Morris, John Joseph v Federated Liquor and Allied Industries Union of Australia Morris, J.J. v Morris, W. & ors

MORRIS v. FEDERATED LIQUOR AND ALLIED INDUSTRIES EMPLOYEES' UNION OF AUSTRALIA
(1978) 35 FLR 60
Conciliation and Arbitration

COURT

FEDERAL COURT OF AUSTRALIA

INDUSTRIAL DIVISION
Smithers(1), J.B. Sweeney(1) and Evatt(1) JJ.

CATCHWORDS

Conciliation and Arbitration - Registered organizations - Rules - Directions for performance or observance of rules - Power of committee of management to amend rules - Purported amendment of rules - Nature of rules - Construction - Procedural conditions attaching to exercise of power of amendment - Mandatory nature of conditions - Whether discretion in committee of management as to manner of compliance with conditions - Failure to comply with conditions - Validity of amendments - Conciliation and Arbitration Act 1904, s. 141.

Conciliation and Arbitration - Registered organizations - Rules - Rules to provide for autonomy of branch in matters affecting members of branch only - Rule empowering committee of management to amend rules - Construction - Whether rule failed to make provision required by Act - Whether each individual rule required to provide for branch autonomy - Whether rules as whole failed in specified respect to make provision required by Act - Omission of rules to include provision required by Act - Consequences of omission - Effects of declarations by court - Consistency of rule-making power with branch autonomy - Conciliation and Arbitration Act 1904, s. 140.

HEADNOTE

The Conciliation and Arbitration Act 1904 provides by s. 141 (1) that the court may, upon complaint by a member of an organization and after giving any person against whom an order is sought an opportunity of being heard, make an order giving directions for the performance or observance of any of the rules of an organization by any person who is under an obligation to perform or observe those rules.

Section 140 (1) provides by par. (a) that the rules of an organization "shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law". Paragraph (d) of the subsection provides that the rules of an organization "shall be such as to provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in any State industrial conciliation and arbitration system".

The rules of an organization provided by r. 8, Powers and Duties of Federal Council, as follows: "The supreme control of the union is vested in the members. Subject thereto the federal council shall be the governing body of the union. It shall have the general control and conduct of the business of the union and without limiting the foregoing its powers shall include the following: none of which is to be limited in its generality by the existence of another. . . . (3) To repeal, alter or add to the rules."

Rule 39 provided inter alia:

"39 - New Rules and Alterations of Rules - (1) No new rules shall be made, nor shall any of the rules for the time being of the union be altered, amended or rescinded, except by and at a meeting of council. (2) Any proposed new rule or alteration, amendment or rescinding shall be endorsed by a branch meeting and the secretary of such branch shall notify the general secretary in writing at least six weeks before a council meeting of the proposed alteration. (3) The general secretary shall forward the proposed alteration to each branch at least one month prior to the meeting of council at which the proposed new rule or rules, or alterations, amendments or rescinding of rules, are to be discussed. The branch secretary shall submit such proposed alteration to a branch meeting prior to the council meeting. . . ."

The federal council of the organization, at a meeting in January 1978 carried resolutions which purported to adopt certain amendments to the rules of the organization. The amendments proposed had not been submitted to branch meetings of all branches of the organization before being considered at the meeting of the federal council. A member of the organization instituted proceedings under s. 141 seeking orders that the resolution of the federal council be treated as null and void. Proceedings were also instituted under s. 140 seeking a declaration that rr. 8 and 39 contravened that section. No declaration was sought that the rules as a whole contravened s. 140 in a specified respect.

Held: (1) Because amendment of the rules of an organization was a matter fundamentally going to the relationship between the members and between the branches, there must, in the absence of clear provisions to the contrary, be strict compliance with the procedures specified in the rules for their amendment. As, on the evidence, the proposed alterations to the rules had not been submitted to meetings of all the branches of the organization before the meeting of the federal council which resolved upon the adoption of the purported amendments, r. 39 (3) had not been complied with. Accordingly, the orders sought under s. 141 that the respondents treat as null and void the resolutions of the federal council should be made.

Roots v. Mutton (1978), 32 FLR 15, followed.

(2) As a result of the amendment of s. 140 by Act No. 37 of 1972, sub-s. (1) prescribed not only what each individual rule may or may not do, but also provided for the situation where the rules as a whole, in specified respects, either provide or do not provide as required by the section.

Cameron v. Australian Workers' Union (1959), 2 FLR 45, considered.

Consideration of the history of s. 140.

(3) It was the intention of Parliament in enacting s. 140 that the requirements of s. 140 (1) (a) should operate differently in respect of an individual rule from the manner in which they operated in relation to the rules as a whole: a mere omission from an individual rule of a provision required by the Act did not cause the rule to contravene s. 140 (1); such a contravention arose only where the rule contained a provision in conflict with a provision required by the Act.

(4) While, on a proper construction, r. 8 (3) authorized the federal council to make rules which could support the autonomy of branches or invade it to any extent thought fit by the federal council, an organization was not required to restrict the rule-making power of a supreme rule-making body by a provision proscribing, either generally or in particular terms, the making of a rule contrary to s. 140 (1) (d).

(5) As the autonomy of branches is to be promoted and protected by the rules and as a general rule-making power committed the autonomy of branches to the care of the rule-making body, such a power provided in a broad way, for the autonomy of branches, and further a rule which abrogated the prescribed autonomy of branches would itself contravene s. 140 (1). Accordingly, r. 8 (3) did not contravene s. 140 (1) nor did r. 39 which was a procedural provision not conferring upon any body a power to make or alter rules.

HEARING

Sydney, 1978, May 16-18; June 21; September 13. #DATE 13:9:1978

RULES NISI.

A member of an organization registered under the Conciliation and Arbitration Act 1904 sought orders under s. 140 of the Act that rr. 8 and 39 of the rules of the organization contravened s. 140 (1). Orders were also sought under s. 141 that the respondent members of the federal council of the organization treat as null and void resolutions carried at a meeting of the federal council in January 1978 which purported to adopt certain amendments to the rules of the organization.

B. J. Shaw Q.C. and D. M. Ryan, for the claimant.

E. A. Laurie Q.C. and R. C. Kenzie, for the respondent organization and certain named respondents.

L. Lamprati, for certain named respondents.

Cur. adv. vult.

Solicitors for the claimant: S. J. Stanton & Co.

Solicitors for the respondent organization and certain named respondents: Steve Masselos & Co.

Solicitors for certain named respondents: Maurice Blackburn & Co.

JUDGE1

September 13.

THE COURT delivered the following judgment.

On 13th January, 1978, a rule nisi (V No. 1 of 1978) was made on the application of John Joseph Morris a member of the Federated Liquor and Allied Industries Employees' Union of Australia (the organization), an organization of employees registered under the Conciliation and Arbitration Act 1904 (the Act) calling upon the organization to show cause why an order should not be made that r. 39 of the federal rules of the organization contravenes s. 140 of the Act. (at p62)

During the hearing it became apparent that the grounds of attack were really directed against the rule granting power to the rule-making body of the organization, namely r. 8 (3). Accordingly by consent of the parties the rule nisi granted on 13th January, 1978, was amended by the inserting of the words "r. 8 and" before the words "r. 39". (at p63)
Federal r. 8 (3) reads: "8. - Powers and Duties of Federal Council - The supreme control of the union is vested in the members. Subject thereto the federal council shall be the governing body of the union. It shall have the general control and conduct of the business of the union and without limiting the foregoing its powers shall include the following: none of which is to be limited in its generality by the existence of another. (1) . . . (2) . . . (3) to repeal, alter or add to the rules." (at p63)
Federal r. 39 reads: "39. - New Rules and Alteration of Rules - (1) No new rules shall be made, nor shall any of the rules for the time being of the union be altered, amended or rescinded, except by and at a meeting of council. (2) Any proposed new rule or alteration, amendment or rescinding shall be endorsed by a branch meeting and the secretary of such branch shall notify the general secretary in writing at least six weeks before a council meeting of the proposed alteration. (3) The general secretary shall forward the proposed alteration to each branch at least one month prior to the meeting of council at which the proposed new rule or rules or alterations, amendments or rescinding of rules are to be discussed. The branch secretary shall submit such proposed alteration to a branch meeting prior to the council meeting. (4) Notwithstanding anything hereinbefore contained or otherwise appearing in these rules the federal management committee shall be empowered and authorized to submit to federal councillors and all branches proposals to alter, amend or rescind in part or in whole r. 4 - Constitution - and at least seven days after such has been sent to councillors and branches, federal council shall decide any such proposals by a simple majority vote of council either by postal vote as provided by federal r. 21 (f) or special meeting of council as provided by federal r. 21 (c). (at p63)
On 26th January, 1978, a rule nisi (V No. 2 of 1978) was made on the application of the claimant ordering the personal respondents to show cause why orders should not be made: (a) pursuant to s. 141 of the Act, requiring the respondents to treat as null and void the resolutions carried at a meeting of the federal council held between 23rd and 25th January, 1978, which purported to adopt certain amendments to the rules of the organization; and (b) pursuant to s. 140 of the Act that the substance of the rules amended pursuant to the resolutions referred to in part (a), if made in accordance with the authority of the federal council to amend the federal rules, was such as to contravene s. 140 (1) of the Act. (at p63)
Mr. Shaw Q.C. with Mr. D. Ryan appeared for the claimant. Mr. Laurie Q.C. with Mr. Kenzie appeared for the union and for the personal respondents other than those respondents being federal councillors representing the New South Wales branch, namely Messrs. M. Boland, P. Reeves, K. Hill, P. Evans and T. Mahoney. Mr. Lamprati of counsel appeared for these five respondents. (at p64)
The rules nisi were heard together by consent of the parties. (at p64)
During the hearing of the matters it became apparent that the procedure prescribed in r. 39 (3) had not been complied with by certain of the branches in that the proposed alteration to the rules which were adopted by the federal council between 23rd and 25th January, 1978, had not been submitted to branch meetings of those branches prior to the federal council meeting. Mr. Shaw urged that this failure to comply with the procedure was fatal to the validity of the rule amendments adopted by the federal council. He urged that the procedural provisions in r. 39 were mandatory and called in aid for the purposes of that submission the decision of this Court in Roots v. Mutton (1978) 32 FLR 15 wherein it was held that procedural provisions similar to those in r. 39 were mandatory. (at p64)
Mr. Laurie conceded the relevance of the principles enunciated in Roots v. Mutton (1978) 32 FLR 15 but submitted that, notwithstanding the overall mandatory nature of the provisions of r. 39 with relation to procedures, there was room for a discretionary approach with respect to some of those procedures. He urged that in the light of the comparative numbers of the membership attached to each branch it would be proper to act upon the view that the requirements of r. 39 were satisfied in that the procedures had been complied with in the majority of the branches including the New South Wales branch which was by far the largest branch in the organization. (at p64)
We find ourselves unable to accept Mr. Laurie's submission for reasons which are set out in the decision of the court in Roots v. Mutton (1978) 32 FLR 15 . Those reasons reflect the view that amendment of the rules of an organization is a matter going so fundamentally to the relationship between members and between branches that in the absence of clear provision to the contrary, there must be strict compliance with specified amendment procedures. Accordingly, part (a) of the rule nisi made on 26th January, 1978, (V No. 2 of 1978) must be made absolute and it becomes unnecessary to deal with the matters raised in part (b) thereof. (at p64)
We turn then to the rule nisi made on 13th January, 1978, raising the questions whether r. 8 or r. 39 contravenes the provisions of s. 140 (1) (d). (at p64)
Section 140 (1) is in the following terms:

"(1) The rules of an organization -

(a) shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law;

(b) shall not be such as to prevent or hinder members of the organization from observing the law or the provisions of an award;

(c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust; and

(d) shall be such as to provide for the autonomy of a branch in matters affecting members of the branch only and matters concerning the participation of the branch in any State industrial conciliation and arbitration system." (at p65)
Rule 39 is purely procedural and does not confer on any body a power to make or alter rules. (at p65)
Rule 8 however, does confer upon federal council authority "to repeal, alter or add to rules". This power is expressed in absolute terms which if read without qualification confer the power to repeal, alter or add to the rules by enacting any rules at all which federal council might conceivably see fit to make. Thus, according to the terms of r. 8 federal council is authorized to make rules which could support the autonomy of branches or invade it to any extent thought fit by federal council. It is by reference to this consideration that Mr. Shaw urged that r. 8 is not a rule "such as to provide for the autonomy of the branches in matters affecting members of the branch only and matters concerning the participation of the branch in any State industrial conciliation and arbitration system", and accordingly contravenes s. 140 (1) (d). He urged that s. 140 (1) (d) contains a positive statutory requirement applicable to every rule. He contended that, contrary to s. 140 (1) (d), r. 8 contains no provision which promotes or safeguards branch autonomy and that its terms actually put such autonomy at risk. (at p65)
Paragraph (d) of s. 140 (1) was inserted in the Act by s. 9 of Act No. 89 of 1974 which came into force on 29th October, 1974. Subsection 9 (2) of that Act provided that "an organization which was registered as an organization on the date of commencement of this Act is allowed a period of 12 months after that date or such longer period as the Industrial Registrar determines within which to bring its rules into conformity with s. 140 of the Principal Act as amended by this Act." (at p65)
The union was a registered organization prior to 29th October, 1974, the date of the commencement of Act 89 of 1974. There was no evidence that the industrial registrar had granted any extension of time in which to bring the rules of the union into conformity with s. 140 (1) (d). Accordingly by 29th October, 1975, the rules should have conformed with par. (d) of s. 140 (1). It is to be noted that according to its actual words s. 140 (1) specifies requirements with which "the rules" of an organization must comply. But the form in which s. 140 (1) was enacted before Act No. 37 of 1972 specified requirements with which "a rule" and not "the rules" of an organization must comply. (at p66)
Thus s. 140 (1) as enacted by s. 24 of Act No. 30 of 1958 provided:

"(1) A rule of an organization -

(a) shall not be contrary to a provision of this Act, the regulations or an award or otherwise be contrary to law or be such as to cause the rules of the organization to fail to comply with such a provision;

(b) shall not be such as to prevent or hinder members and the organization from observing the law or the provisions of an award; and

(c) shall not impose upon applicants for membership, or members, of the organization, conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust. (at p66)
Section 140 (2) then provided that: "A member of an organization may apply to the Court for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding sub-section". (at p66)
The terms of s. 140 (1) (a) indicate that it was within the contemplation of that enactment that the provisions of a particular rule might bring about a situation in which it could be said that the rules as a whole failed to comply with a provision of the Act, the regulations, or an award, or otherwise be contrary to law. If the rule in question created this situation because it contained a provision proscribed by s. 140 (1) the situation could be rectified by striking down that rule (s. 140 (5)). But in situations in which the rules of an organization, taken as a whole, omitted a provision which, by the requirements of the Act, the regulations or an award or the law, ought to have been included, the rules could not be brought into compliance with s. 140 (1) merely by striking down any particular rule. This situation was referred to in Cameron v. Australian Workers' Union (1959) 2 FLR 45, at p 48 Spicer C.J. stated:

"To justify an order under s. 140 (1) (a) it seems to me necessary to find a rule which itself offends against its provisions by reason of what it provides, and that it is not sufficient to point to a rule which itself is unobjectionable as far as it goes, but being the only provision in the rules relating to a particular subject matter does not measure up to the standards required by the Act or the regulations.

"In other words the complaint against the rule must be one of commission rather than of omission. A particular rule may relate to an election for an office in the organization. Its terms by themselves may be quite unobjectionable, but the rules as a whole may not provide that the election shall be by secret ballot as required by s. 133 (1) (a) of the Act." (at p67)

Further, Morgan J. stated: "Mr. Cohen for the applicant submitted that if a rule is found which deals apparently fully with a particular subject matter, which rule contains some fault of omission that rule can properly be said to be contrary to law or to be such as to cause the rules of the organization to fail to comply with a provision. But it does not seem to me that such a rule is itself at fault, assuming that the point omitted could appear in some other rule; it is the rules as a whole which would fail to measure up to the required standards" (1959) 2 FLR 45, at p 80 . (at p67)
Act No. 30 of 1958 had also amended s. 143 so that since 1958 s. 143 (1) (b) has provided that an application may be made to the court for the cancellation of the registration of an organization on the ground that "the rules" of the organization fail to comply with a provision of the Act, the regulations or an award and the court hearing such an application may, pursuant to sub-s. (3A) of that section, adjourn the application for the purpose of giving the organization the opportunity to alter its rules. The procedure laid down under s. 143 was regarded by Spicer C.J. and Morgan J. in Cameron's case (1959) 2 FLR 45 as designed to deal with rules which led to a complaint of omission rather than commission. It would seem that it was to provide an alternative procedure which did not have the possible consequence of de-registration and which provides a scheme whereby the rules may be brought into conformity with the requirements of s. 140 (1) by the industrial registrar, that s. 140 was amended in 1972 by s. 46 of Act 37 of that year. The method of amendment which was adopted was to: (a) adopt the plural instead of the singular in the introductory words so that they read "The rules of an organization shall"; (b) amend par. (a) of sub-sec. (1) to read as follows: "shall not be contrary to, or fail to make a provision required by, a provision of this Act, the regulations or an award or otherwise be contrary to a law"; (c) to add at the end of sub-s. (2) the words "or declaring that the rules of the organization contravene the last preceding sub-section in a specified respect"; and (d) by adding sub-ss. 7-12. (at p67)
The result was that thereafter the court in an application under s. 140 might deal with the situation where the rules as a whole contravened the provisions of s. 140 (1) or some particular rule contravened those provisions. It might make an appropriate declaration in each case. But in each case the consequences of the declaration would differ. If the court declared that the rules of the organization contravened the provisions of s. 140 (1) in a specified respect then no rule was rendered void, but by sub-s. (7) an obligation arose in the organization to amend its rules within three months so that they no longer contravened the provisions of s. 140 (1) in that specified respect, and in the industrial registrar to take action to rectify the situation should the organization fail to make the necessary amendments to its rules. This latter procedure is not provided for under s. 143 (3A). On the other hand, if the court declared that a particular rule contravened the provisions in whole or in part then, by s. 140 (5) that rule or that part thereupon was rendered void for all purposes. (at p68)
It is clear that as a consequence of the course of amendments to s. 140 the position now is that sub-s. (1) prescribes not only what each individual rule may or may not do but also provides for the case where the rules as a whole, in specified respects, either provide or do not provide as required by the section. There are certain provisions in sub-s. 140 (1) such as, for instance, that arising from the latter part of par. (a) thereof which apply naturally enough when the rules as a whole are under consideration but not when a particular rule is under consideration. Thus by looking at the rules as a whole it can be seen whether or not they fail to provide for voting at elections by secret ballot as required by s. 133. But it is hardly to be thought for instance, that a rule which does no more than specify the qualifications of a financial member offends s. 140 (1) (a) by failing to provide for voting by secret ballot. So to interpret the subsection would create needless practical difficulties and would impose intolerable and absurd conditions of validity on each individual rule. Such an interpretation must be rejected. (at p68)
It is therefore a valid view that in relation to the application of, for instance, the second part of par. (a) of s. 140 (1), it does not operate to require every rule to make positive provision in relation to all matters in respect of which the Act or the regulations or an award require that provision be made by the rules. (at p68)
In support of such a process of interpretation reference may be made to the words of Lord Herschell in Colquhoun v. Brooks: "It is beyond dispute, too, that we are entitled and indeed bound when construing the terms of any provision found in a statute to consider any other parts of the Act which throw light on the intention of the legislature and which may serve to shew that the particular provision ought not to be construed as it would be if considered alone and apart from the rest of the Act" (1889) 14 App Cas 493, at p 506 . (at p68)
To apply that part of s. 140 (1) (a) discussed above in a rational way it is necessary to read it in its context and to avoid absurd results. The problem may be approached reasonably and rationally with respect to each rule by looking at its subject matter and the extent to which it deals with that subject matter and reading it in the context of the whole of the rules. Thus if there were a rule from the terms of which, for example, it appeared that it was intended by that rule to deal with the whole subject of the method of electing officers and if that rule omitted to provide for voting by secret ballot it might be argued that the rule failed to make a provision required by a provision of the Act. (at p69)
If it is correct that s. 140 (1) in its application in relation to the second part of par. (a) of s. 140 (1) is not to be interpreted as requiring that each individual rule is not to fail to make provision in respect of all matters in respect of which provision is required to be made in the rules of an organization by the Act, the regulations or an award, it is a consequence of that, that the requirement contained in par. (a) of s. 140 (1) must operate differently in respect of an individual rule from the way it operates when it is applied in respect of the rules taken as a whole. If when a declaration is sought that "the rules" fail to contain a provision required by the Act it is seen on reference to the whole of the rules that a provision required by the Act is omitted, it would be appropriate for the court to make an order declaring that the rules contravene s. 140 (1) (a) in that respect and s. 140 (7) would then apply. But it would not be appropriate for the court to make an order declaring that an individual rule contravened s. 140 (1) (a) if with respect to that rule no more could be said than that a provision which was required by the Act, the regulations or an award, to be made in the rules of an organization was not to be found in that rule. Something more would be necessary. It would seem that it would suffice that the rule in question contained a provision to the effect that a provision required by the Act, the regulations or an award to be made in the rules was not to operate in respect of the organization. But it is difficult to contemplate any situation other than those we have mentioned in which it could be said within the meaning of the second part of s. 140 (1) (a), that a particular rule was one which failed to make a relevant provision. (at p69)
Once it is recognized that mere omission from a rule of a provision required by the Act to be contained in the rules of an organization does not of itself cause a rule to contravene s. 140 (1) (a) it follows that a particular rule can only be said to contravene that paragraph of s. 140 (1) if it contains a provision in conflict in some way with a provision required by the Act, the regulations or an award to be contained in the rules. The mere neutrality on the subject of any particular rule will not cause that rule to offend. (at p69)
It is because the application of the terms of s. 140 (1) in the case of those requirements thereof which enact that each rule shall contain specified provisions would lead to a situation which having regard in particular to the purposes of s. 140 (1) and generally to the purposes of the registration of organizations would be intolerable and absurd that it is permissible to conclude that Parliament contemplated that the same set of words should operate differently in their application to the rules of an organization as a whole from the way they operate in their application to an individual rule. (at p70)
In this case there was no attempt to seek a declaration that the rules of the organization taken as a whole contravene the provisions of s. 140 (1) (d) in any specified respect. (at p70)
It was argued by Mr. Shaw that as the wording of r. 8 (3) and r. 39 is perfectly general there is no restriction as to the type of new rule or amendment to existing rules authorized thereby. Accordingly, a rule could be amended or a new rule made which permits of an invasion of the autonomy of a branch in matters referred to in par. (d) of s. 140 (1). Therefore it was argued that as r. 8 (3) and r. 39 impose no such restrictions upon the rule-making power as are necessary to ensure the specified branch autonomy the particular rules accordingly fail to make provision for that autonomy. Mr. Shaw further argued that the terms of par. (d), being in marked contrast to the "negative prescriptions" set out in pars. (b) and (c) of s. 140 (1) and partly in par. (a) thereof, must be interpreted as requiring that in rules such as rr. 8 and 39 specific positive provisions be made to create or preserve the branch autonomy specified therein. (at p70)
Mr. Laurie argued that the framework of the Act is directed to the registration of associations of employers or employees and that such registration goes only to one body and that body is the organization. That body is charged under the Act with the responsibility of maintaining its registration and having rules that are in accord with the provisions of the Act or the regulations made thereunder. Such regulations have from almost the commencement of the Act in 1904 provided that the rules of organizations shall include a rule providing for the alterations of its rules (reg. 115 (1) (d) (xiv)) together with rules relating to branches of an organization (cf. reg. 115 (1) (d) (i) (A), (i) (B) and (v)). Accordingly he argued that the rule-making body within any organization must have the power to alter or amend its rules including the alteration of branch rules. He further submitted that experience has shown that in the case of registered organizations of employees there has been a tendency over the years towards concentration of power in the hands of the central body and whilst it could be said that the purpose of the insertion of the first part of par. (d) in s. 140 (1) by the 1974 amendment was to ensure that a branch within an organization has the power to conduct affairs relating to its members only, nevertheless it was still the responsibility of the organization through its rule-making body to ensure that its rules complied with the Act and regulations. (at p71)
Mr. Laurie further argued that the rule-making power is a fundamental power and one properly exercised by an organization's governing body. He urged that in the present case such governing body is representative of all branches of the organization. He contended that should the rule-making body adopt a particular rule which, even though certified by the industrial registrar under s. 139 (4), is actually inconsistent with the autonomy of the members of a branch in matters referred to in s. 140 (1) (d), then it would be invalid. He submitted that in such a case it should not be said that the rule conferring a general power to make and alter rules offended the provisions of s. 140 (1) (d) but only the invalid rule which it had purported to make. (at p71)
For the reasons already expressed in this judgment it can hardly be thought that Parliament expected every union to hedge the rule-making power of a supreme rule-making body with a negative provision proscribing generally, or in particular terms, the making of any rule contrary to any part of s. 140 (1) including par. (d). Such a provision is unnecessary because Parliament itself has said that any such rules are unlawful and therefore void. If it is conceded that Parliament does not contemplate that express negative provision shall be made in all rules giving a rule-making power to some body, then some general interpretation is preferable. And in a broad way, a rule-making power in general terms does provide for autonomy of the branches in a positive way because the autonomy of the branches has to be promoted and protected by rules, and a rule-making power in general terms commits the autonomy of branches to the care of the rule-making body. (at p71)
In our view neither r. 8 (3) nor r. 39 contravene the provisions of s. 140 (1). Accordingly the rule nisi granted in V No. 1 of 1978 should be discharged and an order made in the terms of the first order sought in the rule nisi in V No. 2 of 1978. (at p71)

ORDER

Order accordingly.

[1978] FCA 80

13 SEPTEMBER 1978