An Application by the Food Preservers Union of Australia and Ors
[1988] FCA 106
•22 MARCH 1988
Re: AN APPLICATION BY THE FOOD PRESERVERS' UNION OF AUSTRALIA AND THOMAS
DESMOND RYAN FOR AN ORDER PURSUANT TO SECTION 171C OF THE CONCILIATION AND
ARBITRATION ACT 1904 IN RESPECT OF THE FOOD PRESERVERS' UNION OF AUSTRALIA
No. V213 of 1987
Industrial Law
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Northrop(1), Gray(2) and Ryan(1) JJ.
CATCHWORDS
Industrial Law - Conciliation and Arbitration Act 1904 - application for an order pursuant to s.171C - nature of an invalidity - absence from rules of an organization of a provision for the alteration of the rules - power of the Registrar to give a certificate in respect of part of a rule alteration - whether typographical corrections to rule alterations made by the Registrar affect the validity of the alteration.
Conciliation and Arbitration Act 1904 ss.4,118C,139,140,171C,171D
Statute Law (Miscellaneous Provisions) Act 1987 s.3
HEARING
MELBOURNE
#DATE 22:3:1988
Counsel for Applicant : Mr. R.C. Kenzie Q.C.
with Mr. S.J. Howells
Solicitors for Applicant : Messrs. R.L. Whyburn & Associates
ORDER
An invalidity has occurred in the making or alteration of the rules of the Food Preservers' Union of Australia, including the rules of each of its branches, and being the rules the subject of the certificate given by a Deputy Industrial Registrar on 8 July 1986 and accordingly DETERMINES, DECLARES AND ORDERS as follows:-
1. That an invalidity has occurred in the making or alteration of the said rules, hereinafter called the "certified rules" by reason that the certified rules do not make provision for the alteration of the rules of the Union as required by the Conciliation and Arbitration Act 1904 and the Conciliation and Arbitration Regulations.
2. The Court, being satisfied that the orders made herein will not do substantial injustice to the Union or to any member or creditor of the Union or to any person having dealings with the Union, ORDERS that the certified rules be and the same are hereby validated for the purpose of the certificates given by the Deputy Industrial Registrar on 8 July 1986 as from 8 July 1986.
An invalidity has occurred in the making or alteration of rules 9(a)(xi) and 59 of the certified rules of the Union being the rules the subject of the certificate given by a Deputy Industrial Registrar on 27 July 1987 and accordingly DETERMINES, DECLARES AND ORDERS as follows:-
1. That an invalidity has occurred in the making or alteration of the said rules 9(a)(xi) and 59 by reason that the certified rules did not make provision for the making or alteration of the said rules 9(a)(xi) and 59.
2. The Court, being satisfied that the orders made herein will not do substantial injustice to the Union or to any member or creditor of the Union or to any person having dealings with the Union, ORDERS that the said rule 9(a)(xi) and the said rule 59 be and the same are hereby validated for the purpose of the certificate given by the Deputy Industrial Registrar on 27 July 1987 as from 27 July 1987.
(Settlement and entry of Orders is dealt with in O.36 of the Rules of Court.)
JUDGE1
The issues raised by this application in the form contained in the Further Amended Application, filed in Court on 29 October 1987 flow largely from actions taken by a Deputy Industrial Registrar in an attempt to assist an organization of employees with respect to its rules. The Food Preservers' Union of Australia ("the Union") is an organization of employees under the Conciliation and Arbitration Act 1904. In accordance with the Act, its affairs were regulated by rules. Those rules contained provisions relating to the alteration of its rules. The rules made provision for branches. There were four branches of the Union, namely the South Australian Branch, the Victorian Branch, the Tasmanian Branch and the New South Wales Branch. In accordance with the Act and Regulations, the affairs of each branch were regulated by rules. During 1984, the Union and each of its four branches determined to replace the then existing rules relating to the Union and each of its branches respectively with new sets of rules. To that end, pursuant to the powers contained in the rules, the Union and each of the branches adopted a new set of rules. No suggestion has been made that any of the new sets of rules had not been made in conformity with the then existing rules.
The issues raised by this application do not affect the name of the Union or the conditions of eligibility for membership of the Union, so the provisions of sub-sections 139(1), (2) and (3) of the Act have no application. It is noted, therefore, that none of the rules contained in the new sets of rules required the consent of the Registrar under that section. Sub-section 139(4) is of importance and is set out in full:-
"139. (4) An alteration of the rules of an organization to which the consent of the Registrar under this section is not required does not have effect until particulars of the alteration have been filed in the office of the Registrar and the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization."
The effect of that sub-section can be summarized. Any alteration to a rule of the type described in the sub-section, does not come into operation until particulars of the alteration have been filed in the office of the Registrar and the Registrar "has certified" that in his opinion the alteration conforms to the requirements set out in that sub-section. The word "Registrar" includes a Deputy Industrial Registrar; see definition of "Registrar" in sub-section 4(1) of the Act.
In conformity with sub-section 139(4), the Union and each of the four branches filed in the office of the Registrar each of the new sets of rules, being the particulars of the alterations, for the purpose of obtaining certificates under that sub-section. On 8 July 1986, a Deputy Industrial Registrar issued a document in the form of a certificate under sub-section 139(4) with respect to the alterations of the rules of the Union as contained in its new set of rules. The operative part of the document was as follows:-
"In my opinion, the alterations with the exception of : ...
rule 59(b) ...
comply with and are not contrary to the provisions of the Act, the regulations or of an award, are not otherwise contrary to law and have been made in accordance with the relevant procedures laid down by the rules of the organization. I certify accordingly in pursuance of sub-section 139(4).
(Stamp of
Principal Registry)
(signed) DEPUTY INDUSTRIAL REGISTRAR 8 JUL 1986."
A similar document was issued on the same date with respect to the alterations to the rules of each of the branches.
A copy of each of the sets of rules so certified is before the Court. Each set contains a certificate signed by a Deputy Industrial Registrar that the set is a true and correct copy of the registered rules of the Union or the branch respectively, "as at 14 July 1986." Each certificate is dated 6 August 1987. These rules are hereinafter referred to as the certified rules of the Union or of the branches respectively. The certified rules of the Union are in the form as certified by the Deputy Industrial Registrar. Generally, where he refused to certify sub-rules, or parts of rules or sub-rules, there is no reference to that sub-rule or part of a rule or sub-rule which was not the subject of the certificate. Where there would have been an apparent gap if no reference were made to the rule or sub-rule which was not certified, reference is made to the fact that the rule or sub-rule was not certified. Thus, for example, in the certified rules of the Union, rule 27 reads, "27. (NOT CERTIFIED)", and sub-rule 39(c) reads "(c) (NOT CERTIFIED)." There are other instances where this occurs, but in the vast majority of instances, the certified rules do not draw attention to the fact that parts of the new sets of rules adopted by the Union and the branches have not been certified. Issues are raised relating to the power of the Registrar to give a certificate in respect of part of a rule alteration.
The Union and the branches applied and acted upon the certified rules. For present purposes, the relevant rule of the certified rules of the Union is rule 59. That rule provides as follows:-
"59. ALTERATION OF RULES
(a) These Rules may be altered, repealed or added to at a Special Meeting called for the purpose by a decision of the majority of the members present and entitled to vote, voting in favour of such alteration, repeal or addition. Notice to amend, repeal or add to these Rules shall be given to the Secretary in writing fourteen (14) days before such meeting.
(b) (NOT CERTIFIED)
(c) The Branch Secretary shall submit any such rule change immediately to the General Secretary who shall refer the rule change to the Federal Conference for decision in accordance with the Rules of the Union."
Sub-rule 59(b), as adopted by the Union but not certified by the Deputy Industrial Registrar, was as follows:-
"(b) Notwithstanding anything contained in these Rules, the Branch Committee of Management may alter or amend the Rules to meet the requirements of any State or Federal Law."
There are inherent difficulties in construing and applying rule 59 as adopted, let alone, as certified. The rule does not make clear what body has the power to amend the rules of the Union. Reference is made to a "Special Meeting" but not to the body which is to hold the special meeting. Further, the certified rules of the Union and of the branches create a dichotomy between the General Secretary of the Union and the Secretary of a branch. The former is generally referred to as "the General Secretary" while the latter is generally referred to as "the Secretary."
The certified rules of the Union do not, in express terms, confer a power to amend the rules of the Union on any group of persons. The rules constitute a Federal Conference which is the supreme governing body of the Union; rule 6(a). Membership of the Federal Conference consists of the General President, the General Secretary and representatives of the branches; rule 6(b). Under rule 7, Federal Conference is required to meet at least once every two years and the General Secretary is required to give each branch two months notice of the biennial meeting. Under rule 7(e), in certain circumstances, the General Secretary is required to call a special meeting of Federal Conference and each delegate must receive "at least fourteen days written notice of such meeting" together with advice of the business to be dealt with at that meeting. This provision seems inconsistent with rule 59(a) if the special meeting referred to in that rule is a special meeting of Federal Conference.
Rule 9 lists the powers and duties of Federal Conference. For present purposes, the only relevant parts of that rule are set out:-
"9. POWERS AND DUTIES OF THE FEDERAL CONFERENCE
(a) The Federal Conference as the supreme governing body of the Union, shall have all powers, authority and discretion necessary for the carrying out of the objects of the Union and without limiting these powers, authorities and discretions, shall have the following powers: ...
(viii) To rescind or amend the Standing Order (sic) or By-Laws of the Union. ...
(xi) To interpret the Rules of the Union. ...
(xvi) Do all other acts and things as are incidental to the carrying out of the objects and powers of the Union."
In our opinion, nothing in rule 9 confers a power upon Federal Conference either expressly or by implication to alter or make rules of the Union. This would be of no significance if another rule conferred that power upon Federal Conference or upon some other body.
Counsel for the Union and the General Secretary have contended that rule 59 of the certified rules of the Union confers such a power on Federal Conference and that the reference to a "Special Meeting" in rule 59(a) is to be read as a special meeting of Federal Conference. We do not accept that contention. There is no warrant for making that implication. The period of notice is inconsistent with the period of notice required to be given to members of Federal Conference for a special meeting. The use of the word "Secretary" seems to suggest that the notice is to be given to the Secretary of a branch and not to the General Secretary. Nothing is said as to who is to give notice to the Secretary. One thing is clear, that a rule which permitted a Branch Committee of Management to alter or amend the rules of an organization would, in all probability, be contrary to the provisions of sub-section 140(1) of the Act. Sub-rule 59(c) is meaningless insofar as it purports to authorise a rule change of the organization to be submitted by "the Branch Secretary."
It is interesting to speculate as to what occurred. The certified rules of each branch contain a power to alter and amend the branch rules. This can be illustrated by referring to rule 48 of the Victorian Branch rules. A similar rule exists in the rules of the other branches. The Victorian Branch rule is as follows:-
"48. ALTERATION OF RULES
The adoption of these Rules shall nullify all previous Branch Rules of this Branch, and shall be binding on all members thereof.
These Rules may be altered, repealed or added to at a Special Meeting of the Branch called for the purpose by a decision of the majority of the members present and entitled to vote, voting in favour of such alteration, repeal or addition. Notice to amend, repeal or add to these Rules shall be given to the Secretary of the Branch in writing fourteen days before such a meeting. Notwithstanding anything contained in these Rules the Branch Committee of Management may alter or amend the Rules to meet the requirements of any State or Federal laws."
Rule 59 of the rules of the Union as filed with the Registrar appears to have been in a form similar to the branch rules relating to rule amendments. The draftsman of the rules of the Union does not seem to have turned his mind to the need for a different type of rule providing for the alteration and making of the rules of the Union. He seems to have adopted a form based on the branch rules and in the result has left a void in the rules of the Union.
In our opinion, the absence from the certified rules of the Union of rules making provision for the alteration of the rules of the Union constitutes an invalidity under s.171C(1) of the Act. This invalidity has occurred in the making or alteration of the rules of the Union. This invalidity arises irrespective of the issue of whether the Deputy Industrial Registrar correctly refused to give a certificate with respect to rule 59(b). Even if that sub-rule had been the subject of the certificate, the invalidity would have remained. We shall return to this matter later.
The Union perceived the problem arising from the form of rule 59 of the certified rules of the Union. It sought to alter its rules to solve that problem. Differences of opinion arose between a Deputy Industrial Registrar and officers of the Union concerning the method by which the rules of the Union could be altered. None of them realised the true position, namely, that the certified rules did not make provision for the alteration of the rules. Nevertheless, the Union accepted the advice of the Deputy Industrial Registrar and adopted a procedure by which a special meeting of the members of the Victorian Branch resolved to amend rule 9(a)(xi) and rule 59 of the certified rules of the Union, the Secretary of the Victorian Branch submitted the resolution to the General Secretary who then submitted the rule amendment to members of Federal Conference for decision by correspondence in accordance with rule 10. There was no attempt to refer the matter to a special meeting of Federal Conference in accordance with rule 7(e). In due course, the General Secretary filed the alterations with the Registrar under s.139(4) of the Act. The alterations made substituted a new rule 9(a)(xi) and rule 59. The new rules were:-
"9(a)(xi) To interpret, and subject to these Rules amend, the Rules of the Union.
59. Amendments may be made to these Rules or new Rules made or any rule may be deleted or deleted and replaced by a new rule by a resolution of the Federal Conference carried by a simple majority of members voting."
On 27 July 1987, a Deputy Industrial Registrar gave a certificate under sub-section 139(4) with respect to those two alterations.
Not surprisingly, the Union thought that an invalidity had occurred with respect to those alterations. By application dated 4 September 1987, the Union and the General Secretary made application under s.171C of the Act seeking a determination of the question of whether an invalidity had occurred in relation to the alterations to rule 9(a)(xi) and rule 59 and sought consequential orders under sub-section 171C(2). At a directions hearing, the Court gave directions for the giving of notice of the application to persons and bodies both directly and by means of advertisements. Those directions were complied with but no person has sought to oppose the application.
On 29 October 1987 the application came on for hearing before the Court constituted by a single Judge. During submissions, questions were raised as to whether invalidities had occurred with respect to the certified rules of the Union and of the branches as a result of the Deputy Industrial Registrar not giving his certificate with respect to all the rules which had been adopted by the Union and the branches respectively. As a result, the Court gave leave to amend the application to include a claim that invalidities had occurred with respect to the certified rules of the Union and each of its branches and seeking consequential orders rectifying those invalidities. At the same time the Court directed, under s.118C, that the application be heard and determined by a Full Court and gave directions as to the giving of notice of the application as amended. Those directions were complied with and no person has sought to appear to oppose the making of the orders sought.
It is useful to refer to and repeat what was said by a Full Court of this Court in the opening paragraph of its reasons for judgment in Kayne v. Banks (1978) 22 ALR 255 at p 257. The same could be said of this case. That case discussed, also, the nature of the power conferred by s.171C of the Act; see pp 264-6. A form of order made under s.171C is set out at p 266. By way of comparison, in Sherrif v. Townsend (1980) 48 FLR 20 at pp 59-60, Northrop J. gave reasons why orders under s.171C should not be made in that case, but orders were made under s.171D; see the form of order at pp 63-5.
Section 171C of the Act is remedial in nature. The Court should form a broad view of the power conferred by that section. It should not take a narrow or technical approach to the exercise of the power. An important factor is whether the organization and its officers have acted honestly. In the present case, there is no suggestion that the Union and its officers have not acted honestly. Before making orders under sub-section 171C(2), the Court must be satisfied that any order made would not do substantial injustice to the Union, to any member or creditor, or to any person having dealings with the Union. In the present case, adequate notice has been given of the application but no person has sought to oppose the orders sought. The only issue is whether invalidities have occurred.
Before dealing with that matter, reference should be made to some other contentions made on behalf of the Union. It was contended that the rules filed with the Registrar did not contain any express rule that upon certification the then rules of the Union would cease to have any effect. At the most, it was contended, the certification of the new rules, by implication, revoked the earlier rules but that implication was subject to a further implication that if the new rules failed to contain provisions required by the Act or Regulations but the old rules did, the old rules remained in force. This contention has overtones of the doctrine of dependent relative revocation applicable in the law of wills; see for example, Halsbury's Laws of England, 4th Ed., Vol.50, para.298. Industrial law should be kept as simple as possible. There is no need to introduce such a technical doctrine into industrial law, particularly where the remedial provisions of the Act apply to relieve organizations of the consequences of invalidities and to afford other relief.
In any event, the acceptance of those contentions does not assist the applicant. The old rule dealing with alterations to rules specified a procedure by way of petition from a branch by stipulating:-
"42. A L T E R A T I O N :
Any Branch of the Union may apply by petition to the Federal Council to amend or alter these Rules and by-laws, and upon receipt of such petition, the Federal Council shall cause the matter to be brought before the Federal Conference, or cause a ballot to be held in accordance with these Rules, and if such ballot declares such proposed amendment or alteration carried, the Rules shall be amended accordingly. Such amendments shall be immediately forwarded by the General Secretary to the Industrial Registrar for registration."
The purported alterations made to rules 9 and 59 were not applied for by any such petition.
From what has been said earlier in these reasons, it will be apparent that invalidities have occurred in the making of the certified rules of the Union and the alterations to rules 9(a)(xi) and 59 of the certified rules of the Union. We are prepared to make the necessary declarations under s.171C of the Act and to make consequential orders under that section. We have formed that opinion without having to consider whether the Registrar is empowered to certify part of an alteration of a rule, but in view of the submissions made, we should make some brief comments on the question.
Sub-section 139(4) of the Act, does not by express terms, confer a power on the Registrar to make rules; cf. sub-sections 140(7) and (8) of the Act. The only power conferred on the Registrar by sub-section 139(4) is to give or refuse to give a certificate in accordance with that sub-section. If a certificate is given, the sub-section describes what is to happen. The sub-section is expressed in the negative; a rule alteration does not have effect until, among other things, the Registrar has given his certificate. In positive form, the sub-section provides that the alteration has effect upon the certificate being given.
In a number of decisions of the Federal Court constituted by a single Judge, the Court has expressed the view that the Registrar has no power to delete words from a rule alteration and thereby to certify a rule in different form to that filed with the Registrar so as to make the rule as altered by the Registrar come into effect; see for example, Re Stapleton (1983) 50 ALR 293 and Re Linsket, 22 July 1987, Keely J., unreported. We agree with the views expressed in those cases in their application to the facts of those cases. Care must be taken, however, in how the principle is stated. If what the Registrar does has the effect of changing the meaning of the rule alteration made by the organization, the certificate does not operate to bring the rule into effect since the rule alteration has not been made by the organization in accordance with its rules. If what the Registrar certifies does not alter the meaning of the rule alteration, we see no reason why the certificate should not have its full effect. Thus, where an organization has made alterations to a number of its rules, each rule and alteration being completely independent of any other rule or alteration, the Registrar would be free to give his certificate with respect to some of those rule alterations and to refrain from giving his certificate with respect to others. On the other hand, where alterations to rules are dependent upon other alterations to rules, difficulties arise where the certificate is given to some of the alterations and not to others. If, as a result, the meaning and effect of the alterations the subject of the certificate become different from those adopted by the organization, invalidities under s.171C of the Act may well arise.
Since the hearing of this application, sub-sections 139(7) and (8) have been inserted into the Act with effect from 18 December 1987; see section 3 of the Statute Law (Miscellaneous Provisions) Act 1987 and the Schedule thereto. The new sub-sections provide:-
"(7) A certification made by the Registrar under subsection (4) before the commencement of this subsection is not, and shall be deemed never to have been, invalid merely because it was a certification of only part of an alteration.
(8) Subsection (7) does not apply in relation to a certification the validity of which has, before the commencement of that subsection, been called in question, on the ground that it was a certification of only part of an alteration, in any proceedings (whether or not the proceedings have been completed before that commencement), except proceedings in which the court holds that it is just and equitable that the certification should be treated as valid."
Those sub-sections do not affect our opinion or the principles set out in the preceding paragraph. In each case, where appropriate, the question of whether a rule alteration or part of an alteration certified by the Registrar under sub-section 139(4) has been made by the organization in accordance with its rules of the organization, requires consideration.
In the present case, the Union and each of the branches sought to bring into operation new sets of rules to replace the old rules. It is apparent that the new sets of rules were to be self-sufficient and self-contained. In these circumstances, if the Registrar refrained from giving his certificate with respect to some rules, some sub-rules or parts of rules or sub-rules, but gave a certificate with respect to the remainder of the rules, there would need to be a full examination of all the rules to ascertain whether the meaning and effect of the rules to which the certificate had been given had been altered or modified by the fact that some rules or parts of rules have not come into effect. To carry out that examination would be an oppressive task.
In the present case, counsel for the Union did not undertake that task. Particular attention was given to certified rule 59 of the Union, but the action of the Registrar has not affected the validity of that rule. Invalidity arises from another source and that invalidity is sufficient to support the wide orders proposed to be made.
No such simple solution arises with respect to the branch rules. As with the rules of the Union, the Deputy Industrial Registrar did not give his certificate with respect to rules, sub-rules, parts of rules and parts of sub-rules. Counsel for the Union did not undertake a detailed examination of the branch rules in order to enable the Court to determine whether what the Deputy Industrial Registrar did constitutes an invalidity. However, having regard to the fact that we would make a declaration of invalidity with respect to the certified rules of the Union and the fact that the branches are part of the internal management structure of the Union and that the validity of the rules of the Union are of vital importance to the branches, we are prepared to make the necessary declarations with respect to each of the certified sets of rules of the branches.
Before indicating the orders we would make, attention should be drawn to the fact that nothing said in these reasons is to be taken as indicating a view that the new rule 9(a)(xi) and the new rule 59 are in conformity with paragraph 140(1)(c) of the Act. Those rules relate to the power to alter rules and the procedure to be used to alter rules. Rules of this kind can give rise to difficult questions of law; see for example, Wright v. McLeod (1983) 74 FLR 146. The Court has not examined the rules of the Union to determine whether they comply with the Act and Regulations insofar as the power to alter rules is concerned.
Any typographical corrections to the rule alterations made by the Registrar cannot affect the validity of the rules. The corrections have not altered the meaning of any of the rules adopted by the Union or its branches.
In all the circumstances, we would make the following orders:-
A. On the facts before it, the Court is of opinion that an invalidity has occurred in the making or alteration of the rules of the Food Preservers' Union of Australia, including the rules of each of its branches, and being the rules the subject of the certificate given by a Deputy Industrial Registrar on 8 July 1986 and accordingly DETERMINES, DECLARES AND ORDERS as follows:-
1. That an invalidity has occurred in the making or alteration of the said rules, hereinafter called the "certified rules" by reason that the certified rules do not make provision for the alteration of the rules of the Union as required by the Conciliation and Arbitration Act 1904 and the Conciliation and Arbitration Regulations.
2. The Court, being satisfied that the orders made herein will not do substantial injustice to the Union or to any member or creditor of the Union or to any person having dealings with the Union, ORDERS that the certified rules be and the same are hereby validated for the purpose of the certificates given by the Deputy Industrial Registrar on 8 July 1986 as from 8 July 1986.
B. On the facts before it, the Court is satisfied that an invalidity has occurred in the making or alteration of rules 9(a)(xi) and 59 of the certified rules of the Union being the rules the subject of the certificate given by a Deputy Industrial Registrar on 27 July 1987 and accordingly DETERMINES, DECLARES AND ORDERS as follows:-
1. That an invalidity has occurred in the making or alteration of the said rules 9(a)(xi) and 59 by reason that the certified rules did not make provision for the making or alteration of the said rules 9(a)(xi) and 59.
2. The Court, being satisfied that the orders made herein will not do substantial injustice to the Union or to any member or creditor of the Union or to any person having dealings with the Union, ORDERS that the said rule 9(a)(xi) and the said rule 59 be and the same are hereby validated for the purpose of the certificate given by the Deputy Industrial Registrar on 27 July 1987 as from 27 July 1987.
JUDGE2
Since preparing the first draft of these reasons for judgment, I have had the opportunity of reading the reasons for judgment of Northrop and Ryan JJ. I regret that I am unable to agree with their Honours' reasons, or their conclusions, or the precise orders they propose to make.
The first applicant, the Food Preservers' Union of Australia ("the Union") is an organization, registered pursuant to the Conciliation and Arbitration Act 1904 ("the Act"). The second applicant, Thomas Desmond Ryan, is the general secretary of the Union. The application is made pursuant to s.171C of the Act. The relevant provisions of that section are as follows:
"(1) An organization, a member of an organization or any person having a sufficient interest in respect of an organization may apply to the Court for a determination of the question whether an invalidity has occurred in the management or administration of the organization or of a branch of the organization or in an election or appointment in, or the making or alteration of the rules of, the organization or a branch of the organization and the Court has jurisdiction to hear and determine the application and to make such declaration as it thinks proper.
(2) Where, in proceedings under sub-section (1), the Court finds that an invalidity of the kind referred to in that sub-section has occurred, the Court -
(a) may make such order as it thinks fit to rectify or cause to be rectified the invalidity, or to negative, modify or cause to be modified the consequences in law of the invalidity, or to validate any act, matter or thing rendered invalid by or as a result of the invalidity;
(b) shall, before making such order, satisfy itself that such an order would not do substantial injustice to the organization or to any member or creditor of the organization or to any person having dealings with the organization;
(c) where any such order is made, may give such ancillary or consequential directions as it thinks fit; and
(d) may determine what notice, summons or rule to show cause is to be given to other persons of the intention to make such an order, and whether and how it should be given or served and whether it should be advertised in any newspaper."
In its original form, the application sought a determination of the question whether an invalidity has, or invalidities have, occurred in alterations of the rules of the Union, being alterations to rules 9(a)(xi) and 59, submitted to the Industrial Registrar for certification on 22nd July 1987, and validating orders if any such invalidity were found to have occurred. Directions were given pursuant to s.171C(2)(d) for the service of the application on the secretary of each branch of the Union. The matter first came on for hearing on 29th October 1987. On that day, for reasons which were then given, the Court granted leave to amend the application, ordered that the amended application be heard and determined by a Full Court, and gave certain directions as to further service and advertisement of the amended application. On 19th November 1987, the matter was heard by a Full Court. Mr. Kenzie Q.C. appeared with Mr. Howells of counsel for the applicants. No other person appeared.
As finally amended, the application seeks, in addition to the orders sought originally, a determination of the question whether an invalidity has, or invalidities have, occurred in various alterations of the rules of the Union and its branches, to which reference will be made. Validating orders are also sought in respect of any such invalidity, if necessary.
The first four sub-sections of s.139 of the Act provide as follows:
"(1) A change of the name of an organization or an alteration of its rules in so far as they relate to conditions of eligibility for membership or the description of the industry in connection with which the organization is registered shall not have effect unless the Registrar consents to the change or alteration upon an application made as prescribed.
(2) The Registrar may consent to the change or alteration in whole or in part but shall not so consent unless he is satisfied that the change or alteration has been made in accordance with the relevant procedures laid down by the rules of the organization.
(3) The Registrar shall record the change or alteration to which he has consented in the register and upon the certificate of registration and thereupon the change or alteration shall have effect.
(4) An alteration of the rules of an organization to which the consent of the Registrar under this section is not required does not have effect until particulars of the alteration have been filed in the office of the Registrar and the Registrar has certified that, in his opinion, the alteration complies with and is not contrary to the provisions of this Act, of the regulations or of an award and is not otherwise contrary to law and has been made in accordance with the relevant procedures laid down by the rules of the organization."
By virtue of the definition in s.4(1) of the Act, the expression "Registrar" means the Industrial Registrar or Deputy Industrial Registrar appointed under the Act. These provisions deal with two distinct classes of alterations of the rules of organizations. The first class is alterations relating to conditions of eligibility for membership or the description of the industry in connection with which an organization is registered. To such alterations, the Industrial Registrar is required to consent before the alterations have any effect. He is specifically allowed by sub-s. (2) to consent to an alteration in whole or in part. The second class of alterations includes all alterations to the rules of organizations to which the consent of the Industrial Registrar is not required. In the case of such alterations, the Industrial Registrar is required to certify as to the matters referred to in sub-s.(4), before the alterations have effect.
Regulation 128 of the Conciliation and Arbitration Regulations lays down the procedure for the filing of alterations to rules which fall within the second class. Sub-regulation (2) requires any alteration to be accompanied by a statutory declaration as to compliance with the relevant rules of the organization concerned, in the making of the alteration.
On 23rd November 1984, the second applicant filed with the office of the Industrial Registrar alterations to the rules of the New South Wales Branch of the Union, together with a statutory declaration concerning the manner in which those alterations were adopted. On 4th April 1985, he filed with the office of the Industrial Registrar alterations to the rules of the Union itself, and its Victorian, South Australian and Tasmanian branches. Also filed were four statutory declarations, dealing with the manner of adoption of each of these sets of alterations. Subsequent statutory declarations were filed, providing further information. It is convenient to refer to all of these sets of alterations as "the first alterations". In each case, they consisted of a complete set of rules for the Union as a whole or the branch concerned. Each such set of rules was intended to replace the previous rules of the Union or the branch, although it does not appear that there was any provision in the alterations to the federal rules expressly rescinding all previous rules and replacing them by the new set. Such a provision did appear in each set of alterations to the branch rules.
A Deputy Industrial Registrar issued five certificates, each dated 8th July 1986. The certificates related to the alterations to the federal rules and the rules of the four branches respectively. By letter dated 8th July 1986, written on behalf of the Industrial Registrar, the Union was informed that the first alterations had been certified with some exceptions. The letter contained three attachments. The first attachment listed what were described as "exceptions to certification". These were provisions in the first alterations which the Deputy Industrial Registrar declined to certify. The second attachment contained recommendations for improvement of the rules. The third attachment contained typographical corrections, described as "typographical errors which were corrected before certification". The Industrial Registrar also inserted in the rules provisions to satisfy s.133B of the Act, in the absence of any such provisions in the alterations submitted. No complaint arises as to this insertion.
The set of rules covering the Union as a whole, which formed part of the first alterations, contained rule 59 in the following terms:
"59. ALTERATION OF RULES
(a) These Rules may be altered, repealed or added to at a Special Meeting called for the purpose by a decision of the majority of the members present and entitled to vote, voting in favour of such alteration, repeal, or addition. Notice to amend, repeal or add to these Rules shall be given to the Secretary in writing fourteen (14) days before such Meeting.
(b) Notwithstanding anything contained in these Rules, the Branch Committee of Management may alter or amend the Rules to meet the requirements of any State or Federal law.
(c) The Branch Secretary shall submit any such rule change immediately to the General Secretary who shall refer the rule change to the Federal Conference for decision in accordance with the Rules of the Union."
The Deputy Industrial Registrar declined to certify as to sub-rule (b) of this proposed rule. In the first attachment to the letter of 8th July 1986, the explanation given for this refusal to certify was, "Rule 59(b) has not been certified because it is inappropriate in the context of alteration of Federal rules." In the second attachment, containing recommendations for improvement of the rules, the Deputy Industrial Registrar stated, "Although I have certified Rule 59(a), I consider that it could be clarified so as to leave no doubt that a branch special meeting proposes an alteration and that the proposal requires reference to and decision by Federal Conference." In the copy of the rules of the Union as certified by the Deputy Industrial Registrar, rule 59 appeared with the words "NOT CERTIFIED" inserted in the text beside the letter "(b)", instead of the text of paragraph (b) which had been filed.
On 24th November 1986, the second applicant filed with the office of the Industrial Registrar a series of alterations to the rules of the Union and the rules of its branches, together with a statutory declaration made on the same day. It is convenient to call these alterations "the second alterations". The second alterations were made in an attempt to comply with the recommendations of the Industrial Registrar, contained in the second attachment to his letter of 8th July 1986.
In a letter dated 14th May 1987 to the Industrial Registrar, the second applicant wrote as follows:
"RE: FOOD PRESERVERS' UNION OF AUSTRALIA, ALTERATION TO RULES
I refer to your letter of 24th March, 1987 concerning proposed rule changes resolved upon by the Organisation and submitted for certification on 24th November, 1986.
Following discussion with your office I would ask that you proceed no further with consideration of those proposed rule changes, as it is intended to re-submit the matter to the Organisation's governing bodies, for further deliberation, particularly in respect of the rule changing machinery.
I shall notify you as soon as the Organisation resolves upon an appropriate course of action."
On 22nd July 1987, the second applicant filed with the office of the Industrial Registrar copies of alterations to the rules of the Union. It is convenient to refer to these alterations as "the third alterations". They concerned only rules 59 and 9 of the rules of the Union. In the first place, there was a resolution to delete rule 59 and to substitute the following:
"Amendments may be made to these Rules or new Rules made or any rule may be deleted or deleted and replaced by a new rule by a resolution of the Federal Conference carried by a simple majority of members voting."
As certified on 8th July 1986, rule 9(a)(xi) of the rules of the Union provided:
"9. POWERS AND DUTIES OF THE FEDERAL CONFERENCE
(a) The Federal Conference as the supreme governing body of the Union, shall have all powers, authority and discretion necessary for the carrying out of the objects of the Union and without limiting these powers, authorities and discretions, shall have the following powers:
....
(xi) To interpret the Rules of the Union".
In the third alterations, it was proposed to delete paragraph (xi) and to substitute for it the following: "to interpret, and subject to these Rules amend, Rules of the Union."
The statutory declaration accompanying the third alterations set out the procedure by which those alterations had been made. The Court has received further evidence detailing that procedure. On 19th May 1987, a member of the committee of management of the Victorian branch of the Union wrote to the secretary of that branch, giving notice of a proposal to amend the rules of the Union. On 20th May 1987, the second applicant in his capacity as president of the Victorian branch consulted with the secretary of that branch and agreed upon the calling of a special meeting of the branch on 15th June 1987. Such a meeting was publicised by a notice to members dated 21st May 1987, which was sent to all shop stewards, with a request to place the notice on notice boards at work places. The notice contained the text of the proposed amendments to the rules. The special meeting of the Victorian branch was held on 15th June 1987. Fifteen financial members of the Union attended and resolved to adopt the proposed amendments.
On 17th June 1987, the secretary of the Victorian branch of the Union wrote to the second applicant as general secretary, requesting him to refer the resolution of the special meeting of the Victorian branch to the Federal Conference of the Union. The second applicant consulted with the general president of the organization and ordered that the resolution be referred to the Federal Conference by means of a postal ballot of its members. On 2nd July 1987, a letter was forwarded to each member of the Federal Conference, setting out the resolution of the special meeting of the Victorian branch, and the provisions of rules 59 and 9(a)(xi) as they were certified on 8th July 1986. The letter was accompanied by a ballot paper, giving each member of the Federal Conference an opportunity to record a vote in favour of or against the resolution to alter the rules. The ballot paper contained a statement that the ballot would close on 15th July 1987. On 18th July 1987, the second applicant received a telex from the general president of the Union, which stated that the result of the ballot was eleven to nil in favour of the alterations.
On 27th July 1987, the Industrial Registrar certified as to the third alterations.
The adoption of the somewhat complex procedure outlined above for alterations to the rules was the result of advice received from the Industrial Registrar's office. The view expressed by that office was, as appears from the comment quoted above from the second attachment to the Industrial Registrar's letter of 8th July 1986, that rule 59 as certified on that date required a branch special meeting to propose an alteration to the rules, followed by a reference to and decision by the Federal Conference. In discussions with an officer of the Industrial Registrar's office on 6th May 1987, the second applicant stated that the view of the Union was that rule 59(a) as it then stood contemplated a special meeting of the Federal Conference, not a special meeting of a branch. Nevertheless, in order to overcome any objection which the Industrial Registrar may have had to certifying as to any alteration, the view of the Industrial Registrar's office was adopted.
The procedure adopted complied with all of the relevant rules of the Union and of the Victorian branch in all respects except perhaps one. Rule 10 of the rules of the Union relates to the adoption of resolutions by the Federal Conference by correspondence. Sub-rule (c) of that rule provides that "...the General Secretary shall then forward to members of the Federal Conference...by certified post, full particulars regarding the matter upon which a decision is asked at the same time forwarding each member of the Federal Conference...a ballot paper on which shall be stated the date of the closing of the ballot." Counsel for the applicants drew attention to the fact that the third alterations had been adopted by a vote by correspondence of the Federal Conference, in which the text of the resolution of the special meeting of the Victorian branch and the ballot paper had not been forwarded to members of the Federal Conference by certified post. On this basis, they contended that the applicants were entitled to a declaration that an invalidity had occurred in the alteration of the rules of the Union, and that such a declaration should be treated as the foundation for any necessary validating orders.
There are two difficulties with this contention. In the first place, it assumes that the provision concerning certified post is a mandatory requirement of the rules. The question whether a rule is mandatory or directory is a question of intention, to be gathered from the rules. In the context of a set of rules for an organization such as this, the provision appears to be directory only. Assuming that each member of the Federal Conference actually receives the necessary documents, it is unlikely to have been intended that a decision by correspondence should be invalidated because not all of those documents were forwarded by certified post. It can hardly have been intended that the general secretary should forward the documents by certified post to a member of the Federal Conference with whom he is in daily contact in an office of the Union. No invalidity has been shown to have resulted from the failure to use certified post with respect to the decision to make the third alterations.
Even if this conclusion is incorrect, a finding that one invalidity occurred would not absolve the Court from the necessity to enquire whether another invalidity or other invalidities have also occurred. Section 171C of the Act does not contemplate that, as soon as the Court should find any invalidity, it should then proceed immediately to consider the question of validating orders. The decision whether or not to make such orders may well depend upon the Court's assessment of the likely effect of all invalidities which the evidence may disclose. The applicants having raised the question whether any invalidity has resulted from reliance upon the Industrial Registrar's interpretation of rule 59 as certified on 8th July 1986, the Court is bound to determine that question before considering whether to make orders validating the third alterations, which were made by the procedure suggested by the Industrial Registrar's office.
In Re Stapleton (1983) 50 ALR 293, in the course of an inquiry into an election, the Court found that the Industrial Registrar had certified pursuant to s.139(4) of the Act as to an amendment to a rule of an organization, but had declined to certify that rule while it contained a particular word. The Industrial Registrar had deleted the word, and stated in his certificate that he certified the amendment to the rule, without the word concerned. In the course of his judgment on the inquiry, at pp 301-2, Evatt J. said:
"It was submitted that the striking out of the word "continuously" by the Registrar in such circumstances was beyond power given to him by s 139(4) of the Act and that the Industrial Registrar, having formed the view that the sub-rule as lodged for certification was contrary to the provisions of the Act, had no alternative but to disallow the amendment in toto. Accordingly, so the argument ran, his certification of r 47(c) with the word "continuously" omitted was ultra vires and void. It was further argued that it followed that as the rule-making body of the organization at the time of adopting rule changes in 1980 had in fact adopted a resolution deleting the old r 47(c) before adopting the new r 47(c), and as the Industrial Registrar had in fact deleted the old r 47(c) in June 1981, the rules of the organization on and after 1 June 1981 contained no r 47(c).
Assuming the Industrial Registrar had, of his own motion, deleted the word "continuously" from sub-r
(c) of r 47 on 1 June 1981 then such deletion, in my view, would have been void. Section 139(4) of the Act does not permit the Industrial Registrar, in the circumstances under discussion here, to delete a word or a phrase from adopted rule amendments of his own motion (contrast the position under s 140(8)). If he is of the opinion that a particular word or phrase in a rule or sub-rule amendment makes that rule or sub-rule contrary to the Act etc, he should refuse certification of the rule or sub-rule with the consequence that the amendment has no effect.
On the other hand I am of the view that the resolution of the rule-making body of the organization adopting the deletion of former r 47(c) would have been conditional upon the Industrial Registrar certifying the new r 47(c). Accordingly r 47(c) for the purposes of this inquiry is as set out above under the heading "Rule 47(c) prior to December 1980"."
More recently, in Re Application by Linsket for an Inquiry into an Election in the Federated Clerks Union of Australia (Central and Southern Queensland Branch) (Federal Court of Australia, Keely J., 22nd July 1987, not yet reported), the Court was confronted with a similar situation. After quoting Evatt J. in Re Stapleton (above), and referring to Allen and Ford v. Laragy (1975) 7 ALR 261, especially to p 263, Keely J. followed the view of Evatt J. At pp 11-12 of his Honour's judgment, the following passage appears:
"In my opinion the Industrial Registrar was required by s.139(4) to form an opinion as to whether an alteration to rules filed in his office is "contrary to the provisions of this Act" - in the present case by reason of the existence in the amended rule of the word "continuously". Having formed the opinion, expressed in his letter to the Branch, dated 9 July 1980 (in the passage set out above) that the sub-rule was contrary to s.140(1) of the Act by reason of the word "continuously", the Industrial Registrar's duty was to refuse to give a certificate under s.139(4) in respect of the alteration to the sub-rule.
I agree, with respect, with the statement by Evatt J. (quoted earlier) that s. 139(4) "does not permit the Industrial Registrar ... to delete a word or a phrase from adopted rule amendments of his own motion". I also agree with his Honour that the absence of such a power in s.139(4) may be contrasted with s.140; s.140(7) gives the Industrial Registrar an express power, in certain circumstances, to "determine (upon certain) alterations of the rules" and s.140(8) provides that he "shall register the alterations so determined by him and thereupon the rules shall be deemed to be altered accordingly". It may be added that sub-sections 133(4)(4A)(4D) and (5) and sub-sections 142A(10) and (11) similarly confer express powers and impose express duties upon the Industrial Registrar to register alterations to rules "determined by him ... and thereupon the rules shall be deemed to be altered accordingly".
The express directions by the Parliament, in those sub-sections, that "thereupon the rules shall be deemed to be altered" tend to reinforce the opinion that, in the absence of such an express power to alter the rules of an organization, conferred upon the Industrial Registrar and accompanied by an express deeming provision, the power to alter rules resides only in the organization (cf. s.132(2) and Regulation 115(1)(d)(xiv) which require that an organization's rules provide for "the alteration of its rules"). In my opinion the Industrial Registrar's power under s. 139(4) was confined to giving effect to his opinion by giving, or refusing to give, his certificate."
The view expressed by the Australian Industrial Court in the passage referred to from Allen and Ford v. Laragy was that the Industrial Registrar "...could only withhold his certificate from a severable part of the rule...".
If the views expressed by Evatt J. and Keely J. were to be applied in the present case, assuming that no difference exists between a refusal to certify a single word and a refusal to certify a sub-rule within a proposed new rule, the consequence would be that none of rule 59 as purportedly certified on 8th July 1986 would exist. The application of those views would require the conclusion that the Industrial Registrar had failed to perform his statutory duty under s.139(4) of the Act with respect to rule 59, and accordingly his purported certification of sub-rules (a) and (c) would be invalid. Whereas in each of Stapleton and Linsket the Court was able to point to a pre-existing provision in the rules, bearing the same number as that which was said not to have been certified validly, in the present case it is more difficult to find such a pre-existing rule. This is because the first alterations consisted in part of a complete new set of rules for the Union at the federal level. An attempt to resort to the rule numbered 59 in the preceding rules of the Union would disclose a rule having nothing to do with amendment to the rules at all. There must be real doubt whether it can be said that the intention of the framers of a whole new set of rules was that bits and pieces of the rules which were to be replaced should survive in the event that the Industrial Registrar failed to give a certificate as to some provisions of the proposed new set.
With all respect to the learned Judges who decided Stapleton and Linsket, and to the Australian Industrial Court, their Honours appear to have misconstrued the function of the Industrial Registrar under s.139(4) of the Act. It is true that the Industrial Registrar is not given an express power to certify as to part only of an alteration. It should be noted that a Full Bench of the Australian Conciliation and Arbitration Commission, in Re Federated Miscellaneous Workers Union of Australia (1974) 157 CAR 623, at pp 627-629, expressed the view that the power given to the Industrial Registrar by s.139(2) to consent to a change in part, includes a power to re-write or add to a change in which his consent is required, and is not merely a power to delete by "blue-pencilling" part of the change. It is probably true that, in the light of other express provisions in the Act directing attention to part of a rule or part of an alteration, it is difficult to regard s.139(4) as containing an implied power to certify as to part of an alteration. It must be remembered, however, that the Industrial Registrar is not required to certify as to a rule or sub-rule; he is required to certify as to whether, in his opinion, "an alteration" has satisfied various requirements. In performing this function, the Industrial Registrar is not required to consider whether a rule or sub-rule complies with or is not contrary to the provisions of the Act, the regulations or an award, but is required to consider whether an alteration so complies or is not so contrary. Within a particular rule or sub-rule, there may be more than one alteration. Even where a former rule or sub-rule is expressly repealed, and a new rule or sub-rule is substituted for it, the new rule or sub-rule may contain more than one alteration. The Industrial Registrar is obliged to form an opinion, not with respect to the rule or sub-rule, but with respect to each alteration. Having formed such an opinion, he is required to give a certificate with respect to that alteration. For convenience, that certificate may be expressed in terms of numbers or other designations given to rules or sub-rules. If the Industrial Registrar finds within a sub-rule a particular alteration, which may consist of a single word, and is unable to form an opinion that that alteration is not, for example, contrary to a provision of the Act, he is bound not to give a certificate with respect to that alteration.
Two consequences flow from the adoption of this view. The first is that the Industrial Registrar may properly refuse to certify part of a rule or sub-rule, where that part constitutes a separate "alteration". The second is that even a wrongful refusal to certify a particular alteration within a rule or sub-rule will not affect the validity of the Industrial Registar's certificate with respect to other alterations within that rule or sub-rule.
It is therefore incorrect to say that the Industrial Registrar must deal with a rule or sub-rule in its entirety, either certifying as to it or refusing to certify as to it according to whether any part of it may, in the Industrial Registrar's opinion, fail to satisfy the requirements of s.139(4). Nor is the question strictly one of severability of parts of a rule, as the Australian Industrial Court thought. Only when attention is directed to the requirements of s.139(4), particularly to the references in it to "an alteration", "particulars of the alteration", and "the alteration", can the duty of the Industrial Registrar be understood properly.
The adoption of this view makes it unnecessary to consider what was said by Keely J. in Linsket, at p 13 of his Honour's judgment, with respect to s.33 of the Acts Interpretation Act 1901. Sub-s.(3A) of that section provides as follows:
"Where an Act confers a power to make, grant or issue any instrument (including rules, regulations or by-laws) with respect to particular matters, the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters."
In the present case, it was contended that the certificate of the Industrial Registrar is "an instrument", for the purposes of this provision, and that the several alterations which the Industrial Registrar is considering are the "particular matters" referred to in the provision. It is sufficient to say that s.33(3A) appears more appropriate to instruments of delegated legislation, where power has been given to legislate with respect to different subject matters, and the maker of the instrument has not referred to all of the subject matters with which he or she might deal. Such a situation seems to be removed from that which confronts the Industrial Registrar under s.139(4) of the Act.
For the foregoing reasons, it was open to the Industrial Registrar to deal with the first alterations by considering whether there were within them any provisions, which constituted separate "alterations", and by refusing to certify as to any such alterations if he formed the opinion that they did not satisfy the requirements of s.139(4). It was, of course, well within the powers of the Industrial Registrar, through the persons employed in his office, to make suggestions to the Union as to ways in which its rules might be improved. The giving of such advice by officers of the Industrial Registrar, who have examined thoroughly the rules of particular organizations, is no doubt a very useful service to those organizations. Regrettably, the Industrial Registrar does not have the power to make corrections of typographical or spelling errors in the text of alterations submitted to him. It is the responsibility of registered organizations to ensure, as far as is possible, that alterations so submitted are as free as is possible from errors. The Industrial Registrar can do more than point out the errors, so that the organization concerned may correct them by way of further alterations to its rules. There can be no doubt that the corrections which were made to the first alterations in the present case were made with the best of motives, and it is a pity that those corrections lack validity. The Parliament has deliberately refrained, however, from giving to the Industrial Registrar any power to make changes to alterations to the rules submitted under s.139(4). It would be difficult to distinguish between a power to correct errors and a power to insert provisions preferred by the Industrial Registrar. An invalidity or invalidities therefore occurred in the first alterations, and the Court should so declare. The fact that the Industrial Registrar has purported to correct errors in the first alterations, without any power to do so, does not affect the validity of his certificate as to any other provisions of the rules. Nor does his insertion of the words "NOT CERTIFIED", in lieu of provisions as to which he has not granted a certificate, affect the validity of the alterations which have been certified. This is merely a convenient way of indicating why the text of a particular alteration does not appear in a copy of the certified rules.
I am unable to share the views of Northrop and Ryan JJ. that the validity of the Industrial Registrar's refusal to certify as to alterations to rules is dependent on the question whether such a refusal will change the meaning of the remaining alterations. In my view, the Industrial Registrar is no more obliged to consider whether a refusal to certify as to one rule alteration will change the meaning of another alteration or other alterations than the Court is obliged to consider changes to the meaning of rules which may result from a declaration under s.140(5G) of the Act that a rule or part of a rule contravenes s.140.
It follows that, if the Industrial Registrar had failed to form the necessary opinion under s.139(4) of the Act with respect to the alteration or alterations which constituted the proposed rule 59(b) in the first alterations, he would have been entitled to refuse to give a certificate with respect to that sub-rule or part of it, and to insert the words "NOT CERTIFIED" in the text of any copy of the certified rules. It appears, however, that in refusing to certify the proposed rule 59(b), the Deputy Industrial Registrar did not direct his mind to the question of formation of the opinion required by s.139(4). As is shown by the comment made in the first attachment to the letter of 8th July 1986, the decision was based on the Deputy Industrial Registrar's view of the inappropriateness of the provisions found in the proposed rule 59(b).
The proposed rule 59 was expressed by no means clearly. When read in the context of the first alterations, however, the proposed rule can be seen to provide for two completely separate methods of amending the rules. The first of these methods, found in sub-rule (a) related to the federal rules. The second, found in sub-rules (b) and (c), related to branch rules. The provisions of sub-rule (b) find echoes in rule 51(f), as certified on 8th July 1986, in the following terms:
"Any rule the terms of which are pursuant to the rules of the Union within the discretion of the Branch may be amended by the Branch Committee of Management provided that any such amendment is not inconsistent with the Rules of the Union and provided that such amendment is approved by the Federal Conference."
There are provisions in rule 48 in each set of branch rules certified on 8th July 1986, for the branch rules to be altered, repealed or added to at a special meeting of the branch. Each branch rule 48 also gives power to the branch committee of management to alter or amend the rules to meet the requirements of any state or federal laws. In the light of these provisions, it may be seen that the proposed sub-rules 59(b) and (c) were concerned with alterations to branch rules, and with the approval thereof by the Federal Conference. This leaves the proposed sub-rule 59(a) as the provision relating to federal rules. In the federal rules certified on 8th July 1986, the only provision for a "Special Meeting" is found in rule 7, relating to meetings of the Federal Conference. It is significant that the sub-rule required notice to be given to "the Secretary", and not to a branch secretary. No provision is to be found in the rules of the Union for a meeting of the members of the Union as a whole, whether described as a "Special Meeting" or otherwise. This is not surprising in the case of a union with branches in four States. In its context, therefore, sub-rule 59(a), as certified on 8th July 1986, appears to provide for the alteration, repeal or addition to the federal rules of the Union, at a special meeting of the Federal Conference called for the purpose, after notice of proposed amendments, repeals or additions has been given to the general secretary in writing fourteen days before such meeting. The scheme of the rules appears to be that a person proposing amendments to the rules should give such amendments to the general secretary, who will then give fourteen days' notice of a special meeting of the federal conference.
The decision of the Deputy Industrial Registrar to refuse to certify proposed rule 59(b) appears, therefore,to have been based on a misconstruction of the proposed rule, as well as lacking statutory authority. The refusal was wrongful because it was not based in the statute. Neither the refusal nor its wrongfulness affects the validity of the certification of sub-rules 59(a) and (c) on 8th July 1986. Those provisions thereby became part of the rules of the Union.
The question remains whether, in following the procedure which was followed to produce the third alterations, the provisions of rule 59 as certified on 8th July 1986 were followed. There can be no doubt that a reader of rule 59(a) and (c), without the benefit of the text of proposed sub-rule (b), might conclude that sub-rule (a) referred to a special meeting of some body other than the Federal Conference. Sub-rule (a) is nevertheless ambiguous. There is no reason why the uncertified sub-rule (b) cannot be used as an aid in its construction. When this is done, and the sub-rule is viewed in the context of the rules of the Union as a whole, the conclusions as to construction set out above become apparent. It follows that rule 59, as it stood before the third alterations, did not require any proposed alterations to the federal rules of the Union to be the subject of a decision of a special meeting of a branch, but required such alterations to be decided upon at a special meeting of the Federal Conference. The advice received by the Union from the Industrial Registrar's office was incorrect, and the view put forward by the second applicant as to the proper construction of rule 59(a) was the correct one. An invalidity has therefore occurred in the alteration of rules 59 and 9(a)(xi), being the third alterations. The Court should so declare, pursuant to s.171C(1) of the Act. In reaching this conclusion, it should be said that criticism of the Industrial Registrar or his officers is not intended. No doubt they acted with the best of motives, in trying to assist the Union by seeing that what was provided as an inappropriate provision of its rules did not form part of those rules, and by offering advice in advance of the process of alteration of the rules, so as to facilitate that process and the certification of its results. An error of law was made, in circumstances in which opinions might easily differ as to the true construction of the rules. The fact that the Deputy Industrial Registrar turns out to have taken an incorrect view is no reflection upon his competence, nor upon his willingness to assist.
The next question which arises is whether the Court should make an order or orders pursuant to s.171C(2)(a) of the Act. In fact, separate questions arise as to whether such validating orders should be made in respect of the invalidity resulting from the Industrial Registrar's correction of apparent errors in the first alterations and the invalidity arising from the Union's pursuit of an incorrect procedure in making the third alterations.
In written submissions, filed after the hearing on behalf of the applicants, by leave of the Court, the applicants addressed the question whether a validating order could be made under s.171C of the Act in respect of an invalidity resulting from an act or omission of the Industrial Registrar or a Deputy Industrial Registrar. In the terms of the section, such an order can be made in respect of an invalidity in "the...alteration of the rules of (an) organization...". As is apparent from s.139(4) of the Act, an alteration to the rules of an organization does not have effect until the certificate of the Industrial Registrar is given. On the face of the legislation, there seems to be no reason why an invalidity occurring in the process of the granting of such a certificate should not be validated by the Court. Nothing in s.171C(1) suggests that the invalidity contemplated in the alteration of a rule is limited to an invalidity occurring within the organization concerned. Section 171C is an enabling provision, and should be interpreted generously. It is part of a series of provisions, found in Part IXA of the Act, and inserted as a result of the recommendations of the Committee of Inquiry on Co-ordinated Industrial Organizations. Reference to that report shows that the provisions are intended to benefit organizations generally, by ensuring, or enabling them to ensure, that past invalidities do not affect the present and future conduct of their affairs. See Re Australian Building Construction Employees' and Builders' Labourers' Federation (1978) 46 FLR 308, at pp 312-313, per J.B. Sweeney and Evatt JJ. The expression "invalidity", which is defined, but not exhaustively, in s.171A of the Act, is apt to include an act purportedly done under statutory authority, but lacking any actual statutory power.
The power to make an order under s.171C(2)(a) is discretionary. In determining whether to exercise its discretion in favour of making an order, the Court should bear in mind the beneficial and enabling nature of the section. Unless there is sound reason to refuse an order, it should be made.
The Court is specifically required by s.171C(2)(b) to satisfy itself that a validating order would not do substantial injustice to the organization concerned or to any member or creditor of the organization or to any person having dealings with the organization. In the present case, despite advertisement of the application throughout Australia, no person in any of the classes referred to has approached the Court to object to the making of any validating order. In circumstances where alterations to the rules of an organization have been the subject of certificates by the Industrial Registrar, so that they have at all times since those certificates appeared to be the valid rules of the organization, it is difficult to see how substantial injustice could be done to the organization or to persons in any of the classes referred to. Accordingly, the Court can be satisfied in the present case that no substantial injustice to the persons referred to in s.171C(2)(b) will occur.
For the foregoing reasons, I favour the making of a declaration that invalidities have occurred in the first alterations, by reason of the Deputy Industrial Registrar having purported to make corrections to typographical errors in those alterations, and that invalidities have occurred in the third alterations, by reason of the fact that those alterations were not made in accordance with the relevant procedures laid down by the rules of the Union. Being satisfied that orders validating those invalidities will not do substantial injustice to the Union, or to any member or creditor of the Union, or to any person having dealings with the Union, I would make an order that the corrections to typographical errors in the first alterations be validated for all purposes from 8th July 1986, and that the third alterations be validated for all purposes from 27th July 1987.
In the course of argument, reference was made to a Bill containing proposed new sub-sections (7) and (8) of s.139 of the Act. That Bill has since become the Statute Law (Miscellaneous Provisions) Act 1987, and those new sub-sections have been in force since 18th December 1987. It is sufficient to say that, on the view I take, those sub-sections have no application to the present case. In my view, no invalidity occurred because of a certification of only part of an alteration.
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