Australian Education Union v General Manager of Fair Work Australia & Ors

[2012] HCATrans 5

[2012] HCATrans 005

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M8 of 2011

B e t w e e n -

AUSTRALIAN EDUCATION UNION

Applicant

and

GENERAL MANAGER OF FAIR WORK AUSTRALIA TIM LEE

First Respondent

PRESIDENT OF AUSTRALIAN PRINCIPALS FEDERATION FRED WUBBELING

Second Respondent

AUSTRALIAN PRINCIPALS FEDERATION

Third Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 31 JANUARY 2012, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR P.J. HANKS, QC:   If your Honours please, I appear with MR J.H. KIRKWOOD for the applicant.  (instructed by Holding Redlich)

MR R.C. KENZIE, QC:   May it please the Court, I appear with my learned friend, MR E.P. WHITE, for the second and third respondents.  (instructed by Ryan Carlisle Thomas)

MR S.J. GAGELER, SC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear with MR C.P. YOUNG for the Attorney‑General of the Commonwealth intervening in the interest of the respondents.  (instructed by Australian Government Solicitor)

MR M.G. HINTON, QC, Solicitor‑General for the State of South Australia:   If the Court pleases, I appear with my learned friend, MS N.M. SCHWARZ, on the instructions of the Attorney‑General for South Australia intervening in support of the second and third respondents.

FRENCH CJ:   Yes, Mr Hanks.

MR HANKS:   The application focuses, of course, on the meaning and effect of section 26A of the Fair Work (Registered Organisations) Act 2009 and the question we have posed and asked is whether that section overcomes or undoes the quashing by the order of the Full Federal Court of the registration of the APF – we will use the acronym, if we may, the Australian Principals Federation – and does it require that registration to be taken to be valid and always have been valid. So there is a question of construction and then there is a question of constitutional validity. We say that if it does require that result, if 26A requires that result it usurps or interferes with the judicial power of the Commonwealth.

There are some uncontroverted facts that underpin this application and the questions that oppose the decision.  In January of 2006, the old IRC, the predecessor of Fair Work Australia, granted registration to the APF, and in September of the same year the Full Bench dismissed our client’s appeal.

GUMMOW J:   Where do we find the registration provisions in that legislation at that time?

MR HANKS:   Is your Honour asking me where – it is in the legislation, your Honour asked.  Your Honour asked where in the legislation is provision made for registration ‑ ‑ ‑

GUMMOW J:   You talk about a registration system.  I do not understand how it works at the moment.  Nor do I understand what the effect of the Federal Court order was in the registration system.  Unless one can start with that ‑ ‑ ‑

MR HANKS:   Well, your Honour ‑ ‑ ‑

CRENNAN J: May I add to Justice Gummow’s question? In Schedule 1B there are provisions in relation to cancellation of registration, and in particular, 32 sets out the consequences of cancellation of registration which may explain utility in relation to your litigation, I am not sure, but how does the quashing – and that is an annotation in the register at page 153 of the special case book – does that operate as a cancellation of the registration?

MR HANKS:   Your Honour referred to page 163 ‑ ‑ ‑

CRENNAN J:   Page 153, Mr Hanks.

MR HANKS:    Page 153, I am sorry. 

CRENNAN J:   Page 154 is a copy of 140 of the register, as I understand it.

MR HANKS:   Yes.  We think not, your Honour.  Cancellation would refer to action taken by the Commission.

CRENNAN J:   Or an interested party on a technical point.

MR HANKS:   Of course, but it would require a decision of the entity that is responsible for the register.  Now, here we have only an order from the Full Federal Court, an order issuing a writ of certiorari, and the effect of that has nothing to do with cancellation, we would say with respect.  That simply quashes the record.  It brings up the record and quashes it.

CRENNAN J:   That is paragraph 3 which is set out on page 154, the following page.

MR HANKS:   Yes.

CRENNAN J:   That is entered in the register, as I understand it, page 140.

MR HANKS:   Yes, that is right.

CRENNAN J:   Now, it is very important to understand how the two fit together, the quashing and the cancellation, because there are consequences of cancellation.  Do they follow or not follow when this sort of annotation is made in the register?

MR HANKS:   Your Honour, in our submission, the action taken by our client in seeking certiorari from this Court remitted to the Federal Court, the order made by the Federal Court has nothing to do with cancellation.  It is simply a quashing.  It eradicates the registration ‑ ‑ ‑

CRENNAN J:   Void ab initio, never was a registration, so no need for a cancellation, is that the reasoning?

MR HANKS:   That is what we say, your Honour.  That is exactly what we say.  So that that statutory mechanism that is available, a party might move the old Commission to cancel registration, that has nothing to do with this case.  That is our position, your Honour.

GUMMOW J:   This is a peculiar sort of certiorari in a way because it is directed to a statutory registration system but it is not requiring alteration of the register in its terms.

MR HANKS:   No, but its effect ‑ ‑ ‑

GUMMOW J:   I do not understand what it means to say to quash the registration, other than to alter a register.

MR HANKS:   As we put it to the Court, your Honour, certiorari eradicates, obliterates the registration because that is the effect of that order – not because of anything that appears in the legislation regulating registration.  It comes in, as it were, over the top of the legislative provisions.  It seizes on the decision made first by the Vice‑President, Vice‑President Ross, and then by the Full Bench – seizes on those two decisions – seizes on the act of registration and it quashes each of them.  Those are the terms in which the order was expressed.

CRENNAN J:   Yes. 

MR HANKS:   We have the terms of the order in ‑ ‑ ‑

GUMMOW J:   It is at page 154.

CRENNAN J:   Page 154.  Paragraphs 2 and 3 you are referring to.

GUMMOW J:   Set out.

FRENCH CJ:   Certiorari does not quash an entry.  I suppose it is quashing, you say, the act of making of the entry, as it were ‑ ‑ ‑

MR HANKS: If I might take your Honours to 169 FCR at 433. It is our understanding that the italicised passage running over to page 434 sets out precisely the orders made by the Full Federal Court. So a writ of certiorari issued to quash the decision of the AIRC that the application by the APF for registration be granted, secondly, there is a writ of certiorari issued to quash the decision of the Full Bench which dismissed an appeal from that decision, thirdly, a writ of certiorari issued to quash the registration of the APF.

GUMMOW J:   Does the registration system provide for a particular officer to have control of the register analogously to the Registrar‑General with the Torrens system?  So you would have an order directed to that officer to do something in relation to the register, that I can understand.

MR HANKS:   I appreciate your Honour’s question.  I am not able to answer that question with any ‑ ‑ ‑

FRENCH CJ:   It would be hard to see how you can quash an entry as a piece of writing, as it were, in a document or database.

MR HANKS:   That was the order that was made, your Honour.

FRENCH CJ:   Yes, I appreciate that.

MR HANKS:   There was no objection taken to the terms of the order and the Commission acted on that and made a notation of it on the register and we say that the effect of the order acknowledged by the Commission was to eradicate the registration as if it had never been made.  That is an important part of the argument to be put to your Honours.  We have those, what we had thought, uncontroverted but perhaps pregnant with problem facts, namely, registration.  Registration is then quashed by the Full Federal Court.

Then, relevantly, the APF went back to the Commission seeking to amend its rules. While that was pending section 26A was enacted. It came into operation on 1 July 2009. When that occurred the successor to the Commission ‑ ‑ ‑

GUMMOW J:   I am sorry to keep causing trouble, Mr Hanks, but what was the foundation of the jurisdiction of the Federal Court to award certiorari and nothing else?  It cannot be in 75(v).

MR HANKS:   No, although its jurisdiction lies first in 75(v) and then in section 44(1) of the Judiciary Act.

GUMMOW J:   Yes, but what in 75(v) was sought – prohibition, an injunction, mandamus – to an officer of the Commonwealth?  Who is the officer of the Commonwealth?

MR HANKS:   The officer of the Commonwealth would be undoubtedly, first, the Vice‑President, secondly, Vice‑President Lawler and the other two members of the Full Bench – they are officers of the Commonwealth – and, thirdly – and here your Honour has the advantage of me – the functionary within the Commission who maintained the register, they would all be officers of the Commonwealth.  The Industrial Registrar – that is the function.

GUMMOW J:   The order does not seem to be directed to anybody.

CRENNAN J:   Under 13(2) the general manager is in charge of the register and keeps it in whatever form the general manager thinks is appropriate.  It was the general manager who made the annotation we were looking at before.

MR HANKS:   That is so.  I think your Honour is taking us to the current legislation rather than the legislation as it stood at the time that application was made to this Court challenging the registration.  I am using that generic term.  It is our submission that the Industrial Registrar was the name of the functionary at that time under the predecessor to the current legislation.

CRENNAN J:   The same system was there that the identified person had the responsibility to keep the register and to record in the register changes in status such as cancellation.

MR HANKS:   Yes.

CRENNAN J:   Presumably it is open for public inspection.

MR HANKS:   Quite so, your Honour.

HAYNE J:   But this was not cancellation, was it?

MR HANKS:   No, it was not cancellation.  This was a ‑ ‑ ‑

HAYNE J:   But we enter the maze, do we not, through order 1?

MR HANKS:   Yes.

HAYNE J:   Order 1 was the route, was it not?

MR HANKS:   That a writ of certiorari issue.

HAYNE J:   It was the route of the relief that was sought.  It was an attack upon the decision to grant the application to register – 2 and 3.

MR HANKS:   Yes, that is so.

HAYNE J:   And 2 is to take account of the intermediate appeal and 3 is, if anything, a consequence – whatever the effect of order 3 may be as to which there may be, I would have thought, a deal of doubt.  You enter the maze at order 1, do you not?

MR HANKS:   That is so.  Can I deal with Justice Crennan’s inquiry.  We see that the Industrial Registrar is named as the third respondent in the proceedings that were eventually resolved by the Full Federal Court.  We would understand that order 3 was something to which that person had to pay particular attention, namely, the quashing of the registration.  To come back to Justice Gummow’s question, jurisdiction is ‑ ‑ ‑

GUMMOW J:   It was on remitter from this Court, do not forget.

MR HANKS:   Of course, jurisdiction is undoubtedly based on 75(v) but it is not beyond the power of the Court to issue certiorari and that is what the Court did.  The Federal Court of Australia Act recognises that where it is vested with jurisdiction, as the Full Federal Court was, pursuant to the remitter under section 44 of the Judiciary Act, it may exercise a variety or grant a variety of relief, including certiorari, and that is what happened here. 

CRENNAN J:   So if there was a fresh application to register successful ‑ ‑ ‑

MR HANKS:   Yes, if there had been.

CRENNAN J:   ‑ ‑ ‑ fresh entry in the register?

MR HANKS:   Indeed, if there had been.

CRENNAN J:   Not a notation on the old entry?

MR HANKS:  That is how we say it should have happened. Now, indeed, with the passage of section 26A there could have been a fresh application for registration which would have run the gauntlet. There may well have been an opposition to that application. I think it is fairly likely that there would have been.

CRENNAN J:   Because of the objection process that ‑ ‑ ‑

MR HANKS:   Yes, but the absence of a purging rule would not ‑ ‑ ‑

CRENNAN J:   It would no longer be a problem.

MR HANKS:  Would not have stood in its way. Not because of section 26A, but because of the associated provisions that were introduced from 1 July 2009. So the first question – there are two broad questions obviously that are posed here – what was section 26A intended to do? That is the first question. That will then lead us, if the Court reaches an answer contrary to the answer that we propose, on to the next question. If section 26A was intended to reach back and restore the quashed registration, is that something that the Parliament could do consistent with Chapter III?

Now, your Honours know that the primary judge, Justice North, and the Full Federal Court on this occasion, in the matter from which we seek special leave to appeal, found against the arguments that we now agitate, first on the interpretation question and, secondly, in the Full Federal Court on the constitutional question, but on the interpretation question we say that for section 26A to resuscitate – well, to breathe life into that which is dead ‑ ‑ ‑

CRENNAN J:   Revive.

MR HANKS:   Revive, but it is a particularly radical form of revival, if I might put it that way.  For 26A to do that, it must be given retrospective effect.  It must be able to reach back and undo that which the Full Federal Court eradicated – or to restore, I should say, that which was eradicated.

HAYNE J:   That assumes, does it not, that you have entered the maze at the point of registration?  It does not assume that you have entered the maze at the point of certiorari to quash the decision of the IRC to register.

MR HANKS:   The distinction, if I might say so, your Honour, is possibly too subtle for me.  If you quash the decision to register, you quash the registration, in our submission.  There is no significant difference.

FRENCH CJ:   What is the meaning of that term “quash the registration”?  Does that mean anything more than that as a consequence of quashing the decision to grant registration the registration is in law invalid, void, ab initio, has no legal effect for the purposes of the Act?

MR HANKS:   Yes.

FRENCH CJ:   It is not a separate thing, is it, despite the order?  It is a consequence of the first orders, the point of entry that Justice Hayne referred to.

MR HANKS: Yes, we accept that, your Honour. Our first point is that for section 26A to have the effect which the General Manager of Fair Work Australia concluded it did have – and we can see the correspondence in the application book probably and most conveniently at page 156 to 157. At the bottom of page 156, the top of 157, the general manager sets out his understanding of the effect of 26A, and perhaps one needs to read a little bit between the lines, but we say that what Mr Lee is saying there is that 26A revives the registration.

Now, if that is correct, undoubtedly that is to give retrospective effect to 26A.  That leads on to a proposition found in one of the authorities cited by our friends who appear for the Commonwealth Attorney.  I will call it Engine-Drivers (No 2).  It is the FEDFA v BHP 16 CLR 245. I will ask your Honours to turn to, at this stage only, page 259. Just by way of background, in a case that we will look at shortly which I will call Engine‑Drivers (No 1) which was decided, I think, two years earlier, the High Court answered some questions posed by the arbitration court and they answered the questions in a way that ruled that a particular plaint lodged by engine drivers, the FEDFA, was not competent because FEDFA was not a proper industrial association.  Those are the answers to the questions that were given.

Now, consequent upon the passage of some legislation, the FEDFA came back to the court, the Arbitration Court, and said our log of claims, our plaint, has been revived by this legislation.

FRENCH CJ:   The court had not dismissed its plaint, had it?

MR HANKS:   That is absolutely true, your Honour, and that is the significant distinction to which we will draw attention later.  We only wish to derive some support from what Sir Samuel Griffith said on page 259, at about the middle of the page:

I think that the decision of this Court that, until the passing of the Act of 1911, the Court of Arbitration had no jurisdiction to entertain the suit still remains in force, and that it would require language “much more explicit” than that of sec. 4 –

and your Honours will see section 4 set out on the preceding page, page 258 at about point 3 on the page –

to justify the Court in holding that the legislature “intended not merely to alter the law, but to alter it so as to deprive a litigant of a judgment rightly given and still subsisting.”

HAYNE J:   Now, that was uttered in the context where it was thought judicial power had been exercised because it was the Conciliation Court.

MR HANKS:   Well, with respect, no, your Honour.

HAYNE J:   No?

MR HANKS:   That is not critical, no.  Uttered in the context where it was thought that judicial power had been exercised in answering the questions that is exercised by the High Court.  Now, we do appreciate that there was a theory that the Arbitration Court exercised judicial power or could exercise judicial power, corrected in Alexander’s Case, in the Waterside Workers Case in 1919.  But all that his Honour is saying here is there has been a judgment, this Court has answered questions.  If the legislature wants to displace those answers and the legal effect of those answers it has to be very explicit.  There is a similar proposition to be derived from what Justice Barton said on page 270, again about the middle of the page.  His Honour accepted that section 4 would validate the FEDFA’s registration:

confirm their proprietary rights and their compacts by consequence.  But what is there in the section to warrant the construction that it retrospectively subverts that which as between these parties the Court declared to be the law –

et cetera.  This is simply a question of construction; it is a question of an application of presumption.  It is well recognised in this case and has a long pedigree.  It has been, as we have noted in our written outline, for example, this case was cited in Mabo (No 1) dealing with the Queensland legislation that sought to derail Eddie Mabo’s claim.  The Court found eventually in Mabo (No 1), as your Honours will recall, that the Queensland legislation was sufficiently clear to achieve the result that Queensland said it sought to achieve.  That was legislation that was enacted in the course of litigation rather than at the end and after an order had been pronounced.

GUMMOW J:   What is the citation of Mabo (No 1)?

MR HANKS:   Mabo (No 1), your Honour, is 166 CLR 186.

GUMMOW J:   Thank you.

MR HANKS:   The particular page where this proposition about the presumption is referred to is 212.

FRENCH CJ:   This was a sort of contingent statute.  In other words, if native title is able to be recognised by the common law, it no longer exists in the State of Queensland or in ‑ ‑ ‑

MR HANKS:   That is right.  The Court, or at least the three Justices whose judgment I have taken this Court to, noted what the statute did not do; it:

does not, however, affect final judgments already given pursuant to the earlier law –

and there is a reference to Engine‑Drivers (No 2) and to page 270 in Engine‑Drivers (No 2), a page to which I took your Honours, in Mr Justice Barton’s reasons for judgment. It is neither novel, this proposition, but there is such a presumption, nor can it be said to have been taken by the tide of history. Here, if we look at section 26A, it identifies two cumulative conditions before a registration is taken for all purposes to be valid and to have always been valid. The first is that “an association” – perhaps we can personalise this somewhat. The first would be that the APF:

was purportedly registered as an organisation under this Act before the commencement of this section –

That is the first requirement, but it is only one of two cumulative requirements.  We say that before that date, which was 1 July 2009, the APF was not purported to be registered.  Its purported registration had been quashed by certiorari.  The decision to register, the gateway perhaps, had been quashed.  Consequently, the registration itself had been quashed.  When that happened, the registration was void, ab initio.  The metaphor used in some of the cases, “the slate was wiped clean”.

We have referred the Court to Justice Spigelman’s judgment in Ruddock v Taylor 58 NSWLR 269 and paragraph 21 of his Honour’s reasons for judgment. Your Honours will recall that Justice Spigelman was considering the relief that this Court had granted in Re Patterson; Ex parte Taylor by way of certiorari and Justice Spigelman said in paragraph 21:

The position after a court has issued the writ of certiorari, could, if it were possible to do so, be stated in even more emphatic terms -

the reference to the passage quoted in the immediately preceding paragraph ‑ ‑ ‑

GUMMOW J:   There is no authority cited for that.  Paragraph 20 is talking about jurisdictional error.

MR HANKS:   That is so, yes.

GUMMOW J:   Error of law on the face of the record might be something less.

MR HANKS:   Yes, it might be your Honour, but could I plead that here the foundation for the writ of certiorari was jurisdictional error – excess of jurisdiction.  Justice Spigelman said the writ both removes the record of the relevant decision into the Court and quashes the decision; it expunges the decision and wipes the slate clean.  There never was ‑ ‑ ‑

GUMMOW J:   I am still not sure how that works with a registration system - I think the vice, if there is a vice, in the Federal Court is to be justified from their point of view by what was done in Pitfield v Franki 123 CLR 448. The order in Pitfield v Franki which is set out at 475 was an:

Order that a writ of certiorari issued to quash the registration of The United Firefighters’ Union as an organization of employees under the –

1904 Act.

MR HANKS:   Yes, and so that is an exercise by this Court.

GUMMOW J:   That seems to be rather similar to order 3 in this case, but, on the other hand, if we look at Pitfield v Franki more closely, the reasons of Justice McTiernan, I think, at 463, he talks about the proposed writs being addressed to various persons and the particular officers in the bureaucracy – which brings us back to where we were – who were in charge of the register probably.

KIEFEL J: I think under schedule 1B in its form at the time of the decision of the Full Court of the Federal Court the Industrial Registrar had an obligation to issue a certificate of registration if registration was granted.

MR HANKS: Yes, under section 26.

KIEFEL J:   Yes, it is clause 26.  The certificate was conclusive evidence of the registration.  So order 3 of the Full Court decision could arguably be read as a direction to the registrar to correct the register.

GUMMOW J:   What would happen to the certificate?  Do you recall the certificate?  The certificate is out there to be seen by third parties and relied upon, I suppose.

MR HANKS:   Yes.

GUMMOW J:   It can be quite a serious matter.

KIEFEL J:   Subparagraph (5) of the clause provides that:

The certificate is, until proof of cancellation, conclusive evidence of the registration –

So if there was a cancellation directed by order 3, the certificate would be proved to be inconclusive and the register would speak for itself.

MR HANKS:   Although those are not the terms in which order 3 is expressed.  It is not expressed in terms of cancellation but in terms of quashing.

KIEFEL J:   It does not make sense, quashing the registration.  It must have to do with the act of correcting the register.

MR HANKS:   Yes, your Honour, but my only point was that it is not expressed as a cancellation.

FRENCH CJ:   The term “registration” itself is not defined as in a statutory dictionary definition, but 26(2), I suppose, tells us that it is to be seen as the entry of the prescribed particulars, is that right, in the register, which is an act of the Industrial Registrar.

MR HANKS:   Yes, your Honour.  That act constitutes the registration.

KIEFEL J: As I understand your submission about the construction of section 26A(a), the words “purportedly registered” should be read to mean registered but liable to be cancelled.

MR HANKS:   Yes, indeed.

KIEFEL J:   It requires the fact of registration.

MR HANKS:   Yes.

KIEFEL J:   So if registration no longer exists, it cannot be said to be liable to be cancelled.  It has been cancelled.

MR HANKS:   That is what we say, Justice Kiefel.  Justice Gummow took the Court to what Justice Spigelman said in Ruddock v Taylor. Can I also refer the Court to 185 CLR 149 Hot Holdings v Creasy.  I will ask the Court to turn to page 159 in 185 CLR.  We draw attention to the passage that begins, “In Ainsworth”.

GUMMOW J:   Which page are we?

MR HANKS:   Page 159,your Honour.  Of course, what is in issue in Ainsworth and, indeed, in Hot Holdings was whether certiorari was available as a form of relief to vindicate the rights being brought forward by a particular applicant, but we think we can derive support from that passage in the middle of 159:

“Quashing annihilates the legal effect of an act or decision that has been reached in breach of a condition of its validity –

FRENCH CJ:   That is to say in this case, annihilates the legal consequence of entry of the prescribed particulars by the registrar in the register?

MR HANKS:   Yes. 

FRENCH CJ:   The fact remains the fact, that is to say, the fact of entry ‑ ‑ ‑

MR HANKS:   An historical fact, but once certiorari was issued, it had no legal existence.  It is our submission that 26A(a) fastens on or requires that there be at least purported registration and there was not once certiorari was issued.  That is the first condition.  The second condition is that which is stated in paragraph (b), namely, that the:

purported registration –

here of the APF –

would, but for this section, have been invalid merely because, at any time –

its rules – well, it did not have a purging rule, to cut through the language that is used there.  But that does not describe the situation of the APF.  Its registration was not invalid merely because of the absence of a purging rule.  As certiorari had been granted, its registration was non‑existent.  Any possible invalidity had merged with the orders made by the Full Federal Court.  We put this proposition, that the language that is used in both paragraph (a) and (b) is apt to apply to associations other than the APF that were on the register but were vulnerable to deregistration or cancellation or perhaps to having their registration or the decision to register them quashed.  That is the focus, we say, of these two paragraphs in 26A and that is the focus of 26A.  The concern was with the uncertainty faced by those other associations.  Of course, the APF faced no uncertainty.  Its registration had been quashed.  Its position had been crystallised, clarified.

I will not take your Honours to the explanatory memorandum at this point.  We have identified in our written submissions for the Court why we say that when you look at the explanatory memorandum the construction which we say the words of 26A naturally bear, that construction is confirmed by the explanatory memorandum.  The relevant paragraphs are paragraphs 28 through to 31 of our written submissions.  I cannot improve on them, and I think it would be inappropriate of me to occupy the lectern for longer than I need to.

HAYNE J:   If the orders made by the Federal Court are to be understood as order 1, directing certiorari to quash the decision of the AIRC ‑ ‑ ‑

MR HANKS:   Yes, that would be the Vice-President, your Honour.

HAYNE J:   Yes.  Leave aside order 2, because that simply deals with the appeal, and order 3 were to be understood as in the nature of rectification of the register.

MR HANKS:   Yes.

HAYNE J:   What if any consequence does that have for your argument?  Does your argument depend upon order 3 being treated as, in terms it says, certiorari to quash the register, or does it matter if order 3 is in the nature of relief consequential upon order 1 and in the nature of rectification?

MR HANKS:   No, it does not, your Honour.  Let us assume for the purposes of answering your Honour’s question, order 1 is the keystone.  It quashes the decision to register.  The consequence of that is that there never was a decision to register.  If there never was a decision to register, there never was a registration.  That is our answer, your Honour.

CRENNAN J:   But in one sense, the distinction between a quashing and a cancellation is not particularly critical if your construction point is cast as there being revealed by the text of 26A no intention to capture quashed or cancelled registrations.  They are in a very similar position in relation to the public and the fact that the registration certificates are ‑ ‑ ‑

MR HANKS:   That is true, your Honour, but we think they have a different legal effect, quashing ‑ ‑ ‑

CRENNAN J:   Well of course, but I am just saying to you, when you look at the quashing as a rectification of the register, you are getting into a situation which is little different from a cancellation of a registration.  True it is, it has a different provenance, different legal effects and so on, but all I am putting to you is so far as your statutory construction point is concerned and your construction of purportedly registered, neither quashed registrations nor cancelled registrations, on your argument, would be purportedly registered as at the relevant date.

MR HANKS:   I do not accept that, your Honour.  We think that the cancelled registration would be in a different category entirely.

CRENNAN J:   Revivable, do you say?

MR HANKS:   The registration would have existed until cancellation.  It would have had legal effect until cancellation.

CRENNAN J:   Yes, I see.

MR HANKS:   Cancellation would be, undoubtedly, we think, prospective.  Quashing goes back to the beginning, if I can use or avoid the Latin, back to the beginning and it ‑ ‑ ‑

CRENNAN J:   As you have said, no registration.

MR HANKS:   There is no registration.  It is a different situation and our argument, we think, is stronger.

CRENNAN J:   That may well be so.  I was not engaging with the differences between the two.

MR HANKS:   No, but I think our argument would be difficult to sustain in the case of cancellation.

CRENNAN J:   Cancellation.  Yes, I see.

KIEFEL J:   It is necessary to be clear about what the word “registered” in 26A(a) means.  We are talking of two things, registered as an act of entry in the register or registered as a decision to register.  If it is a decision to register then “purportedly registered” may simply mean that there is a decision to register which is liable to be quashed because of non‑compliance with the requirements of the rule.

MR HANKS:   In the alternative, your Honour, if the reference is to ‑ ‑ ‑

KIEFEL J:   Register as entered as an act of entry in the register then it is liable to cancellation.

MR HANKS:   Again – well, it could be liable to cancellation or it could be the entry itself is liable to be called up and quashed by a superior court of record.  Your Honour can see that we are resisting the distinction.

KIEFEL J:   Yes.

MR HANKS:   Could we say something very shortly about what we have called Engine‑Drivers (No 2) 16 CLR 245 and what actually happened in that case. The legislation – there is a 1911 Act which is – the terms of it are described at the bottom of 257 and over to 258. The 1911 Act which follows Engine‑Drivers (No 1) altered a number of substantive provisions in the 1904 Act, the principal Act, the Conciliation and Arbitration Act – well, in fact, it was called the Commonwealth Conciliation and Arbitration Act – it altered the definition of industry so as to overcome a particular problem identified in Engine‑Drivers (No 1).  That new definition is identified at the foot of 257 and at the top of 258.  Then in section 4 which is set out on 258 at about point 3 on the page it provided that:

“The registration, as an organization under the Principal Act, of any association purporting to be registered before the commencement of this Act shall be deemed to be as valid to all intents and purposes, and to have constituted the association an organization as effectually as if this Act had been in force at the date of the registration.”

So the 1911 Act did two things.  It first changed the underlying definition in the principal Act of “industry” which have a flow‑on effect to the rules governing registration, and it did not purport to displace or interfere with any judicial decision.  The provision with which we are concerned, 26A, is quite different.  It says a purported registration of a certain type is taken “to be valid and to have always been valid”.  So 26A, at least on its face, appears to operate directly on invalid registrations, purported registrations, transforms them into valid registrations.  It does not change the underlying rules governing registration.  There is no parallel to the new definition of “industry” in the 1911 Act. 

The accompanying sections, the new section 171A that was introduced at the same time as 26A does not or did not change the rules governing registration.  All that it did was to purge the membership of registered organisations.  The same can be said of section 230(2)(b) which is directed to the organisation requiring it to remove from its register persons who have ceased to be members.  So the legislation is quite different. 

Now, another important point about Engine‑Drivers (No 2), if we go back to volume 16 CLR at page 269, point 5 on the page, Mr Justice Barton noted that the respondents in that case, the employers, conceded that the original registration of the FEDFA was:

to be taken as valid “to all intents and purposes,”  . . . just as if this new provision had been in force at the date when the form of registration was tendered at the Registry. 

There was no contest that the registration was validated.  The real dispute, as appears on the same page at about point 8 on the page, was whether there was a further consequence.  You can pick it up in the sentence that begins:

Not only, say the claimants, must you treat us as an association properly registered, and therefore an organization all the time –

and I might interpolate there, something that the respondent employers conceded –

but you must read this enactment as if it said that our plaint was good all the time, filed in a dispute in which we were engaged as such an organization –

That was the point of contest and that was the point on which the Court ruled that the 1911 Act did not reach back and validate the plaint from the time that it was lodged.  The issues that were presented to the Court in Engine‑Drivers (No 2) we think were quite different from those which are now presented.

The next point we wish to draw to the Court’s attention – and I think his Honour the Chief Justice put this to me, unless I am terribly confused – no remedy had been issued in Engine-Drivers (No 1).  Engine‑Drivers (No 1) was a case stated for the opinion of the High Court. That is 12 CLR 398. Here we have a proceeding in the Arbitration Court brought by the union against employers seeking an award and two questions at least were posed. They are set out on pages 400 to 401 in the report. The first two questions are the ones that I refer to – whether the union had been validly registered and whether that invalidity, any invalidity, was fatal to the claim that it had lodged in the Arbitration Court.

Now, the answers that the Court gave to those two questions – the majority of the Court – were no to the first question and yes to the second, that is, the association could not be registered and that meant that the objection was fatal to the claim which it had lodged.  That is as far as the Court went.  When the amending Act, the 1911 Act, was passed, the proceeding before the Arbitration Court was still pending. 

In Engine‑Drivers (No 2) the Chief Justice noted that the employers’ attempts to have the matter brought back before the Arbitration Court had been unsuccessful.  No doubt they had sought to have it brought back to have it dismissed.  But there is the fact; it was still pending.  There is nothing to indicate that anyone had taken any steps to have the union removed from the register.  It was vulnerable to deregistration because of the answers given in Engine-Drivers (No 1). It was vulnerable to deregistration in the same way as other associations without a purging rule were vulnerable to deregistration after the Full Federal Court issued a writ of certiorari directed at the registration of the APF and before section 26A came into operation.

That is a sharp distinction with the present situation.  Once the Full Federal Court did issue a writ of certiorari, that placed the APF in a very different position from other associations that may have lacked the purging rule.  Now, of course, there are a number of, as we have said, points of relevant distinction between Engine‑Drivers (No 2) in our case.  However, what the Court said in Engine‑Drivers (No 2) about the presumption of interpretation is directly relevant.

KIEFEL J:   What are the consequences of registration as an organisation?  What were the consequences under the Workplace Relations Act?  Does it entitle you to dispute and have disputes resolved and is that essentially it?

MR HANKS:   First, the conferral of corporate status and, secondly, the capacity to have obligations and entitlements under an award or under an enterprise agreement, capacity to apply for the making, variation or revocation of an award, the capacity to be a party to an enterprise agreement.  All of these are instruments that were recognised under the Workplace Relations Act, now recognised under the Fair Work Act. 

CRENNAN J:   So the members would no longer be able to have the benefits of awards?

MR HANKS:   Yes, that is right.

CRENNAN J:   Or that is the practical effect?

MR HANKS:   That is one practical effect, yes.

CRENNAN J:   One practical effect?

MR HANKS:   Yes, indeed, or enterprise agreements.

CRENNAN J:   Or enterprise agreements.

MR HANKS:   But there is a range of other particular powers that were given to a registered organisation, and are now; statutory rights of entry into a workplace, for example, standing to enforce awards and enterprise agreements.  Of course, some awards would extend to categories of employees rather than categories of members of a union, but the union’s function in agitating for an award or a variation of an award or in negotiating some enterprise agreement, that function would disappear.  So it is a significant advantage ‑ ‑ ‑

CRENNAN J:   To be registered.

MR HANKS:   Yes. 

GUMMOW J:   Mr Hanks, there was quite a complicated system for cancellation of registration, was there not, under Part 3 and, in particular, section 28, empower the Federal Court to cancel for grounds arising after registration?  That engaged the Federal Court and they were empowered by 28(3) to cancel the registration – the court to cancel it, that I can understand immediately.

MR HANKS:   Is your Honour referring to the Fair Work Act, the current legislation?

GUMMOW J:   The Workplace Relations Act 1996.

MR HANKS:   Thank you, your Honour.

GUMMOW J:   How did the system for registration in the first place – for applications for registration in the first place – find its way, if at all, into a judicial structure?  It did not, did it, hence, this need for an approach to this Court.  In the present case, it went to the Full Bench of the Commission.  Then the sequel was an application to this Court.

MR HANKS:   The application for registration did.  Then what the AEU did was to invoke this Court’s original jurisdiction claiming ‑ ‑ ‑

GUMMOW J:   I realise that.  But, is there nothing in the legislation itself which provided any access to the Federal Court in the same way as there was access to the Federal Court to cancel after registration for abuse of registration – if I can put it that way.  There was not?

MR HANKS:   No.  That is my understanding, your Honour.

GUMMOW J:   It is an odd system.

MR HANKS:   Yes.

HAYNE J:   The only avenue open may have been under 30(1)(b)(i) which is on application to the Commission, not on application to the Court – on application to the Commission, registration, registered by mistake.

MR HANKS:   What the AEU did was to go directly to what it saw as a fatal defect in the decision to register.  In substance, a failure properly to apply to understand to construe section 18 of the Act which, it was argued, made it an essential condition for status as an organisation that could seek registration that you only have as members persons employed in the industry.  That is what divided is clear.  That is what divided Justice Moore from the other two members of the Full Federal Court.  He read section 18 differently but the majority of judges said, yes, that is an essential condition for seeking registration.  It was not present here.  Therefore, this body could not seek registration because there is a fatal flaw.  So, you cannot see any difficulty with the AEU going straight to that fatal flaw, seeking to invoke this Court’s jurisdiction then ending up, by remittal, in the Federal Court.

GUMMOW J:   But the Court would not have power in terms to “cancel the registration”.

MR HANKS:   No.  But, that is not what ‑ ‑ ‑ 

GUMMOW J:   I realise that.  When they have power to cancel for later events the cancellation is one that has the consequences in section 32.  It is prospective.

MR HANKS:   Yes.  You would naturally expect that in a cancellation system.

GUMMOW J:   Yes.

MR HANKS:   I think your Honour asked where the origins of all of this might lie and that is a difficult question.

GUMMOW J:   In some confused thinking.

MR HANKS:   After the Boilermakers Case and then various other bits and pieces of litigation in the 50s and early 60s, there was quite a lot of reorganisation.

GUMMOW J:   Well, one of those pieces was that the new Industrial Court could cancel.  I think that was upheld.

MR HANKS:   Yes, and that would have to be on the basis that it would cancel by reference to some precise criterion for cancellation and so it would be exercising judicial power in that context.  I will stop.

HAYNE J:   But is it a possible point of view that if certiorari had gone only in accordance with orders 1 and 2 and had left the matter at that point, it would then have been open, indeed, probably required of the Commission to act under 30(1)(b)(i) to rectify its register in that way and that would require, having regard to – if the Commission has satisfied itself as prescribed, would have required reference to 30(2) and the procedures there.  Is it a possible point of view that that is the scheme for which the Act provided?

MR HANKS:   Well, it certainly provided the scheme, your Honour, but I do not think it is a possible point of view that it precluded an application to this Court under 75(v).  There would be severe problems if that had been attempted.

HAYNE J:   To what?  Say that the decision made under 26(1) where the Commission grants an application the Industrial Registrar must immediately enter, what, that that decision to enter should be quashed?

MR HANKS:   Yes, the decision itself quashed.

HAYNE J:   In consequence of certiorari going to deal with the decision under 25(1)?  Is that the way it works, do you say?

GUMMOW J: Section 26(1) is a duty, not a decision.

MR HANKS:   That is so, your Honour.  I only sought to deal with what I thought Justice Hayne was putting to me, that there might be found in the statute some exclusive scheme for seeking relief, and I make this point that ‑ ‑ ‑

FRENCH CJ:   Or that order 3 might be dealt with by a cancellation process grafted onto the other orders.

MR HANKS:   It might be, yes.

HAYNE J:   Because certiorari to quash registration might be thought not to be open, because the decision that is amenable to certiorari is the decision under 25(1).  What follows from that decision is 26, there is a duty to register and if the decision has gone awry at the section 25 stage, you quash that decision and then the Act cuts in through section 30.  But if that is the available construction of the Act, we are heading off down a path which may have effects on the application for leave, I would have thought.

MR HANKS:   I will put us back on the path, if I might, your Honour.

HAYNE J:   No doubt you will, Mr Hanks.

MR HANKS:   I will try to.

KIEFEL J:   Could I just interrupt you before you do?

MR HANKS:   I might forget my way back if your Honour does that.

KIEFEL J:   Clause 30 might also be read with clause 13(1)(a), which says it is a function of the industrial registry to keep a register of organisations and it might be implied in that that the register must be accurate.

MR HANKS:   Yes.

KIEFEL J:   So there might be a duty to which clause 30 then responds to correct any mistakes appearing in the register.

GUMMOW J:   With mandamus, if there is a problem.

MR HANKS:   Yes.  Justice Hayne, we go back to the very first thing that your Honour said this morning – if it is the decision of the Commission, that is at which certiorari must be directed, it remains our argument that once certiorari is issued, directed at that decision, then there never was a decision to register, with all the consequences that flow from that.  We do not think that that undercuts the argument that we put to the Court so far. 

CRENNAN J:   Except the flow‑on may possibly should have been mandamus to correct, directed to the third respondent.

MR HANKS:   That may be so, your Honour, but ‑ ‑ ‑

CRENNAN J:   Mandamus to cancel.

MR HANKS:   Yes, that may be so but mandamus to correct.

CRENNAN J:   Mandamus to correct.

MR HANKS:   Let us use a neutral term at the moment.

CRENNAN J:   Yes.

MR HANKS: Here is what happened. Certiorari was issued in particular terms. One of the orders was that the decision to reach is to be quashed. We now have to consider – and this is all we are doing at this moment – we have to consider how section 26A, the new section, could operate in relation to a quashed decision to register and its legal consequences. Now, if it is the fact – indeed it is the law not the fact – that the registration was obliterated, slate wiped clean, the decision to register never existed in law, it must follow that the registration never existed in law.

FRENCH CJ:   Well, this obliteration did not punch a hole in the register.  The written entry is there.

MR HANKS:   Yes.

FRENCH CJ:   The act of making the written entry is a consequence of the decision to grant registration.

CRENNAN J:   Certificate has been issued.

FRENCH CJ:   What certiorari does – and this I suppose puts up again what we were visiting before, that really is what is the significance of order 3 – but what certiorari does in respect of the grant - consequence for the act of registration is that it lacks legal significance.  In other words, it does not engage all those statutory provisions conferring corporate status, party status and so forth.  It remains there squatting as a fact, to which, on the argument put against you, legal consequences can attach by statute. 

MR HANKS:   I understand.  The registration is not, in our submission, once that quashing takes effect on the decision to register.

FRENCH CJ:   What is the decision to register?  Whose decision is that?  Is this the Industrial Registrar putting in the prescribed particulars?  I just wonder what you mean by the “decision to register”.

MR HANKS:   We have in mind the Vice‑President’s decision.

FRENCH CJ:   To grant.

MR HANKS:   Yes, indeed, and then as we understand it the Industrial Registrar acts on that, has no discretion but to make the entry.  It is the decision that directs, that opens the door and pushes the APF through the door – it not merely an invitation – it pulls them through the door, that is the decision that is quashed.  That is the decision that has legal consequences.  But now it has no legal consequences and never did have.  That is the construction point.  I am conscious of the need to move to the constitutional point.  I wanted to take the Court, if I could, to three decisions of the US Supreme Court.

GUMMOW J:   Just before we venture outside Australia, one view of the situation we are placed in now with the special leave application is that it is not possible or not practical to enter upon the grounds that would be put to us on an appeal without us inquiring into the correctness of the approach taken in Australian Education Union v Lawler 169 FCR 327, namely, that you would not award certiorari when there was a statutory structure, and insufficient attention was given to that by the Full Court in that case. We can only get to grips with this present litigation by entering upon that field. Should we do so? That is what is worrying me at the moment.

MR HANKS:   I am not here to encourage your Honour to do that.  What we have is a ‑ ‑ ‑

GUMMOW J:   The basic idea is that if you have certiorari in a complicated statutory structure you ask yourself how does the statutory structure work and what are the other possible avenues that it provides.

MR HANKS:   What happened here was relief was sought in this Court.  It was remitted to the Federal Court.  The Full Federal Court heard detailed argument on the issue and concluded that certiorari should issue, and they did so, and the parties left the orders there.  No one sought to come to this Court to raise the matter that your Honour has alluded to.  They are the orders of the court.  They are orders of a superior court of record.

GUMMOW J:   I realise that.

MR HANKS:   They are, in our submission ‑ ‑ ‑

GUMMOW J:   There is an in rem problem, as it were.

MR HANKS:   But they are undoubtedly, we would say, an exercise of the judicial power of the Commonwealth.  In our submission, it is too late to go back and inquire whether perhaps as a matter of discretion the Court should have taken another path.

KIEFEL J:   Or made a declaration, perhaps.

MR HANKS:   In our submission, we have the orders, they have been entered ‑ ‑ ‑

FRENCH CJ:   Would it have made any difference to your argument if order 3 had not been made having regard to the legal consequences of 1 and 2?

MR HANKS:   We think we are able to present our argument on the first two orders, certiorari, to quash those decisions.

FRENCH CJ:   You would say, would you not, that the first two orders deprive the act of entry onto the register of legal effect?

MR HANKS:   That is right, we do, and we said that already this morning.  Of course, we would prefer to be able to put order 3 in the envelope that we pose to this Court.  We would prefer that, but we can survive without it.  Now, Justice Gummow, I cannot offer any further assistance in relation to whether the Full Court ought to have gone down another path or at least consider going down another path, we have not directed our minds to that.  We have taken the orders as they are.

GUMMOW J:   Where do we see any text that explains order 1 by identifying the decision?  Where do we see the actual embodiment of the decision in any form other than by looking at a consequence, namely, the register?

MR HANKS:   Your Honour has the application book, I assume?

GUMMOW J:   Yes.

MR HANKS:   Page 89, paragraph [313] and so far as the Full Bench is concerned, page 148, paragraph [178].  All the Full Bench did was to dismiss the appeal.  Page 89 in the application book is the only record that we have of the decision of the Commission.  I must come back to Justice Gummow’s question – I trust it was not a rhetorical question to me – as to whether the Court ought to investigate whether there was a failure on the part of the Full Court to consider the availability of other forms of relief before granting certiorari.  Our position is that this Court ought not go down that path, that this Court ought to take the order made by the Full Federal Court issuing writs of certiorari as being an exercise of the judicial power of the Commonwealth, unchallenged in any way. 

If I might be permitted to move on to the constitutional argument, I will do so.  Of course, the inspiration for the argument that we put is derived from a passage in Quick and Garran, The Annotated Constitution of the Australian Commonwealth, published in 1901 and it is that passage at page 722.  I will not read it to your Honours.  It is the passage that starts at about point 6.  It is derived from some observations in Cooley’s Constitutional Limitations and when we put our argument in Melbourne before Justice Gummow and Justice Hayne, Justice Gummow drew our attention to one of the cases I am about to mention.  I think it is only one, but there are three cases I want to take the Court to.  The first is in volume 514 of the United States Reports starting at page 211.

FRENCH CJ:   Even though expressed in a passive sense the legislation here had the form of a direction to the court, did it not, shall be reinstated?

MR HANKS:   Yes.  We wish to take your Honours to page 227.  There is a distinction which is drawn on 227 at about point 4 on the page where in the judgment of the court it said:

It is the obligation of the last court in the hierarchy that rules on the case to give effect to Congress’s latest enactment, even when that has the effect of overturning the judgment of an inferior court –

If I could just stop there.  We think that the same point was made by Justice Gummow in Nicholas v The Queen.  I will not take the Court there immediately, but I will be coming there shortly, Nicholas v The Queen.  So what the Supreme Court says here is it does not matter that a court has pronounced on the matter.  If an appeal is pending and the law is changed the appellate court must apply the law if it is expressed to be retrospective; must apply the law as it stands at the time that the appeal is decided.  Then if we go a little further down page 227:

Having achieved finality, however, a judicial decision becomes the last word of the judicial department with regard to a particular case or controversy, and Congress may not declare by retroactive legislation that the law applicable to that very case was something other than what the courts said it was.

So there is an important distinction.  It is a distinction which, in this matter, the Full Federal Court – not in Lawler, but in the judgment from which we now seek special leave to appeal – is a distinction that the Full Federal Court apparently rejected, and we say that they were mistaken to reject it because it is a fundamental distinction.  The Supreme Court repeated this point on page 228 at the top of the page:

The separation‑of‑powers violation here, if there is any, consists of depriving judicial judgments of the conclusive effect that they had when they were announced –

Now, we have observed that in another decision of the Supreme Court found in 530 US 327, the case of Miller v French.  If we turn to page 344, here the report is in the course of discussing Plaut, which they refer to at the bottom of page 343.  They say at about point 2 on page 344:

We concluded –

that is in Plaut –

that this retroactive command that federal courts reopen final judgments exceeded Congress’ authority.

Then further down 344 there is an explanation –

Article III “gives the Federal Judiciary the power, not merely to rule on cases, but to decide them, subject to review only by superior courts in the Article III hierarchy,” –

GUMMOW J:   Plaut concerned an action for damages, did it not?

MR HANKS:   It did, your Honour, yes.

GUMMOW J:   Under rule 10(b) of the Securities Exchange Act structure.

MR HANKS:   It did.

GUMMOW J:   So it was an action into parties in a very real sense.

MR HANKS:   Yes.

GUMMOW J:   Do any different considerations intrude where there is a public law remedy?

MR HANKS:   No doubt that some of our friends will say they do.

GUMMOW J:   As there was in Miller v French really which is an injunction ‑ ‑ ‑

MR HANKS:   Yes, although the real distinction ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ in the nature of a public law complaint.

MR HANKS:   The real distinction, we think, is that the injunction was executory and that it was open to Congress to change, as it were, the legal foundation on which the executory injunction would operate.  We think that the distinction that the court identified is one which they found back in the third case, the 1852 case, of Pennsylvania v Wheeling and Belmont Bridge.  If I might, I might take the Court directly to that case.  It is reported in a nominate series, I think it is Howard, although I might be mistaken, volume 18, page 421, and my intention was only to take the Court to page 431.  Your Honours will see, second paragraph:

But it is urged, that the act of congress cannot have the effect and operation to annul the judgment of the court already rendered, or the rights determined thereby in favour of the plaintiff.  This, as a general proposition, is certainly not to be denied – 

then perhaps a point that Justice Gummow alluded to –

especially as it respects adjudication upon the private rights of parties.  When they have passed into judgment the right becomes absolute, and it is the duty of the court to enforce it.

The case before us, however, is distinguishable from this class of cases, so far as it respects that portion of the decree directing the abatement of the bridge.

Their Honours then further down the page at about point 7 of the page:

Now, we agree, if the remedy in this case had been an action at law, and a judgment rendered in favour of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress.  But that part of the decree, directing the abatement of the obstruction, is executory, a continuing decree, which requires not only the removal of the bridge, but enjoins the defendants against any reconstruction or continuance.  Now, whether it is a future existing or continuing obstruction depends upon the question whether or not it interferes with the right of navigation.  If, in the mean time, since the decree, this right has been modified by the competent authority [Congress], so that the bridge is no longer an unlawful obstruction, it is quite plain the decree of the court cannot be enforced. 

What the court was considering there was a particular order that depended for its efficacy on the right of navigation which in turn was a statutory right.  If that statutory right was modified, then the order, the injunction, would have nothing on which to operate.  But their Honours, we say, in 1852 fully accepted that an act of Congress cannot annul the operation of the judgment of the court already rendered; same point made in Miller v French and, of course, the same point had been made in Plaut v Spendthrift Farm.

Our argument is that there is a similar proposition that ought to be recognised here.  We say that when the Full Federal Court issued writs of certiorari it was undoubtedly exercising the judicial power of the Commonwealth.  It was making a binding determination as to rights and liabilities which had been put in issue in a justiciable controversy.  It was making a binding adjustment of rights and interests in accordance with legal standards.

HAYNE J:   Namely, that a particular administrative decision that had been made, the decision of the IRC, had been attended by jurisdictional error.

MR HANKS:   That is so, your Honour.

HAYNE J:   That is the only issue that was determined.

MR HANKS:   Yes, that is so and, as a consequence, that decision should be quashed.  That was determined as well.  I have offered, as it were, a brief description of what the judicial power of the Commonwealth encompasses.  It is actually taken from Nicholas and it is taken from something that your Honour said in Nicholas. That is in 193 CLR 173. The passage that I have had regard to was on page 273, your Honour may recall it. I also derive some support from what Justice Gaudron said in the same case at page 207. I trust that nothing that I have said in my attempt to summarise the notion of the judicial power of the Commonwealth is controversial, nor can it be controversial if that is exactly the power that was exercised by the Full Federal Court.

MR HANKS:   Of course.  The Industrial Registrar then, as directed, made an entry in the register.  The making of the entry in the register was itself unauthorised and therefore invalid if the condition precedent the decision of the Deputy President was unauthorised.  So we accept that, and it is integral

to the orders made by the Full Federal Court that the decision of the Vice President and the decision of the Industrial Registrar lacked validity and they were quashed.

Now, the action of the Parliament, if section 26A does apply to the registration to revive the registration of the APF, is an action that addresses a matter, namely, the validity of the registration, that is uniquely judicial. That is why the analysis that our friends offered of what was said in Bachrach at paragraphs 15 and 18 is inapposite. Orders were made by the Full Federal Court in Lawler.  We accept entirely the analysis of the Solicitor‑General for the Commonwealth that those were orders within jurisdiction, including all three writs of certiorari.  The effect of those orders was to quash the registration.  Now 26A, we are told, restores that registration.  It is not a new registration, it is the registration that was quashed.  That is why, in our submission, the constitutional question properly arises. 

As to the other matters that our friends have raised, we have had our say in our primary submissions and in our written replies and we rely on those matters.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Hanks.  The Court will reserve its decision.  The Court will adjourn until 10.15 tomorrow morning.

AT 4.06 PM THE MATTER WAS ADJOURNED