Minister for Employment, Training (Qld), Ex parte- Justice Black & Ors and McJannet - [1995] HCATrans 157

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B17 of 1994

In the matter of -
An application for a writ of prohibition and a writ of certiorari against THE HONOURABLE MR JUSTICE MICHAEL ERIC JOHN BLACK, THE HONOURABLE MR JUSTICE RAYMOND MOYLE NORTHROP, THE HONOURABLE MR JUSTICE JOHN AUGUSTINE KEELY, THE HONOURABLE MR JUSTICE MURRAY RUTLEDGE WILCOX and THE HONOURABLE MR JUSTICE PETER ROSS AWDRY GRAY, Judges of the Federal Court of Australia

First Respondents
VICTORIA JANE McJANNET and CHARLES HENRY LIVINGSTONE and THE MEDIA ENTERTAINMENT AND ARTS ALLIANCE

Second Respondents
Ex parte -
MINISTER FOR EMPLOYMENT, TRAINING AND INDUSTRIAL RELATIONS FOR THE STATE OF QUEENSLAND

Prosecutor

Office of the Registry
Brisbane No B18 of 1994

In the matter of -
An application for a writ of prohibition and a writ of certiorari against THE HONOURABLE MR JUSTICE MICHAEL ERIC JOHN BLACK, THE HONOURABLE MR JUSTICE RAYMOND MOYLE NORTHROP, THE HONOURABLE MR JUSTICE JOHN AUGUSTINE KEELY, THE HONOURABLE MR JUSTICE MURRAY RUTLEDGE WILCOX and THE HONOURABLE MR JUSTICE PETER ROSS AWDRY GRAY, Judges of the Federal Court of Australia

First Respondents
VICTORIA JANE McJANNET and CHARLES HENRY LIVINGSTONE and THE MEDIA ENTERTAINMENT AND ARTS ALLIANCE

Second Respondents
Ex parte -
THE AUSTRALIAN WORKERS’ UNION OF EMPLOYEES, QUEENSLAND; HERBERT WHITE, ARTHUR WESTBROOK, JAMES BEATTIE, MACQUARIE HAYWARD, WILLIAM MORRIS and EDWARD EASTERN

Prosecutors

BRENNAN CJ
DEANE J
DAWSON J
TOOHEY J
McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 7 JUNE 1995, AT 10. AM

(Continued from 6/6/95)

_________________________

BRENNAN CJ: Yes, Mr Kenzie?

MR KENZIE: Thank you, your Honour. Before proceeding to the next topic in our written submissions, could I briefly revisit the question addressed towards the end of the day yesterday as to the jurisdiction of the Court under section 209 of the Act. Section 209 of the Industrial Relations Act is the section providing for the giving of directions for the performance of rules of registered organisations. Pursuant to that section and, in particular, section 209(9), an order can be made:

giving directions for the performance or observance of any of the rules of an organisation by any person who is under an obligation to perform or observe those rules.

Our position in relation to this, your Honours, is that section 209 has some importance for this case for at least two reasons. Firstly, it is of assistance in determining the scope of the other statutory provisions which are being directly considered, 253X and ZC. Secondly, it demonstrates that the orders that were made and which are found at page 178 of the application book, were orders certainly as to 3(a) and 3(b) that could have been competently made in an application under section 209. In proceedings under section 209, a member of a federal organisation could seek an order requiring

another person or persons owing a duty to perform the rules of the organisation to perform those rules and in the context and the course of a proceeding under section 209, it would be competent for the Court in an appropriate case to make final and binding determinations, findings of fact and law in relation to issues such as the property of the organisation.

There are cases in which the extent of the jurisdiction of the court to make orders in relation to recovery of property of organisations under section 209 and its predecessor have been examined and the limitations of the jurisdiction of the court in relation to section 209 and former section 141 have been recorded and I will mention those in a moment.

BRENNAN CJ: But it ought to have been quite impossible, would it not, for the court to have made an order under section 209 on the footing that the property was the property of ATAEA if, in relation to another party to the same proceeding, the court had concluded that it was the property of that other party.

MR McKENZIE: Yes, your Honour, that is so. If that decision had been made and was not raised or re-raised in the proceedings, it is not contended by us, nor could it be, that an order under 209 could be made so that, for example, order 3(c) might fall into a different category. What I am addressing at the moment, your Honour, is the jurisdiction of the court under section 209 to determine a question relating to the performance or observance of the rules and in the context of that determination to make decisions as to whether assets in question were assets or property of the federal Union and were able to be made the subject of orders of the court.

If the court, in the course of a section 209 proceeding, decided that an officer or member of the Union owing a relevant duty was in possession or control of property the court could determine that that was property of the Union. The court could make a final determination as to that. It could make an order that that person, under a duty to perform or observe the rules, return that property to those properly permitted to hold it under the rules of the Union. The decision of the court in relation to that would, if made, and be the subject of an appeal and the subject of findings on an appeal be final and relevantly unexaminable and the correctness of the court’s decision in relation to that question would not be jurisdictional.

Now, your Honour, that is important for a number of reasons, in our respectful submission. Firstly, it would be anomalous if that were the position under section 209 but somehow not the position in relation to the subdivision of the Act which we are examining, where Parliament has made it about as clear as it can that the court is to have wide powers.

McHUGH J: You keep asserting that. It seems to me in terms the Parliament has done the opposite.

MR KENZIE: Your Honour, may I make this submission. In the absence of section 233, the opening provision of the subdivision, the point would be good, in our respectful submission, it would be anomalous if a determination as to the ownership of property was jurisdictional in a section 253X or ZC context but not in the context of section 209, but we do go on, and we have had this discussion, your Honour, we do go on to say that the language of the subdivision makes the position stronger. Now, that is the submission we make, your Honour, but that is the first thing we have to say about section 209.

The second thing we say is that the court in the present case would have been invested with jurisdiction to make orders 3(a) and 3(b) appearing on page 178 under section 209 in the context of a proceeding between the members of the organisation, the applicants, and the members of the organisation who were the first respondents who owed duties under the rules and a decision as to the ownership of property would have been final and binding in that context. order 3(c) may well stand in a different category because it is a declaration which relates to the validity of an amalgamation between purported State unions and is not addressed in section 209 sort of terms. It is not an order directly in relation to the performance or observance of rules by persons under a duty to perform them, at least on its face, but as was said by Justice Gray in the appeal, even if that be so, if jurisdiction was otherwise there, then order 3(c) could have been made pursuant to section 21 of the Federal Court of Australia Act. It was part of the same controversy, and that is the second aspect in which section 209 is important.

Thirdly, in relation to section 209, it is clear that section 209 has relevant limits. It is only available in respect of persons in so far as they have current obligations under the rules of a federal organisation. If an officer of a federal organisation, occupying an office which gives rise to specific duties enforceable under 209, resigns from that office, there is, from that point of time, no relevant obligation to perform or observe the rules in relation to that office, and there is authority of the Federal Court to the effect that orders under section 209 are not maintainable in respect of past breaches. Section 209 is there only for the purpose of enforcing rules and obligations under rules which are current.

I do not think your Honours will need to open the volume. Could I give your Honours a reference to a decision of the Full Federal Court in the case of Darroch v Tanner (1987) 16 FCR 368, and that is simply authority for the proposition that the power conferred under what was then section 141, to give directions for the performance of the rules, did not empower the court to give directions designed to overcome the effect of a past breach. So that there are limitations of that sort in section 209. There are other limitations. Obviously one has to find a relevant rule. There are decisions of the Federal Court and the former Industrial Court in relation to the recovery of property of the Union, which indicate some of the difficulties that exist under section 209 in recovering property. That is, one has to identify a rule pursuant to which there is an obligation to return property which may have been disposed of to other persons who are not currently under any obligation to perform and observe the rules.

McHUGH J: Well, what about the rules? Are we ever going to get a copy of these rules?

MR KENZIE: Your Honour, we have no difficulty with the Court having copies of the rules; they are not in the book. We do not have copies available at the moment, but we will, if the Court feels that it should have the rules ‑ ‑ ‑

McHUGH J: I certainly do, particularly on the Moore v Doyle point.

MR KENZIE: Your Honour, we have no difficulty with the Court having the rules, but we are not presently in a position to fill the void. We will obviously do what we can to make them available.

BRENNAN CJ: Were they in evidence?

MR KENZIE: Yes, your Honour.

DEANE J: Well, then we should all have them.

MR KENZIE: Your Honour, there are various matters which were in evidence which have not been put in the appeal book for reasons that I am, myself, unaware of but the appeal book is very skimpy, shall we say. It contains only the then unreported decision of the Full Federal Court, the orders and a copy of the reported decision of Justice Ryan at first instance and very little else. We do not, of course, object to the Court seeing it and the Court may well feel that it has to.

McHUGH J: Without them it is very difficult to know what sort of an entity the branch is, if it is an entity at all. Does it hold property? What part does it play in the organisation?

MR KENZIE: Your Honour, may we suggest that ‑ and we have not come to it yet ‑ the Full Court made findings of fact as to what the position was in relation to the branch. There are clear findings of fact of four members of the Court. The appeal materials have been prepared by the applicants for prerogative relief on the basis that those are the findings of fact. When you look at the written submissions of the prosecutors, you will not find, subject to correction, attacks on the findings of fact made by the Full Federal Court. The debate that has been offered to your Honours by the prosecutors has really been put forward on the basis of what is the legal effect of the findings of fact made by the Full Court. Presumably ‑ and I say presumably ‑ that is the basis upon which the materials have been assembled.

The case has not been put before the Court on a basis which would permit the Court to rationally form a view that the findings of fact of the Full Court were wrong and the material to support such an attack has not been placed before you. Certainly submissions have not been made that the Full Court made factual errors in relation to its detailed findings, your Honour.

McHUGH J: The reason I raise this is that certainly there were views before Moore v Doyle as to what the precise position of the branch was. As you would be familiar, Moore v Doyle itself has been subjected to devastating academic criticism as has the J.B. Sweeney report and without really knowing what the rules are, one just does not know.

MR KENZIE: I am not attempting to suggest that the Court is not perfectly legitimately calling for material, but what I am suggesting is that the way in which the proceeding has been put to the Court is not along those lines, if I might put it that way. You have heard the prosecutor’s submissions. Those submissions do not depend upon the matters to which your Honour is now going. The prosecutors proceed on the basis that there have been findings made by the Court, there are applications for prerogative relief which appear to proceed on the basis that although those findings of fact have been made, none the less certain legal consequences follow. We are here to resist those, your Honour.

A case which is of some assistance in understanding the limitations in relation to section 141 or section 209 is Gordon v Caroll, and I will give your Honours a reference to it. Again, I do not invite your Honours to open it at the moment but Gordon v Caroll is at (1975-77) 27 FLR 129, and there is a discussion about the relationship between liability under the general law to repay money wrongfully appropriated by an officer for his own use, and obligations under the rules, commencing at page 152 of that volume.

So we say that there were various sources of jurisdiction available for the making of the orders. We have taken the Court to 253X, 253ZC, Justice Gray referred to section 21 in the context of the declarations and the single controversy, none of which has been put into issue in these proceedings, and there is section 209 which we do submit would have provided jurisdiction to make the orders, certainly together with section 21.

Both submissions, we do put, are relevant to firstly, the question of whether prerogative relief would go if a tribunal and in particular a superior court has jurisdiction and it believes that it is exercising it under one section but has it under another section of the Act, that there is authority of this Court for the proposition that prerogative relief will not go and again, if I could simply give your Honours a reference to the proposition which would not be surprising, that is R v Moore; Ex parte Graham (1977) 138 CLR 164, at page 173, where Justice Gibbs delivered a judgment which was agreed with by the other members of the Court as to the availability of prohibition, in that case to the federal Commission if the Commission acting within jurisdiction made awards which it had power to make simply because it thought that its power was conferred by one section, whereas in truth it was conferred by another.

So, your Honour, section 209 has relevance in a number of respects. Firstly, it is an alternate source of jurisdiction, secondly, it would be anomalous if the jurisdictional facts were different in respect to sections 253X and 253ZC, on the one hand, and 209 on the other.

McHUGH J: Was membership properly proved?

MR McKENZIE: Well, your Honour, if there are sections of the Act which would entitle the Federal Court, or now the Australian Industrial Relations Court, to make final and binding determinations in relation to membership of individuals and if the court in the exercise of its jurisdiction made findings that X or Y were financial members of an organisation and accordingly were subject to the provisions which meant that they became members of a new organisation ‑ ‑ ‑

McHUGH J: But I do not recollect any such findings being made.

MR McKENZIE: No, your Honour, but my point is that there are provisions - that findings like that could have been made under section 209 or other sections of the Act.

McHUGH J: Assuming there is evidence. So, there are two questions: was there any evidence of membership because that is a condition precedent under 209 that these people were bound to perform the rules.

MR McKENZIE: Your Honour, the orders and declarations that are the subject of attack are orders and declarations that the association, which was the subject of a registration in 1917, was and remains the Queensland branch of the Union and that all assets and interests in property held by or on behalf of the entity called the Queensland branch, immediately prior to its amalgamation, were assets and interests belonging to the media alliance. I do not know that the prosecutors would put that the orders covered membership as such. Membership is not an asset or may be said not to be an asset or an interest in property or subject to the orders. So that, your Honour, other questions may lie behind the orders made by the court but the fact that the court has made no determination, which it could have made under various sections of the Act as to membership, we would respectfully submit, is not helpful or to the point.

BRENNAN CJ: Mr Kenzie, I am afraid I am not following the force of your argument. If one looks at orders (a) and (b), as I understand the issue that was before the court, it was whether a corporation incorporated under the Queensland Act (a) was a member of an industrial association, the ATAEA, the second was whether or not the assets of that corporation were the assets of ATAEA. Now, if those were the issues that were joined and declared upon then I do not see how problems that arise or can arise between ATAEA and its membership were ever in issue.

MR KENZIE: Your Honour, the way in which the proceeding went forward was that an application was made by the organisation and by officers of the organisation against other officers and members of the organisation, the first respondents. It was said that the activities of those respondents were activities which were imperilling the amalgamation.

BRENNAN CJ: I appreciate that, but they were not the only respondents and the issues, as I understand it, between the applicant and those personal respondents were the same issues as those between the applicant and the putative corporation.

MR KENZIE: That is so, the same controversy.

BRENNAN CJ: Now, if that is so, there was no issue as against the individual respondents that was not joined between the applicant and the corporate respondent.

MR KENZIE: That is so.

BRENNAN CJ: Then how does section 209 enter into the situation if the findings that are made are made in relation to both respondents?

MR KENZIE: Your Honour, to take your Honour’s point, that at best would result in a decision that the orders were not appropriately made against one of the respondents, but there could be no doubt that the orders were orders that were made and could have been validly made against the first respondents under section 209.

BRENNAN CJ: But if the issues were as I put to you a moment ago, then the resolution of the issue as against the corporate respondent, assuming against you the validity of the legal argument, has to be resolved adversely to your claim under 209 because the property belongs to a corporation.

MR KENZIE: Yes, your Honour, that is so. I mean, if one looks backward, if one says, “One starts with the conclusion that the property is different, that the State body has a separate identity,” and one proceeds from that unchallenged conclusion, then what your Honour says is so, but the question, with respect, is whether the Federal Court has jurisdiction to determine in a final way that question, even though it determines it wrongly.

BRENNAN CJ: Could it determine it in any other way if the effect of what happened in 1917 was to create a corporation?

MR KENZIE: The Federal Court, in my respectful submission, would have jurisdiction to determine wrongly the legal effect of what happened in 1917, to determine wrongly that a new organisation was created; to determine wrongly that the assets of that newly created body were assets of the federal organisation, all within jurisdiction, your Honour. It depends on where you start, and we start where Justice Mason started in the cases we referred your Honour to yesterday, and we start from the propositions that were accepted by a clear majority in Reg v Gray; Ex parte Marsh. We start from a position of the status of the Federal Court as a superior court of record, though of limited jurisdiction. We start from the proposition that you approach the question of jurisdiction on the basis that unless the words of a statute indicate to the contrary, the court has jurisdiction to go wrong in relation to all of those matters, and that, your Honour, is the substance of the debate we are having at the end of the day.

BRENNAN CJ: Yes.

MR KENZIE: Now, we put it that way. We say we are supported by the firmest of authority, and you cannot find in the language of the statute anything to suggest that these things should be jurisdictional. You just cannot find it. You cannot find it in 253X or ZC, any more than you can find it in section 209. It would be wrong to approach section 209 on the basis that findings of fact as to the ownership of property were jurisdictional. It would be equally wrong to approach 253X or ZC on that basis.

GUMMOW J: What are the jurisdictional facts in 253X in conjunction with section 50? There must be some

MR KENZIE: Your Honour, that is a more difficult question. At the very least, the outer perimeters perhaps would be the existence of a rational basis upon which one could proceed to find that a set of facts was operating to prevent an amalgamation operating effectively. I do not want to flee from your Honour’s question, there is ‑ ‑ ‑

GUMMOW J: Well, it is a starting point actually. Unless we have that against which other things are to be measured, we cannot start our inquiry.

MR KENZIE: Your Honour, can I answer it at least in this way: whatever those jurisdictional facts may be, they are wider than the simple fact of ownership of property of the federal Union. One would presume that at some point of time, or some stage one gets to a situation in which the Federal Court - there is no rational basis for a proceeding and a federal amalgamation. There is no rational basis for anyone to suggest that any state of affairs could interfere with a federal amalgamation. But that is a long way from the facts that we are dealing with here.

I do concede that it is difficult - and the more general the language of the statute becomes and the more purposive the language becomes, it does become correspondingly more difficult to answer questions like your Honour’s: what is the jurisdictional fact?

McHUGH J: Your difficulty may arise from the fact that it is not an exercise in judicial power at all. I know it is not challenged, but in the section, it says the court may make such orders as it considers appropriate to ensure that somebody does something, or something is given effect to.

MR KENZIE: If it were to be challenged, which it is not your Honour, we would be referring to the language of the Court in Reg v Joske; Ex parte the SDA which examined the validation provisions of the former Conciliation and Arbitration Act and in particular provisions which gave jurisdiction to the Federal Court then to make orders in relation to the creation of schemes for the further functioning and proper functioning of trade unions. They were challenged as being not involving the judicial power of the Commonwealth and the Court had a little difficulty in saying that those powers given to a court did not lose that character or did not cause the statute to lose that character because they involved the Court in making determinations, although on a judicial basis as to whether an organisation could function effectively. That, perhaps, is a debate for another day, your Honour.

It is in those circumstances, your Honour, that we say that section 209 has relevance. It also has relevance when we come to our brief submissions on discretion which are found at pages 12 and 13 of our written submissions. I will be brief in relation to these, your Honour. We do not say that the discretion of the Court should be exercised against the prosecutors because the application is premature. As Mr Jackson rightly points out, this is not a case like Pilkington’s Case where an application was made and found to be premature.

This is an application that is made after the court has made orders, but we do point out that in the present case the prosecutors did not challenge the jurisdiction of the court to make the orders and declarations sought. Indeed, the best evidence of that, may we respectfully submit, is the way the matter was presented by the prosecutors in this proceeding where there were clear concessions as to the jurisdiction of the Federal Court which were then the subject of later debate.

Now, this is not a submission made in the abstract, your Honour, because what actually happened in the proceeding on appeal was that the Federal Court itself was observing that it was being asked to deal with novel and difficult provisions which raised questions like the questions addressed to me by Justice Gummow in circumstances where it had precious little, indeed, no help. Could I refer the Court briefly to what Justices Northrop and Gray had to say about the position, particularly in relation to section 253ZC. Justice Northrop’s judgment is at 461E in so far as presently relevant and in the middle of 461 Justice Northrop says:

The resolution of this appeal has been made difficult by reason of a number of factors. The powers conferred on the Court by s 253ZC of the Commonwealth Act are novel. As far as I know, this is the first case where the Court has had to consider the nature of those powers. The Court was not referred to any authority of this Court where the section had been considered. There is no doubt that the Court has jurisdiction to hear and determine an application under s 253ZC -

reference to section 50(1)(a) and a reference to the history of proceedings which follows. An examination of the section by his Honour is seen at pages 462 and 463 and his Honour expresses some of the doubts that your Honour Justice McHugh has expressed in debate about the relationship between 253ZC and other provisions of the Act dealing with an entitlement to membership. I refer your Honours to, for example, 462F, but I do not pause to pick up the detail, but at the end of the day at 463D his Honour says:

These matters were not argued before the Court and I am prepared, for the purposes of this appeal only, to assume that the Court has jurisdiction or power to deal with the appeal.

Now, that was not material in the sense that his Honour dissented and it was not necessary for him to actually exercise the jurisdiction.

Justice Gray dealt with the matter at 502 and his Honour had examined section 253X at page 501 in the passage that I took the Court to yesterday. At 502 his Honour said:

The meaning of s 253ZC of the IR Act is by no means as easy to ascertain.

He set it out. He says:

The section plainly cannot be construed as conferring legislative power on the Court, despite the apparent conferral by subs (2) of the power to override legislation.

Reference to Boilermakers and other matters. A discussion of the meaning of the word “matter” at 502C and a determination that “matter” did not mean “matter” in the sense of a proceeding and then his Honour says at E:

it may be that the term “matter” is intended to comprehend an amalgamation. Section 253X(2) makes provision for legal proceedings; it may be that s 253ZC is intended to apply only where a difficulty arises in such proceedings. If that be the case, the choice of language is unusual as a means of giving the Court broad discretionary powers in a proceeding already within its jurisdiction.
The meaning of the word “difficulty” and the meaning of the word “matter” in s 253ZC were not the subject of argument. Being of the view that the Court derives the jurisdiction it needs to deal with this proceeding from s 253X, I prefer to express no concluded view about the effect of s 253ZC.

Earlier in our submissions, your Honour, we have attempted to give your Honours a summary of what their Honours did. That is back at page 3 of the written submission, where we provided a guide at the top of the page as to what happened: two members of the court expressly relied on X; two members of the court said nothing, but concurred in the orders and Justice Northrop dissented, but assumed jurisdiction under ZC.

Now, your Honour, what we do say about the matter of discretion is that the statutory provisions were new, they were described as novel. On any view, the Federal Court has not been given an opportunity to consider the extent of its jurisdiction because of the course taken by the prosecutors, who now come to the Court and seek discretionary relief. So, we invoke the decisions of this Court in cases such as Pilkington 142 CLR 113 again, and if I could take the Court very briefly back to that case. At page 127 his Honour Justice Mason says, at the top of the page:

Indeed, there are the strongest reasons why this Court should insist upon a strict application of the rule in cases arising under the Act in the Federal Court. The Federal Court has been established by Parliament as the court which has exclusive original jurisdiction in matters arising under the Act and the Full Court of that Court has been established as the immediate court of appeal in relation to matters arising under the Act. This Court is the ultimate court of appeal, but Parliament has conditioned the appellate jurisdiction of this Court on the grant of special leave.....As the ultimate court of appeal this Court is entitled to the benefit of considering the Federal Court’s views on the construction and application of the provisions of the Act. Moreover, this Court is entitled to the benefit of the Federal Court’s findings of fact. Many cases arising under the Act are noted for their complexity ‑

and so on and so forth. So that what we have here is a proceeding which raises questions of fact and law, going back to 1917, in which jurisdiction was not debated in any way in a satisfactory manner below, because the point was not taken; where alternate bases of jurisdiction demonstrably exist, where the prosecutors seek discretionary relief, and where the court has not had the benefit of the Federal Court’s view on novel sections, and difficult sections, the ambit of which will involve some real debate.

McHUGH J: Is there anything in the parliamentary debates that throw any light on it? I had a quick look last night, myself, but I could not find anything. There was one indication at - I think it was 253X was really designed to deal with cases where people have not been transferring properties over and certificates of title had not ‑ that sort of thing, but there really was not much that I could ‑ ‑ ‑

MR KENZIE: No, your Honour. Your Honour can assume, I think with some safety, that it is ground that has been travelled by those at the Bar table and that we cannot offer your Honour any assistance. It makes it more important that this Court be not put in a position of being asked to determine, for the first time, the interpretation of sections without the benefit of any assistance from a specialist tribunal, or at least a tribunal with a specialist division, established to deal with just these questions. So, we do submit, not withstanding an absence of prematurity, that this is not an appropriate case for the grant of a writ.

Certiorari was briefly mentioned. I am not, to tell your Honours the truth, completely clear as to where it was left, but in so far as it appears that there is an alternative claim for certiorari, may we make a brief submission - it is not dealt with in our written submissions - and the submission that we make is that in so far as the Court is constrained by past authority to the view that, notwithstanding the absence of reference to certiorari in section 75(v), the Court is invested with jurisdiction to grant certiorari. That is subject to the views expressed by your Honour Justice Deane in Marsh’s Case.

In Marsh’s Case 157 CLR, your Honour Justice Deane embarked upon a lengthy discussion of the recent history of cases in this Court involving applications for certiorari and, if I can very briefly remind the Court of that. It appears from pages 384 through to 390. Your Honour traced the history from earlier cases but more particularly from Pitfield v Franki in 1970 where the Court granted certiorari to a member of the Commonwealth Commission in respect of a registration without discussion of the issues addressed by your Honour Justice Deane in Gray. In subsequent cases, including Reg v Marshall and Reg v Ross-Jones; Ex parte Green, the basis upon which certiorari was granted was discussed in particular originally by Justice Mason and subsequently by Justice Gibbs in Green’s Case in passages with which the other members of the Court agreed, as suggesting that the possible basis of the grant of certiorari in Pitfield v Franki was that a constitutional question may have been involved or because certiorari was sought on a bona fide basis in conjunction with an application for prohibition, and I do not need to take your Honours to those cases, which I think will be quite familiar to your Honours. But in Marsh’s Case, your Honour Justice Deane, having briefly referred to the history from Pitfield v Franki at page 388 of the judgment, said at 389, at about point 2:

It is not necessary, for the purposes of the present case, that I form or express any concluded view on the question whether I am constrained, by what was said and done in Reg v Cook; Ex parte Twigg, and Reg v Ross-Jones; Ex part Green, to hold that the Court possesses jurisdiction to direct certiorari to the Federal Court. The reason is that, if so constrained, I would be of the view that those cases should be understood as going no further than asserting the availability of the writ of certiorari to control excess of jurisdiction:

And your Honour went on to say that there had been no excessive jurisdiction in that case. We would respectfully submit that in so far as there is authority in relation to the grant of certiorari, that the appropriate approach is that which is found in your Honour’s judgment and that perhaps the best view is that where there is jurisdictional error there is power to issue certiorari in conjunction with prohibition and mandamus, but not otherwise. So that the debate takes one little further.

Now, your Honours, could I then come to the second part of the written submissions. This relates to the correctness of the Full Court decision which commences in our written submissions at page 14. In paragraph 16 where we do assert that in any event the Full Court was completely correct in determining that what was registered under the Industrial Arbitration Act was the Queensland branch of the ATAEA and that the identity of the branch was not lost as a result of the registration.

As your Honours will have noted from the judgment, and in particular the judgment of Justice Wilcox, there was discussion as to the appropriate approach to determining the question and his Honour Justice Wilcox criticised the approach of the trial judge in that he said that Justice Ryan’s approach to what had happened in 1917 involved a reasoning back from the presumed validity of what had happened to a construction of the facts which must have been there to give rise to a valid registration. That was a basic point of departure because what Justice Wilcox said in an approach which was taken by the members of the majority of the Full Court, was that the appropriate approach was to look at the evidence available as to what had happened and if the evidence admitted of a conclusion of fact, then that was the appropriate way forward and the court would then made a decision of fact as to what had happened and would then examine the consequences in law of those facts.

There is nothing remarkable about that approach. Indeed, one would submit that it would be perfectly logical and it is why we have put in paragraph 17 the extract from Justice Wilcox’s judgment at 481 where his Honour said that:

The appropriate course, surely, is to examine the evidence and determine, as a matter of fact, what association was presented for registration.

BRENNAN CJ: What does that mean?

MR McKENZIE: Your Honour, his Honour was saying that if there is material before the court which allows a determination of fact to be made as to what it was that was put before the industrial registrar for registration, then a finding of fact should be made. The issue between the parties was was it an application that was made by a group of individuals who just happened to have some relationship with a federal Union, namely that they were members of its Queensland branch or was what happened, when properly understood, an application made by an applicant, identified by the statute as a competent applicant, and made not as individuals but made as an entity or a competent applicant identified by the statute.

DAWSON J: But it has no identity apart from the individual members.

MR McKENZIE: Well, your Honour, that ‑ ‑ ‑

McHUGH J: It is just a name. That is one of the problems that I find with his Honour’s judgment.

DAWSON J: It is a collective noun.

McHUGH J: That is all. What if you called it “T”. What if they had got registered under the name, “The QTA Team”, that has thrown up the point ‑ ‑ ‑

MR McKENZIE: Your Honour, the critical issue here is, as his Honour Justice Wilcox said and Justice Gray had said earlier, is has the legislature identified a branch as a branch and is it sensible and comprehensible that the legislature has identified the branch as an administrative entity of a union and allowed it to register.

TOOHEY J: But that is not the critical issue. is it? The critical issue must involve the consequences of registration under the Queensland Act. I mean, even if what Justice Wilcox says is correct up to the point of registration, what do you make then of the registration itself and whatever character the Act, that is the State Act, attributes to the registered body?

MR KENZIE: Your Honour, what one makes of it is that in so far as the State Act permits a group of people, or a federal organisation or a part of a federal organisation to register, the validity of what has happened is to be examined by reference to the relationship between the Queensland legislation and the power that is being used by the federal Parliament to create federal corporations, leading one to the issue of inconsistency. That was the approach that was taken by Justice Fullagar in Williams v Hursey; that is what Justice Wilcox did and that is what Justice Gray did.

There is no doubt that in Williams v Hursey what Justice Fullagar did was to say that Parliament in creating under section 51(xxxv) and (xxxix) (?) federal corporations was creating bodies which were capable of attracting section 109 in relation to State law. That is the approach that Justice Fullagar took. That is what Justice Wilcox did.

BRENNAN CJ: What does that mean? People are capable of attracting the operation of 109?

MR KENZIE: Well, your Honour, what it means is that if one can find inconsistency between the involvement of a federal organisation under a State Act and the federal Act that the State Act is inoperative, one does not find that merely from the fact of registration; one does not find it merely from the fact of involvement of the federal Union in participation under the State industrial legislation any more than one finds it in relation to the general conduct of a federal organisation in a State.

Justice Fullagar ‑ I have not come to the decisions yet ‑ but Justice Fullagar cannot be taken to have been saying that federal organisations were not amenable to State law in the sense of being amenable to regulations in relation to motor vehicles, driving licences and so forth. They are amenable in that sense. There is a question of the extent to which participation under State legislation is legally possible. Participation in machinery set up under State legislation is legally possible and consistent with the existence and identity of a federally registered corporation. That is the issue which was examined in these cases and it is the issue that needs to be examined if you find as a matter of fact and as a matter of law that what has happened is that there has been a registration of a federal body.

TOOHEY J: You say registration of a federal body but it becomes all words, does it not? You take that second-last sentence of Justice Wilcox:

Whether the registration was valid or not, the association presented for registration retained its original identity.

Well, that may well be so but there continued to be a Queensland branch of the federal organisation. But, what does that tell you about the body that was incorporated and registered under the Queensland Act?

MR KENZIE: Your Honour, it tells you, and the authorities tell you, that if you have a federal corporation applying for registration, you do not have a situation where you have multiple corporators who go into the room, as it were, and a different body comes out.

TOOHEY J: But, you are not saying that it is a federal corporation that applied for registration, are you? You are saying that the Queensland branch of the federal organisation applied for registration.

MR KENZIE: Yes, we say two things, your Honour. We say the Queensland branch applied for registration.

McHUGH J: Well, that is your problem, is it not? Because, so far as the federal Union was concerned, the federal industrial association consisted of all the members of the federal association and if one thing is plain in this case, it seems to me that it was not that industrial association that was seeking to register.

MR KENZIE: Your Honour, our alternate argument to that effect in the Full Court failed and it was dealt with by Justice Gray and Justice Black. They found that it was not the federal organisation as a whole that was registered in 1917. We have put forward the view as an alternative submission that it would have been open to the Federal Court to find that it was as a matter of law, but our primary submission is that Justice Wilcox’s approach and the majority approach which found that the branch was an identity that was able to be identified and was identified for the purpose of State law was as an administrative unit registered under the State Act. That is our submission. That was the finding of the court.

TOOHEY J: Yes, but you must take it a step further, must you not? You cannot stop by saying that the branch was registered or the members of that branch were registered under the State Act. You have to say in some way that I have a lot of trouble in grasping that the State registered body, notwithstanding the character attributed to it by the State Act, remained no more and no less than the Queensland branch of the federal organisation.

MR KENZIE: Your Honour, herein lies the inconsistency point. We say that it remained the same body because State law which made it a different body and reconstituted it would have been inconsistent with the federal Act which constituted that corporation as a single corporate entity.

DAWSON J: Why on earth? Here you have a group of individuals who happen to be members of the organisation incorporating themselves in order that they can participate under the State Act and they did. What is inconsistent with that?

MR KENZIE: Your Honour, may we say that if that were the finding of fact ‑ ‑ ‑

DAWSON J: But it must have been the finding of fact. You cannot talk about the branch without asking, “What is the branch?”, and when you ask that question you get, “The individuals who comprise it”.

MR KENZIE: Your Honour, if one starts from the basis that it is simply legally impossible for the State Act to define a branch and have its legislation operate on a branch, your Honour, I could not argue, but it is not impossible that a branch is an administrative unit of an organisation which has been identified and frequently identified by legislation in a way which is distinguishable from the members of the branch.

DAWSON J: I do not understand what you say when you say administratively identified. Of course it was administratively identified and it was administratively strategic to have them incorporate themselves so they could participate under the State Act. I mean, the fact that it was administrative makes no difference, but do you concede that if in fact it was the individuals comprising the branch who made application under the State Act and were incorporated there would be no inconsistency?

MR KENZIE: I do.

DAWSON J: Very well.

MR KENZIE: And the contrary has never been advanced, your Honour. If it was, in fact, the individuals who went along in a manner independent of the federal body, and not acting as the federal body ‑ ‑ ‑

DAWSON J: It does not matter if they went independently or at the behest of the federal body, does it?

MR KENZIE: Your Honour, if the application had to be made, human hands had to be involved; there had to be an affidavit, there had to be applications filed. There is no doubt about that, but organisations and branches of organisations act through individuals, and if the findings ‑ may we put this proposition ‑ if the proper interpretation of the Act is that it entitled a branch as an administrative part of an organisation, though it would otherwise have no legal identity, to register as such ‑ ‑ ‑

DAWSON J: It does not have a legal identity, that is the point.

MR KENZIE: Yes, your Honour, that is right, but that is not an answer to what the ‑ ‑ ‑

DAWSON J: Otherwise than as a group of individuals.

MR KENZIE: Well, it is not an answer to what the majority said in relation to the State Act. What the majority said was that there was nothing inconsistent with Williams v Hursey in the State legislature identifying something which was not a legal entity, and permitting it to be the subject of registration. I mean, what was permitted to be registered was something which, at the time that application was made, was not a legal entity, or necessarily a legal entity. I have not taken your Honour to the statutory provisions.

DAWSON J: But the purpose of registration was to make it a legal entity.

MR KENZIE: Yes, but, your Honour, that may not be in dispute, but the question that has to be addressed for the purposes of the present case, in our respectful submission, is: what was it that was doing it? Now, the Act did not select legal persons as applicants for registration. It selected groups, industrial groups. It selected associations, not legal persons, associations. It selected trade unions, registered or unregistered, and it would not matter if they were registered, because legal personality would follow, and it made it as clear as it could that a branch of a trade union could be registered.

Now, we are not talking there about persons, in our respectful submission. We are talking about a piece of industrial legislation, identifying an industrial grouping, as a suitable participant for participation in the industrial system of the State. That is, a grouping of people that can participate as a group, as a changing group, or as a representative of a changing group of persons, but a group that will be part of the system of the State, and go on to represent people into the future. But the parties identified to come in the front door were not legal persons.

TOOHEY J: But, if these things were done properly administratively ‑ I know they are not ‑ you would have two sets of records. The Union would have its records of membership, records of contributions, the Queensland branch would have its records; there would be separate provisions for membership, although membership of one might carry automatic membership of the other, and there would not be any difficulty, in theory, in sorting out who were members of the Queensland registered Union, who were members of the Queensland branch of the federal organisation; what property belonged to which entity. Now, the fact that things are not done in that way does not really detract from the existence of a State registered Union and a Queensland branch of a federal organisation.

MR McKENZIE: Your Honour, the Full Court found as a matter of fact that it did. I mean, if you had, as a matter of fact ‑ ‑ ‑

McHUGH J: I know it did but it really is a departure, is not it, from the professional view that has existed for 25 or 30 years about this matter. That does not mean that it is not right.

MR McKENZIE: No, your Honour, Moore v Doyle and cases decided prior to Moore v Doyle may have well been taken to say more than they do. As your Honour says, there has been lengthy academic debate about Moore v Doyle. Moore v Doyle itself was a case where the Industrial Court examined the history of the facts in relation to the existence of the Transport Workers Union in New South Wales and found, as a matter of fact, examining all of the sorts of materials that the Full Federal Court examined here, that the State Union factually existed before its affairs were mingled with the federal organisation and on that basis it was said to exist and continue to exist.

DAWSON J: Where is the distinction in that? Why cannot the federal organisation say, “We wish to create a subsidiary organisation or subsidiary corporation in order to participate under the State Act” and to go about doing that and where is the inconsistency?

MR McKENZIE: But it could. It could arguably create another body but whether it could split itself is, with respect, a question which is very much tied up with the big debate under section 109 here. It may create another body, for example, it might decide that a trustee company could be set up under State law to look after some of the industrial interests of its members but it could not, with respect, redefine itself and turn itself into something other than was contemplated by federal law.

DAWSON J: It would create an additional body.

McHUGH J: That is right. That seems to be the real problem here that there is an assumption that it is one and the same body all the time and that is exactly what it was not intended to be.

MR McKENZIE: No, your Honour.

McHUGH J: It was intended to be a separate body.

MR McKENZIE: No, your Honour, with respect, there is no assumption. Indeed, it is our case which flees from assumptions. It is the prosecutors who invite the Court and who invited the Federal Court and Justice Ryan to proceed on the basis of an assumption that because something wound up on the register it must have been assumed to be something different.

McHUGH J: Well, let me put this to you. Let it be assumed that the federal law expressly prohibited branches or anything else to be registered under State law.

MR McKENZIE: Yes.

McHUGH J: What you had here was an industrial association of people, namely, people who comprise the Queensland branch. They went along and got registered. What has 109 got to do with that?

MR McKENZIE: If the federal law expressly prohibited that step and if the unequivocal facts were that that step was attempted, the result would be, as Justice Wilcox correctly said, that that step was never effected. That is the result.

McHUGH J: But it is not. The two industrial associations are totally different. The Queenslanders are in an industrial association with people in Tasmania and everywhere else around the place. Now a group of Queenslanders have gone along and got registered and you say 109 strikes ‑ ‑ ‑

DAWSON J: And it was done for the purpose of enabling them to have the benefit of State awards.

MR KENZIE: Your Honour, if one starts with your Honour’s assumption that that is what happened, all the rest follow.

McHUGH J: All the assumptions are fact. Forty or fifty Queenslanders went along and got registered.

MR KENZIE: No, your Honour.

McHUGH J: They were in an industrial association. They call themselves the Queensland branch.

MR KENZIE: Your Honour, there is no doubt ‑ ‑ ‑

BRENNAN CJ: Is that what it comes down to, either the Queenslanders went along and got registered or what you are describing as a quasi entity or branch was registered?

MR KENZIE: Yes.

BRENNAN CJ: And you wish to invest the latter of those propositions with a particular legal complexion.

MR KENZIE: Yes, we put the ‑ ‑ ‑

BRENNAN CJ: Yes. Now, do you not have to face up to the language of the section under which the purported registration took place and can we not look at that to see what must have happened?

MR KENZIE: We do not flee from that for a moment, your Honour. Indeed, we say that when one looks at section 26 and the construction that has been placed on section 26 by the court, one reaches the conclusion, as did the Full Court, that the branch of the federal organisation was able to be validly registered and we ‑ ‑ ‑

BRENNAN CJ: For my part you will have to explain away the language of subsections (3)(b), (3)(e) and subsection (8) to get anywhere near that proposition.

MR KENZIE: Does your Honour say (3)(b)?

BRENNAN CJ: (3)(b) referring to “the persons on whose behalf the application is made”, (3)(e) referring to “interests of employees” and (8) referring to “association consisting of employees”.

MR KENZIE: Yes, your Honour. In our respectful submission, there is nothing in any of those provisions which gainsays the correctness of the Full Federal Court’s approach. There is no doubt ‑ ‑ ‑

BRENNAN CJ: Leaving aside what the Full Federal Court said, because you have got an argument about the scope of its jurisdiction in relation to that, as a matter of law, looking at 26 itself, is there anything in that which indicates that a branch of a federal association, considered as an entity separate from the persons comprising it, could apply for registration under 26?

MR KENZIE: In our respectful submission, the answer to that is, yes. Firstly, the applicants selected for registration are, firstly, an industrial association and, secondly, a trade union, and may we say as we would interpret section 26(1) either a registered or unregistered trade union, so that what is being identified as a subject of registration is not simply individuals, but a body known to the law, an identified group if one can put it that way.

BRENNAN CJ: But one cannot, can one? It is not known to the law as a person.

MR KENZIE: That is so, your Honour, but that does not mean that it cannot be identified by the legislation as a group separate from the individuals. I mean, to say that a trade union represents individuals, in our respectful submission, is not to say that a trade union is and only is individuals. A trade union is something more. A trade union is in fact a grouping, the industrial grouping of those individuals ‑ ‑ ‑

DAWSON J: It is a union of individuals, that is what it is.

MR KENZIE: If that is what it is, then it is able to be identified and selected as a grouping which is able to be registered, and that is what has happened.

DAWSON J: So you register a collective noun, as it were.

MR KENZIE: One can certainly register an identifiable administrative grouping of persons. One can register ‑ if Parliament says, “There is a federal organisation; it has branches; there are the rules relating to those branches; those branches can, under the rules, control property, can do certain things on behalf of the organisation”, that administrative grouping is able to be identified by the legislature for the purpose of participation, not the individuals because the purpose of the legislation is to have, not just a group of individuals, but an identified body as a participant in the system. It is not the individuals that are identified in section 26(6). Section 26 provides that:

No branch of a trade union shall be registered unless it is a bona fide branch of sufficient importance to be registered separately.

So what you have here is a quantitative approach to the capacity to register. It is not just a group of individuals who can come along, but the legislation focuses upon the nature of that which is put up for registration and identifies it as capable or incapable. It is the branch of the trade union that is identified in that respect.

McHUGH J: It says “no branch of a trade union shall”. It does not say what branches can. One thing about a branch is ordinarily it does not have any powers itself unless it is a legal entity. That seems to me one of your problems here, unless the rules throw some light on the situation. Whatever powers were exercised by what is called the Queensland branch, were powers of the federal body. If it did not get registered, unless there is something in the rules which gave the branch certain powers to do these things, then they were exercising powers not as a branch or some separate legal entity but as part of the corporation.

MR KENZIE: I must say, again, the answer to your Honour’s question is it is not something that has been, I confess, plumbed for the purposes of this proceeding because it is not contended by the prosecutors that the branch had no power under the rules to do what it did. That is not ‑ ‑ ‑

McHUGH J: When you talk about the branch having the power, is what you are saying is the federal corporation has the power which it exercises through its administrative unit called the branch, but it is the federal corporation that exercises those powers? If the branch has got powers it may indicate it is an entity and therefore the entity itself might be legally recognised.

MR KENZIE: The true answer to your Honour’s question is it has not been contended that there was an absence of power to do this. The attack is based on other grounds and it really is the reason that I am not able to further answer your Honour’s question in that regard. The debate really, at the end of the day, does come, we concede, down to this: if the Court takes the view that the legislation did not contemplate the registration of a branch as an administrative entity but only made possible the registration of a group of persons as a separate association, then all else follows.

We do not draw issue with all of the consequences that our friends point to in their submissions. If they are right, then what followed had nothing to do in a legal sense with the federal organisation, but it is at the point of contact that the debate takes place. Your Honours, we can do no more than the Full Federal Court did and it did two things: it looked at the legislation, formed the view that a branch as an administrative entity within a federal union was a competent applicant in just the same way as an unregistered trade union was a competent applicant under the ‑ ‑ ‑

McHUGH J: This seems to me the problem, Mr Kenzie. Throughout Justice Wilcox’s judgment, the word “branch” is used as though it is some sort of legal personality. That seems to be the assumption, is it?

MR KENZIE: With respect, it is not, your Honour. It is exactly the opposite, with respect. What Justice Wilcox does is to start with the clear understanding that a branch is not a legal entity and he asks this question, notwithstanding the fact that it is not a legal entity, has it nonetheless, like other non‑legal entities like trade unions, been selected and identified by the legislation? It is in no different position to a trade union; it is not a legal entity; it has been identified as a useful and proper applicant for participation in State affairs.

As Justice Wilcox says, the state legislature is sovereign ‑ he did not accept Justice Pincus’s use of the word “sovereign”. The State legislature was invested with the power to allow to be registered whatever groupings, whatever sorts of useful industrial entities it wanted. And if it said an unregistered group ‑ not an association, but a registered trade union ‑ is a useful and appropriate applicant for registration, then that is the body that is able to register. If the State legislation selected a branch, the branch of the federal Union, not as a legal entity, conscious that it was not a legal entity, but as an administrative non‑legal unit of a federal organisation, and identified that as a participant in the State scheme, then it could do that and his Honour found it did.

If it did not, if the legislature does not read that way, then, as I say, all else follows. But, your Honour, there is nothing different about identifying the branch as an applicant and a participant than there is about identifying a registered ‑ ‑ ‑

McHUGH J: But, see, you are still using the word “branch” and really it ought to be struck out of the discourse, because it is meaningless. It is an industrial association that the legislation talks about. So, that is what you have to identify.

MR KENZIE: May we submit, your Honour, that it would be inconsistent with the legislation to strike the word “branch” out of the debate.

McHUGH J: No, it says “no branch”, so it assumes that there may be some branches which are industrial associations in the relevant sense. There is no problem about that. But the federal industrial association was quite a different industrial association than the Queensland industrial association.

MR KENZIE: Your Honour, a federal branch, in terms of legal identity, is in no different position from the branch of any other union or industrial association. It is part of a wider grouping and has no legal entity, no legal identity.

McHUGH J: Well, that depends what they were associating for. As Queensland members of the federal organisation they owed duties and obligations to people in other States, and they had reciprocal rights against people in other States. But that was not what was intended here. This industrial association that got registered had mutual rights and duties among these people who lived in Queensland.

MR KENZIE: Your Honour, if the facts disclosed that that was what was intended and that is what had happened, then we would have no debate. The difficulty, may I respectfully put, with your Honour’s point, is it does not fit the facts of what has happened, and when you look and analyse the facts, as Justice Wilcox did so carefully, it does not admit of the conclusion that what was happening here was that there had been a newly and separately created body which applied for registration under section 26, that the facts only admitted of the conclusion that what persons were doing was acting on behalf of the federal body.

Now, if the facts did not lead to that conclusion we would not be here, but the facts are simply against the assumptions that lie behind your Honour’s propositions. The facts are that persons went along, because it had to be persons, and they said, “We are the branch of the federal organisation. We tender documents which are consistent only with that, and are inconsistent with us coming to you as simply a group of persons separately.”

McHUGH J: What about they go along in the first place and they send a letterhead, it is the federal organisation, it is rejected. I would have thought that what they may have been seeking to do in the first place was register the federal organisation. That is why that was sent back. Then you get a different application, with Queensland branch on it.

MR KENZIE: Justice Wilcox traces the history ‑ ‑ ‑

McHUGH J: I know he does; he draws a different conclusion.

MR KENZIE: ‑ ‑ ‑ and he carefully explains why that happened, and he then details the documents that were submitted, together with the application, and he explains why the submission of those documents was inconsistent with the fundamental plank of our opponent’s case. They are just inconsistent, as a matter of fact, with the propositions that lie, with respect, behind your Honour’s questions. The documents were inconsistent with the fact that people came along and said, “We are a separate association”. Now, we cannot really do any more, your Honours, than to remind the Court of what Justice Wilcox had to say about these matters, and we have summarised them on pages 14 and 15 of our outline.

We point out and Justice Wilcox said that the application itself was accompanied by documentation identifying the association as being registered under the Commonwealth Act. It was signed by persons in their capacities as Secretary and President. Justice Wilcox explained in detail at page 482D to 483A the way in which the form was filled in and what apparently happened. All these were findings of fact. The list of members submitted was a list of members of the Queensland branch of the federal Union, page 483D. The rules that were submitted comprised a copy of the printed rules of the federal Union with a handwritten alteration and, I think your Honours were told yesterday, there was no evidence as to whether that was an alteration that was mirrored in the federal rules and were entitled “Rules of the Australian Theatrical and Amusement Employees Association”. The form of application for membership submitted at 483F was:

headed, “Australian Theatrical and Amusement Employees’ Association”. It had a subheading: “Registered under the Commonwealth Conciliation and Arbitration Act, 1904.....The form required each applicant for membership to “apply to become a Member of the above Association -

and back of the top of page 483, the declaration that accompanied the application was simply inconsistent with the proposition that the registration was not made on behalf of the federal organisation because a declaration was made that there was no other body out there with a similar name.

McHUGH J: That is true.

MR McKENZIE: Your Honour, if it was a separate body that was being registered, then what the legislation was requiring ‑ ‑ ‑

McHUGH J: What do you mean by “separate body”? You keep giving this branch some form of legal personality as a body.

MR McKENZIE: No, your Honour, we do not say that it had any legal personality at all. We say it did not have legal personality at this stage. It was an industrial group that was identified for statutory purposes in the way that an unregistered trade union, another non-person was identified. We, in no way, assert that it was a legal person at that stage. Indeed, the proposition that there was another legal person that was somehow part of the federal organisation would have been impossible on our approach. All that Justice Wilcox was saying at the top of page 483 was that the legislation required persons who sought to register and to become an industrial organisation and thereafter to participate did not have a name that was the same as or similar to another organisation because of the risk of confusion.

All that Justice Wilcox was saying correctly on page 483 is that if one was talking about persons who were doing something separately and were going to register a different body, it would have been inappropriate to say that. We would have submitted that that was as clear as it could be. The resolution in favour of registration was described as having been passed in accordance with the rules of the Queensland Branch at page 484C of the decision.

BRENNAN CJ: We either have or can read all of these parts.

MR McKENZIE: I am sorry, your Honour, I am going to this because, in my respectful submission, it constitutes an answer to what is being put. It is being put that somehow there is some underlying evidence of the registration of a separate group of persons and all that I am doing, and I am sorry, your Honour, that I am taking too long, is to say that that would be all very well but it just does not happen to fit the facts as found.

Now, in addition to that, your Honour, it is to be recalled that Justice Wilcox pointed at pages 485 to 486 to post‑registration events and, your Honour, these are very important having regard to the debate as to whether it was simply a group of persons or a separate grouping. His Honour Justice Wilcox detailed, firstly, that until 1979 the bodies were administered as if they were one and the same and that not only did the persons concerned but that the Queensland registry over the years and everyone until 1979 proceeded on the basis that there was no separate entity. Those conclusions are consistent only with there being no separate entity.

McHUGH J: But on any view there had to be, must there not? Either the whole thing was a nullity from the start, which they did not think it was, or there were two separate entities.

MR KENZIE: Yes, and, your Honour, what happened in 1979, as his Honour records at page 486, was that there was an inaugural meeting of the Queensland branch of the Australian Theatrical and Amusement Union of Employees in 1979 and his Honour, making determinations of fact all along the way, said at 486 that it was significant that no one had regarded the bodies as separate and at 486E said that a finding as a matter of fact that there were two bodies, two separate groups of persons and not one, would have been perverse. Now, that finding of fact, your Honour, was the same finding of fact that was made by the Chief Justice at 455B and by Justice Gray at 507E and by Justice Keely at 476E. So four members of the Federal Court found those facts. Now, the minority formed the view that what must have happened was something different by reasoning back in the way that Justice Wilcox explains.

McHUGH J: Yes, but you can accept what Justice Wilcox says at 486E and it leads nowhere, with respect.

MR KENZIE: Your Honour, in our respectful submission, if one accepts that what his Honour said there was the fact, that the application for prerogative relief would fail. His Honour was plainly finding, contrary to the decision of Justice Ryan, that it was not the individuals, it was not anything separate that got registered, it was a branch of the federal Union. Now, if that be the case, then leaving aside any issue of inconsistency or whatever follows, if that was a fact, then the body that was being addressed by the Federal Court in the proceedings under 253X and ZC was a body which the court had found as a matter of fact had attempted to do something under State legislation, succeeded or failed, but as a matter of fact the Full Federal Court said it was them, it was that grouping found as a fact and therefore jurisdiction - I mean, on the basis we are discussing now - existed because it is the same group of people.

One can leave aside issues of inconsistency or registration, all the rest of it for this purpose as his Honour Justice Wilcox also said. He said “The rest of it in one sense does not matter. Once I find that what was happening was that it was the federal Union through its branch that was availing itself of the State legislation then that is all I need to find”. So, when your Honour says that one can accept what his Honour said at page 486, we say that the consequence is that the application for prerogative relief would fail.

McHUGH J: But it may fail for the reason that this point is wrong, but it really has nothing to do with what the issues are. I know the way the prosecutors put it, but at the moment, I tend to think either that the Court had no jurisdiction under 253X or no jurisdiction under ZC to begin this inquiry in the first place. If they did have, then at the moment, my present thinking is you succeed, whether this part of the case is right or wrong. And the critical issue at the moment to me is whether they have jurisdiction to embark on this inquiry at all under X.

MR KENZIE: We would not demur from that, your Honour. Indeed, it is our first port of call, as it were.

GUMMOW J: Well, it may be your first port of call but you still have not told us what the jurisdictional facts are presented by those sections that Justice McHugh just referred you to. It is no good saying it is.....difficult, as far as I can see.

MR KENZIE: Your Honour, a rational basis - a set of facts which lead to a rational view that an amalgamation is ineffective will be required but that is all. Really, we cannot put it any more precisely than that. The Federal Court would not have jurisdiction to proceed if it could be established that there was no rational basis, if it was impossible as a matter of fact for there to be any connection between the state of affairs that was being debated and a federal amalgamation.

But if, on a rational basis, there was a connection between the effectiveness of the federal amalgamation and the issue before the Court, the Court had jurisdiction to determine it, to determine whether that state of affairs did, in fact, impact relevantly on the amalgamation and this case is well inside that. Your Honours, I remind the Court, and I will not pause to read it, that Justice Wilcox also pointed to the fact that there was absolutely no evidence of the creation of a separate body and that section 26 did not itself create new bodies as applicants for registration.

It proceeded on the basis that the grouping or the entity that came before it was an existing grouping or entity. There was no evidence of the creation of anything new. The only evidence was that what was being put before the registrar was the branch and we cannot do any more than we have done and put in our submissions.

As far as the definition of trade union is concerned, our submissions on page 17 we think can speak for themselves, your Honour. To the extent that Justice Ryan suggested that trade union, where it appeared in section 26, was confined to Queensland trade union, we would respectfully submit that his Honour was incorrect and Justice Wilcox and the other members of the majority were correct. In the Trade Union Act 1916 itself, the definition of trade union was not confined to a trade union registered under the Queensland Act and the definition in the Act is in accord with the ordinary use of the term trade union. Could we give your Honours a reference to a case in which this Court has, in fact, examined the Oxford Dictionary definition of trade union in the context of taxation law. It is Victorian Employers’ Federation v Federal Commissioner of Taxation 96 CLR 390.

In the following pages of our written submission, which again I do not pause to pick up the detail of, we go on to point out that there is just no inconsistency or conceptual problem involved in the notion that a State Parliament can recognise a branch as an administrative unit of a federal organisation. The judgment of Justice Gray in particular on appeal and his Honour’s earlier decision in Bailey v Krantz ‑ and if we can invite your Honours to add a reference at that point to Justice Gray’s decision in Bailey, 13 IR 368, point 5, to 371, point 3, involve his Honour in a discussion of just why there is nothing strange in Parliament identifying a branch as opposed to a group of people as the subject of legislation.

His Honour points out that that has been done in federal legislation before, there is nothing strange about it. In existing federal legislation the Act is crafted in a way which clearly itself distinguishes between a branch and its members. For example, section 195 of the Industrial Relations Act dealing with rules of organisations provides that the rules of organisations will provide for, in (b)(v):

the control of committees of the organisation and its branches respectively by the members of the organisation and branches;

So the branches are there identified as a basis for the creation of a legal liability. The rules have to provide for a sufficient degree of control by the members of branches of the branches as administrative units themselves. Similarly, in Schedule 4 to the Act, part 2, clause 4, there is the autonomy provision which provides that:

The rules of an organisation shall provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in a State industrial conciliation and arbitration system.

So you have a section of the Act which was inserted after the inquiry - I am sorry, your Honours, its predecessor was inserted after the inquiry by Justice J.B. Sweeney in 1974 which is designed to deal in terms with the participation by a branch in a State conciliation and arbitration system and Parliament identifies the branch in a way which is clearly designed to distinguish it from the position of the members of the branch. Now, your Honours, our position is simple. That is all that the State Parliament did. It allowed for an entity such as that described in Schedule 4 to become involved in the State system as contemplated by this section and that is what happened as a matter of fact. Now, we really cannot put it any higher than that and it is as high as we need to put it, your Honours.

Now, as far as the capacity of an organisation to register under a State system - and I appreciate this entry does not deal with branches as such - we have given your Honours on page 18 a reference to the passage from Chief Justice Barwick’s judgment in Egan v Shop Distributive and Allied Employees’ Federation of Australia 143 CLR and, your Honour, at that page his Honour said that the case then before the Court had been conducted on the basis that it was impossible for a federal organisation to participate in the State system by registration under the State legislation but he did not see any reason why that was so, and that really was an early look or glance at the Moore v Doyle line of country.

Now, your Honours, in one sense everything that follows is either an alternative submission which we make in paragraph 24, but it is very much our alternative submission, that if the legal effect of what took place in 1917 was that the branch was acting as the branch of a federal union then if there is a difficulty about the branch being recognised as able to be identified for the purposes of legislation then the alternative view would have been that it was the organisation itself that got registered. Now, that was a view which was rejected by Justice Gray and Justice Black, but we do make the point that at this stage one is in the difficult area of saying that something has been done by a branch which is somehow regarded as not an act of the organisation.

I mean, if an officer of a branch engaged in conduct which caused the organisation to become legally liable, then prima facie the organisation would be liable for the activity of a branch official carried out in the normal course of his or her duties and one is dealing with a difficult concept when one says, as Justice Gray did at page 508, that somehow it is an act of the branch but not an act of the organisation, and that really is the foundation of our alternative submission, that if the facts are as we put and as Justice Wilcox found, then if the effect was not that the branch was registered, then the federal Union was registered.

Your Honours, what follows in relation to inconsistency and the like, we put our submissions on. In one sense, none of them matter because whether there was inconsistency or not, if the facts are that we are talking about the same group of people, whatever the effect of the legislation on them thereafter was, it is still the same group of people and as we understand it, the challenge to jurisdiction is based simply on the fact that they are not. So, we really are content, subject to any difficulties your Honours have, to let the balance of our written submissions speak for themselves.

It is, perhaps, necessary to note, as we do in paragraph 30 of our submissions on page 22 that the prosecutors’ case moves on the basis that it was the members of the branch who were declaring themselves to be an industrial association for the purposes of the Act. We simply point out that if they were declaring themselves to be anything, they were declaring themselves to be what the documents reveal and the step that is sought to be inserted in the debate there, which is a fairly critical one, is one that just does not have any basis in the evidence.

The other authority which appears on page 23 is Kepert’s Case (1926) 38 CLR 507. Although it dealt with particular legislation, the associations incorporation legislation, it raised the question of the relationship between an association which became registered under the Act and the body after its incorporation. The question was raised in Kepert in the context of a claim that, where an association had failed to comply with the Act, there was capacity for the association to act as an association and in some way wearing a different hat from the corporate body after registration.

The High Court rejected the notion that there was some difference between the association registering under the Associations Incorporation Act and the corporation itself. At page 514, in the judgment of the majority in relation to that contention, their Honours said:

We cannot agree with this opinion. Upon incorporation the voluntary association ceases to have any existence apart from the incorporated body. There are not two entities existing side by side ‑ a voluntary association and an incorporated body; and the rules when filed become the rules of the incorporated association ‑

and similarly, at page 515, point 6, Justice Higgins said:

there is no valid foundation for the theory that after incorporation the association as unincorporated exists or can exercise any powers ‑

et cetera. His Honour said:

But it has acquired a new quality ‑ a new head-dress as it were. The powers which the association had before incorporation remain to it after incorporation, but as the rights of persons outside the association may be affected ‑

et cetera, and his Honour agrees with the majority that there are not two bodies; you do not get two people walking into the room and three people walking out.

DEANE J: On one approach, that is against you, is it not, in that on one approach that means that you cannot say that the branch and the incorporated body are the same entity any more because the branch on that approach ceases to exist. Therefore, you must say the incorporated body has moved off to be something different from the branch.

MR KENZIE: Yes, your Honour, and subject to constitutional questions, that would be right.

The difficulty is that when you get to that point you then have the State legislation on this basis impacting on the federal entity in the way that was described by Justice Wilcox. The case is against the proposition that I put in the way that your Honour describes. In a constitutional context it shows that it is impossible, if applied, for the branch if it was registered, as we contend, to have been somehow turned into something else and as it were subtracted from the whole. That is the purpose of our offering the authority, your Honour.

Your Honours, the balance of our submissions either involve some element of repetition because we were dealing with a response to some submissions, or have otherwise, I think, been dealt with in debate and we are content ‑ ‑ ‑

BRENNAN CJ: Can I just take you back to the answer you just gave to Justice Deane. If that be right, that way of looking at the constitutional impact of federal law upon section 26 of the State Act, would one not then tend to read section 26 as providing for the incorporation not of the branch which could not be done constitutionally, but of the persons who comprise it?

MR McKENZIE: Your Honour, it is not section 26 itself that involves the incorporation. That takes one back to the debate as to ‑ ‑ ‑

BRENNAN CJ: I appreciate it takes you back. I am just thinking of the implication of the constitutional argument.

MR McKENZIE: If the notion of registration and incorporation are relevantly inseverable, then what your Honour says would be a factor, but only a factor.

McHUGH J: But Mr McKenzie, does the problem really arise in this case because, as I put to you earlier in the morning, the industrial associations are quite different. I have some difficulty with this half-way house of the branch being registered. It seems to me either it was the federal Union that got registered or it was something completely different, but this idea that the federal branch as a branch got registered is at the moment, anyway for me, a very difficult ‑ ‑ ‑

MR McKENZIE: Your Honour, it has to be said that it is a phenomenon that one has to find in the legislation. I mean, one would not say that it is something that could otherwise happen. The issue is whether it is appropriate or nonsensical to regard legislation which identifies the branch of a body as an appropriate participant and, your Honour, it is not nonsensical, it is practical and what this legislation is all about is practically incorporating amorphous groups of persons or associations or parts of bodies into appropriate industrial groupings.

McHUGH J: Are there any cases where foreign corporations come into another legal system and have to get registered and get some other legal personality so that they have, in effect, dual legal personalities, do you know?

MR KENZIE: Your Honour, the closest ‑ not in a foreign corporation context, but in a municipal context, there is a South Australian case, Reg v Cawthorne, which is mentioned in Justice Ryan’s and, I think, Justice Wilcox’ judgment, and I will give your Honour a reference in a moment, in which the Supreme Court of South Australia looked at the question of whether there was anything inconsistent in a ‑ ‑ ‑

McHUGH J: Yes, that is where Chief Justice King ‑ ‑ ‑

MR KENZIE: Yes, your Honour. That really is analogous, but in the foreign corporation context, I do not know if there is anything that takes one further. There is nothing impossible about it, and that is the impact of Cawthorne’s Case. The company has a basis in two sorts of legislation and, subject to questions of inconsistency, and 109, there is no real problem with that. Your Honours, they are our submissions.

DEANE J: Mr Kenzie, can I just raise one thing that may be irrelevant. Can I take you to the orders on page 178. Putting aside questions of jurisdiction and the like, I follow how one gets to 3(a), but in a situation where whatever be the position in 1917, there was a bifurcation in 1979, after which the State people apparently were not allowed to vote on the federal amalgamation, and so on. I simply do not follow how declaration (a) leads to declaration (b). Prima facie, I would have thought if there was a bifurcation in 1979, some sort of voluntary association resulted at the State level, and prima facie they would own the State property.

MR KENZIE: One can certainly see the force of that argument, but one would need to know a great deal more about the facts.

DEANE J: But it seems to have been treated as if (b) speaking as at 1992 follows from (a) regardless of what has, in fact, happened in 1979 and thereafter.

MR KENZIE: Yes. Well, your Honour, it has to be conceded that there would be room for argument along the lines that your Honour suggests, but there would also be some room for argument to the opposite effect. One does not know. If the court was in error, if it was proceeding from (a) to (b), and not to (b) by a more direct route, then that may, at the end of the day, have been able to have been demonstrated as an error, but, your Honour ‑ and I know your Honour is excluding jurisdiction for this purpose ‑ but it would be an error within jurisdiction.

DEANE J: That may be the answer.

MR KENZIE: Yes.

DEANE J: It is none of the business of this Court if you reach, or if you get over your hurdles of initial jurisdiction, and so on.

MR KENZIE: That is right.

DEANE J: It is a very strange result though ‑ well, no, I suppose it is not if prohibition does not run.

MR KENZIE: Yes. Well, there could be questions that might arise as to whether what happened in 1979 was authorised or unauthorised under the rules, but ‑ ‑ ‑

DEANE J: But really you have answered my query. I was just wondering really whether I was missing something about how you went automatically from (a) to (b).

MR KENZIE: I do not think your Honour was missing anything. It is not altogether clear that the court did go from (a) to (b), but if it did and it made an error or if it could have been shown if the proceedings had gone otherwise to have been in error, that would not be relevant for the present debate. If it please the Court.

BRENNAN CJ: Thank you, Mr Kenzie. Mr Jackson.

MR JACKSON: Your Honours, may I just say in relation to the point that your Honour Justice Deane just raised that a submission was made to the Full Court of the Federal Court that the question whether there had been an unincorporated association of the nature your Honour is talking about formed, if the Federal Court took the view that it did, was one on which the Federal Court should not itself enter because - and it is a little complicated in explaining exactly why - that issue had not been one that had been raised or dealt with by the primary judge and the contention on our side was that it had not been raised or dealt with before the primary judge because of a relatively more limited nature of the inquiry before him and that the Full Court should not engage on the course on which it did, but, your Honours, it did in that regard and we have not taken that as a separate point attempting to relate it to jurisdiction.

McHUGH J: But in any event the declaration would not bind the members of the voluntary organisation. They were not parties to this litigation, except some of them were.

MR JACKSON: I am sorry, your Honour, I just did not catch it.

McHUGH J: If there was a voluntary organisation which came into existence in 1979, then most of them would not be bound by the declaration.

MR JACKSON: Of course, your Honour, yes.

DEANE J: Except that it then gets worse as you go on to (c) because the Australian Workers Union is effectively ordered to hand it all back, is it not?

MR JACKSON: Yes, your Honour.

DEANE J: Rather, 4,it should have been. I mean, if it was the voluntary association’s property, it would now seem to be controlled by the Australian Workers’ Union that has ordered to give it all to the federal Union.

MR JACKSON: Why the Full Court did not accede to the proposition that what followed from that issue should go back to be dealt with by a primary judge does not appear. It is not a matter that was left as a kind of passing thing because what occurred, as your Honours would have seen from Mr Justice Northrop’s reasons was ‑ and I will come back to this in just a moment ‑ ‑ ‑

DEANE J: Mr Jackson, would it not be enough that you need to make clear that if you happen to fail all along the line, nothing we should do should interfere with your entitlement to go back to the Full Court on the basis that there has been an error in their orders that they can correct.

MR JACKSON: Yes, your Honour. Could I come back, before going on to some further matters, to deal briefly with a couple of matters raised by our learned friends yesterday. The first is that the argument for the respondents yesterday did rather contain a suggestion or a flavour that in some way funds belonging to the amalgamated federal organisation were being or had been moved by us, as it were, into a body amalgamating pursuant to the State enactment. The true position was that there were assets which were registered, in effect, or part of - recorded as assets of the State incorporated body. It is only if the contention of the respondent was correct and the State incorporated union was itself in some way part of the federally amalgamated union that the contention to which I referred could have any substance.

A second matter that was said yesterday was that there was a debate “down the track”, the expression was used, in relation to the assets of the body in question. That was in answer to a question by your Honour Justice Deane and my learned friend said that the resolution of ownership of the property was down the track. The context in which that observation was made was where there had been an inquiry made by your Honour concerning the fate of moneys paid to the Queensland registered union by persons who were members of it but who were not members of the federal Union. It is not really, apart from the discussion your Honours have just had with me, that question which was, in a sense, “down the track”. It is not a matter of working out who owned what, in effect. The property is perfectly identified ‑ it is a sum of money now. It had been held in the name of the Queensland registered Union simply as part of its assets, money in the bank, or on deposit. The parties know where it is held and it is held by the State AWU now - a merged union.

Your Honours, what is down the track, if I could use that expression in relation to it, is simply a question of whether there are any sums to be deducted from it by reason of expenses incurred in servicing the relevant members of what would be the federally amalgamated Union and perhaps other related questions. Your Honour Justice Deane, if I could turn to the third point, asked who voted on the federal amalgamation. As one might expect, your Honours, the persons who voted were only those who were members of the federal organisation and, your Honours, Mr Beattie who was an officer of, I think, both, deposed to that in an affidavit which I will give your Honours copies of. It was in volume 5 at page 3 of the Federal Court appeal book and may I give your Honours the relevant copies. The part of it, your Honour, which is material is paragraph 6. It is at the bottom of page 3 and the top of page 4.

Your Honours, if I could turn to the next matter it concerns the question of who were the parties to the proceedings so far as the Queensland registered Union was concerned. Our learned friend’s argument yesterday in relation to the identity of the second respondent to the proceedings does have, if I may say so with respect, some illusive aspects because your Honours will see that the second respondent has the name of the Queensland registered and incorporated Union, that is, “Queensland Branch of the Australian Theatrical and Amusement Union of Employees” and the points of contention seem to make it apparent that the second respondent eo nomine must be the Queensland registered Union.

I gave your Honours copies of the points of contention attached to the copy of the application yesterday and may I refer your Honours to paragraphs 7, 8 and 9 of that document and what your Honours will see is the way in which the contention was advanced in paragraph 7 was that the federal body sought to have registered its Queensland branch as an industrial Union under the 1916 Queensland Act. It says the application was successful and in particular the Queensland branch of the respondent was registered as an industrial union of employees with the name of the second respondent. Then it said the registration of the second respondent continued.

Your Honours, it seems perfectly apparent that the body that was the second respondent was and would necessarily have to be, one would think, the Queensland registered Union. Your Honours, could I turn then to a question concerning sections 253X and 253ZC and the question of jurisdiction. If I could take your Honours first to 253ZC.

Your Honours, what we would submit is the argument on behalf of the respondents does not give sufficient weight to the actual words that are used in those two provisions and in particular, turning to section 253ZC(1), what we would submit is that it is saying that the court’s jurisdiction to make an order to resolve the difficulty only arises where there is a difficulty. Your Honours will see the way in which the provision is prefaced, that is:

Where any difficulty arises in relation to.....the Court may ‑

Your Honours, the condition of jurisdiction, in our submission, is that there has to be a difficulty and in considering whether a difficulty of the relevant kind has arisen, one has to look to the other provisions of the subdivision, that is to Subdivision F which commences with section 253Q. One has to do that because the way in which section 253ZC is phrased is that the Court’s power is expressed to arise where there is difficulty arising in relation to the application of the subdivision to a particular matter.

One of the provisions of that subdivision is section 253R which is the provision which itself determines what happens to the assets of the organisations which are deregistered in consequence of the amalgamation. Section 253R operates, of its own force, in relation to assets. Your Honours, if the assets fall within the description used in 253R of being assets of a deregistered organisation, there is, in truth, no difficulty because they become assets of the amalgamated organisation by force of the statute. If I could pause at that point to say if one returns to the provisions of 253ZC for just a moment in respect of that scenario, one sees that there has been no difficulty arising in relation to the application of the subdivision to a particular matter.

I was speaking, your Honours, then of assets which were, in reality, part of the assets of a deregistered organisation they vest by virtue of section 253R. If the assets on the other hand do not fall within that description, that is do not fall within the description “assets of a deregistered organisation” once again, there is no difficulty, if I could use that word, in the application of the relevant subdivision of the Act. The assets do not become property of the amalgamated organisation. Your Honours, in neither of those cases can it be said that, to use the words of 253ZC(1), a difficulty has arisen in relation to the application of Subdivision F to those assets.

But the circumstance in which a difficulty would arise, your Honours, on the view of the provision which we have taken would be if in truth the assets had become assets of the amalgamated organisation but that fact was denied by persons having control of them. Your Honours, the way in which section 253ZC(1) is framed suggests, in our submission, that the existence in truth of difficulty is a condition of the jurisdiction. Your Honours have seen the words “where” et cetera. If no difficulty in truth arises then the court has no power to make the orders sought. The court no doubt is empowered itself to form the view whether there is a difficulty, but because it is a condition of jurisdiction that there be a difficulty that decision is one, which I can put it shortly, examinable by this Court.

Your Honours, similar considerations, we would submit, apply if one goes to section 253X. Now, your Honours, on any view of the operation of that provision the jurisdiction referred to in section 253X(2) is a jurisdiction which is to be invoked to make sure that the steps necessary to ensure that, two things, the amalgamation is fully effective and that the operation of Subdivision F in relation to the amalgamation is also fully effective, to ensure that those steps are taken.

MR JACKSON: Your Honours, the terms of the section require that there be some step not taken, but the taking of which is “necessary to ensure that” ‑ et cetera. Your Honours will see the remaining words of the provision. Your Honours, in our submission, there is no such step in this case which could satisfy that description unless it be that the Queensland registered Union was in truth one of, or part of, the amalgamating organisations, and it is, of course, as we submitted at the commencement yesterday, only federally registered organisations which are involved in amalgamations for the purposes of the Act.

Your Honours, of course if we are correct as to the separate identity of the Queensland registered Union, it is not part of the amalgamation, and there is not any order which, in our submission, could be made which would satisfy the 253X test, and in that regard, we would submit that if one goes to the observations of the primary judge in this case, at page 30 ‑ I have taken your Honours to part of the part to which I wish to refer but not to all of it yesterday ‑ the part I had referred to yesterday, your Honours, was, I think, at page 30, between lines 25 and 30, that is dealing with ZC, but going a little further up the same paragraph, commencing at line 17, your Honours will see, “However, for the reasons already given”. Your Honours, I shall not read it out, but it goes through to about line 21, and his Honour was right, in our submission, both in relation to that provision and in relation to ZC, in taking the view that there was no relevant jurisdiction.

Could I mention one thing in relation to our learned friend’s reliance upon Reg v Gray; Ex parte Marsh (1985) 157 CLR 351. That point is that the respondents’ arguments seem to suggest that the only circumstances in which a superior with limited jurisdiction might lack power to determine its own jurisdiction conclusively would be where the issue depended on the constitutional facts. What we would submit is that that circumstance is an instance but not an exhaustive statement of the position.

May I take your Honours to the passage that was relied on in the reasons for judgment of Justice Mason at page 374. Your Honours will see in the second new paragraph on that page that his Honour really states the broad proposition in the first sentence and then refers to the particular provision relied on. It is clear enough, we would submit, that the second sentence is merely giving an instance, albeit perhaps the most common instance, in relation to superior courts of limited jurisdiction of circumstances where that situation obtains. That that is so appears, for example, your Honour Justice Dawson at page 394 where your Honour says in the paragraph commencing about point 6. I shall not read it out, but it is the general statement.

Indeed, of course, prohibition was around before the Constitution existed and it is clear enough, we would submit, that it is not limited to cases of that kind. That appears too at page 379, your Honour the Chief Justice, in the passage commencing at the start of your Honour’s reasons for judgment, through to the end of the quotation from Colonial Bank of Australasia v Willan. Then, in your Honour the Chief Justice’s reasons, again, at the bottom of page 382 and at the top of page 383. Whilst there was a difference in the Court on the question whether there was in fact something going to jurisdiction or not, the generality of the proposition is not doubted. Could I refer your Honours also to page 372, the reasons for judgment of the Chief Justice in that case. The observations made in the passage commencing at about point 3 of the page, “It is impossible to suppose”, going through to about point 6 on the page, really, in a sense, reflect notions similar to those we are seeking to advance in the present case.

Your Honours, may I move from that to deal with another matter and it is something to which really I think I should have referred your Honours yesterday. Your Honours, when dealing with section 235 of the Act - I was dealing with the course followed by the Act in dealing with the procedure leading to amalgamation and I referred your Honours to section 235(1) as being the provision which started the process off. Your Honours, I should have mentioned section 235(3) because it has its similarities in relation to non‑judicial power to section 253ZC.

It seems to relate, your Honours, to matters at a time prior to amalgamation and presumably the concatenation, if I could use that expression, of section 235(3) on the one hand and 253ZC(1) on the other hand suggests that section 253ZC should not be given an expanded operation but treated as something which deals with a relatively narrower power, one that is ex hypothesi judicial in nature and one that is conditioned upon there being the existence of a difficulty capable of being resolved by the exercise of judicial power. Your Honours, might I move then to questions relating to the decision of the Federal Court and first just say one thing about our learned friend’s reliance upon what was described more than once as the findings of the Full Court.

Your Honours, what was said by my learned friends first of all was that the Full Court had relied on what he described as all the evidence, both before and after registration, to reach its conclusion that the branch of the federal organisation was the body which was the Queensland registered body. That is sort of correct but not correct, in a sense, with respect. The matter relied on in the principal judgment on this issue which was that of Mr Justice Wilcox was, first of all, the much narrower issue stated by his Honour in his approach at page 481.

At page 481, your Honours will see, commencing between F and G where his Honour says ultimately the appropriate course, surely, is to examine the evidence and determine as a matter of fact, what association was presented for registration. He goes on to deal with that aspect. He then arrives at the conclusion which he does, at page 485, immediately above the heading “Post-registration events”, in the paragraph above that, and he deals with what body presented itself for registration. It is only after that that he goes on to deal with the question of post-registration events.

Your Honours will see that he refers to a passage quoting from the primary judge’s reasons and he quotes from the passage at about page 485E. The part of the primary judge’s reason that his Honour does not quote from is the part which immediately follows that part of the primary judge’s reasons and which your Honours will see set out at page 5 of the application book, at about line 62. Immediately after the passage to which Mr Justice Wilcox had referred, four lines from the bottom of page 5, the primary judge then goes on to deal with what actually happened.

What your Honours will see in a passage which goes over to the next page is that the distinction between the federal body and the State body was maintained on all the occasions, all the public occasions as it were, when it was necessary to exercise the two capacities; that is, the capacity of the federal body and the capacity of the State body in their respective jurisdictions.

That is the first thing I wish to say about what was described as the findings of fact. The second thing is this, that there was no contested issue of basic fact in the Full Court. All that one has is a case where there was a difference in the conclusion drawn by the two courts, the ultimate legal conclusion from the basic facts, namely, what was the body or who were the bodies who applied for registration. So, to say that there are the findings of fact by the Full Court may be correct as a matter of generic description but it really does not, with respect, set out the true nature of the issue with which the court was there dealing.

Could I just say a couple more things in relation to the substance of the matter? The first is that whilst our learned friends have engaged in some discussion about section 26(6) of the State Act and the fact that it refers to an application being made by a branch of a trade union, we would say two things: the first is that the fact of the matter in this case is that the application did not purport so to be made. Your Honours have already seen copies of the application - I will not go to the detail of it - but what is immediately apparent from it is that references to trade union have been crossed out. One sees that it is perfectly apparent, reading it, that the application purported to be made was, in form, one being made by an industrial association.

The second thing, your Honours, is that, in terms of section 26, what seems apparent enough is that whether the applicant is to be treated - and I use the term loosely - as a branch of a trade union or not, what is being spoken of in terms of the application for registration is relevantly a group of persons who constitute that branch. I will not take your Honours back to the provisions but if one goes, for example, to section 26(3)(b) it speaks of groups of persons.

Your Honours, it would only be if it were a trade union itself which applied in which one would have to then adjust the provisions to accommodate the fact that the opening words of 26(1) contemplate there may be applications made by trade unions. Your Honours, the situation which obtains, in our submission, is broadly speaking so far as the State Act is concerned, one where, whether it be the federal body which applied or whether it be the group of individuals who constituted the branch which applied, the application was one which was made under the State Act and having the consequences provided for by the State Act. If the federal body chose to do it that way and it was within power so to do it, then it follows that a new body was created. The conduct of persons managing the federal body might be in breach of federal rules at various times or perhaps vice versa, but it does not mean that a new corporate body was not created.

Your Honours, may I deal and deal briefly with two other matters. The first concerns reliance by our learned friends upon section 209 of the Industrial Relations Act. Your Honours, the first thing we would say in relation to that is that if your Honours go to the terms of section 209 the jurisdiction under that provision is enlivened by the making of an application to the court for an order under this section. Your Honours, the first thing one notices if one goes to the form of application that was used in the present case was that it specified the sections pursuant to which the application were made and they were the two provisions to which reference has been made already, 253X and 253ZC, so that there has never been an application made under section 209 for an order under that section. That is the first thing, your Honours.

The second thing is that if one looks at the forms of order made that are paragraphs 3(a) and 3(b), in our submission, orders of the nature referred to in section 209(9) simply do not fall within the ambit of those provisions. The third feature, of course, is that no notice whatsoever, until this morning, has ever been given that reliance is placed upon section 209 as a basis for jurisdiction.

Now, your Honours, if at the trial there had been reliance upon section 209 then it may well have been that the case would have adopted a different course and it is itself a ground for prohibition if an order is supported under section 209 in circumstances where no notice had been given that an application was being made under section 209. Your Honours, authority for the proposition that prohibition under section 75(v) lies for breach of natural justice is to be seen in Justice Mason’s observations in Reg v Gray; Ex parte Marsh 157 CLR 374.

Your Honours, the last thing we wish to say is this, and it deals with the question of discretion. It was said by our learned friends that the reasons for judgment of the members of the Full Court are, if I could use the vernacular, somewhat light on in relation to the discussion of jurisdiction because of the course taken by, it was put, the prosecutors.

What happened in relation to the case was that the view was taken that, at least under section 253ZC, there was jurisdiction in the Federal Court to decide, though not unexaminably, the question whether the Queensland incorporated Union was part of the federal organisation. The Federal Court, in the course of proceedings, or members of the Court, asked the respondent to indicate the nature of the various difficulties that were said to bring about jurisdiction under that provision and they sought to give particulars to the court.

What were we to say, in effect, in relation to jurisdiction? If the court asked us and we said we accept the court has jurisdiction under ZC, as it were, the court would say what point is there in a further discussion of the ambit of the court’s jurisdiction. So that one does see, with respect, that there is some discussion by some members of the court saying the jurisdiction might be this or it might be the other. But there was an acceptance before the court of the proposition that it had jurisdiction to decide, though as I have submitted earlier, not unexaminably, under these provisions. That is the context in which that issue arises. Those are our submissions.

BRENNAN CJ: Thank you, Mr Jackson. You have nothing further, Mr Solicitor?

MR KEANE: No, your Honour.

BRENNAN CJ: The Court will consider its decision in this matter and will adjourn until 2.00 pm tomorrow.

AT 12.49 PM THE MATTER WAS ADJOURNED