In the matter of an application by Mellor, Shirley for an inquiry into elections in the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia

[1986] FCA 532

Re: IN THE MATTER of an application by SHIRLEY MELLOR for an inquiry into
elections in the Queensland Branch of the FEDERATED LIQUOR AND ALLIED
INDUSTRIES EMPLOYEES UNION OF AUSTRALIA
No. Q6 of 1986
Industrial Law
17 IR 398

COURT

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.

CATCHWORDS

Industrial Law - registered organizations - whether power to conduct inquiry into election validly conferred on court - judicial power of Commonwealth.

Conciliation and Arbitration Act 1904, Part IX, s. 4(1)

Acts Interpretation Act 1901, s. 15A

Federal Court Rules O. 33, R. 3

Commercial Causes Act 1910-1972 (Qld.), s. 4(4)(b)

Supreme Court Rules (Victoria)

Re Application by Adamson for an inquiry into an election in the Amalgamated Metals Foundry and Shipwrights Union (Federal Court of Australia, Gray J., 17th June 1985, unreported)

Re Gray; Ex Parte Marsh (1985) 62 A.L.R. 17

Kelly v. Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 FLR 124

Leary v. Australian Builders' Labourers' Federation (1961) 2 FLR 342

Murine Eye Remedy Co. v. Eldred (1926) VR 425

R. v. Davison (1954) 90 CLR 353

HEARING

BRISBANE

#DATE 17:11:1986

JUDGE1

On 15th September 1986, the Industrial Registrar referred to the Court an application by Shirley Mellor for an inquiry into elections for the positions of Secretary/Treasurer and Assistant Secretary in the Queensland Branch of the Federated Liquor and Allied Industries Employees Union of Australia. The particulars of alleged irregularities in the application are in the following terms:

"1. Ballot papers belonging to members who had left their place of employ and who had given the place of employment as the address to which ballot

papers were sent had been collected by

unauthorised persons namely candidates Elton

and/or Hardie.

2. Members have stated that they have not received ballot papers yet ballot papers purportedly having been completed by those members have been received by the Returning Officer at the Australian

Electoral Commission."

The Court has given directions previously in the matter, and the inquiry has been listed for hearing before me today. Counsel appear for the applicant, the various candidates in the elections, the Australian Electoral Commission (one of whose officers is conducting the elections as returning officer) and the Commissioner of the Australian Federal Police. In addition, the Attorney-General for the Commonwealth has been granted leave to intervene by counsel.

1. Mr. Shaw Q.C., who appears with Mr. Jerrard of counsel for Messrs. Elton and Hardie, candidates in the elections, has asked the Court to refuse to continue the inquiry, on the ground that it has no jurisdiction to conduct such an inquiry. He has argued that the provisions of Part IX of the Conciliation and Arbitration Act 1904, under which such inquiries are conducted, constitute a purported grant to the Court of powers which are not part of the judicial power of the Commonwealth, or incidental or ancillary thereto, and are therefore invalid under the Constitution.

2. A similar objection to the jurisdiction of the Court was determined in Re Application by Adamson for an inquiry into an election in the Amalgamated Metals Foundry and Shipwrights Union (Federal Court of Australia, Gray J., 17th June 1985, unreported). In that case, the Court held that the provisions of Part IX were valid, and that it had jurisdiction to inquire. Certain parties to that case obtained from the High Court of Australia an order nisi for prohibition, based partly on the ground that the grant of power to the Court in Part IX was invalid, and partly on other grounds. In the judgment of the High Court, reported as Re Gray; Ex parte Marsh (1985) 62 ALR 17, all six members of the High Court who sat upheld the argument that the inquiry could not proceed, on the grounds which did not involve an examination of judicial power. The Court was evenly divided on the question whether a writ of prohibition should issue, with the view of the Chief Justice, that a writ should issue, prevailing. Although three members of the Court (Mason, Deane and Dawson JJ.) held that prohibition should be refused, it is plain from a reading of the judgments that no member of the Court dealt with the judicial power question. Re Gray; Ex Parte Marsh is, therefore, of no assistance in determining the present case, except to the extent that it must be acknowledged that the High Court was prepared to grant an order nisi for prohibition on grounds similar to those advanced in the present case.

3. Mr. Shaw does not seek to canvass in detail all that was said in Adamson's case. He is, of course, obliged to submit that it was wrongly decided. His argument is that a number of features can be found in Part IX which, when viewed cumulatively, show that the legislative provisions amount to an attempt to grant to the Court non-judicial power. These features are the imprecise and inexhaustive definition of the word "irregularity" in s. 4(1) of the Act; the power given to the Court by s. 165(1) to inquire into, as well as alleged irregularities, "such further questions concerning the conduct and results of the election as the Court thinks necessary"; the requirements in s. 165(4) that the Court investigate "any circumstances giving rise to a likelihood that similar irregularities may have occurred or may occur", and form an opinion whether the result of an election "may" have been, or be, affected by irregularities; the discretion as to remedies given by s. 165(3), which is uncontrolled by appeal, and particularly the power of the Court to modify the operation of the rules of an organization, found in s. 165(3)(d); the existence of a residual discretion not to grant relief or remedies, notwithstanding that the criteria for the granting of such relief or remedies have been satisfied, which was held to exist in Kelly v. Amalgamated Metal Workers' and Shipwrights' Union (1981) 56 FLR 124, at pp 149-150; the inquisitorial nature of an election inquiry; the importance of the public interest in such an inquiry; and the provision in s. 164(4)(b) that the Court is not bound by any of the rules of evidence but may inform itself on any matter in such manner as it thinks just. These matters, including some of the provisions in Part IX which may be said to bear on the inquisitorial nature of the proceeding, such as the power to order persons to appear and be represented, and the obligation to continue an inquiry even if the applicant desists from prosecuting it, were considered in greater detail in Adamson's case. Mr. Shaw also relies on the argument that the question was the subject of clear statements by the High Court in earlier cases, and that the legislation has not changed significantly since those statements were made.

4. Mr. Watson of counsel, appearing for the applicant, as well as for Mr. Bell and Ms. Que, candidates in the elections, has made submissions supporting the validity of the legislation. His argument is as follows. The Court is not an actor in an election inquiry, but has its procedures invoked by an applicant; if it is given discretions, those discretions must be exercised judicially; in the often cited passage from the judgment of Dixon C.J. and McTiernan J. in R. v. Davison (1954) 90 CLR 353, at pp 367-368, it is made clear that the existence of a controversy between subjects or between the Crown and a subject is not an essential attribute of judicial power; a power to dispense with the rules of evidence is not an unusual attribute of a court; the existence of a power to order persons to appear or be represented as parties at an inquiry does not itself involve any power to compel them to give evidence or to answer incriminating questions. Mr. Watson relies on Adamson's case and Leary v. Australian Builders' Labourers' Federation (1961) 2 FLR 342, in both of which it has been held that Part IX involves a grant of judicial power.

5. Ms. Holmes of counsel for the Commissioner of the Australian Federal Police, and Mr. Hanger Q.C., who appears with Mr. Diehm of counsel for the Australian Electoral Commission, have made no submissions. Nor has Mr. O'Gorman of counsel for the Attorney-General, except to the extent of asking the Court to give the Attorney-General the opportunity to remove the proceeding to the High Court, if the Court should be of the view that the provisions of Part IX are invalid.

6. Having re-read the judgment in Adamson's case, in the light of Mr. Shaw's submissions, I remain convinced of the correctness of the conclusion in that case, namely that Part IX does not involve an attempt to confer on the Court powers which are not part of the judicial power of the Commonwealth, or incidental or ancillary thereto. I do not propose to repeat the whole of the reasoning in Adamson's case. There are authorities supporting the view that a court may validly be given many, if not all, of the features which Mr. Shaw contends are indicia of the grant of non-judicial power. Mr. Shaw's argument acknowledges this, and also acknowledges that the grant of powers to a court is an indication the Parliament intends those powers to be exercised in a judicial manner. Only if the proposition is accepted that the cumulation in the one procedure of many of such marginal features renders the whole grant of power non-judicial can Mr. Shaw's argument succeed. For the reasons which I gave in Adamson's case, I do not think that this is so.

7. The objection to jurisdiction faces an even more difficult hurdle. If it is correct that some aspects of the procedure laid down in Part IX of the Act involve non-judicial power, which is not incidental to a proper exercise of judicial power, the proper approach would be to read down the legislation, to preserve the validity of so much as can be saved. Section 15A of the Acts Interpretation Act 1901 requires this approach. At present, the Court has not been asked, and no occasion has arisen, to exercise most of the alleged non-judicial powers. The applicant has made certain allegations, and invites the Court to investigate them. Those allegations are conceded by Mr. Shaw to fall within the statutory definition of "irregularity". The Court has not been invited to consider any further question, and has not compelled the appearance or representation of any person. Only if it finds that irregularities have occurred will it be necessary for the Court to consider other circumstances, the possible effect of irregularities on the result of the election, and the appropriate remedies. In all those respects, an objection to the jurisdiction appears to me to be premature.

8. There is one exception to this statement. On 2nd October 1986, the Court gave directions for the filing of affidavits, and ordered that the affidavits filed may contain hearsay material, without prejudice to the rights of parties to apply that the same be struck out. On 10th October 1986, the Court added an order that oral evidence may be called at the hearing by leave only on the Court's being satisfied that special circumstances exist necessitating the giving of such leave. An examination of the Court file reveals large quantities of hearsay material which is sought to be relied upon in support of allegations made. In a sense, it might be said that the Court has been invited to proceed, and has indicated an intention to proceed, other than in accordance with the rules of evidence. In my view, to proceed in this manner is not necessarily to proceed in a non-judicial fashion. There are many examples of powers given to courts to dispense with the rules of evidence. Order 33 rule 3 of the Federal Court Rules is one. Another is to be found in s. 4(4)(b) of the Commercial Causes Act 1910-1972 (Qld.), relied on by Mr. Watson. Yet another is the provision of the Victorian Supreme Court Rules, dealt with in Murine Eye Remedy Co. v. Eldred (1926) VR 425. Much of the material filed in the present case relates to allegations which would be expensive and time-consuming if they were the subject of first hand evidence. To allow hearsay material to be produced is not, therefore, to do violence to the concept of judicial power.

9. For these reasons, the objection to jurisdiction fails.