rights of the participants in that controversy, it will be seen that many of the features to which Mr. McCarthy's argument drew attention are properly characterized as incidental or ancillary. Even if those features do tend to indicate an absence of judicial power, this will be insufficient to invalidate the legislation.

The remaining flaw in the argument is that it

incorrectly characterizes many of the features to which attention is drawn as non-judicial. Some of the specific aspects of the legislation to which attention is drawn are similar to functions traditionally performed by courts and, in some cases, already adjudicated upon as being appropriate aspects of the judicial power of the Commonwealth. Merely to point to a specific power

as unusual, or even unique, is not to say that it is

automatically non-judicial.

In exercising its powers under Part IX of the Act, the Court is not an "actor" in the sense of being an initiator of

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proceedings. One of the abjectimable features of the old form

of S. 140 of the Act, which the High Court found to exist in

V. SDicer: Er Darte Australian Builders' Labourers' Federation

(1957) 100 C.L.R. 277 was that the court did have a real power to act of its m motion in declaring invalid the rules of a registered organization. The court could, as it were, stumble across objectionable rules in the course of other proceedings, and instigate its own attack upon them, judging the results of that attack as well. Under the present Part IX, the Court cannot, of its own motion, begin an inquiry into an election, the occurrence of which comes to its notice by other means. It must

wait until its processes are put into action by reference of an application made to the Industrial Registrar. The existence of some administrative procedure as a pre-condition to the

occurrence of a proceeding in court is not a stranger in the

exercise of judicial power in the traditional sense. Courts have long been accustomed to the commencement of proceedings for indictable offences either by the process of committal hearing, or by decision of the Attorney-General to prefer an e x officio indictment.

The existence of a power in the Court to act of its own

motion in taking a step in an existing proceeding is not

necessarily indicative of some non-judicial power. In R. v.

Joske: Ex parte Australian Buildinu Construction Emplovees and

Builders' Labourers' Federation (1974) 130 C.L.R. 87, the High

Court held valid the conferment on the Australian Industrial Court of the powers given by S. 143 of the Act in proceedings for the deregistration of organizations. Those powers include a

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range of discretionary powers, short of deregistration, which may

be activated by the Court on its own motion. Particular

reference should be made to the	judgment of Barwick C.J.	at pages
94-95.

Upon analysis, the provisions of S . 164(1), as to the

granting of leave to appear and be represented, or the ordering

of persons to appear or be represented, are not remarkable. The

Court is bound to grant leave to all persons who appear to the Court to be justly entitled to be heard. In all but the most rare of cases, this must include an applicant, and anyone else whose legal rights might be affected by the determination of the

controversy before the Court. The power to join additional

parties to an existing proceeding is one traditionally possessed by most courts, and is usually capable of exercise by the court

on its own motion. The provisions of 0. 6 R. 8 of the Federal

Court Rules, and 0. 16 R. 4 ( 2 ) of the Hiuh Court Rules have their

counterparts in rules of the Supreme Courts of the States. "he

discretionary powers given by such provisions must, of course, be exercised in a judicial manner. It would not be open to the Court, acting under S. 164(1), to require the appearance of a person wholly unconnected with the possible occurrence of irregularities in or in connection with the subject election.

Section 164(1) really does no more than to require the Court to hear all those with an interest, and to permit the Court to call upon those who may be able to assist it in resolving the controversy before it. The persons who appear or are represented

are deemed by S. 164(2) to be parties to the proceeding.

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In any event, the exercise of judicial pawer does not necessarily require that an adversary procedure take place: See

in Re Judiciarv and Navigation Acts (1929) 29 C.L.R. 257, at

pages 266-267 and 271, R. V. Davison (1954) 90 C.L.R. 353, at pages 367-368, and R. v. Trade Practices Tribunal: Eh w r t e

Tasmanian Breweries Ptv. Ltd. (1970) 123 C.L.R. 361, at page 374.

The availability of the discretionary remedies is not such as to exclude the exercise of judicial power. I have already referred to the decision of the High Court of Australia in relation to S. 143 of the Act. Reference should also be made to R. v. Commonwealth Industrial Court: Ex parte Amalqamated Enqineerinq Union (Australian Section) ("Shearer's case") (1960) 103 C.L.R. 368 and R. v. Joske; Ex parte Shop Distributive and Allied Emplovees' Association (1976) 135 C.L.R. 194. Some of the remedies dealt with in the last-mentioned case might properly be described as unique. They were nevertheless held to be part of a valid grant of the judicial power of the Commonwealth to a court created under Chapter I11 of the Constitution.

The procedure for summary termination of an election

inquiry, pursuant to S. 159(4)(b) of the Act, bears some

resemblance to provisions found in the rules of Supreme Courts of

the States, and in the Federal Court Rules, for summary judgment

on the application of a defendant or respondent to a proceeding. In addition, it must be said that the absence of an unassailable right on the part of a litigant to have his or her case dealt with through all stages to judgment is not a necessary aspect of

judicial power. The procedure by way of order nisi, in which the

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. court may, and frequently does, refuse the grant of an order nisi, is an erample of a judicial tribunal dealing swiftly with

the allegatians of an applicant which do not warrant further

investigation.

Provisions giving to courts discretions as to

procedures, and releasing them from the bonds of the rules of

evidence, are not altogether uncommon. See, for example, 0. 33 R. 3 of the Federal Court Rules. The existence of discretionary procedures and less technical means of ascertaining evidence are not incompatible with judicial procedure. See R. v. Davison (1954) 90 C.L.R. 353, at page 369, Peacock v. Newtom Marrickville and General Co-operative Buildina Societv No. 4 Ltd. (1943 ) 67 C.L.R. 25, at pages 55-56 and Cominos v. Cominos (1972)

127 C '.L.R. 588 at page 604.

The provision preventing appeals from election inquiries

is a valid exercise of the powers of the Parliament under S.S. 73 and 77(i) of the Constitution. See State of Victoria v. Australian Buildina Construction Emplovees and Builders' Labourers' Federation (1982) 56 A.L.J.R. 506, and Cockle v.

Isaksen (1957) 99 C.L.R. 155.

What was said by the Court in the Prichard case, as to the absence of a cause of action at law or in equity, or one given by statute, is correct. It is taking that statement much too far, however, to rely upon it as authority for the absence of a grant of judicial power to the Court. Rhilst there is no cause of action as such given to an applicant, there is, as I have

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said, a controversy to be dealt w i t h by the Court, and the presence of an applicant is required before proceedings can be commenced.

The most important aspect of Mr. HcCarthy's argument is the significance of the duty of the Court to inquire and to determine a question. There is nothing necessarily inconsistent between such a duty and the exercise of judicial power. Mr.

McCarthy could point to no express authority that such a duty could not validly be imposed on a court. Section 171C of the Act requires the Court to determine a question; it was one of the provisions held valid in R. v. Joske; Ex parte Shou Distributive and Allied Emulovees Association (1976) 135 C.L.R. 194. The High Court, sitting as a court of disputed returns, is required by S. 361 of the Commonwealth Electoral Act 1918 to inquire into certain questions. It has not been suggested that this is not a proper conferment of judicial power. Holmes v. Anwin (1906) 4 C.L.R. 297, which was relied on by Mr. McCarthy, is not in point; it decided that the function of acting as a court of disputed returns for parliamentary elections in Western Australia was

given to a Supreme Court judge as a designated person, rather

than being given to the Court itself. The power of the Court to

pursue irregularities other than those alleged is only seen as

improper if it is assumed that the Court can only properly be

called on to determine allegations raised by an applicant. The

view which I take is that the Court's function is seen correctly

as the resolution of the controversy whether any irregularity has

occurred, and the making of appropriate orders.

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The result of this analysis is that no case has been

made out for saying that any of the powers conferred upon this

Court by Part M of the Act are invalidly conferred. 'Itso further

points should be made.

So far I have not referred to the only authority in which it has been expressly held that Part IX of the Act contains a valid grsnt of the judicial power of the Commonwealth of Australia. This is the decision of Joske J. in Learv v.

Australian Builders' Labourers' Federation (1961) 2 F.L.R. 342,

at page 343. His Honour's judgment did not deal in detail with the authorities. Rather, his Honour posed a series of questions which emerged from his examination of the authorities. Each of those questions was answered in the affirmative, in his Honour's view, and the conclusion was reached that the powers his Honour proceeded to exercise were judicial in their nature. It is true that full argument does not appear to have been directed to the issue. I cannot assume, however, as Mr. McCarthy suggested I should, that Joske J. was unaware of the statement made by the majority of the High Court in the Boilermakers' case, or of the judgments in R. v. Spicer: Ex parte Australian Builders' Labourers' Federation. Both of those were recent cases of great significance, at the time when his Honour decided the point. His

Honour had been appointed a judge of a court created as a result

of the Boilermakers' case, and must have been aware of the series of cases on the allocation of powers as between that court and the then Commonwealth Conciliation and Arbitration Commission. Although the question does not seem to have been fully argued, I should regard Learv's case as authority for the proposition that

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Part IX of the Act is valid.	Although it is not binding upon me,
I propose to follow it.

In a sense, much of the argument vhich s a s put in the

present case is of academic interest only. It must be remembered

that the argument before me is by way of objection to the

jurisdiction of the Court. It is necessary to look at what the

Court is doing, or proposing to do, for the purpose of seeing

whether the functions which it is performing or about to perform,

or the powers which it is exercising or likely to exercise are

valid. Even if it were held that the Parliament could not

properly confer upon the Court powers to pursue irregularities

other than those alleged by an applicant, or to cause persons to appear or be represented against their will, such conclusions would be irrelevant to the present case. The Court has before it an applicant who has made certain allegations, which are set out in detail in 57 A.L.R. at pages 283-289, and which I need not repeat. At present, it is inquiring, or proposing to inquire into those allegations; its purpose is to determine whether, as

a matter of fact, those allegations are made out and, if they

are, whether they amount to an irregularity within the meaning of the Act. If they do, the Court will be required to determine whether that irregularity may have affected the result of the

election, and to make orders accordingly. It has before it only

those parties who sought to appear and be represented, and has not summoned any other person to appear and be represented. Hhat

the Court is actually doing, or proposing to do falls well within

the subject of any proper grant of judicial power. Further, the election the subject of this inquiry was conducted pursuant to S.

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170 of the Act; those provisions of Part M apply

ercluaivelp to elections not so conducted do not affect any

interest of Mr. Bali in this proceeding.

Even if certain aspects of the legislation were held to

be invalid (and I do not suggest that they are), the provisions of S . 15A of the Acts Interpretation Act 1901 would need to be considered. Some of the provisions of Part IX of the Act which were characterized by Mr. McCarthy as granting non-judicial power would be readily severable by means of a "blue pencil". An example is the power to order persons to appear or to be represented. The duty to inquire is quite capable of heing read down, so as to apply only to allegations made by an applicant, or by any other party. So to read the legislation is not to redraft it, but to confine it to part only of the subject matter which Parliament has attempted to cover. The task is much the same as that performed in Steele v. Defence Forces Retirement Benefits Board (1955) 92 C.L.R. 177, at pages 187-188, and differs from that which the High Court refused to perform in Strickland v. Rocla Concrete Pipes Ltd. (1971) 124 C.L.R. 468 (see especially

pages 492-493 per Elarwick C.J., and pages 503-506 per Menzies

J.). This case also differs from R. v. Soicer: Ex parte

Australian Builders' Labourers' Federation (1957) 100 C.L.R. 227,

on which Mr. McCarthy relied to contend that S. 15A of the

Interpretation Act 1901 was inapplicable. In that case, the legislation concerned ( S . 140 of the Act in its earlier form) suffered from two major vices. It gave the court power to act of its own motion in disallowing rules of organizations; it also gave to the court a discretion, based on criteria which were held

.~ - 29 -

In &se circumstances, in my view the challenge to the

jurisidiction of the Court in the present inquiry fai ls . The

Court will proceed to give directions as to the future conduct of the inquiry.

. . I I' .