Consolidated Press Ltd v Australian Journalists' Association

Consolidated Press Ltd. and Brian Con Penton appealed to the High Court of Australia against decisions of the Commonwealth Court of Conciliation and Arbitration. Consolidated Press sought the cancellation of the registration of the Australian Journalists' Association due to alleged tyrannical or oppressive rules, while Penton sought the disallowance of specific rules on the same grounds. The core of the dispute involved whether certain rules of the association imposed unreasonable conditions on membership and hindered employees in their contractual duties and employers in their business operations, particularly given the award provided preference in employment to association members.

The High Court was required to determine two primary legal issues. Firstly, whether orders made or refusals to make orders under sections 58D or 60 of the Commonwealth Conciliation and Arbitration Act 1904-1946 constituted an exercise of judicial power, thereby attracting the appellate jurisdiction of the High Court under section 73 of the Constitution. Secondly, if an appeal lay, the court needed to consider the merits of the applications, including whether the rules in question were indeed tyrannical or oppressive and whether Penton, as an editor of a metropolitan daily newspaper, retained membership status after an amendment to the association's rules altered eligibility criteria.

A majority of the High Court, comprising Latham C.J. and McTiernan J., held that orders made or refusals to make orders under sections 58D and 60 of the Act were not exercises of judicial power. Consequently, they found that no appeal lay to the High Court from such decisions, rendering the appeals incompetent. This reasoning was based on previous High Court decisions, including *Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia*, which established that section 60 did not confer judicial power. They viewed the disallowance of a rule under section 58D as a "moulding or refashioning" of the organisation, which was not a judicial function. Rich and Williams JJ., however, dissented on the appealability of decisions made under section 58D, finding that such matters did involve the exercise of judicial power as they related to the interpretation and enforcement of existing rights. They also found that the lower court had erred in dismissing Penton's application without considering its merits, as Penton likely remained a member despite the rule change.

The appeals were dismissed for want of jurisdiction by Latham C.J. and McTiernan J. Rich and Williams JJ. would have allowed the appeal concerning section 58D and remitted the matter for consideration of the merits, but were bound by the majority's finding on jurisdiction for the section 60 appeal.