O'Toole, J. v Charles David Pty Ltd

Re: JACK O'TOOLE
And: CHARLES DAVID PTY LIMITED
No. 21 of 1987
FED No. 523
Industrial Law - Constitutional Law - Administrative Law
29 IR 1

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Bowen C.J.(1), Northrop(2), Morling(3), Gray(4) and Gummow(5) JJ.

CATCHWORDS

Industrial Law - proceedings to enforce award - whether sub-s. 60 (1) of the Conciliation and Arbitration Act 1904 ("the Act") precludes the Federal Court from receiving evidence in enforcement proceedings to determine whether the award was made within the constitutional or statutory jurisdiction of the Conciliation and Arbitration Commission - construction of ss. 119 and 60 of the Act - inter-relation between ss. 119 and 60 of the Act.

Constitutional Law - conciliation and arbitration - federal jurisdiction - whether sub-s. 60 (1) of the Act would be valid if on its proper construction in proceedings in the Federal Court for enforcement of an award it prevented the admission of evidence to show the award was made in excess of the constitutional jurisdiction of the Commission.

Administrative Law - applicability to ss. 119 and 60 of the Act of the reasoning in Anisminic Ltd. v Foreign Compensation Commission.

Words and Phrases - "matter".

Acts Interpretation Act 1901

Judiciary Act 1903

Conciliation and Arbitration Act 1904

Coal Industry Act 1946

Conciliation and Arbitration Act 1956

Federal Court of Australia Act 1976

Industrial Relations Act 1988

Industrial Relations (Consequential Provisions) Act 1988

Foreign Compensation Act 1950 (UK)

Gapes v Commercial Bank of Australia Ltd. (1979) 38 FLR 431

R. v Kelly; Ex parte Berman (1953) 89 CLR 608

The King v Hickman & Ors; Ex parte Fox & Anor. (1945) 70 CLR 598

R. v The Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. (1910) 11 CLR 1

R. v The Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Ltd.

Shrubb v Air Pilots Guild of Australia (1979) 26 ALR 627

R. v Clarkson; Ex parte Victorian Employees Federation (1973) 131 CLR 100

Clothing & Allied Trades Union of Australia v Cocks (1968) 12 FLR 138

Ecob v Tongue (1988) 82 ALR 77

Re Federated Storemen & Packers Union of Australia; Ex parte Wooldumpers (Victoria) Ltd. (1989) 63 ALJR 286 at 290

The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Incorporated) (1979) 143 CLR 190

Philip Morris Inc. v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457

Fencott v Muller (1983) 152 CLR 570

Re Tooth & Co. Ltd. (No. 2) (1978) 34 FLR 112

R. v Heagney; Ex parte A.C.T. Employers Federation (1976) 137 CLR 86

The Queen v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415

The Queen v Kirby; Ex parte The Transport Workers' Union of Australia (1954) 91 CLR 159

The Queen v The Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313

Parsons v Martin (1984) 5 FCR 235

Elna Australia Pty. Ltd. v International Computers Pty. Ltd. (1987) 14 FCR 461

The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351

Church of Scientology Inc. v Woodward (1982) 154 CLR 25

Anisminic Ltd. v Foreign Compensation Commission (1969) 2 AC 147

B.H.P. Petroleum Pty. Ltd. v Balfour (1987) 71 ALR 711

The King v Murray; Ex parte Proctor (1949) 77 CLR 387

The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254; aff. (1957) 95 CLR 529

Hillman v Hillman (1977) 2 NSWLR 739

N.S.W. Combined Colliery Proprietors Association v Australasian Coal and Shale Employees Federation (1957) 1 FLR 72

Roundstreet Pty. Ltd. v Brown (1987) 14 FCR 50

Harrison v Goodland (1944) 69 CLR 509

Milicevic v Campbell (1975) 132 CLR 307

Maxwell v Murphy (1957) 96 CLR 261

Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22

Stack v Coast Securities (No. 9) Pty. Ltd. (1983) 154 CLR 261

T.N.T. Skypak International (Aust.) Pty. Ltd. v Federal Commissioner of Taxation (1988) 82 ALR 175

Actors & Announcers Equity Association of Australia v Fontana Films Pty. Ltd. (1982) 150 CLR 169

HEARING

SYDNEY

#DATE 8:9:1989

Applicant's Solicitors: Messrs. Maurice May & Co.
Counsel: Mr. K.R. Handley Q.C.

Mr. W.R. Haylen

Respondent's Solicitors: Michie Shehadie & Co.
Counsel: Mr. R.W.R. Parker Q.C.

Mr. M. Cockburn

Intervener's Solicitor: Australian Government

Solicitor

Counsel: Mrs. P. Flemming Q.C.

Mrs. P. Sharp

ORDER

THE COURT orders that the Questions reserved in the Special Case be answered as follows:

Question (a): Does s. 60 (1) of the Act, on its true construction, preclude the Court, in proceedings under s. 119 of the Act, from receiving evidence for the purpose of determining whether the Award was or was not made within the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission?

Answer: No.

Question (b): Does s. 60 (1) of the Act, on its true construction, preclude the Court, in proceedings under s. 119 of the Act, from receiving evidence for the purpose of determining whether the member of the Australian Conciliation and Arbitration Commission who purported to make the Award did or did not act or attempt to act bona fide in the course of his authority under the Act?

Answer: No.

Question (c): If and to the extent to which s. 60 (1) of the Act precludes the Court, in proceedings under s. 119 of the Act, from receiving evidence of the kinds contemplated in questions (a) and (b), is s. 60 (1) of the Act invalid as being beyond the legislative power of the Commonwealth under the Constitution?

Answer: Sub-section 60 (1) of the Act, construed in accordance with the answers to Questions (a) and (b), is not invalid.

Question (d): Does s. 119 of the Act, on its true construction, confer jurisdiction on the Court to impose a penalty for breach or non-observance of the Award if in fact the Award is made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission?

Answer: No.

Question (e): If and to the extent to which s. 119 of the Act confers jurisdiction on the Court to impose a penalty for breach or non-observance of the Award, where the Award was in fact made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission, is s. 119 of the Act invalid as being beyond the legislative power of the Commonwealth under the Constitution?

Answer: Section 119 of the Act, construed in accordance with the answer to Question (d), is not invalid.

Question (f): To the extent to which s. 60 (1) of the Act precludes the Court, in a proceeding under s. 119 of the Act, from receiving evidence that the Award was made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission, is s. 119 of the Act beyond the legislative power of the Commonwealth under the Constitution?

Answer: Sub-section 60 (1) of the Act is not to be construed in the manner stated in this Question and s. 119 is not invalid.

Question (g): Does s. 119 of the Act require the applicant to prove as part of his case the validity of the Award of which the respondent is alleged to have committed a breach or non-observance?

Answer: No.

Note: Settlement and entry of orders is dealt with by Order 36 of the Federal Court Rules.

JUDGE1

I agree with the reasons for judgment of Gummow J. and with the answers which he proposes to the questions raised in the Special Case.

JUDGE2

The essential issues raised by this special case stated under sub-section 25(6) of the Federal Court of Australia Act 1976 are:-

Whether, on its proper construction, s.60 of the Conciliation and Arbitration Act 1904 ("the Act") imposes a limitation on the jurisdiction and powers of the Federal Court thereby preventing it from determining the validity of an award in a proceeding before it brought under s.119 of the Act; and

If yes, whether s.60 is, to that extent, invalid as being beyond the constitutional power of the Parliament.
The special case, including the questions reserved for the consideration of the Full court but excluding the annexures to the special case, are set out in the annexure to these reasons. The essential facts for the consideration of the questions can be summarized. The applicant, in conformity with paragraph 119(2)(e) of the Act, instituted an application under sub-section 119(1) of the Act claiming that the respondent had committed a breach of a term of the South Australian Meat Workers Industrial Agreement Award 1982 ("the Award") and seeking the imposition of a penalty on the respondent for that breach. The breach alleged was the failure to pay to an employee entitlements due under the Award. The respondent indicated its intention to challenge the validity of the Award and desired to lead evidence to support that challenge. The applicant contended that paragraph 60(1)(b) of the Act prevented the Court from determining the validity of the Award and accordingly submitted that the evidence was not admissible.
At this stage, reference should be made to some of the provisions of the Act relevant to the special case. Sub-section 119(1) of the Act provides:-

"119(1) Where any organization or person bound by an order or award has committed a breach or non-observance of a term of the order or award, a penalty may be imposed by the Court or, except in the case of a breach or non-observance of a term of an order or award of the kind referred to in sub-section 33(1), by any District, County or Local Court or Court of summary jurisdiction that is constituted by a Judge, by a Police, Stipendiary or Special Magistrate or by an Industrial Magistrate appointed under any State Act who is also a Police, Stipendiary or Special Magistrate."

It should be noted that in the Act, "the Court" is defined to mean the Australian Industrial Court, but under s.118A the jurisdiction and powers expressed by the Act to be vested in or exercisable by the Australian Industrial Court are, insofar as is relevant to the facts of this special case, vested in and exercisable by the Federal Court of Australia and are exercisable in accordance with the Federal Court of Australia Act 1976. Under s.19 of that Act, the Federal Court has such original jurisdiction as is vested in it by laws made by the Parliament. Section 119 of the Act is such a law and thus the Federal Court has jurisdiction to hear and determine an application under s.119 instituted in the Federal Court.
The whole of s.60 of the Act is set out:-

"60(1) Subject to this Act, an award (including an award made on appeal)-

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or injunction in any court on any account.

(2) A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.

(3) An award shall not be called in question in any way on the ground that it was made by the Commission constituted otherwise than as provided by this Act."

The Act constitutes the Australian Conciliation and Arbitration Commission ("the Commission") which by the Act is empowered to prevent or settle industrial disputes by conciliation or arbitration. The Act contains detailed provisions which enables the Commission to exercise its powers. The Act was enacted by the Parliament pursuant to the powers conferred by placitum (xxxv) and placitum (xxxix) of s.51 of the Constitution namely the power to make laws with respect to "Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State" and the incidental power. Thus the Act contains provision relating to industrial disputes, as defined in s.4, including "a threatened, impending or probable dispute", and industrial matters. Implicit in the concept of disputes is the identification of parties to a dispute and in this context industrial jurisprudence has permitted the development of organizations registered under the Act as party principals standing in the place of and representing groups or classes comprising all persons who are eligible to be members of the organizations. Normally, organizations are the parties to an industrial dispute. When an alleged industrial dispute comes before the Commission, under s.24 of the Act the Commission is required to "determine whether there is an industrial dispute and, if so, who are the parties and what are the matters in dispute" but the Commission may vary or revoke any of those findings. Under s.28 of the Act, if, before an industrial dispute has been referred to arbitration, the parties or some of them reach agreement on terms for the settlement of the dispute, they may request the Commission to make an award giving effect to the agreement and under section 28(4) such an award is binding on:-

"(a) each of the parties making the request under this section;

(b) all members of an organization that is such a party; and

(c) an employer who is a successor to, or an assignee or transmittee of, the business of such a party, including a corporation that has acquired or taken over the business of such a party."

Section 61 of the Act contains similar provisions applicable where the Commission has made an award determining an industrial dispute. Under s.35 of the Act, an appeal lies to a Full Bench of the Commission against awards made by a single member of the Commission. Under s.59 the Commission may set aside or vary an award while under s.62 the Commission may cancel an award. Under s.4, the word "award" is defined to mean an award made under the Act and includes an order. An award, normally, is set out in an instrument and an award may be proved as evidence before a court by the production of an office copy purporting to be sealed with the seal of the Commission or certified to be true under the hand of the Registrar without proof of the seal of the Commission or the signature of the Registrar; see s.193.
In the present case, as appears from the special case, the respondent is seeking to challenge and call in question the Award. It contends that the Award was purportedly made by the Commission beyond its power and that Parliament cannot confer on the Federal Court jurisdiction to enforce an award so made. The applicant claims that paragraph 60(1)(b) of the Act prevents the Court from determining the validity of the award and that the paragraph is a valid enactment.
Section 119 of the Act does not create a criminal offence. A proceeding under sub-section 119(1) is not a criminal proceeding but is a civil proceeding seeking the imposition of a penalty; see Gapes v Commercial Bank of Australia Ltd. (1979) 38 FLR 431. The wording of sub-section 119(1) is apt to confer jurisdiction on a court to hear and determine a claim for the imposition of a penalty. The breach or non-obervance of an award is not a condition precedent to the jurisdiction being conferred. To adapt the words of Dixon C.J. used in R. v Kelly; Ex parte Berman (1953) 89 CLR 608 at p 620 when considering the nature of the jurisdiction conferred by s.191 of the Act, a claim brought against a person for the imposition of a penalty under s.119 of the Act may be heard by the Federal Court which, upon being satisfied that the claim has been proved, may impose the penalty provided by the section. Section 119 does not mean to make the actual breach or non-observance of the term of an award a condition of the Court's power to hear the claim "as might be the result of a literal adherance to its actual language".
In Roundstreet Pty. Ltd. v Brown (1987) 14 FCR 50 a Full Court of the Federal Court held that in proceedings under s.119 of the Act, any court, including the Federal Court, was prevented by sub-section 60(1) from considering whether an award was valid where three conditions were fulfilled namely:

"that the purported exercise of the power (by the Commission) in making the award is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power.)"

as quoted by Keely J. at p 56 from the joint judgment of Mason ACJ. and Brennan J. in R v Coldham; Ex parte Australian Workers' Union (1983) 153 CLR 415 at p 418. In Roundstreet, the constitutional validity of sub-section 60(1), and in particular, paragraph 60(1)(b) of the Act was not raised. In the present case the Court was constituted by five Judges to determine each of these issues.

Pursuant to notices given under s.78B of the Judiciary Act 1903, counsel for the Attorney-General of the Commonwealth appeared to support the submissions of the applicant.
Clauses of a kind similar to that contained in paragraph 60(1)(b) of the Act have been considered in many authorities. Such a clause is referred to commonly as a privative clause or provision or an ouster in the sense that it ousts the jurisdiction of a court. Privative clauses may apply to courts of limited jurisdiction such as the Federal Court or to courts of general jurisdiction such as the Supreme Courts of the States. There has been a tendency to give privative clauses a limited or narrow application since they impose limits on the jurisdiction and power which otherwise the court is able to exercise.
Logically, the first question to consider, is the true meaning and application of paragraphs 60(1)(b) of the Act. In considering this question, care should be taken to limit, as far as possible, consideration of the principles relating to the other question which relates to the constitutional validity of the paragraph. Unless care is taken to keep these two questions separate as far as possible, confusion can arise from the fact that so many of the authorities relevant for consideration combine both the question of the proper construction of a statutory provision made by the Parliament and the question of the constitutional validity of the same statutory provision. These are two separate and distinct questions but often the difference between them has become blurred.
Under s.71 of the Constitution, the judicial power of the Commonwealth is vested in the High Court of Australia and "in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction." Section 75 of the Constitution confers original jurisdiction on the High Court. For present purposes, the relevant provisions of s.75 are as follows:-

"75. In all matters -

(i.) . . .

(v.) In which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth:

the High Court shall have original jurisdiction."

It is clear law that Parliament cannot make a law which removes this jurisdiction, which is conferred by the Constitution, from the High Court.
Under s.76 of the Constitution, the Parliament has power to confer original jurisdiction on the High Court with respect to enumerated matters. For present purposes, the relevant provisions of s.76 of the Constitution are as follows:-

"76. The Parliament may make laws conferring original jurisdiction on the High Court in any matter(i.)

. . .

(ii.) Arising under any laws made by the Parliament:

(iii.) . . ."

Section 77 of the Constitution is set out in full:-

"77. With respect to any of the matters mentioned in the last two sections the Parliament may make laws(i.) Defining the jurisdiction of any federal court other than the High Court:

(ii.) Defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States:

(iii.) Investing any court of a State with federal jurisdiction."

It should be noted that s.73 of the Constitution confers appellate jurisdiction on the High Court including jurisdiction to hear and determine appeals "from all judgments, decrees, orders and sentences" of any federal court or court exercising federal jurisdiction and the judgment of the High Court in all such cases shall be "final and conclusive". It could be noted also that the Federal Court is a court created by the Parliament under s.71 of the Constitution; see s.5 of Federal Court of Australia Act 1976. Section 19 of that Act confers on the Federal Court such original jurisdiction as is vested in it by laws made by the Parliament. In the present case the jurisdiction to hear and determine the application is vested in the Federal Court by s.119 and s.118A of the Act.
It should be noted further that the Parliament, by section 39B of the Judiciary Act, has conferred another jurisdiction on the Court. That section is as follows:-

"39B.(1) The original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth.

(2) The reference in sub-section (1) to an officer or officers of the Commonwealth does not include a reference to:

(a) a person holding office under the Conciliation and Arbitration Act 1904, or the Coal Industry Act 1946; or

(b) a Judge or Judges of the Family Court of Australia."

Most of the authorities relevant to the issues raised by this case stated are judgments of the High Court in proceedings brought in its original jurisdiction under section 75(v.) of the Constitution in which a prerogative writ was sought against an officer of the Commonwealth. Nevertheless, in many of them the distinction between statutory jurisdiction and constitutional validity was adverted to. This distinction was made clearly in The King v Hickman and Others; ex parte Fox and Another (1945) 70 CLR 598. In that case, the prosecutors were seeking a writ of prohibition directed to officers of the Commonwealth being the chairman and members of a Local Reference Board constituted by regulations made pursuant to laws made by the Parliament. Latham C.J. held that in making the order being challenged, the Board had exceeded its statutory powers. At pp 606-7 the Chief Justice said:-

"The order of the Local Reference Board was made upon an application made on behalf of the Federated Mining Mechanics' Association of Australasia, an industrial union of employees. The Board acted under reg.14(1)(a), which provides that, subject to the Regulations, a Local Reference Board shall have power to settle disputes as to any local matters likely to affect the amicable relations of employers and employees in the coal mining industry. Regulation 2 provides that the Regulations "shall apply to industrial matters in relation to the Coal Mining Industry." These provisions are, in my opinion, plainly provisions which prescribe, and, in prescribing, limit, the jurisdiction of the Board. An authority with a limited jurisdiction cannot give itself jurisdiction by a wrong determination as to the existence of a fact upon which its jurisdiction depends, or by placing a wrong construction upon a statute upon which its jurisdiction depends, unless by a valid provision the authority is given power to act upon its own opinion in relation to the existence of the fact or in relation to the construction of the statute. This principle has frequently been applied in the case of the Arbitration Court, and has also been applied in the case of other industrial authorities: See e.g. R. v. Foster; Ex parte Crown Crystal Glass Co. Pty. Ltd. (1944) 69 CLR 299 and R. v. Connell; Ex parte Hetton Bellbird Collieries Ltd. (1944) 69 CLR 407, particularly per Starke J. at pp 438-440. The jurisdiction of this Court which is invoked by the prosecutors depends upon s.75(v.) of the Commonwealth Constitution, which provides that the Court shall have original jurisdiction in all matters, inter alia, in which a writ of prohibition is sought against an officer of the Commonwealth. The members of the Board appointed under the Regulations are officers of the Commonwealth. Prima facie, therefore, the Court has jurisdiction to grant a writ of prohibition against them if they exceed their jurisdiction. Regulation 17 provides, inter alia, that a decision of a Local Reference Board "shall not be challenged, appealed against, quashed or called into question, or be subject to prohibition, mandamus or injunction, in any court on any account whatever." Such a provision, it is settled, cannot exclude the jurisdiction conferred upon this Court by s.75(v.) of the Constitution: See R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co. (1910) 11 CLR

1. That provision (s.75(v.)) is not limited to the grant of prohibition upon constitutional grounds. It extends also to the grant of prohibition on grounds independent of the Constitution and relating only to the statutory powers of a Commonwealth officer. In my opinion, it should not be held that the effect of reg. 17 is to extend the jurisdiction of a Local Reference Board beyond the coal mining industry. Such a provision cannot, in my opinion, fairly be construed as declaring an intention of Parliament that a Board constituted under the Regulations should have jurisdiction to make decisions in matters which have no relation to the coal mining industry. Such a construction would give no effect to the provisions already quoted from reg. 14 (1) (a) and reg. 2. If reg. 17 were construed so as to give an unlimited jurisdiction to the Board to make any order whatever in relation to any person whatever in respect of any matter whatever (whether industrial or not industrial), the validity of the Regulations would obviously be open to question. In my opinion, therefore, the Regulations, including reg. 17, should be construed as limited in their operation to the coal mining industry, and the powers of a Local Reference Board should be interpreted accordingly."

This is a long passage but it illustrates clearly the distinction between statutory excess of power and a statutory provision which is constitutionally beyond power. It illustrates also the paramount nature of the Constitution as well as the effect of a privative clause being a limitation on jurisdiction otherwise conferred upon a tribunal.
In the same case, Rich J. expressed a similar view at p 610. In that passage, His Honour, commented that the provisions of reg. 17 were similar to those contained in s.31(1) of the Commonwealth Conciliation and Arbitration Act 1904-1934, the fore-runner of the current s.60 of the Act.
In the same case, at p 614, Dixon J. referred to the fact that:-

"The Board derives its power from Regulations of which reg. 17 forms a part, and that regulation must be taken into account in ascertaining what are the true limits of the authority of the Board . . .".

His Honour then continued at pp 614-615:-

"The particular regulation is expressed in a manner that has grown familiar. Both under Commonwealth law, and in jurisdictions where there is a unitary constitution, the interpretation of provisions of the general nature of reg. 17 is well established. They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body."

His Honour then expands at some length on the concepts. The passage at pp 615 to 617 should be read in detail. I will set out short extracts from this passage:-

"In my opinion, the application of these principles to the Regulations means that any decision given by a Local Reference Board which upon its face appears to be within power and is in fact a bona fide attempt to act in the course of its authority, shall not be regarded as invalid." "In considering the interpretation of a legislative instrument containing provisions which would contradict one another if to each were attached the full meaning and implications which considered alone it would have, an attempt should be made to reconcile them. Further, if there is an opposition between the Constitution and any such provision, it should be resolved by adopting any interpretation of the provision that is fairly open."

The principles expounded in Hickman have been applied ever since when questions of this kind have arisen in cases brought in the High Court under s.75(v.) of the Constitution. Normally the issue has been whether officers of the Commonwealth who constituted a tribunal, were acting beyond the statutory power conferred upon them and in some cases, the question of the constitutional validity of the statutory power was in issue.
In the present case, it must be remembered that the issue raised relates to the jurisdiction and power of the Federal Court not that of the Commission. The jurisdiction is conferred by sections 119 and 118A of the Act. Section 60(1)(b) purports to impose a limitation on that jurisdiction. The first question is whether s.60(1)(b) does, on its proper construction, impose such a limitation on that jurisdiction so as to prevent the Federal Court from determining the validity of the Award. To adapt a sentence used by Latham J. in the passage quoted above, the first question in this case stated is whether the provisions of the Act "prescribe, and, in prescribing, limit the jurisdiction" of the Court. Likewise, in adapting the words of a passage from the judgment of Dixon J. quoted above, the Federal Court derives its jurisdiction from the Act of which paragraph 60(1)(b) forms a part and that paragraph "must be taken in account in ascertaining what are the true limits of the jurisdiction of the Court".
Section 39B of the Judiciary Act is an illustration of the Parliament conferring a jurisdiction on the Federal Court and, at the same time, imposing a limitation on that jurisdiction. Thus the Federal Court has the same power to grant a writ of prohibition against an officer of the Commonwealth as the High Court has, but a limitation on that power is imposed to the extent that the Federal Court has no jurisdiction to grant a writ of prohibition against members of the Commission. Thus, the Federal Court has no jurisdiction in proceedings under s.39B of the Judiciary Act to determine the validity of an award made by the Commission. The purpose of this legislation is consistent with the concept that the Parliament intends to limit the jurisdiction of federal courts and state courts exercising federal jurisdiction so as to prevent them from determining the validity of an award made by the Commission. The Parliament cannot prevent the High Court, in the exercise of its original jurisdiction, from determining the validity of an award made by the Commission. The first question to be decided in this case stated is whether paragraph 60(1)(b) of the Act imposes such a limitation on the power of the Federal Court. If the answer is yes, a similar limitation is imposed on the jurisdiction of the State courts referred to in s.119 of the Act. If the answer is yes, the second question arises namely whether the provisions of paragraph 60(1)(b) are, to that extent, invalid as being beyond the power of the Parliament.
Section 60 of the Act in operation at the relevant time has been set out earlier in these reasons. It has been in that form since 1956 when the Act was dramatically re-enacted following the decisions in the Boilermakers Cases. During the course of the hearing, the Court was supplied with the history of the equivalent of s.60 of the Act since it was first enacted in 1904. I will make some comments about the history later but at this stage a comment is made that a reference to those sections by themselves can be misleading since it is important to understand the structure of the Act and the nature of the tribunals created by the Act and other provisions of the Act at each time the equivalent of s.60 was amended. For present purposes, a brief reference to the original enactment, Act No. 13 of 1904, is of interest.
That Act created the Commonwealth Court of Conciliation and Arbitration. It was a Court of Record and consisted of a President; see s.11. In that Act, "the Court", meant the Commonwealth Court of Conciliation and Arbitration. The President had to be appointed by the Governor-General from among the Justices of the High Court; see s.12. Jurisdiction was conferred upon the Court by sections 16, 17 and 18, including a jurisdiction "to prevent and settle, pursuant to this Act, all industrial disputes". The Act provided that disputes would be determined, either by conciliation or arbitration, by the making of an award which, by s.28, had to be "framed in such a manner as to best express the decision of the Court." Under s.91 an office copy of an award purporting to be sealed with the seal of the Court or certified to be true under the hand of the Registrar was to be received in all Courts as evidence of the Award. A number of express powers were conferred upon the President and the Court including a power on the Court to impose penalties "for any breach or non-observance of any term of an order or award", see paragraph 38(d).
Section 44 provided that where any person bound by an order or award had "committed any breach or non-observance of any term of the order or award any penalties which the Court has power to impose may be imposed by any Court of summary jurisdiction constituted by a Policy Stipendiary or Special Magistrate".
It was within this framework, that the fore-runner of s.60 of the Act was first enacted as s.31 of the 1904 Act. Section 31 was as follows:-

"31.(1) No award of the Court shall be challenged, appealed against, reviewed, quashed, or called in question in any other Court on any account whatever.

(2) The President may, if he thinks fit, in any proceeding before the Court, at any stage and upon such terms as he thinks fit, state a case in writing for the opinion of the High Court upon any question arising in the proceeding which in his opinion is a question of law.

(3) The High Court shall hear and determine the question, and remit the case with its opinion to the President, and may make such order as to costs as it thinks fit.

It is noted that s.31 made no specific reference to prerogative writs. Attempts were made to obtain prerogative writs from the High Court directed to the President even though the President was a Justice of the High Court. Questions arose as to the effect of s.31 of the 1904 Act and an issue was whether the High Court in considering an application for a prerogative writ against a Court was exercising appellate jurisdiction under s.73 of the Constitution in which case the Parliament had power to prescribe exceptions to that jurisdiction. If this was the case, s.31 should be construed as an exemption. Generally, see R. v The Commonwealth Court of Conciliation and Arbitration; ex parte Whybrow & Co. (1910) 11 CLR 1 and R. v. The Commonwealth Court of Conciliation and Arbitration; ex parte, the Brisbane Tramways Co. Ltd. (1914) 18 CLR 55. The latter case made it clear that the jurisdiction to grant a prerogative writ was within the original jurisdiction of the High Court. A reading of the judgments makes it clear that no reference was made to a contention that s.31, on its true construction, validated an otherwise invalid award of the Court. There is an interesting description of the conflict between the Parliament and the High Court on the issue of s.31 in Whitmore & Aronson. Review of Administrative Action, 1978 at pages 500-504. In 1911, sub-section 31(1) of the 1904 Act was amended so as to read:-

"31.(1) No award or order of the Court shall be challenged, appealed against, reviewed, quashed, or called in question or be subject to prohibition or mandamus in any other Court or any account whatever."

It appears that s.44 of the 1904 Act confers federal jurisdiction on State courts to impose penalties for breaches of an award but at the same time s.31 imposes limitations of that jurisdiction. Provision is made for the proof of an award, but an award is not to be challenged in any other Court or any account whatever. The Parliament appears to be making an award made by the Court under the provisions of the 1904 Act unique in that once made, its existence and terms must be accepted by all courts. The same can be said with respect to all amendments made to s.31 after 1904. All amendments should be considered having regard to the changing situations created by the amendments and the unique position in which awards were placed by the Parliament. Awards themselves are in a unique position in that they are quasi-legislative imposing obligations on limited groups of persons and have effect in the future. They prevail over inconsistent State laws, see s.65 of the Act. It is not surprising that the Parliament has attempted to give awards particular protection from the scrutiny of courts. In these circumstances, it is not of assistance to examine in detail the subsequent amendments to s.31 of the 1904 Act. It is sufficient to note that the common thread continues unbroken and untangled. Attempts were being made to limit the jurisdiction of courts to determine the validity of awards made by tribunals constituted under the Act.
Section 60 of the Act is to be interpreted in its context within the Act in operation after 1956 when the Commission was created to exercise conciliation and arbitration functions in conformity with the Act. That context is summarised at the beginning of these reasons. The words "Subject to this Act" appearing at the beginning of sub-section 60(1) first appeared in 1956. In my opinion they do not have any specific effect since each provision in an Act must be considered having regard to the other provisions of the Act. In any event, it is clear that an award made by the Commission constituted by a single member is, in some senses, not final and conclusive, while in others it is. An award is subject to an appeal to the Commission constituted by a Full Bench. An award may be set aside or varied. An award may be cancelled. The words "Subject to this Act" make it clear that the Commission is able to do those things. It could do those things even if those words did not appear. The effect is that until some other order or award is made, any award made by the Commission is final and conclusive.
On this literal application, the words contained in paragraph 60(1)(b) are words limiting the jurisdiction of courts. Thus, apart from the original jurisdiction of the High Court arising under s.75(v.) of the Constitution, where an award of the Commission is an element in a matter before a court, the court does not have jurisdiction to determine the validity of the award. As it is put, there cannot be a collateral attack on the validity of the award. In other words, that award can not be challenged, appealed against, reviewed, quashed or called in question in that court. Thus, in any proceeding before any court, apart from applications for prerogative writs in the High Court, once an award has been received in evidence, s.193 of the Act, that award speaks for itself. Its validity cannot be challenged. Evidence cannot be led in an attempt to prove the award is invalid for any reason whether being beyond the statutory or constitutional power of the Commission or for any other reason. This does not deny the proposition that evidence may be given to establish whether a person is a party to or bound by an award. Nice questions arise as to whether evidence could be led in any event to prove that an organization party to an award was not validly registered; see s.135 of the Act which provides that a certificate of registration "shall until proof of cancellation be conclusive evidence of the registration of the organization . . . and it has complied with the prescribed conditions to entitle it to be registered". This issue was adverted to by a Full Court of this Court in Shrubb v Air Pilots Guild of Australia (1979) 26 ALR 627 at p 632 where reference is made to R v Clarkson; ex parte Victorian Employees Federation (1973) 131 CLR 100 especially per Menzies J. at pp 111-112 and Gibbs J. at pp 114-115.

Before referring to authorities of the High Court which it was submitted were relevant to the consideration of the first question to be decided in this case, reference should be made to the way in which the respondent's case was put. Counsel submitted that before the Court could hear and determine the application for a penalty to be imposed under s.119 of the Act, the Court had to determine it had jurisdiction to hear the application. In other words it was submitted the applicant had to establish the jurisdictional fact upon which the jurisdiction of the Court depended. In this case, the jurisdictional fact was an award made by the Commission under the powers of the Act and the Constitution. If in fact and in law the Commission, in making the award, had exceeded its powers, the award was a nullity and being a nullity could not constitute the jurisdictional fact to support the jurisdiction. In this application the respondent desired to lead evidence to show that the award was a nullity and in this context, paragraph 60(1)(b) of the Act could not prevent the respondents from doing that and if it did, the paragraph was, to that extent, invalid.
Essentially, the respondent relies upon principles enunciated by the House of Lords in Anisminic Ltd. v Foreign Compensation Commission (1969) 2 AC 147. One of the issues before the House was whether a determination made under statutory powers was a nullity. The appellants sought a declaration that the determination was a nullity but the respondent contended that sub-section 4(4) of the Foreign Compensation Act 1950 (England) prevented the courts from determining whether the determination was a nullity. That sub-section provided:

"The determination by the commission of any application made to them under this Act shall not be called in question in any court of law."

At pp 169-170 Lord Reid set out the opposing contentions of the parties as follows:-

"The respondent maintains that these are plain words only capable of having one meaning. Here is a determination which is apparently valid: there is nothing on the face of the document to cast any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute. The appellants maintain that that is not the meaning of the words of this provision. They say that "determination" means a real determination and does not include an apparent or purported determination which in the eyes of the law has no existence because it is a nullity. Or, putting it in another way, if you seek to show that a determination is a nullity you are not questioning the purported determination - you are maintaining that it does not exist as a determination. It is one thing to question a determination which does exist: it is quite another thing to say that there is nothing to be questioned".

At p 170 Lord Reid expressed his opinion, which was consistent with the majority of the House, as follows:-

"Statutory provisions which seek to limit the ordinary jurisdiction of the court have a long history. No case has been cited in which any other form of words limiting the jurisdiction of the court has been held to protect a nullity. If the draftsman or Parliament had intended to introduce a new kind of ouster clause so as to prevent any inquiry even as to whether the document relied on was a forgery, I would have expected to find something much more specific than the bald statement that a determination shall not be called in question in any court of law. Undoubtedly such a provision protects every determination which is not a nullity. But I do not think that it is necessary or even reasonable to construe the word "determination" as including everything which purports to be a determination but which is in fact no determination at all. And there are no degrees of nullity. There are a number of reasons why the law will hold a purported decision to be a nullity. I do not see how it could be said that such a provision protects some kinds of nullity but not others: if that were intended it would be easy to say so."

In the present case, counsel for the respondent submitted that that principle should be applied to the facts of this case, that in paragraph 60(1)(b) the word "award" did not include an award which was in fact a nullity and that the respondent was entitled to lead evidence to establish that the award was a nullity.
That submission is rejected. In Anisminic the House of Lords was not considering the nature of federal jurisdiction conferred upon a court created by the Parliament under the Constitution. In particular, the learned Law Lords did not turn their mind to the question of whether the power to confer jurisdiction on a court includes within it a power to impose limits on the jurisdiction so conferred. This is the constitutional issue raised by this case. Of more importance, the learned Law Lords did not turn their minds to the fact that the High Court has the constitutional jurisdiction to prevent any person from enforcing an award made by the Commission which is a nullity. In this sense, paragraph 60(1)(b) cannot operate as a total ouster of the power of all courts to determine the validity of an award. Further, the learned Law Lords did not need to consider the long line of authorities in the High Court which deal with the question of the existence or validity of awards. The High Court has not applied the reasoning adopted in Anisminic with respect to any case where the validity of an award has been raised. There is no scope for such a principle to be applied to paragraph 60(1)(b) of the Act.
It was submitted that paragraphs 60(1)(b) of the Act had the effect of making valid an award even if the Commission, in making the award, had exceeded its powers. In my opinion, this submission should be rejected. The validity of any award can be challenged in the High Court at any time and whether based on an excess of statutory power or constitutional grounds. Paragraph 60(1)(b), if construed as having the effect of ousting the jurisdiction of the High Court, would be invalid. Nevertheless, on its face the paragraph is expressed to limit the jurisdiction of courts. In the early references to s.31 of the 1904 Act, the High Court considered that section as a limitation to jurisdiction or an exception from jurisdiction. A similar view was expressed by the High Court in Hickman.
Paragraph 60(1)(b) can be described as a privative clause or an ouster but each of these terms can be misleading. In its context in the Act, a more apt description of the paragraph is that it constitutes a limitation on the jurisdiction conferred on courts by the same Act. The paragraph is designed to prevent a collateral attack on an award in a court. To that extent, it is consistent with s.39B of the Judiciary Act which imposes a limit on the jurisdiction of the Federal Court with respect to a direct challenge to the validity of an award made by the Commission. In the one case the limitation is to subject matter, in the other to persons. Paragraph 38(e) of the Judiciary Act prevents a State court having jurisdiction with respect to a direct challenge to the validity of an award.
There is logic in the concept of limiting the jurisdiction of a court with respect to a collateral attack upon an award. The unique nature of an award has been referred to earlier in these reasons. A reference to the many decisions of the High Court, the Federal Court and of the Commission itself, as well as the provisions of the Act, illustrate that awards must be made in settlement of disputes between identified parties. In most cases the parties comprise organizations of employees on one side and organizations of employers and named employers on the other. A claim in the High court for a prerogative writ is of necessity limited to officers of the Commonwealth, namely the persons constituting the Commission which made the Award. In practice, the party to the award which is seeking to uphold the award is made a party to the proceedings in the High Court and that party, normally presents the substantive argument in support of the award. Of necessity the officer of the Commonwealth that made the award is a party. A writ of prohibition, if granted, is directed to the officers of the Commonwealth and incidently to the parties seeking to rely on the award. As a result, a judgment of the High Court has the effect of making a final order affecting the validity of the award and that award is affected by the judgment of the High Court. This results from the order made against the officers of the Commonwealth. Any person bound by the award can rely upon that judgment if action is taken in reliance of an award which has been held to be invalid. The same result does not follow with respect to collateral attacks on an award in proceedings under the Act. Any order of the court would be binding on the parties to the action and nobody else. The makers of the award are not parties. Not all parties to the award need be before the court. In other proceedings, depending upon the evidence and arguments presented, the same award may be treated as being binding against another person bound by the award. Uncertainty would prevail. On its proper construction, paragraph 60(1)(b) would prevent this.
It is necessary to consider a number of authorities referred to in submissions made to the Court. The first of these authorities is R. v. The Judges of the Commonwealth Industrial Court; ex parte Cocks (1968) 121 CLR 313. One of the issues decided by that case is summarized, correctly in my opinion, in the headnote as follows:-

"The High Court is not precluded by s.60 of the

(Act) from issuing a writ of prohibition to the Commonwealth Industrial Court prohibiting it from imposing a penalty under s.119 in respect of an alleged breach of an award which it was beyond the power of the (Commission) to make."

That position is made clear by a reference to the order made by the High Court which is set out at p 329, which prohibited the respondents from proceeding further on the order made by the Industrial Court under s.119.
In considering that case, it is important to keep in mind the facts proved before the High Court. Pursuant to s.119 of the Act, the Industrial Court found that the prosecutors had committed a breach of a term of an award which was binding upon them and had imposed a penalty upon them. At the hearing before the Industrial Court, the prosecutors wanted to challenge the validity of the term of the award on the basis that the Commission did not have power to make it. The Industrial Court held that s.60 precluded it from considering the validity of the term of the award. The prosecutors sought prohibition against the members of the Industrial Court which imposed the penalty, the Registrar of the Court and the union being the organization party to the award. In addition to the order made, the prosecutors sought an order prohibiting the organization from proceeding further on the term of the award which was challenged.
The High Court, by majority, McTiernan J. dissenting, held that the Commission did not have the power to make the term of the award which was challenged and therefore that it was invalid. The High Court refused to make the second order sought since the officer of the Commonwealth which made the award was not a party. The basis on which the order was made against the Judges of the Industrial Court is stated most clearly by Menzies J. at p 328:-

"The prosecutor has been convicted of the offence of failing to comply with the Dyeing Industry Award, but cl. 30, as we now decide, is not part of that award and the conviction of the prosecutor was therefore, despite s.60 of the Conciliation and Arbitration Act, something outside the power of the Commonwealth Industrial Court. Prohibition, therefore, can and should go."

With respect, that is correct and what appears earlier in these reasons is consistent with that view.
McTiernan J., who dissented on the issue of the validity of the term of the award, said at p 323:-

"Although the Commonwealth Industrial Court was not competent by reason of s.60 of the Conciliation and Arbitration Act 1904-1966 to give a binding decision on the question of the validity of cl.30, and their Honours recognized this position, it is interesting to note their observations as to the object of the clause . . . ".

In a joint judgment, Barwick C.J., Taylor and Owen JJ, after concluding that the term of the award was invalid, considered the orders to be made. They held the second order should not be made for the reason stated above. They then continued at pp 321-2 as follows:-

"It is, however, necessary to make some further comments with respect to the position of the Industrial Court. That Court is empowered in general terms by s.119 of the Act to impose a penalty upon any person who has committed a breach or contravention of an order or award by which he is bound. But we have held that the subject matter of sub-cl. (1)(a) of cl.30 was not capable of giving rise to an industrial dispute as defined and the question which immediately arises is whether this means that the fine was imposed without jurisdiction. In other words has the prosecutor been convicted and fined for what is, in effect, a non-existent offence? The problem is not without some complexity but the Industrial Court did not decide that the clause was valid; it assumed that it was debarred by s.60 of the Act from pronouncing upon the question. Whether this was or was not a correct assumption was not argued before us but, as at present advised, we are inclined to the view that it was not. However if it had purported to determine the question of validity it would have been necessary to consider whether s.119 commits to the Industrial Court, in addition to the power of adjudication upon issues of the kind which will ordinarily arise in proceedings of the character which it contemplates, authority to determine conclusively for the purposes of its jurisdiction questions - including, of course, questions touching the extent of constitutional authority - concerning the validity of any award, or award provision, before it. The broad test to be applied in solving problems of this kind is discussed in Colonial Bank of Australasia v. Willan (1874) LR 5 PC 417, at pp 442-445; Reg. v. Commissioners for Special Purposes of the Income Tax (1888) 21 QBD 313, at p 319; R. v. Nat Bell Liquors Ltd. (1922) 2 AC 128, at p 158; Ex parte Mullen; Re Hood (1935) 35 SR

(NSW) 289, at pp 299, 300; and Parisienne Basket Shoes Pty. Ltd. v. Whyte (1938) 59 CLR 369, at pp 391, 392, and we need not further elaborate. It is enough to say that if the Industrial Court had pronounced in favour of the sub-clause we would have no doubt that it would be incumbent on this Court, if it considered the provision to be beyond the authority of the Commission, to hold that the Industrial Court had acted without jurisdiction. However, as we have said, the Court did not consider or pronounce upon the question of validity and the case is a clear one for prohibition."

Some comments are made with respect to this passage. First, it sets out in longer form the more concisely stated opinion of Menzies J. Secondly, it makes it clear that the construction and application of s.60 with respect to a proceeding in the Industrial Court was not argued before the High Court. Thirdly the tentative view expressed on the application of s.60 was obiter only. Fourthly, they left open the question of whether the Court had power to conclusively determine the jurisdictional fact involved.
Windeyer J. agreed with the conclusions expressed by Barwick C.J., Taylor and Owen JJ. It is a nice question whether he agreed with the tentative views expressed by them.
Kitto J. dealt at more length with respect to the question of the application of s.60. A careful reading of his judgment shows that his reasons were directed to the issue of whether s.60 gave validity to the term of the award being challenged and not in its application to proceedings in the Industrial Court. He agreed that the order for prohibition against relying on the term of the award should be refused. He rejected a submission that that order should be made because of the existence of the order being sought against the judges of the Industrial Court. At p 324 he said:-

"It is no answer, I think, that by the same order nisi prohibition is sought against the judges of the Commonwealth Industrial Court to prohibit further proceeding upon the order made by that Court. Their Honours are officers of the Commonwealth and as such are amenable generally to prohibition in this Court, but the application that is here made against them is a distinct "matter" from the "matter" which consists of the claim to prohibition against further proceedings in respect of the award. I therefore think that the order nisi should be discharged in so far as it relates to cl.30(1)(a) of the award."

His Honour then turned to consider whether prohibition should be directed to the judges of the Industrial Court. At p 324 he said:-

"The question whether prohibition may be granted against further proceeding in respect of the Commonwealth Industrial Court's order raises different considerations. The jurisdiction which the respondent judges of that Court purported to exercise by making the order is conferred by s.119 of the Conciliation and Arbitration Act. It is a jurisdiction to impose a penalty where a person bound by an award has committed any breach of any term of the award. The prosecutors had committed a breach of a term appearing in the award, but as the term in its relevant application was invalid the order imposing the penalty was beyond the jurisdiction of the Court unless the expression "term of the Award" in s.119 means a term de facto appearing in the award whether valid or invalid either wholly or in its relevant application."

Stopping there, it is clear that at this stage, his Honour had held that the term of the award was invalid. He is about to consider the question whether s.60 gave validity to the award for the purpose of the proceeding in the Industrial Court. He was not about to consider the question whether s.60 imposed a limitation on the jurisdiction of the Industrial Court. This is made clear by what his Honour said at pp 324-325:-

"In this connexion it is necessary to bear in mind s.60 of the Act, providing that "subject to the Act" an award is final and conclusive and shall not be called in question in any court, and that a determination or finding of the Commission upon a question as to the existence of an industrial dispute is conclusive in all courts. If this section were to be interpreted with complete literalness and without the qualifying expression which introduces it, the Commonwealth Industrial Court would be obliged, as in fact it thought it was, to treat s.119 as giving it jurisdiction to impose a penalty for "any breach of any term" including a term which, so far as material, the award-making authority had no power to put into the award. But it has long since been decided that s.60 has not so extensive an operation, for, as its introductory words acknowledge and require, the provisions it contains must be reconciled with the rest of the Act and particularly with the provisions which subject the powers of the Commission to limitations some at least of which are plainly intended to spell invalidity for any action that transgresses them. The mode of reconciliation which is established by such cases a R. V. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at p 616; R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at pp 398, 399; Reg. v. Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. (1959) 101 CLR 246, at p 255; and Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. (1960) 104 CLR 437, at pp 442, 443, 454, 455, is to interpret s.60 as validating, so far as it can validate it constitutionally, any award provision which is outside the power of the Commission if on its face it appears to be within power and is in fact a bona fide attempt to act in the course of the relevant authority. The bona fides of the commissioner who inserted cl.30(1)(a) in the award no one would question; but, as the reasons that have been given in the joint judgment show, cl.30(1)(a) on its face travels into an area in which the Commission had no power to tread, namely the area of matters not pertaining to the relation of employers and employees but pertaining only to relations between employers and persons who are not their employees."

It should be noted that this passage appears to be the basis for the framing of the quotation taken from Roundstreet as set out at the beginning of these reasons. None of the cases quoted by Kitto J. involved s.60 of the Act. The first three cases were claims for prerogative writs against officers of the Commonwealth where officers of the Commonwealth constituting the tribunal had the protection of a privative clause of a kind similar to s.60 but not in the context of the Act. The fourth case involved a privative clause conferred by State legislation. Further, none of the other members of the majority in Cocks felt constrained to refer to or apply the principles enunciated in Hickman. In 1968, the law was clear. Provisions such as s.60 could not prevent the High Court from hearing a claim for prohibition against an officer of the Commonwealth. In Cocks the issue before the High Court was whether the term of the award was invalid on the basis that the Commission did not have the power to make that term. That issue was determined by applying the well known principles discussed in so many of the authorities in the High Court. Once that finding had been made, prohibition had to go to the Judges of the Industrial Court. Hence, there was no need to discuss s.60 with respect to the term of the award.
In Cocks, Kitto J. then dealt with other facts which made the term of the award invalid and then said at p 326:-

"For this reason s.60 could not constitutionally have an operation which would validate cl.30(1)(a) in its application in respect of non-employees, even if on its true construction it affected to do so."

His Honour then expressed his conclusion which essentially is the same as that expressed by Menzies J. when he said at p 326:-

"Equally s.119 considered by itself, being construed so as to be constitutionally valid, cannot be interpreted to mean that a penalty may be imposed for a breach of something which, though appearing as a term of an award, is not one that in its nature is capable of being included as part of the settlement of an industrial dispute in the constitutional sense of the expression."

His Honour there expressed an opinion which was obiter. No submissions had been made to the Court on the issue. No reference was made to other provisions of the Act. It was an opinion which was not necessary for the judgment of the Court. His Honour said:-

"I am therefore of opinion that the learned judges of the Commonwealth Industrial Court were not precluded by the provisions of s.60 or by any other consideration from investigating the question whether the application they were being asked to give to cl.30(1)(a) was one which carried it beyond the authority of the Commission under the Act and beyond the power of the Parliament to authorize. Proceeding as they did to give the clause the application contended for and to impose a penalty accordingly, their Honours, in my opinion, treated their power under s.119 as being wider than it was or constitutionally could be."

In the present case, the first question is directed to the proper construction of paragraph 60(1)(b) in its application to a proceeding in the Federal Court. The opinions expressed in Cocks do not bind this Court on this issue and in particular do not compel this Court to hold that it has jurisdiction to determine whether the Award is valid or not.
In The Queen v Coldham; ex parte The Australian Workers' Union (1983) 153 CLR 415 the A.W.U. sought writs of prohibition and mandamus against a Deputy President of the Commission. The Commission was hearing competing applications under s.142A of the Act by the A.W.U. and the B.L.F. that they be entitled to represent the industrial interests of employees engaged in construction work at a mining industry site in Western Australia. An issue in the proceeding was whether the employees were entitled to be and remain members of one or other or both of the organizations under the eligibility rule of each organization. The Commission found that certain of the employees were eligible to become members of the B.L.F. but not of the A.W.U. and indicated its intention to grant B.L.F. the right to represent them. The A.W.U. sought the prerogative writs. The issue depended upon the interpretation of the eligibility rules and whether the employees concerned came within the eligibility rules as so construed. An issue before the High Court was whether s.60 of the Act was a bar to the granting of the writs. By a majority, Murphy J. dissenting, the Courts ordered that the writs issue.
Before referring to the judgments, some comments are made. This was a typical case where the High Court was considering the application of a privative clause of a kind similar to that considered in Hickman. The High Court was not considering the application of the privative clause to a case where the jurisdiction of a court was based upon an order or award the validity of which was being challenged. The challenge was to the power of a tribunal to make an order under a law of the Parliament.
The principle applied by the majority of the members of the High Court is made clear by a number of quotations from the judgments. In their joint judgment, Deane and Dawson JJ. at p 427:-

"Section 60(1) of the Act provides that, subject to the Act, an award (which, by definition, includes an order) of the Commission is final and conclusive and shall not be challenged, appealed against, reviewed, quashed or called in question in any court. The sub-section expressly provides that such an award "is not subject to prohibition, mandamus or injunction in any court on any account". Such a statutory provision is effective to exclude any general judicial review of the proceedings of the Commission. It is not, however, effective to preclude this Court from exercising the powers directly conferred upon it by s.75(v) of the Constitution. The members of the Commission are officers of the Commonwealth and, if the Commission purports to exceed its powers or fails to perform its lawful functions, they are, as such officers, subject to the jurisdiction which the Constitution confers on this Court in all matters in which a writ of prohibition or mandamus is sought against an officer or officers of the Commonwealth (see R. v. Hickman)."

Their Honours then set out the terms of sub-section 142(A) of the Act and continued at pp 427-428:-

"The Commission's power to make an order, under s.142A(1), that an organization of employees shall have the right to represent, in respect of all or some industrial interests under the Act, a class or group of employees is dependent upon the existence of a jurisdictional fact, namely, that the employees of the particular class or group are eligible for membership of the relevant organization. The section does not make the Commission's satisfaction as to the existence of that fact, as distinct from its actual existence, the prerequisite of the power to make an order in respect of the particular class or group of employees. Nor does the Act purport to entrust to the Commission the power authoritatively to determine the eligibility of an individual employee or a group or class of employees for membership of the relevant organization. In a context where eligibility and entitlement to become or to remain a member of a registered organization of employees to no small extent correspond (see s. 144(1) and (2) of the Act), the question of eligibility can be of fundamental importance in determining the rights and defining the legitimate aspirations of the individual employee or of a group or class of employees. The power authoritatively to decide that question is assigned by the Act to the Federal Court to be exercised as part of the judicial power of the Commonwealth (see s.144(5), (5A) and (6) of the Act). In these circumstances, the provisions of s.60(1) do not operate to confer any conclusive or quasi-conclusive character on the Commission's finding or opinion on the preliminary question whether the employees in respect of whose representation an order is sought are eligible for membership of the particular organization. In that regard, the position is similar to that which was under consideration in Hickman."

In their joint judgment Mason A.C.J. and Brennan J. said at p 419:-

"But a clause like s.60 cannot affect the operation of a provision which imposes inviolable limitations or restraints upon the jurisdiction or powers of the Tribunal. In the face of such a provision, a clause like s.60 is ineffective to prevent prohibition going when the Tribunal trangresses those limitations or restraints (see per Dixon J. in R. v. Metal Trades Employers' Association

(1951) 82 CLR at p 248; and per Latham C.J. and Dixon J. in R. v. Commonwealth Rent Controller; Ex parte National Mutual Life Association of Australasia Ltd. (1947) 75 CLR 361 at p 369. The present is just such a case. The terms of s.142A(1) are quite explicit. The Commission is authorized to make an order that an organization of employees shall have the right to represent a class or group of employees who are eligible for membership of the organization to the exclusion of any other organization. Section 142A neither expressly nor impliedly confers jurisdiction on the Commission to give a binding decision on the question whether persons are eligible for membership of an organization. The entitlement of a person to be admitted as a member of an organization of employees is a matter that falls within the jurisdiction of the Federal Court

(s.144(5), (5A) and (6)). Indeed we are unable to perceive how the Commission could be given authority to determine conclusively the question of eligibility for membership consistently with its character as a body which does not exercise the judicial power of the Commonwealth."

This passage illustrates that the same principle was applied by each of the Justices constituting the majority. Earlier in their reasons, Mason A.C.J. and Brennan J. said:-

"The jurisdiction of the Court conferred by s.75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s.60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled ". . . namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power). . ." to use the words of Kitto J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at pp 252-253. See also R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at pp 614-615; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section

(1951) 82 CLR 208 at p 249; Reg. v. Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. (1959) 101 CLR 246 at p 255; R. v. Murray; Ex parte Proctor (1949) 77 CLR 387 at pp 398-399; Coal Miners' Industrial Union of Workers of Western Australia Ltd. v. Amalgamated Collieries of Western Australia (1960) 104 CLR 437 at pp 442-443.

In their submissions before this Court, counsel for the applicant did not dispute this passage. It is a passage which was relied upon in Roundstreet. The answers proposed by counsel for the applicant to the questions raised in the case stated incorporate the views expressed in this passage. Nevertheless two comments are made. First the passage assumes that the court in which the order or award is sought to be challenged, otherwise has jurisdiction to hear and determine that challenge. In the present case, the first question to be decided is whether the jurisdiction conferred upon it by the Parliament has excluded from that jurisdiction the jurisdiction to determine the validity of an award. Secondly, the use of the word "validate" in that passage is used in the sense of freeing from judicial challenge. On any view, the Parliament cannot prevent the High Court from exercising its jurisdiction under s.75(v) of the Constitution. But this does not deny that the Parliament has power to limit the jurisdiction of a court created by it under s.71 of the Constitution or for that matter federal jurisdiction invested in a State court under s.77 of the Constitution. Before developing this question further, reference should be made to one other case debated at length at the hearing of this case.
In R. v. Kirby ex parte The Transport Workers Union of Australia, (1954) 91 CLR 159 the T.W.U. was seeking a writ of prohibition in the High Court directed to the Judges of the Commonwealth Court of Concilition and Arbitration (the Arbitration Court). The facts were complex but the essence of them are set out. Under the provisions of the Act as then in operation, a conciliation commissioner, who was not a party to the High Court proceedings, had certified an agreement between the T.W.U. and an employer in Tasmania whereupon the agreement had the effect of an award under the Act. Subsequently, the employer sought a variation of the award before the Arbitration Court which had a power to hear appeals from decisions of conciliation commissions as well as a power to make orders varying awards. In either event any order would need to be made within the ambit of an industrial dispute existing between the parties to the dispute. At the hearing before the Industrial Court, counsel for the employer informed the Arbitration Court "that before the agreement was made and certified no dispute existed which extended beyond the limits of any one State". What happened thereafter is set out in the joint judgment of the High Court, Dixon C.J., Webb, Fullagar, Kitto and Taylor, at pp 172-173:-

"Nevertheless, the court was of the opinion that it was precluded by s.16(1) of the Act from questioning "whether the dispute as a result of which the conciliation commissioner certified the agreement was of an interstate character or not, and so consider whether or not its certification was within the conciliation commissioner's power". Accordingly the court held that it was "bound to regard it as certified following upon the existence of a dispute which extended beyond the limits of any one State", and further observed that "such being the nature of the original dispute we should regard it as continuing and the power of this court to vary it as being present."

Sub-section 16(1) of the Act as then in operation was similar to the present paragraph 60(1)(b) but with respect to an award an order of a conciliation commissioner. The High Court referred to the difficulty arising from the fact of the intimation made to the Arbitration Court by counsel for the employer. In the absence of an interstate industrial dispute, no attributes of an award could have been acquired by a purported certification under s.37 of the Act; see p 173. That section was similar in form to the present s.28. The High Court concluded that for the purpose of the case before it "that at no relevant time was the (employer) a party to any dispute with the union extending beyond the limits of any one State"; see p 174, and continued at pp 174-175:-

"In these circumstances it is clear that the certification of the agreement in purported pursuance of s.37 of the Act did not add anything to its efficacy. The agreement did not thereafter "have the same effect as" nor was it "deemed to be an award for all purposes" of the Act for the terms of the section are designed to produce such a result only upon certification of an original agreement made in settlement of a dispute as to industrial matters extending beyond the limits of any one State."

The judgment then continued at p 175:-

"To overcome the difficulty apparent upon the statement of this proposition the respondent commission relied upon the provisions of s.16(1) of the Act. But, though this section may have the effect of giving a practical operation to some awards or orders made without express legislative authority, it is, for the reason already given, incapable of protecting or preserving orders made not only in excess of the powers conferred by the Act, but also in excess of the capacity of the legislature to authorize the making of awards and orders in relation to industrial matters. Accordingly this case must be decided on the view that the agreement did not acquire the attributes of an award for any purpose . . . and that, in the circumstances, the court had no power, pursuant to s.49, to make an award or order by way of variation of its terms. But it would be quite wrong for this Court to allow prohibition to go with respect only to the order of variation and thereby leave the parties apparently bound by the provisions of the agreement in its original form. For the objection to the jurisdiction of the court to vary the agreement is only consequential upon the submission that the agreement itself is in no sense an award and what must be restrained - if anything is to be restrained at all - is the enforcement of the agreement either in its original form or as the order complained of purported to vary it. The prosecutor, it may be said, cannot hope to succeed in destroying the order of variation by an argument that the original certification was without lawful authority and yet, apparently, maintain the original agreement in force as though it had been made in settlement of an industrial dispute within the meaning of the Act and thereafter certified pursuant to the provisions of s.37."

In that case, the Industrial Court was entering into the arbitral function of varying a purported award. It held that it could not challenge the validity of the award which by admission, could not be a valid award. The High Court had no hesitation in granting prohibition.
This Court was not referred to any decision of the High Court dealing, after argument, with the question of the construction of sections 118A, 119 and paragraph 60(1)(b) of the Act being the conferring of a limited jurisdiction on a court created by the Parliament where the limitation arises from the existence of a provision similar to paragraph 60(1) (b) of the Act.
Section 77(1) of the Constitution empowers the Parliament to make laws defining the jurisdiction of the Federal Court in any matter arising under any law made by the Parliament. Thus, the Federal Court is a court of limited jurisdiction, its jurisdiction being limited to the extent determined by the Parliament. Sections 119 and 60(1)(b), in my opinion, define the jurisdiction of the Federal Court with respect to applications for a penalty for the breach of a term of an award. The word "matter" when used in Chapter 111 of the Constitution identifies "the subject matter for determination in a legal proceeding rather than the legal proceeding itself", see Mason C.J., Wilson, Brennan, Deane and Dawson JJ in Crouch v Commissioner for Railways (Queensland) 1985 159 CLR 22 at p 37. Within this meaning the High Court has upheld the validity of the accrued jurisdiction of the Federal Court as including all matters in controversy between parties to a proceeding but subject to limitations expressed in the authorities, see for example Fencott v Muller (1983) 152 CLR 570 and Stack v Coast Securities (No. 9) Pty. Ltd. (1983) 154 CLR 261. But if the Parliament has power to confer jurisdiction on the Federal Court with respect to a matter, the Parliament has the power to define or limit the scope or extent of the matter. I can see no reason why the Parliament, if it thought it desirable, does not have the power to make a law with the effect of preventing the Federal Court from exercising its accrued jurisdiction. This would take the form of enacting that the Federal Court should not have jurisdiction to hear and determine any claim which did not constitute a remedy under a law made by the Parliament. In logic, there is no reason why the Parliament cannot limit the scope and extent of a matter arising under a law made by the Parliament. The Constitution does not confer a jurisdiction on the Federal Court directly in the same way as s.75(v) confers jurisdiction upon the High Court.

The expression "the Court" in sub-s. 119 (1) is a reference to the Australian Industrial Court. However, s. 118A operates to vest that jurisdiction in this Court. There is an appeal to the Full Court of this Court and an appeal (by special leave) to the High Court of Australia: Federal Court of Australia Act 1976 ("the Federal Court Act"), s. 33. No limitation upon these rights is imposed by s. 118B of the Act. Section 19 of the Federal Court Act provides that the Court has such original jurisdiction as is vested in it by laws made by the Parliament being jurisdiction in respect of matters arising under laws made by the Parliament. Taken together, ss. 118A and 119 operate as laws which provide for a "matter" arising under a law made by the Parliament within the meaning of s. 76 (ii) of the Constitution, and define the jurisdiction of this Court with respect to that matter, within the meaning of s. 77 (i) of the Constitution. This is so even though the term "matter" is not itself used in s. 118A or 119: Philip Morris Inc. v Adam P. Brown Male Fashions Pty. Ltd. (1981) 148 CLR 457 at 506-507, per Mason J; Fencott v Muller (1983) 152 CLR 570 at 602, per Mason, Murphy, Brennan, Deane JJ.
Where the Parliament confers jurisdiction to determine a matter arising under a law made by the Parliament (within the meaning of s. 76 (ii) of the Constitution) that jurisdiction may be exercised to hear and determine a matter which answers that description, whether or not the matter also answers the description of a matter involving the interpretation of the Constitution (within the meaning of s. 76 (i) of the Constitution): Re Tooth & Co. Ltd. (No. 2) (1978) 34 FLR 112 at 119, 130, 139-140.
As I have indicated, sub-s. 119 (1) is concerned with proceedings for imposition of a penalty for breach or non-observance of an award, and that term is relevantly defined as meaning an award made under the Act. A simple method of formal proof of an award is provided by s. 193 of the Act. I see nothing in s. 119 which requires an applicant to prove as part of his case, where the issue has not been raised against him, the validity of the award, breach or non-observance of which by the respondent is complained of by the applicant.
A dispute as to the existence of an award made under the Act is one as to the fact upon which depends the jurisdiction of this Court in a prosecution for breach or non-observance of that award; and given the special character of the definition of "Award" in the Act, that jurisdictional fact in a given case may also be a constitutional fact: R. v Heagney; Ex parte ACT. Employers Federation (1976) 137 CLR 86 at 104; The Queen v The Judges of the Federal Court of Australia; Ex parte The Western Australian National Football League (Incorporated) (1979) 143 CLR 190 at 225-228; The Queen v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415 at 419. If there was no industrial dispute extending beyond the limits of any one State, how for any purpose could the agreement between the Federation and the Union have acquired any of the attributes of an award made under the Act? Cf. The Queen v Kirby; Ex parte The Transport Workers' Union of Australia (1954) 91 CLR 159 at 173-174. Thus, the question of whether the Commission exceeded its jurisdiction in making the award is closely connected with the questions which arise when this Court entertains a prosecution for breach of that award. As Barwick C.J., Taylor and Owen JJ. put it in The Queen v The Judges of the Commonwealth Industrial Court; Ex parte Cocks (1968) 121 CLR 313 at 321, is the respondent in the prosecution to be convicted and fined for what is in effect a non-existent offence?
It is true that this Court is not a court of unlimited jurisdiction. But that is not a sufficient starting point for a consideration of the issues that arise in these proceedings. After all, in Australia there are no courts of unlimited jurisdiction: Parsons v Martin (1984) 5 FCR 235 at 240-241; Elna Australia Pty. Ltd. v International Computers (Aust.) Pty. Ltd. (1987) 14 FCR 461 at 465-466. As a superior court of record, created by the Parliament under s. 71 of the Constitution and in which the judicial power of the Commonwealth is vested, this Court has the authority to determine whether the state of things, upon whose existence its jurisdiction in the present prosecution under the Act depends, does or does not exist: The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351 at 373 per Gibbs C.J. (That does not, of course, mean that it is incumbent in every case for the Court, of its own motion and in the absence of any dispute upon the point, to enter upon an inquiry as to the existence of jurisdictional or constitutional facts.) The conclusiveness of that determination is subject to control by prohibition issued by the High Court pursuant to the original jurisdiction conferred directly by s. 75 (v) of the Constitution. Nevertheless, there is support, in the authorities collected by Mason J. in Marsh's Case (supra at 375-376), for the proposition that the High Court has a discretion to refuse prohibition against a superior court such as this Court, at least where (a) the prosecutor for prohibition has a right of appeal and (b) there is no constitutional question involved.
In the proceedings in this Court, the respondent wishes to rely upon affidavit evidence in support of its proposition that the Award was not an award made lawfully within the power or jurisdiction lawfully conferred on the Commission. As I have said, the respondent in particular seeks to establish that there was relevantly no dispute as to industrial matters which extended beyond the limits of any one State, and that the Commission, in making the Award, was not acting bona fide in the course of its authority under the Act. On its part, the applicant has objected to the reception of that evidence, on the ground that it is rendered inadmissible by sub-s. 60 (1) of the Act. The applicant's submissions are that (i) the evidence in question is tendered to call this award in question in this Court, something forbidden by sub-s. 60 (1) (b), and (ii) sub-s. 60 (1) of the Act prevents the validity of the award being challenged on constitutional or other grounds, unless the Award on its face is wholly or partially invalid.
The issue thus presented has given rise to the Special Case in which various questions have been reserved for a Full Court.
Section 60 of the Act
Section 60 of the Act provides as follows:

"60. (1) Subject to this Act, an award (including an award made on appeal) -

(a) is final and conclusive;

(b) shall not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus or injunction in any court on any account.

(2) A determination or finding of the Commission upon a question as to the existence of an industrial dispute is, in all courts and for all purposes, conclusive and binding on all persons affected by that question.

(3) An award shall not be called in question in any way on the ground that it was made by the Commission constituted otherwise than as provided by this Act."

It will be observed that sub-s. (1) opens with the words "Subject to this Act . . ." although the other sub-sections are not so introduced. In the present proceedings, reliance is placed only upon sub-s. (1).

Section 60 is concerned with awards; in sub-s. 4 (1) of the Act, "Award" is defined as meaning "an award made under this Act . . .". As an ordinary matter of interpretation, one would not read the expression "made under this Act" in the definition of "Award" as including that which purported to be an award, but which was in fact made not under but outside the Act. The courts traditionally have refused to recognize that privative clauses protect manifest jurisdictional errors or ultra vires acts: Church of Scientology Inc. v Woodward (1982) 154 CLR 25 at 55-56. Further, Anisminic Ltd. v Foreign Compensation Commission (1969) 2 AC 147 at 170-171, 195, decides that where a tribunal misconstrues the statute which gives it jurisdiction, the tribunal may address itself to the wrong issue and thereby exceed its jurisdiction: Marsh's Case supra at 371-372 and 377; see also B.H.P. Petroleum Pty. Ltd. v Balfour (1987) 71 ALR 711 at 714-715.
But the above response to the definition of "Award" requires further consideration in the light of a settled course of authority in construing s. 60 of the Act in relation to provisions such as s. 119. This shows that s. 60 operates to validate certain awards otherwise not made under the Act. The result is that this Court may entertain prosecutions under s. 119 for awards which are so validated.
In Cocks' Case (supra at 321) Barwick C.J., Taylor and Owen JJ. said:

"(The Commonwealth Industrial) Court is empowered in general terms by s. 119 of the Act to impose a penalty upon any person who has committed a breach or contravention of an order or award by which he is bound. But we have held that the subject matter of sub-cl. (1) (a) of cl. 30 (of the Award) was not capable of giving rise to an industrial dispute as defined and the question which immediately arises is whether this means that the fine was imposed without jurisdiction. In other words has the prosecutor been convicted and fined for what is, in effect, a non-existent offence? The problem is not without some complexity but the Industrial Court did not decide that the clause was valid; it assumed that it was debarred by s. 60 of the Act from pronouncing upon the question. Whether this was or was not a correct assumption was not argued before us but, as at present advised, we are inclined to the view that it was not. However if it had purported to determine the question of validity it would have been necessary to consider whether s. 119 commits to the Industrial Court, in addition to the power of adjudication upon issues of the kind which will ordinarily arise in proceedings of the character which it contemplates, authority to determine conclusively for the purposes of its jurisdiction questions - including, of course, questions touching the extent of constitutional authority - concerning the validity of any award, or award provision, before it. . . . It is enough to say that if the Industrial Court had pronounced in favour of the sub-clause we would have no doubt that it would be incumbent on this court, if it considered the provision to be beyond the authority of the Commission, to hold that the Industrial Court had acted without jurisdiction."

In The Queen v Coldham; Ex parte The Australian Workers' Union (1983) 153 CLR 415 at 418, Mason ACJ. and Brennan J. cited a long line of High Court authority and said:

"The jurisdiction of the Court conferred by s. 75 (v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s. 60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled . . . namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) . . .' to use the words of Kitto J. in Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219 at 252-253. . . ." (Emphasis supplied.)

I draw attention to the use in this passage of the word "validate" to describe the effect of s. 60. Mason A.C.J. and Brennan J. went on to point out that a privative clause such as s. 60 cannot affect the operation of a provision which imposes inviolable or mandatory limitations or restraints upon the jurisdiction of the tribunal in question. The authorities to which their Honours referred included a passage in The King v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399, where Dixon J. spoke of the distinction between mandatory and directory provisions as supplying a helpful analogy in construing a precursor of s. 60. In the face of a mandatory provision, s. 60 is ineffective to prevent the issue of prohibition when the tribunal transgresses those limitations or restraints. The instant case with which Mason A.C.J. and Brennan J. were dealing involved s. 142A (1) of the Act; this was held to impose such a mandatory limitation or restraint, in the face of which s. 60 was ineffective.

In other cases, provided there is no constitutional restraint, s. 60 may operate; it is then a matter of reconciling the prima facie inconsistency between statutory provisions which seem to limit the powers of the Commission and another provision, s. 60, which contemplates that the order or award of the Commission shall operate free from any restriction. The two sets of provisions are read together; s. 60 is taken into account in ascertaining what the apparent restriction or restraint actually signifies in order to determine whether the situation is one in which prohibition lies. Thus, it was said by Mason A.C.J. and Brennan J. in the above passage that in these cases s. 60 (subject to the Constitution) validates any award which is outside the power of the Commission, if on its face it does not appear to go beyond power, it relates to the subject matter of the legislation and it is in fact a bona fide attempt to act in the course of the relevant authority.
In this sense, s. 60 operates not as a privative clause so much as a validating provision, which gives life to that which, whilst otherwise not an award made under the Act, is something over which, within constitutional limits, the legislature might have conferred power. This concern with constitutional limits and with the validation of that which might have been done within those limits marks off the Australian cases construing s. 60 from those British authorities in which the Anisminic doctrine has been propounded and developed.
The High Court decisions which give this interpretation to the effect of s. 60 arose in circumstances where the High Court itself was seized of the matter in its original jurisdiction under s. 75 (v) of the Constitution. But what is the jurisdiction of this Court? That is the central issue before us.
The Jurisdiction of the Federal Court
The applicant's case was that sub-s. 60 (1) operated to condition, qualify or restrain what otherwise might have been the content of the jurisdiction of this Court under ss. 118A and 119 of the Act; the result was said to be that evidence should not be admitted to establish that the Award was made outside what has been called the jurisdiction of the Commission, unless the Award was shown to be bad on its face. The applicant readily accepts that s. 60 does not operate to render an award something which, while not bad on its face, in truth was not an award within the constitutional jurisdiction of the Commission. However, the applicant's submission (and the Attorney-General for the Commonwealth made it common ground between them) is that the only federal court with the jurisdiction to make a determination of such invalidity is the High Court, acting in the original jurisdiction conferred directly by s. 75 of the Constitution, in particular, by para. (v).
The applicant and the Attorney-General submit that this Court, when seized of a matter being a prosecution under s. 119 of the Act for alleged breach of an award, cannot enter upon the issue whether the Award was made in excess of the jurisdiction of the Commission whether for constitutional or other reasons; this is said (by the applicant, but not the Attorney-General) to be subject to the qualification that the matter may be entered upon if the lack of validity is apparent on the face of the Award as, the applicant submits, was the position in Cocks' Case (supra).
This raises the questions (i) whether, upon its proper construction, sub-s. 60 (1) does so limit the nature of the determination open to this Court, in a prosecution under s. 119 of the Act, and (ii) if there is such a limitation, sub-s. 60 (1) validly imposes it so that read with ss. 118A and 119, it answers the description of a law defining the jurisdiction of this Court with respect to a matter arising under a law made by the Parliament, within the meaning of ss. 77 (i) and 76 (ii) of the Constitution.
In my view, subject to any impact upon them of sub-s. 60 (1), ss. 118A and 119 of the Act, in their application to proceedings in this Court, are to be characterised as laws defining the jurisdiction of this Court under sub-s. 77 (i) of the Constitution with respect to matters arising under a law made by the Parliament; as I have already indicated, jurisdiction may be exercised by this Court to hear and determine a matter which answers that description even if it also answers the description contained in s. 76 (i) of the Constitution. It follows that evidence which was designed to determine an issue as to relevant constitutional facts would be receivable by this Court in such proceedings. Thus, in its operation in this Court, s. 119 is to be characterised as a law defining the jurisdiction of a federal court within the meaning of sub-s. 77 (i) of the Constitution; no question arises in these proceedings as to the other operation of s. 119, that is to say as a law investing courts of the States with federal jurisdiction, within the meaning of s. 77 (iii) of the Constitution.
The Construction of Sub-section 60 (1)
But what is the impact upon s. 119 of sub-s. 60 (1) of the Act as regards this Court? Plainly, s. 119 is to be read and construed subject to the Constitution and so as not to exceed the legislative power of the Commonwealth. No doubt it is for this reason that sub-s. 60 (1) has been treated in the High Court decisions as, upon its proper construction, (a) not to encroach upon the entrenched jurisdiction of the High Court, particularly under s. 75 (v) of the Constitution, to intervene in cases of what one might call constitutional error, or, alternatively, (b) to be read down pursuant to s. 15A of the Acts Interpretation Act 1901 ("the Interpretation Act") so as to achieve that result.
Some of the submissions before us appeared to proceed on the footing that in all other respects, sub-s. 60 (1) was a paramount or controlling provision, subject to the terms of which the other provisions of the Act were to be read. I have referred above to the submission that sub-s. 60 (1) relevantly operated as a condition or restraint or qualification of the jurisdiction conferred on this Court by ss. 118A and 119 of the Act.
As I have indicated, undoubtedly, s. 60 operates as a validating provision, so far as the Constitution permits. The extent of that validation is spelled out in the decisions which I have mentioned. It follows that if there is no constitutional error, an award or order of the Commission is validated, by force of s. 60, provided the three conditions mentioned in the authorities are fulfilled, namely that the purported exercise was "a bona fide attempt to exercise the power", that "it relate(d) to the subject matter of the legislation", and that "it is reasonably capable of being referred to the power" in the sense that it "does not on its face go beyond the power". In this way, s. 60 operates to determine the rights and objections involved in the prosecution which is the matter in respect of which jurisdiction is conferred on this Court under ss. 118A and 119. The applicant submitted that what others have described as three tests laid down by the words quoted above are in fact but one, namely, that on its face the award be wholly or partially invalid. In my view, the terms in which the tests were expressed by Mason A.C.J. and Brennan J. in The Australian Workers' Union Case (1983) 153 CLR 415 at 418, drawing upon an earlier judgment of Kitto J., mean what they say, and are not to be compressed in the way the applicant submits.

That leaves constitutional issues. What of those questions in the Special Case, which, on their proper construction, raise an issue as to whether evidence was admissible to determine in this Court the existence or non-existence of the necessary constitutional facts to support the Award? Once it is understood that (i) s. 60 cannot operate to validate that which is not an award because the Commission exceeded its constitutional jurisdiction, and that (ii) claims involving the interpretation of the Constitution may be elements in a matter arising under a law made by the Parliament, and, further that (iii) the High Court is not the only federal court to which there may be entrusted the trials of controversies involving interpretation of the Constitution, much of the difficulty in reading sub-s. 60 (1) with ss. 118A and 119 disappears.
Section 60 was introduced into the Act by ss. 7 and 54 of the Conciliation and Arbitration Act 1956. Section 60 had a number of precursors. They are discussed in Whitmore and Aronson, "Review of Administrative Action", pp 500-504. The earlier provisions were not, as to any of them, expressed to be "Subject to this Act . . .". It may not be immaterial to observe that the 1956 legislation was assented to on 30 June 1956. It provided for the establishment of the Commonwealth Industrial Court. On 2 March 1956, the High Court had delivered its judgment in The Queen v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, affirmed (1957) 95 CLR 529. The majority of the High Court emphasised the special character of the federal judicature and of the judicial power of the Commonwealth.
Sub-section 60 (1) (b) speaks of "any court"; certainly, in my view, it may well be that this provision is apt to bar any attempt for a court, not being the High Court acting pursuant to s. 75 of the Constitution, or any other court exercising jurisdiction under the Act, to entertain a suit in equity to prevent the continuance of a fraud; such jurisdiction was exercised by the Supreme Court of New South Wales, with respect to rights flowing from orders made by a federal court, under another statute, in Hillman v Hillman (1977) 2 NSWLR 739.
In N.S.W. Combined Colliery Proprietors Association v Australasian Coal and Shale Employees Federation (1957) 1 FLR 72 at 79-80, the issue of the constitutional validity of a provision resembling sub-s. 60 (1) was adverted to but not decided. Later, in Roundstreet Pty. Ltd. v Brown (1987) 14 FCR 50, the constitutional validity of sub-s. 60 (1) was not called into question. The Full Court of this Court held that in proceedings before this Court under s. 119 of the Act, it was not possible to consider the validity of an award where the purported exercise of power by the Commission in making the award was a bona fide attempt to exercise the power, the award related to the subject matter of the legislation and the award did not on its face go beyond power.
Keely J. (14 FCR at 56) expressed the view that the opening words of sub-s. 60 (1) ("Subject to this Act . . .") identified proceedings in the High Court under s. 75 (v) of the Constitution, appeals to the Full Bench of the Commission under s. 35 of the Act and applications to the Commission under s. 59 of the Act to set aside or vary an award. It is true that the High Court is put in a special position by s. 75 of the Constitution. But effect is not given to that circumstance by stating that the substance of sub-s. 60 (1) is "Subject to this Act . . ."; s. 60, like the whole of the Act, is subject to the Constitution. No doubt the provisions in s. 59 made it appropriate in sub-s. 60 (1) (a) to state that an award was final and conclusive "Subject to this Act . . .". But the presence of other provisions in the Act for the exercise by the Commission of its functions would not involve any challenge or other calling into question of the award in any court within the meaning of paras. (b) and (c) of sub-s. 60 (1).
It was pointed out that the jurisdiction of the High Court under s. 75 (v) of the Constitution to grant writs of prohibition and mandamus against the members of the Commission was exclusive. It was excluded from the grant of jurisdiction to this Court by s. 39B of the Judiciary Act and excluded by s. 38 (e) of the Judiciary Act from the general investiture of the courts of the States by s. 39 of the Judiciary Act. Further, it was submitted that inconvenience might result from provision of any means to challenge the validity of an award besides that entrenched by s. 75 (v) of the Constitution. But in my view, that apprehension is no compelling reason to deny to the opening words of sub-s. 60 (1) their ordinary meaning. There is every reason, when considering the relationship between sub-s. 60 (1) on the one hand, and ss. 118A and 119 on the other, why these words should be given their ordinary meaning. I have referred to the character of ss. 118A and 119 together as a law conferring jurisdiction on this Court with respect to a matter arising under a law made by the Parliament, and to the undoubted proposition that s. 60 does not operate to validate for any purpose an award made in excess of the constitutional jurisdiction of the Commission. That being so, and jurisdiction otherwise being found in this Court to determine a dispute concerning the existence or non-existence of constitutional facts, as a step in resolving a controversy arising under a law made by the Parliament, why should sub-s. 60 (1) be read as excluding, qualifying or diminishing the jurisdiction of this Court with respect to that matter?
In my view, those questions in the Special Case which raise the issue as to the admissibility of evidence before this Court tendered on the issue of the existence or non-existence of the relevant constitutional facts should be answered favourably to the respondent.
To the extent that, on its proper reading, Roundstreet Pty. Ltd. v Brown (supra) decides to the contrary, then it should be overruled. But it should be said in the present case that arguments were put which do not appear to have been put to the Full Court in the earlier case.
Validity
If I am incorrect as to the above interpretation of sub-s. 60 (1), then to the extent to which sub-s. 60 (1) purported to preclude this Court from receiving evidence in a prosecution under s. 119, designed to establish the existence or non-existence of constitutional facts, sub-s. 60 (1) should be read down pursuant to s. 15A of the Interpretation Act. The alternative would be to treat ss. 118A and 119 as invalid as attempts to define the jurisdiction of this Court otherwise than with respect to a matter arising under a law made by the Parliament. However, ss. 118A and 119 have to be read with the central provisions of s. 19 of the Federal Court Act. This, as I have said, provides that this Court has such original jurisdiction as is invested in it by laws made by the Parliament, being jurisdiction in respect of matters arising under laws made by the Parliament. One would be slow to interpret ss. 118A and 119 as attempts to invest this Court with jurisdiction otherwise than consistently with s. 19 of the Federal Court Act; particularly is this so when by reading sub-s. 60 (1) of the Act in the manner I have indicated, this difficulty would not arise.
Some reference was made to Harrison v Goodland (1944) 69 CLR 509. That was an appeal directly to the High Court under the since repealed para. (b) of sub-s. 39 (2) of the Judiciary Act, from an inferior court of a State, exercising federal jurisdiction. The appellant had been convicted for a default in compliance with an order by a Judge of the Commonwealth Court of Conciliation and Arbitration, interpreting an award under the Act. The appellant argued that the Judge had wrongly construed the award. No question of constitutional competence arose. The High Court held that as the applicable legislation stood, it was not open either before the inferior court or before the High Court on appeal to challenge the Judge's order. This decision thus offers no guidance in the aspect of the present case with which I am dealing.
The applicant submitted that if ss. 118A and 119 were controlled by sub-s. 60 (1) so as to preclude inquiry by this Court into disputed constitutional facts, there was no constitutional difficulty, and no problem arising from Chapter III of the Constitution.
The applicant contended that (i) there are two discrete "matters" involved, (a) one arising under a law made by the Parliament (within the meaning of s. 76 (ii) of the Constitution) and (b) the other involving the interpretation of the Constitution (within the meaning of s. 76 (i) of the Constitution), and (ii) ss. 118A and 119 and sub-s. 60 (1) of the Act are laws defining the jurisdiction of this Court under s. 77 (i) of the Constitution only with respect to matter (a). The result was said to be that this Court had no jurisdiction to deal with the constitutional question. Implicit in this (and it was not made explicit by counsel) is a submission concerning a decision of this Court to which I have already referred. The submission is that Brennan J. (and the other members of this Court who delivered judgments to the same effect) was in error when he held in Re Tooth & Co. Ltd. (No. 2) (1978) 34 FLR 112 at 140, that:

"When jurisdiction to determine a matter which falls within s. 76 (ii) of the Constitution is conferred, the jurisdiction may be exercised to hear and determine a matter which answers that description whether or not the matter also answers the description contained in section 76 (i)."

I would respectfully agree with what was there said by his Honour. Judicial power which is not exercised to determine the whole of a controversy is, generally speaking, not appropriately and conveniently exercised: Fencott v Muller (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan, Deane JJ.

The applicant sought in various ways to escape this conclusion. First, it was submitted that even as construed by the applicant, sub-s. 60 (1) was procedural, not substantive in character.
No doubt, the Parliament may, when legislating with respect to a subject within the ambit of its powers, validly enact laws prescribing the rules of evidence and of the procedure to be observed in any legal proceedings, whether civil or criminal, arising in relation to that subject matter; s. 193 of the Act, which, as I have said, deals with the formal proof of awards and orders, is such a provision. In particular, the Parliament may cast the onus of proof upon either party to those proceedings: Milicevic v Campbell (1975) 132 CLR 307.
The applicant submitted that in its suggested application to the present proceedings, sub-s. 60 (1) of the Act was to be characterised as a law as to a matter of procedure and thus a law that was incidental to the defining by s. 119 of the jurisdiction of this Court pursuant to s. 77 (i) of the Constitution. The submission was that in this sense, sub-s. 60 (1) was analogous to the law dealing with onus of proof considered in Milicevic v Campbell (supra).
In particular, the applicant contended the restriction thus imposed upon the conduct of such a prosecution by its interpretation of sub-s. 60 (1) was procedural in character because it was part of a legislative scheme "to channel" into the High Court the determination under s. 75 (v) of the Constitution of issues as to constitutional facts which otherwise would arise as part of "matter" with which this Court was dealing under ss. 118A and 119 of the Act. But, in my view, if sub-s. 60 (1) be interpreted as the applicant wishes, then in its impact upon those proceedings, it is a law which is substantive in character. Sub-section 60 (1) is not merely a procedural law of the nature discussed in Milicevic v Campbell (supra).
In Maxwell v Murphy (1957) 96 CLR 261 at 285-287, Fullagar J. referred to criticism of the distinction (drawn in various areas of the law) between substance and procedure as not representing a logical dichotomy. Nevertheless, one should have thought it plain enough that a matter of substance was involved where jurisdiction was conferred upon this Court to entertain a prosecution which might lead to conviction for what, in truth, was a non-existent offence because the essential constitutional facts did not exist, and the Court was barred from receiving evidence to establish the non-existence of that constitutional fact, even though the respondent to the prosecution sought to tender that evidence.
Then it was submitted that the Parliament might by law made under s. 77 (i) of the Constitution limit the jurisdiction conferred on this Court to some of the claims otherwise comprising a matter arising under a law made by the Parliament.
Some propositions in this field are well settled. First, the word "matter" is used in Chapter III of the Constitution to identify the subject matter for determination in a legal proceeding rather than the proceeding itself; it is a term of wide connotation and directs attention to the substance of a dispute: Crouch v Commissioner for Railways (Q) (1985) 159 CLR 22 at 37-38, per Mason, Wilson, Brennan, Deane, Dawson JJ.
Secondly, when sub-s. 77 (i) of the Constitution speaks of the Parliament making laws defining the jurisdiction of a federal court "with respect to any of the matters mentioned" inter alia in s. 75 of the Constitution, it may select some only of the matters falling within, for example, the description in s. 75 (v); thus, as s. 39B of the Judiciary Act illustrates, jurisdiction was not conferred upon this Court in respect of proceedings against all officers of the Commonwealth, and, in any event, the Judges of this Court themselves are officers of the Commonwealth.
Thirdly, where a matter arising under a federal law includes claims under non-federal law, a law defining the jurisdiction of this Court with respect to that matter may confer jurisdiction that is exclusive as to the federal claims and non-exclusive as to the non-federal claims: Stack v Coast Securities (No. 9) Pty. Ltd. (1983) 154 CLR 261.
Fourthly, with respect to matters which "arise under a law made by the Parliament", it is for the Parliament to determine, by formulating the "law" in question, what are the rights and obligations which supply the foundation for the controversy which is the "matter" for the purposes of s. 76 (ii) of the Constitution: T.N.T. Skypak International (Aust.) Pty. Ltd. v Federal Commissioner of Taxation (1988) 82 ALR 175 at 181. (This has been done in s. 119 of the Act. It has also been done in s. 60 insofar as it validates certain proceedings which, whilst they could have been conducted within constitutional power, failed to meet requirements of the Act.)
But the applicant's submissions go further. The consquence of accepting the applicant's submissions would be that s. 119 (in conjunction with s. 118A and sub-s. 60 (1)) defined the jurisdiction of the Federal Court with respect to matters which involved the interpretation of the Constitution, but which might not arise under any law made by the Parliament, and which had no other footing in Chapter III of the Constitution. One is dealing here with jurisdictional facts, which are also constitutional facts, and which control the jurisdiction not of an administrative tribunal, but of a federal court which is a superior court of record. Whilst the judicial power of the Commonwealth is vested in this Court, the exercise of that power would be stultified; the Court would be adjudicating upon rights and liabilities created by a law which attempted to rise higher than its source, and the Court would be disabled from dealing with a claim that the law was of this defective character.
Actors & Announcers Equity Association of Australia v Fontana Films Pty. Ltd. (1982) 150 CLR 169 at 185-187, 210, 213-215, 223, demonstrates that while the Parliament may place on a person said to be affected by a law the onus of proving that a constitutional fact does not exist, the Parliament may not, by enacting legislation which purports to be merely procedural, extend the operation of its laws to subject matter beyond its power; to do so (as Murphy J. pointed out at 213-215) is to attempt to undermine the judicial power of the Commonwealth. Of the doctrine of judicial review for alleged unconstitutional legislative or executive acts, which is a salient characteristic of that judicial power, Mason J. has said that it "goes almost without saying": Church of Scientology Inc. v Woodward (1982) 154 CLR 25 at 56.
I conclude that a law, which purports to confer jurisdiction on this Court in respect of a matter arising under a law made by the Parliament which includes a claim which answers the description of a question arising under the Constitution, is not a law which satisfies s. 77 (i) of the Constitution if it excludes that claim from the investiture of jurisdiction. The subject of that law is something less than a matter in the sense of Chapter III of the Constitution. No federal jurisdiction is conferred by it. That being so, it is not to the point to say that the constitutional claim may be subjected to the exercise of the judicial power in other proceedings before another federal court, in this case the High Court in its original jurisdiction under s. 75 of the Constitution. The judicial power referred to in s. 71 of the Constitution can be exercised only to determine those matters in which federal jurisdiction is or can be conferred under Chapter III of the Constitution; the unique and essential function of an exercise of the judicial power is to quell the whole of a controversy answering the description of a "matter": Fencott v Muller (1983) 152 CLR 570 at 608, per Mason, Murphy, Brennan, Deane JJ.
Conclusion
There should be answered favourably to the respondent those questions in the Special Case which raise the issue whether evidence is admissible in the prosecution before this Court to show the existence or non-existence of relevant constitutional facts. There should also be answers favourable to the respondent to those questions which raise the issue of whether evidence is admissible in the prosecution to show that the Commission in making the Award did not comply with the three conditions or tests referred to earlier in these reasons.
I turn now to consider the terms of the answers to be given to the Questions reserved in the Special Case. There are seven questions. In several of them, the expression "constitutional jurisdiction" is used. In the Introduction to these reasons, I have indicated the sense in which this expression is to be understood in this context. The Questions and the answers I would give are as follows:
Question (a): Does s. 60 (1) of the Act, on its true construction, preclude the Court, in proceedings under s. 119 of the Act, from receiving evidence for the purpose of determining whether the Award was or was not made within the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission?
Answer: No.
Question (b): Does s. 60 (1) of the Act, on its true construction, preclude the Court, in proceedings under s. 119 of the Act, from receiving evidence for the purpose of determining whether the member of the Australian Conciliation and Arbitration Commission who purported to make the Award did or did not act or attempt to act bona fide in the course of his authority under the Act?
Answer: No.
Question (c): If and to the extent to which s. 60 (1) of the Act precludes the Court, in proceedings under s. 119 of the Act, from receiving evidence of the kinds contemplated in questions (a) and (b), is s. 60 (1) of the Act invalid as being beyond the legislative power of the Commonwealth under the Constitution?
Answer: Sub-section 60 (1) of the Act, construed in accordance with the answers to Questions (a) and (b), is not invalid.
Question (d): Does s. 119 of the Act, on its true construction, confer jurisdiction on the Court to impose a penalty for breach or non-observance of the Award if in fact the Award is made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission?
Answer: No.
Question (e): If and to the extent to which s. 119 of the Act confers jurisdiction on the Court to impose a penalty for breach or non-observance of the Award, where the Award was in fact made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission, is s. 119 of the Act invalid as being beyond the legislative power of the Commonwealth under the Constitution?
Answer: Section 119 of the Act, construed in accordance with the answer to Question (d), is not invalid.
Question (f): To the extent to which s. 60 (1) of the Act precludes the Court, in a proceeding under s. 119 of the Act, from receiving evidence that the Award was made beyond the constitutional jurisdiction of the Australian Conciliation and Arbitration Commission, is s. 119 of the Act beyond the legislative power of the Commonwealth under the Constitution?
Answer: Sub-section 60 (1) of the Act is not to be construed in the manner stated in this Question and s. 119 is not invalid.
Question (g): Does s. 119 of the Act require the applicant to prove as part of his case the validity of the Award of which the respondent is alleged to have committed a breach or non-observance?
Answer: No.

[1989] FCA 523

08 SEPTEMBER 1989