Attorney-General for Queensland v Polites

[1996] HCATrans 357

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B37 of 1996

B e t w e e n -

THE ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

Applicant

and

THE HONOURABLE DEPUTY PRESIDENT POLITES OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE HONOURABLE DEPUTY PRESIDENT ACTON OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and COMMISSIONER McDONALD OF THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION and THE AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION

First Respondents

MEDIA ENTERTAINMENT AND ARTS ALLIANCE

Second Respondent

BIRCH, CARROLL AND COYLE LIMITED

Third Respondent

BIRCH CARROLL COYLE (NORTHERN RIVERS) PTY LTD

Fourth Respondent

AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND

Fifth Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 10.02 AM

Copyright in the High Court of Australia

_________________________________

MR J.S. DOUGLAS:   If the Court please, I appear with MR R.S. JONES for the applicant, the Attorney‑General for Queensland.  I also appear with MR R.S. JONES for the Attorney‑General for Western Australia as an intervener.  There is no appearance for the first respondent or the third and fourth respondents.  (instructed by B.T. Dunphy, Crown Solicitor for the State of Queensland)

MR J.W. NOLAN:  If the Court please, I appear for the second respondent.  (instructed by K.T. Nomchong, Solicitor for Media Entertainment and Arts Alliance)

MR D.F. JACKSON, QC:   May it please the Court, I appear with my learned friend, MR G.C. MARTIN, for the fifth respondent.  (instructed by C.A. Sciacca & Associates)

GAUDRON J:   I have a certificate from the Deputy Registrar who certifies that he has been informed by the Australian Government Solicitor, solicitor for the first respondents in the above matter, that the first respondents do not wish to be represented at the hearing and will abide by any order of the Court save as to costs.  Similarly, the Deputy Registrar certifies that he has been informed by Freehill Hollingdale & Page, solicitors for the third and fourth respondents, that they do not wish to be represented at the hearing of this matter and will abide by any order of the Court save as to costs.  Thank you, Mr Douglas.

MR DOUGLAS: If the Court please, this application deals with the interpretation of section 128(1) of the Industrial Relations Act.  It is a section which gives the Australian Industrial Relations Commission power to restrain a State industrial authority from dealing with an industrial dispute or matter before the Australian Commission.  If one were currently to argue the proper interpretation of that section before a Full Bench of the Australian Industrial Relations Commission, one would be in a dilemma.  One would be faced with the choice between what we contend is a binding decision of the High Court requiring that there be an identity of parties between the proceedings in the State authority and the Australian Commission.

GAUDRON J:   What decision is that?

MR DOUGLAS:   That is the decision relied upon by Chief Justice Gibbs in his judgment in Reg v Moore at page 8; namely, the Australian Timber Workers’ Union v Sydney and Suburban Timber Merchants’ Association (1935) 53 CLR 665 at 674. It was a decision of a Full Court with a judgment of the Court which, in our submission, requires the parties to a matter to be identical, both in the State authority and in the Australian Commission.

KIRBY J:   Could you help me?  Do I understand that the Australian Commission declined to rule on the constitutional point?  Was that because of some conception of their power or simply because they took it as settled, or for some other reason?

MR DOUGLAS:   I think they took it as something that did not really fall within their power to determine.  I think that the Commission seemed to take the view that, prima facie, if a statute is in existence, they should treat it as being constitutional.

KIRBY J:   Is that some new principle because, as I recollect it, it is the duty of every court and tribunal in the land where a point is raised to determine the constitutionality or the lawfulness of its jurisdiction and ‑ ‑ ‑

MR DOUGLAS:   That is so, your Honour, and there are authorities of this Court to that effect.  The Commission does, however, seem to have a policy these days of trying to avoid determining issues like that.

KIRBY J:   It is not like the old days in the Commission.

MR DOUGLAS:   But that does not, of course, stop the submissions from being made, and they are made.  If I can revert to what I was saying before, in our submission, the parties before the Full Bench of the Australian Commission are faced with that decision of the High Court and, in our submission, are also in a dilemma because of the manner in which the decision in Reg v Moore, the most recent decision of this Court dealing with the issue, dealt with the issue.  Two judges, in our submission, appear to have taken the view that there was a need for identity of parties between the two different tribunals, namely, the Chief Justice, Sir Harry Gibbs and Justice Dawson.

GAUDRON J:   But is that correct?  Is it complete identity of parties to the dispute, or, as in the case of the Timber Workers’ Union, identity of parties who would be bound by an award if made?  That is to say, so that an order could not be made restraining a State Commission from making an award which would bind persons who would not be bound by a Commonwealth award.

MR DOUGLAS:   The critical thing is that there be identity as to the matter.

GAUDRON J:   Yes.

MR DOUGLAS:   What was said in the earlier decision of this Court was that “matter” connoted parties as well as the subject matter of the dispute.

GAUDRON J:   Yes.

MR DOUGLAS:   If one had different parties in the different proceedings, as is this case here, the restraint by the federal Commission stops a completely different entity, in this case the party represented by my learned friend, Mr Jackson, from seeking an award in the State Commission.  It is a State union whose membership, one suspects, is different from the federal union seeking certification of an agreement in the Australian Commission.

GAUDRON J:   I must say my brief reading now of Timber Workers is not concerned with parties to the dispute, but parties to an award that might eventually be made or, really, persons bound by an award, which is a more accurate way of referring to it.

MR DOUGLAS:   That may well be the case, your Honour.  If that is the case then this order should not have been made because the application and the State authority was by a State‑registered union, a different entity from the federal union, and one would expect probably at odds with the federal union - it is a different organisation entirely - seeking an award in the State arena where in a federal arena an agreement was sought to be certified between the federal union and the employer organisations with employees both ‑ ‑ ‑

GAUDRON J:   And did both cases cover employees at particular cinemas?

MR DOUGLAS:   Yes, in one case simply cinemas in Queensland; in the Australian Commission cinemas in Queensland and outside Queensland.

GAUDRON J:   Yes, but we are talking about awards or whatever it was that was going to be made covering an identity of employees, at least in Queensland, are we not?

MR DOUGLAS:   Yes, you are.

GAUDRON J:   Yes, thank you.

MR DOUGLAS:   That is the practical issue which any party in the Commission is faced with.  It is quite unclear, in our submission, whether this question of identity of parties is significant, that this decision of the Industrial Relations Court, in effect, says what is the matter rather than the parties to it.  In our contention, however, there was at least one binding decision of this Court focusing on the importance of the question of identity of parties, the more recent decision‑ ‑ ‑

GAUDRON J:   That was a case where the parties who would have been bound by a State award were more numerous and more extensive than those who would have been bound by a federal award.  This is the obverse of that situation, where the persons who would be bound by a State award are precisely comprehended within the class of persons who would be bound by a federal award.

MR DOUGLAS:   But represented by a different union.

GAUDRON J:   Yes.  Of course, that is inevitably going to be the case.  There would be no work for the‑ ‑ ‑

MR DOUGLAS:   Not in every State.  In Queensland it will be‑ ‑ ‑

GAUDRON J:   Right.  Very well.

MR DOUGLAS:   It is not the case in South Australia or Victoria, for example, where the union representatives are the same federally and at the State level.

GAUDRON J:   Yes, very well.

KIRBY J:   There will not be much left in Victoria if what we read is right. 

MR DOUGLAS:   That may be so, your Honour.  It is a difficult issue, however, your Honours, because of the nature of the decision and of the obiter dicta in Moore’s Case. It is a very difficult situation for the Commission to be in and for counsel making submissions to the Commission to know precisely what the law is in the area. Now, that, really, is the first issue, which is simply the issue relating to the proper interpretation of section 128(1). If one goes beyond that issue or is not satisfied that the matter can be determined simply on the question of interpretation, there are two aspects we contend as to the constitutionality of the section which this Court should investigate.

The first is whether it is a section properly incidental to the conciliation and arbitration power, and the argument there is that the Constitution sets up a regime for determining inconsistency of laws as between Commonwealth laws and State laws which requires laws to be in existence. This regime sought to be established by this section enables the Australian Commission to restrain a State authority when no Commonwealth law as such exists and in circumstances where no Commonwealth law may even come into existence. For that reason, it is our submission that the section goes beyond anything reasonably proportionate to or properly incidental to the conciliation and arbitration power.

The second reason why we say the section is arguably unconstitutional is that it purports to provide impermissibly aspects of the judicial power to the Australian Commission.

GAUDRON J:   That was not a ground in the order nisi, Mr Douglas.  Was it argued below?

MR DOUGLAS:   It was not argued below.

GAUDRON J:   Well, then, this is an appeal.

MR DOUGLAS:   I am sorry, your Honour?

GAUDRON J:   This is an application for special leave to appeal - I am sorry, for leave to appeal.  We are not here dealing with an application for an order nisi.  You have had your order nisi.  It was not based on that ground and you did not take the point below. 

MR DOUGLAS:   That is so.  Below, the court would have been bound by previous decisions of this Court on earlier versions of this section to the effect that it was not an impermissible grant of the judicial power to the Commission.

KIRBY J:   It is not unusual to reserve such matters, though, not at all.

MR DOUGLAS:   That is so, your Honour.  The matter has been the subject of proceedings in another order nisi granted by Justice Gaudron involving a company called Dalrymple Bay Coal Terminal and it is a live issue.

GAUDRON J:   Yes.

KIRBY J:   Would that not be the correct occasion and vehicle for the matter to come to this Court if it is to come?

MR DOUGLAS:   There is nothing in the nature of the proceedings to prevent it being argued in these proceedings, if the Court pleases.

KIRBY J:   Well, your argument is that you get up on the first point, and if you get up on that then the other point waits in the wings.  It is a legal point and we may as well deal with that as well.

MR DOUGLAS:   Yes, that is so, and it does not depend on findings of fact or matters of that nature.  It is purely a legal point.  It is one that is appropriate.

KIRBY J:   It is not a very convenient procedural course, though, is it, because it was not reserved in the order nisi.  It was not the matter of submissions below.  It was not a matter of any observations by the Full Court and it comes to us cold.

GAUDRON J:   And it comes to us on the application of somebody who was not even a party to the dispute.

MR DOUGLAS:   We are an intervener in the dispute, that is so, your Honour, but even though it comes to you with all those impediments it is still simply a pure question of law which finally has to be determined by this Court and really only appropriately can be determined by this Court.

KIRBY J:   Not without interest, yes.

MR DOUGLAS:   And it is a matter which - sorry, your Honour?

KIRBY J:   It is not without interest, which is always‑ ‑ ‑

MR DOUGLAS:   Yes, and it is also likely to come to this Court in any event in other proceedings which may be the subject of an application to be heard with this proceeding.

KIRBY J:   I can save up my interest.

MR DOUGLAS:   Your Honour, in our submission, it is an important issue.  It is one which could well be determinative of the proceedings and, really, it adds no practical problems to the argument of the appeal to allow it to be argued at this stage also.  When one looks at the nature of the power given to the Commission really, in our submission, it reeks of the judicial power.  It is a power to restrain.  It is a power which determines the rights of parties at the State level and prevents them from pursuing statutory rights which, if the federal Commission decides to hold its hand, may never be able to be used leaving a legal vacuum to those citizens.

KIRBY J:   Does this go back to the 1904 Act?  Has there always been this type of provision?  Of course, that was a court in those days, so it may not be really very helpful.

MR DOUGLAS:   No, but it does go back at least to the early part of the century.  There are decisions dealing with it since about 1920, your Honour.

KIRBY J:   Of course, that might historically explain it.  At that time they thought it was a court before Boilermakers.

MR DOUGLAS:   That is so.

KIRBY J:   That might explain how it came about.

MR DOUGLAS:   Yes, and the decisions dealing with the constitutionality are really quite old decisions and ones which, in our submission, bear re‑examination.  The original section was section 20 of the Act of 1904, your Honour.  I am not sure whether that was in in 1904, but it was certainly in there in the 1930s.

They are our submissions.  In our submission, it is a matter which should be the subject of leave.  It raises important.....interpretation of the Act and of the constitutionality of the section.

GAUDRON J:   Yes, thank you, Mr Douglas.  Mr Jackson.

MR JACKSON:   Your Honours, could I just say three things in relation to our learned friend’s submissions.  We support, of course, the application and we have also filed a notice of motion seeking an extension of time for leave within which to appeal ourselves.  Your Honours, could I say, first of all, that in the Court’s decision in Moore, it was unnecessary for the Court to decide upon the validity of the equivalent to section 128 and that one does not find in Moore, in for example Justice Murphy’s reasons, which are the ones most against us, I think, any reference to the Court’s unanimous view in the Timber Workers’ Union Case.

GAUDRON J:   Yes, but the reasoning advanced by Mr Douglas of the Timber Workers’ Case is a little odd in this context, is it not, Mr Jackson?

MR JACKSON:   In our submission, no.  Could I take your Honours to it for just a moment in 53 CLR.  There are really three passages.  The first is at page 674, your Honours, about point 7 on the page.  Your Honours will see the statement of general principle:

In the same way, a matter which is the subject of proceedings before the Court is necessarily the subject of dispute between the disputants, and, again, this expression connotes parties as well as a subject for decision.

The second passage, your Honours, is on the next page 675, about point 6 on the page:

But, once again, the dispute or the matter is a conception involving not only a subject but parties.

And the third, your Honours, is the one that gives rise to the observation by your Honour the presiding Judge at page 676, and about point 4 on the page, your Honours will see the passage commencing:

It is unnecessary to enter upon the facts beyond stating that it is clear -

and so on.

GAUDRON J:   Could I take you to the terms of section 20, which you will see on page 665.  What was there in issue was a dispute in that case, not the third it seems, not the third matter, with a matter which is provided for in an award of the court and, certainly, if one were concerned with a dispute, what you have read is directly relevant but, in this case, we are concerned with the matter, are we not?

MR JACKSON:   Indeed, your Honour, but can I say at the passage at page 675, your Honours will see the words used, “But, once again, the dispute or the matter”, and it is clear enough, in our submission, that what is being done there by the Court is to pick up the wording of section 20 in the several ways in which it is expressed so that it is expressed generally.  The third reference I was going to go to, your Honours, was at page 676.  The reason why the Court decided in the way in which it did was because of the way in which it expresses it there but, your Honours, that is indicating the reason why there was not an identity of parties rather than itself setting out the only circumstances in which there is not the identity of parties.

Your Honours, what the Full Court said in the present case at page 48, about line 19, was that there was no decision of this Court on the point.  With respect, whatever the precise meaning of the decision or application of the decision might be, that does not seem to be quite right.  Can I just say in relation ‑ ‑ ‑

GAUDRON J:   I am not too sure that it is wrong either.  You were dealing with a different section from that which is presently in issue and certainly there was not an identity of parties in Moore in the way for which that is presently contended but, again, Moore was a case, like the Timber Workers’ Case, where the State award, if it had been made, would have had a wider operation than the federal award, which is not the situation with which you are concerned here.

MR JACKSON:   Your Honour, can I seek to say three things in response to that.  The first is, if I could stay for just a moment with the reasons for judgment in the Full Court, that your Honours will see a passing reference to Timber Workers at page 47, line 21.  It really just quotes the passage.  Then there is some development of that on page 48 up to the passage to which I referred before but, if I may say so with respect to their Honours, it is a little difficult to see what point is being made from it.  But the next feature about it is that the passage ultimately quoted at page 49 from Timber Workers, at the top of the page is the passage that comes from page 674 but leaves out the important words, “and, again, this expression connotes parties as well as the subject for decision”.  So what has been left out, your Honours, in the passage that is quoted as being what Timber Workers says is the other half of the passage that was referred to by the Court in that case.

Your Honours, the second thing of course is that if one looks to see who is bound by an award or bound by a certified agreement, then one does have to bear in mind that the decisions of the Court in relation to registered organisations do establish that registered organisations are not just bodies representing in an agency sense the persons who are their members.  They are parties principal, if I could use the somewhat hallowed expression in the area, and they themselves are parties to the awards and so on.  The third thing, your Honours, is that if one goes to the terms of the Industrial Relations Act to see who is bound by the certified agreement in a case such as the present, that is dealt with by section 149(2).  It means that it:

is binding on:

(a) each of the parties to the agreement; and

(b) all members of an organisation that is a party; and

(c) an employer who is a successor, assignee or transmittee -

Your Honours, those are the parties who are bound by it.  It does not necessarily follow that the same persons are the persons who would be bound by an order of the State Commission.  Those are the three things I wanted to way in response to what your Honour to put to me.

GAUDRON J:   Does it follow that the State Commission would make an award binding on a wider class of person?

MR JACKSON:   It is possible, your Honour, yes.

GAUDRON J:   Could you explain how that could be to me?

MR JACKSON:   I do not mean wider geographically, of course, but ‑ ‑ ‑

GAUDRON J:   No, wider than the employees and wider than the employers?

MR JACKSON:   Your Honour, it could make an award binding on all persons who might become employees in the particular area.

KIRBY J:   That would depend on the State legislation; they are not under any Constitutional ‑ ‑ ‑

GAUDRON J:   And that is the way that the federal one would also work, is it not?

MR JACKSON:   Well it would work - your Honour, we are speaking at the moment about a certified agreement and the agreement binds the classes of people to whom I referred a moment ago, and they are persons who are parties to it or persons who are members of the union ‑ ‑ ‑

GAUDRON J:   Or eligible to be?

MR JACKSON:   Well, your Honour, that is not quite what it says, with respect; what it says is:

(b) all members of an organisation that is a party; and

(c) an employer who is a successor -

to the employers.  Now, your Honours, in many cases, of course, persons eligible to be members have been held to be persons to whom the ambit of awards made by the Commission can apply, but the ambit of operation of a provision of the kind in question is limited to the classes to whom I referred.

GAUDRON J:   Was this point agitated below; this precise point about the ambit of an agreement and the differing ambit of a State award?

MR JACKSON:   Your Honour, I think it is being agitated in answer to what your Honour has been asking me, with respect.

GAUDRON J:   So it has not arisen before?

MR JACKSON:   Your Honour, I really cannot answer that, I am afraid, because I ‑ ‑ ‑

GAUDRON J:   Well it is a matter of some importance because, as I pointed out earlier, it is an application for leave to appeal.  We are not dealing with an application for an order nisi.

MR JACKSON:   Your Honour, I am conscious of that.  Could I say in relation to it that ,whether the precise answer I gave your Honour a moment ago was or was not dealt with, the whole area that your Honour has been asking my learned friend about, and also me, is one that was the subject of the argument before the Full Court.

GAUDRON J:   That was identity of parties to the proceedings; that was the focus below.

MR JACKSON:   Quite, your Honour, but that raises the very point ‑ ‑ ‑

GAUDRON J:   Well, it does not quite.

MR JACKSON:   Well, your Honour, I do not know that I can say more than that really, except to say that it is within the area, in our submission. Your Honours, could I say also that the requirement for identity of parties would mean, of course, that the provisions of section 128 do have an operation which will vary from State to State and also an operation which in some cases may not be a very frequent one but that, in our submission, would not be a surprise, because the normal provision for resolution of conflicts of that kind would be section 109 of the Constitution rather than a provision such as section 128.

Your Honours, could I just say in relation to the judicial power aspect of it that ‑ ‑ ‑

KIRBY J: Just to pause there before you go on to that, section 128 has been interpreted by the Full Court and subject to your Timber Workers point it is really a matter of giving construction to a federal statute, which would normally be left to the specialised court to do.  What is the point of general importance from the point of view of industrial relations that would attract leave in this Court, before you get on to the constitutional question?

MR JACKSON:   Well, your Honour, that point itself is the interrelationship between the Commonwealth tribunal and the State industrial authorities ‑ ‑ ‑

KIRBY J:   Has this been changed in the legislation that has just passed the Senate?

MR JACKSON:   Effectively the same, your Honour.  It is one of ongoing importance, because your Honours will appreciate that there are many, many areas where subject matter, to use the expression, could be dealt with by either authority, just depending on whether there is or is not an interstate dispute threatening, et cetera.  So that, your Honour, it is an issue which will always arise, and your Honours would appreciate that, as in effect legislation changes and governmental views change, one tends to see the range of federal activity either increase or diminish from time to time, so that it is an area, your Honour, that will always be with us.

I was going to say in relation to the constitutional aspects of the case two further things, if I may: I said judicial power; may I just say something about section 109, before going to that. What I wanted to say, your Honours, is this, that the position of course is that the Industrial Relations Commission is not part of the judicial branch of government. It is proposing to make an award - this is the way section 128 operates - which, when made, will be quasi legislative, in effect, sufficient to attract either directly or indirectly by reference to the Act itself, the operation of section 109 of the Constitution.

The way in which section 128 operates is to say that, while the executive government, in effect the Industrial Relations Commission, is contemplating whether to do that, the officers of a State may not do similar things themselves, that is, make quasi legislative determinations and, your Honours, in our submission, the provision is one which does not give effect to the presence or operation of section 109 because section 109 does not give rise to voidness ab initio, but rather to invalidity which is temporal in that State laws are invalidated, while the Commonwealth prescription is in force, but section 128 goes beyond that, of course.

If I could move from that to judicial power more directly, the very thing that section 128 allows is the making of what is described as an order; the order is one which restrains persons from behaving in various ways. It requires them by subsection (2) to act in accordance with the order, and then, your Honours, it does provide a means of enforcement by section 128(3). Now, your Honours, if I could just go to the terms of those provisions for a moment, section 128(1) describes what is done as the making of an order. Section 128(2) says that:

The State industrial authority shall, in accordance with the order -

not do certain things, and then the consequence is voidness of what has been done. Your Honours, no doubt additional means of enforcement of orders might have been chosen, and perhaps section 128(3) does not provide for every possible meas of enforcement of something that can be described as an order, but the making of an order, the effect of which is to declare void, in effect ab initio, conduct is a recognised form of judicial order, and one sees it, for example, in the forms of order that can be made under section 87 of the Trade Practices Act.

KIRBY J:   It may be, as I said earlier, the result of the historical evolution of the institution; it began as a court, and they thought it was a court and they thought they could do what courts do, namely give injunctions.

MR JACKSON:   Your Honour, one certainly has seen that, and some of the difficulties occasioned by it, by the change in legislation which occurred in relation to the part of the Act dealt with in Re Dingjan; Ex parte - I have just forgotten the other name now - where, by the time the case came to be heard by this Court, the same provisions had been enacted in futuro with the jurisdiction given to the court rather than to the commission.  So, your Honour, there is no doubt that the pre‑Boilermakers history of the Act has had some effect upon it.

KIRBY J:   But the question asked by Justice Gaudron is still relevant.  What is the timeliness of this, given (a) that we are informed that it is coming up in another vehicle, and (b) that it was not reserved in the order nisi, and (c) was not debated in the court below?   We do not have the benefit of the thoughts of the Full Court on this.

MR JACKSON:   Your Honour, if I could deal with the latter part first.  That is a not infrequent thing in constitutional cases, of course, and it happens very, very frequently indeed where matters are commenced in the original jurisdiction of this Court by writ.

KIRBY J:   That is true, but recently the Court has used the vehicle of reference in order to assist itself with the opinions of the Full Court of the Federal Court or the Industrial Court.

MR JACKSON:   Well, your Honour, if I could just say if one were to institute proceedings, for example, in this Court seeking a declaration of

invalidity of the provisions of section 128 on exactly the same grounds, we would submit it would be an appropriate case for the Court to retain and itself deal with at first instance. Your Honour, I do not know that I can say much more about that. As to the other aspect, sometimes it is worthwhile, if there is another case in the Court, to have two that can be dealt with by the Court together so the different facets of the same issue can be seen and, again, that has happened in a significant number of cases. As to the last thing, the point was not dealt with below. It is, of course, really a pure point of law, in effect. Your Honours, those are our submissions.

GAUDRON J:   Yes, Mr Nolan.

MR NOLAN:   May it please your Honours, we oppose the granting of leave for the reasons that are set out substantially in the outline of argument which we have filed with the Court.  Can I perhaps, before directing attention to some aspects of that outline, take up some of the points that have emerged in discussion.  It is our central contention that the case that this Court has been invited to deal with is really a different, and substantially different, case to the one that was actually before the Full Court because what is said, and what is insisted on in this Court, is this requirement that it is said to arise from the cases about identicality of parties, or identity of parties.  We say that is a misconception, and a misstatement of what the authorities that have been referred to earlier ‑ ‑ ‑

KIRBY J:   Timber Workers does refer to the disputants, and the disputants are normally the parties, are they not?

MR NOLAN:   That is right.  If one looks historically to the cases - the Timber Workers’ Case in particular - one sees, in our submission, there quite a different factual setting and, indeed, a sharper factual distinction that is perhaps made, or made obvious by Moore’s Case in so much as in those earlier cases, particularly the very early one, the 1929 case at 43 CLR, the whole object of the order that was made then by the old Arbitration Court, as it was then called, was directed to enjoining a state‑registered union. And, of course, that was a horse of an entirely different colour to what is in contemplation under section 128. That has been really what has occupied, or been the focus of the discussion in those earlier cases; namely, the extension of the former court’s jurisdiction beyond those who were involved in cognisable industrial dispute before the court, over into others who had no particular claim that was the subject of any direct proceedings in the Arbitration Court.

So we see in the earlier case - that is to say, the 1929 case - orders purportedly made against a State breakaway union that had a membership that was different and distinct from the membership from the federal Sawmillers’ Union.  And so that was the vice in the order that was made in that decision.  Perhaps the differences are less spectacular as the cases progress, but it is still the case, in the later Timber Workers’ Case in 53 CLR, that the order that was originally made again travelled further than an order that would have been necessary to deal with the matter that was agitating the federal jurisdiction at the time.

So, in other words, that order went to the activities of the then Sawmillers’ Conciliation Committee.  When one sees the order, which is reproduced at the bottom of page 366 in the report, one sees that arguably it is much wider in terms than that which is before the federal court, as it then was, because it purported to stay the activities of the Conciliation Committee in respect of those matters admittedly, but apparently in relation to all of its activities in respect of those matters.  So one could read the order as being one that affected non‑disputants in the federal sense simply by reference to the subject matter being the same.

Now, that is not, of course, the vice in the present decision that is under consideration, because the Full Bench of the Industrial Relations Commission was very focused in the order that it made.  It was certainly alive to these issues in the way that it made the order, and the order - can I just refer your Honours to it - is set out in pages 17 and 18 of the appeal book, but perhaps it is helpful, while we are looking at that decision, to just go back and look at the actual decision that led to the orders being made, because in that connection can I just mention one matter that came up in the earlier discussion, and that was this issue of the preparedness, or reluctance of the federal commission, to make pronouncements on the constitutional validity of particular provisions that were ‑ ‑ ‑

KIRBY J:   When is this started?  I mean, in the old days the commission ‑ ‑ ‑

MR NOLAN:   I am taking issue with that contention, your Honour.

KIRBY J:   I am sorry?

MR NOLAN:   I am taking issue with the contention that it is so reluctant and what happens is, and it is really spelled out at ‑ ‑ ‑

KIRBY J:   I think that is what the Full Industrial Court thought was the case.  They said that in their reasons, I think.

MR NOLAN:   But if one goes back to the full Commission decision, one appreciates, I think, why.  At page 13 of the application book in the middle of the page, the issue comes up about the unconstitutionality, and the Full Commission said:

This is a point which we cannot determine. We believe that on the basis of authority that we must treat s 128(1)(c) as valid. We accept the submission made by Mr Harmer that s 128(1) has been substantially in its present form since 1928 and that the section has been considered by the High Court on at least two occasions -

Then they quote the Timber Workers’ Cases:

We note the reservations expressed in Moore’s Case as to the validity of the section but in the result it was not held to be invalid.  In general the obligation of a statutory body not vested with judicial power is not to consider questions concerning the validity of the legislation under which it operates except where it is necessary to a question of construction of the legislation or perhaps where there is a clear case of constitutional invalidity.  We are not of the view that either of those exceptions occur here.

Sothey explain there that they would be quite prepared to enter upon the debate if they thought there was a clear case of invalidity but necessarily they will defer to the earlier authorities in the event that they think that the case is not a clear case.  I must say I do not think that marks any very radical departure from the way the Commission conducted itself over the years.  I think perhaps it has become more a matter of record simply because there appear to be more challenges to the constitutionality of various provisions of the Act in recent times, and perhaps there was a case some years ago.

I will return to the order and invite the Court to attend to the terms of the order that was made by the Full Commission.  It was made in very precise terms and it was very focused in its ambit.  It related to the terms and condition of employment - of employees of Birch Carroll and Coyle - set out in Schedule 1, which are the substantive matters the subject of proceedings before the Commission - and that is the federal Commission.  Then they set out the precise matters that were in contention before the federal Commission and limit the purview of the orders to those matters.  We would say that that is absolutely and entirely consistent with the authorities, and to add to that a requirement that the parties had to be the same in both jurisdictions we say introduces an unnecessary and impermissible gloss on those earlier authorities because, plainly, that was never a requirement.

Mr Jackson referred the Court to the passage in the 1935 Timber Workers’ Case towards the bottom of page 674.  We would also point to that as supporting our contention because, in a sense, it sets up the various things that need to be attended to.  Of course, the expression connotes parties as well as the subject for decision but there is nothing in the order that was said to be properly within the purview of they old court, and the present order under consideration that is not at all consistent with what is said in that passage, in our submission, because the relevant parties who were subject to the order of the federal Commission were the particular employer parties who were the subject of proceedings in the State Commission in respect of the enumerated claims.  So there is no mystery in that.  It would be to add a requirement that simply is not there in the cases to say that the union parties had to be the same as well.

That same situation is carried over into Moore’s Case, and it has been said that when it was argued below that Moore’s Case was the represented authority effectively for this proposition of identicality of parties - perhaps not in so many words - but the fact of the matter is once again there was a lack of correspondence of the parties at the State level.  We refer in our outline of argument to that lack of correspondence because, and very importantly, when one remembers this was a dispute about engineers and professional engineers, there was a class of professional engineers employed in the New South Wales public service, and by New South Wales agencies that, of course, could never be made the subject of a federal award - certainly not then, and arguably not now.  Perhaps a wider class could be embraced by a federal award as a consequence of a decision of this Court in Re AEU, but looking at the decision as it stood in Moore’s Case the reservation of federal power restricting the ambit of the Commission to make awards in respect of Crown servants was certainly a very live issue in relation to the potential award coverage of those professional engineers.

There was a dispute between the federally registered APEA, the professional engineers, and the State PSA, and, of course, there was no similar restriction upon the State PSA, so the effect of the order in Moore’s Case that was invalidated by this Court was, in fact, to stay proceedings that would have included proceedings in respect of a class of employee over which the federal Commission could never have had jurisdiction.  That was a critical factor; it is alluded to in the judgments, and perhaps we would argue the true significance of that difference is perhaps not as emphasised as it may be in the judgment but, when one understands the background, one can see that there was a very real difference, an important difference, between the class of engineers sought to be covered by the State Commission and the State award and that class sought to be covered by the federal Commission.

GAUDRON J:   We understand that point.  What do you say about the judicial power question?

MR NOLAN:   Of course, we are opposed to that being agitated in this case because it has not been the subject of any discussion below, and if a case had been mounted on that basis below, presumably ‑ ‑ ‑

GAUDRON J:   It may not have been referred to the Industrial Relations Court.

MR NOLAN:   It may not have been, but it would have given at least my client an opportunity to explore the issues in a much more elaborate way below.

KIRBY J:   Mr Jackson says that they can seek a declaration from the Court now.

MR NOLAN:   That may be so, but I would have thought that the Court would exercise a discretion about that matter.

KIRBY J:   Do you know of the other case that is said to be in the pipeline?

MR NOLAN:   Yes, that is the Dalrymple Bay Case, and I make reference to that in the bottom of my outline of submission.  Indeed, in that case, and Justice Gaudron will, I think, recall the circumstances of that case, because an application was made to Justice Gaudron, and in that case this issue of the judicial power of the Commission was raised, and I think that is the first time it got an outing in this context and I think Justice Gaudron then asked Mr Douglas who appeared as an intervener for the Queensland Government in the Dalrymple Bay Case about that point, and asked him whether it had been argued here, and he said it had not been argued in this case.  So that is a matter that awaits some ‑ ‑ ‑

KIRBY J:   You say if there is a leave point in that then let that be heard in due course.

MR NOLAN:   Yes, let that be the vehicle.  Indeed, that is our view.  We think that is the proper way to deal with it.

KIRBY J:   We can restrain our enthusiasm for the point until it comes.

MR NOLAN:   I am confident your Honour can exercise patience in that regard.

KIRBY J:   We are very patient.

MR NOLAN:   I know.  So we would say that that it is the appropriate vehicle for that matter to be reagitated and, indeed, one would have thought it ought to be agitated at every step along the way including, in the first instance, before the Commission, but at least before the Full Court of the‑ ‑ ‑

KIRBY J:   This is a case for leave, not special leave. 

MR NOLAN:   Indeed.

KIRBY J:   It is said that the point is being taken elsewhere.  It is coming.  What do you say to the suggestion that these parties should have their opportunity to be heard on the point which they wish to agitate if it is coming after all?

MR NOLAN:   Well, to a large extent they have their opportunity because the AWU is a direct party to the Dalrymple Bay matter and the Queensland Government is, if not an intervener, a party in the sense that I think perhaps one of the Crown agencies has some relationship with the conduct of that port authority.  I could stand corrected by that.  So, they are not even in a position where they can complain that they will be shut out in some way.  They are directly involved as parties and interveners in that matter before the Commission.

KIRBY J:   Yes, that is the first respondent, but what about the third respondent?  They will not have their say?

MR NOLAN:   The third respondent?

KIRBY J:   You say if they had wanted their say they should have raised it earlier?

MR NOLAN:   Birch Carroll & Coyle?

KIRBY J:   You say they should have raised it earlier.  If they are so desperate for their say on this point, they are a bit late?

MR NOLAN:   I am sorry, the third respondent in this proceeding?

KIRBY J:   Yes, I am thinking of Mr Jackson’s client.

MR NOLAN:   They are the AWU, the fifth respondent.

KIRBY J:   I am sorry.

MR NOLAN:   And they are very involved in Dalrymple Bay because they are the other union involved in the inter‑union dispute about the coverage of those workers at Dalrymple Bay, so both of these other parties before the Court this morning are well and truly involved in that litigation.  My client, of course, has no interest in it.  I would just invite the Court to look at my outline of submissions which I have not yet referred to.  May it please the Court.

GAUDRON J:   Thank you, Mr Nolan.

MR NOLAN:   I am sorry, could I just add one thing as a matter of record.

KIRBY J:   This may be fatal.  You may persuade us to change our minds.

MR NOLAN:   No.  Just as a matter of record, Justice Isaacs in the early Timber Workers’ Case discusses that point about whether or not it is a judicial power and he comes to the conclusion in the early case that it is not.  Just as a matter of interest.

GAUDRON J:   Yes, Mr Jackson?

MR JACKSON:   Your Honour, may I say just one thing in response and that is that our understanding of the position is that the AWU entity which is involved in the Dalrymple Bay litigation is the federal body, not the body which is before the Court today.

GAUDRON J:   I see, yes.

KIRBY J:   Presumably you would have a right to seek to be heard in that, though?

MR JACKSON:   Well, your Honour, in this Court I wait to see, with respect. 

GAUDRON J:   It seems the matter was of such moment though for your organisation, that you did not take it before?

MR JACKSON:   Well, your Honour, could I say - I am sorry, your Honour, my learned friend has shown me something that seems to indicate that the State union is a party to it, an intervener, in those proceedings in the courts below.  Your Honour, no doubt the view that was taken was that it was an issue for this Court rather than one that could be dealt with by the court below.

GAUDRON J:   Yes, thank you.  Mr Douglas, do you have anything in reply?

MR DOUGLAS:   One thing.  Simply, in response to a question raised by your Honour, my recollection is - and it seems to be borne out by our statement of facts - that it was brought to the attention of the Commission below that what was sought in the federal Commission was certification of an agreement.  What was sought in the State Commission was the making of an award, and that they were two different things, agreements - a different entity in the federal sphere from an award in the State sphere.  That is all we wish to say, your Honour.

GAUDRON J:   Yes, thank you, Mr Douglas.

The applicants seek special leave to appeal from a decision of the Industrial Relations Court discharging an order nisi granted by Gaudron J on 30 March 1994. They contend that s 128 of the Industrial Relations Act 1988 (Cth) is invalid by reason of the attempted conferral of judicial power on the Industrial Relations Commission, and in the alternative, that it is beyond the power conferred by s 51(xxxv) of the Constitution. It is also contended that s 128(1)(c) does not apply in the circumstances of this case.

So far as it is said that s 128 is an invalid attempt to confer judicial power on the Industrial Relations Commission, that ground was not specified in the order nisi and not argued below. So far as concerns the other issues raised by the application, the proposed appeal does not enjoy sufficient prospect of success to justify the grant of leave. Leave to appeal is refused. I take it it is not an appropriate case for a costs order?

MR DOUGLAS:   No, your Honour.

GAUDRON J:   Thank you.  The order then is that leave is refused.

AT 10.56 AM THE MATTER WAS CONCLUDED