O'Toole v Charles David Pty Limited

[1990] HCATrans 85

·~~

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No Sl20 of 1989

B e t w e e n -

JACK O'TOOLE

Applicant

and

CHARLES DAVID PTY LIMITED

Respondent

Cause removed pursuant to

section 40(1) of the

Judiciary Act 1903

MASON CJ
BRENNAN J
DEANE J
DAWSON J

O'Toole(2)

TOOHEY J
GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 2 MAY 1990, AT 10.04 AM

(Continued from 1/5/90)

Copyright in the High Court of Australia

ClTl/1/PLC 127 2/5/90

MASON CJ: Yes, Mr Kenzie?

MR KENZIE:  If it please the Court, irrnnediately prior to the

adjournment Your Honour Mr Justice Deane asked me

a question about whether prohibition could go to

the Federal Court in circumstances in which it was

proposing to proceed on the basis of the construction

of the statute for which we contend. We have to

concede, of course, that it is difficult to see how

prohibition could go to the Court in those circumstances.

The situation as we understand it, Your Honours,

if the construction of the Act for which we contend

is correct is this:  what would happen

is that a party said to be a respondent to an award,

that is, someone who has not availed themselves of

the opportunity under the Act to have the award set aside
or varied in a relevant respect would be in a position

to apply for a writ of prohibition. That could, of

course, happen at any stage of the proceedings.

If it happened before the Federal Court had heard

the matter under section 119, then presumably the

prerogative writ would go to the officer of the

Corrnnonwealth making the award and, incidentally,

to parties alleged to be bound by it. Presumably,

Your Honour, a stay could be granted to prevent

the parties incidentally parties to the prerogative

writ proceedings from proceeding on the award

but that, perhaps, is not a matter that needs now

to be decided.

If the High Court decided the question of the

validity of the award prior to the section 119

proceedings, then that would be obviously a decision

of the High Court which would be before the Federal

Court, and it is difficult to see how the Federal
Court could do other than proceed on the basis of the

correctness. of the High Court's decision. If the matter was not raised or sought to be agitated in

a constitutional sense before the High Court, at a

stage before the Federal Court had dealt with the

section 119 proceedings, one would have. a situation

such as that in COCKS's case and at that stage

there would be recourse to the High Court pursuant

to its jurisdiction under section 75(v). That is
the scheme of it as we understand it, Your Honour.

That scheme is consistent with validity for reasons

that we will go on to develop if we may.

GAUDRON J:  Mr Kenzie, does not what you have just said and

COCKS's case, and indeed part of your submissions,

really assume that nothing flows if an award is

invalid; that is to say, if the award is invalid

no rights and liabilities flow at all.

ClTl/2/LW	128	2/5/90
O'Toole(2)

MR KENZIE:	Your Honour, the way we would rather put it is that the Federal Court is in a position in which it
can pronounce upon something which might not be an
award but the decision of the Federal Court pursuant to the statutory scheme is subject to the ultimate jurisdiction of the High Court under section 75(v).
GAUDRON J:	Well, I do not see why that should be so -

although I see that COCKS's case makes that

assumption - ·unless you start from the proposition

that nothing flows from an invalid award, whereas

I would have thought that it was at least arguable that section 60 says things do flow from an invalid award unless and until the award is set aside in

one way or another.

• , MR KENZIE: Yes, Your Honour. We come to those submissions

later and COCKS , of course, as Your Honour says,

does not appear to proceed on that basis, we have
to say, and putting it at its highest against us

and accepting COCKS which, for other purposes, we

do, then the scheme is as we put it and on the

basis of that scheme the Federal Court is put in

a position to make a determination on an award which

is not valid but its determination is then subject
to section 75(v). We say that is the result of

the legislative scheme which simply divides the

federal jurisdiction consistent with the CONSTITUTION

and we say that - we will come to this, Your Honour -

but we say that there is ultimately no reason why

that cannot be done regardless of whether one is

talking about constitutional questions.

Your Honours, I had reached what is paragraph 3

of our written submissions and, Your Honour, we
submit that an award, where it is referred to in
section 60(1) means a purported or de facto award,
that is one which is prima facie valid and,

Your Honours, we say two things, that that is consistent with the CONCILIATION AND ARBITRATION

ACT and it is also consistent with the approach

that one sees in the judgment of Mr Justice Dixon

in HICKMAN's case. (Continued on page 130)

ClT2/l/HS	129	2/5/90
O'Toole(2)

MR KENZIE (continuing):  In the CONCILIATION AND ARBITRATION ACT,

Your Honour, section 4 defines an award and it

is defined as an award made under the Act subject to

contrary intention appearing. Your Honour,

section 4(1) in the definition section:

In this Act, except where otherwise

clearly intended -

and then -

"Award" means an award made under this

Act and includes an order.

Now, Your Honours, on any view a reference to award

in section 60 is a reference to an award not in terms of the definition in section 4 because the

whole purpose of section 60 is to preserve from

attack, to whatever extent ultimately fou.i.1d to be
the appropriate extent, awards which have not been

made in accordance with the Act.

Your Honour, that approach is consistent with

Mr Justice Dixon's approach to such matters in

HICKMAN's case and if Your Honours would be good

enough to go to HICK.ivfAN, 70 CLR 598,and, of course,

His Honour was here talking about an excessive

statutory authority but he was dealing with
regulation 17 which has been, I think, accepted on a
number of occasions as analogous to section 60 for

present purposes and at the bottom of page 615,

having referred to Mr Justice Starke's judgment in

BAXTER, His Honour says:

Effect can only be given to regulation 17

by treating the words, award, order or

determination, as meaning acts in fact done by the tribunal in the supposed exercise of the powers entrusted to it. To confine the

meaning of those words to acts done

lawfully and within the jurisdiction of

the tribunal ignores the clear, distinct and

unmistakable intent of the regulation.

Prohibition at corrrrnon law was the appropriate

remedy for restraining inferior courts from

exceeding their jurisdiction, and yet this

remedy is withdrawn by the regulation.

(Continued on page 131)

ClT3/l/JH	130	2/5/90
O'Toole(2)

MR KENZIE (continuing): And, Your Honours, that leaves,

of course open the question as to whether the

reference to award is capahle of dealing with excesses

of constitutional jurisdication as well as statutory jurisdiction

and I will come to that, but on any view "award" in

section 60 does not mean what it means in the

definition section. Whilst Your Honours have

HICKMAN open could we remind Your Honours of what

we say in paragraph 4 of our written submissions

and that is, that an interpretation of section 60(1)

as a limitation on the jurisdiction of the

Federal Court is consistent with authority and

that authority, of course, includes HICKMAN

as well as COLDHAM and a number of other authorities

referred to therein.

Your Honours, it is clear that the judgment

of Mr Justice Dixon in HICKMAN's case proceeds on the

basis that regulation 17 was part of the statutory

machinery conferring jurisdiction in a relevant

respect. Your Honours, page 614 point 5 of the

judgment, His Honour says in the second sentence of

that paragraph:

Regulation 17 provides 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. The presence of this provision

in the Regulations makes it necessary to say

whether and to what extent it is ineffectual

to protect the decision of the Board from

invalidation.

(Continued on page 5)

ClT4/l/JL	131	2/5/90
O'Toole(2)

MR KENZIE (continuing): Could I pause there, Your Honours,

and say that that passage is relevant to something

I will submit in a moment as to the use of the

word "validate" in some of the authorities.

His Honour there is talking in terms of preservation

from invalidation. His Honour goes on:

In the first place, it is clear that such

a provision cannot, under the CONSTITUTION,

affect the jurisdiction of this Court to

grant a writ of prohibition against officers of the Commonwealth when the legal situation

requires that remedy. But a writ of

prohibition is a remedy that lies only to

restrain persons acting judicially from

exceeding their power or authority. It is

therefore necessary to ascertain before
issuing a writ whether the persons or body

against which it is sought are acting in excess

of their powers; and that means whether their

determination, when made, would be void.

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, and whether its

decision is void.

And, Your Honours, we would refer Your Honours

to what appears on page 615, at point 1 down, really,
to about point 3, at the end of that paragraph,
in particular - well, perhaps to the end of that
paragraph. And that language is consistent with

the grant of jurisdiction or, more particularly,

limitations on jurisdiction.

Your Honours, we have also referred to

REG V COLDHAM, EX PARTE AWU, 153 CLR 415, at 418.

Your Honour the Chief Justice and Your Honour

Justice Brennan on this page really picked up

language that had been used in some earlier cases

and, in particular, I think, the judgment of

Mr Justice Kitto in COCKS's case where Your Honours

said at page 418, point 2:

(Continued on page 133)

ClT5/l/ND	132	2/5/90
O'Toole(2)

MR KENZIE (continuing):

However, it has been established by a long

course of iudicial decisions in this Court

that a privative clause in the form to be

found ins 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 -

and Your Honours, it is our respectful submission

that the use of the word "validate" in that context

is used in the sense of preserved from attack and

not in the sense of creating validity where none

existed before. To that extent, Your Honours, it

is quite consistent with Justice Dixon's approach

in HICKMAN and if I could simply, without inviting

Your Honours to reopen the volume, give
Your Honours a reference to page 615 point 5 where

His Honour Justice Dixon quotes with approval from

Chief Justice Latham in the COAL AND SHALE EMPLOYEES

FEDERATION case, in speaking of regulation 17, he

says "that it did not profess to give validity to

an invalid award" and that, of course, is correct,

in our submission.

Your Honour, that submission is consistent with the language used by Your Honours Mr Justice Deane

and Mr Justice Dawson in COLDHAM at page 427 point 1

where Your Honours said:

Section 60(1) of the Act provides that,

subiect 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 subiect to prohibition-"

et cetera -	Such a statutory provision is effective to	exclude any general judicial review of the
proceedings of the Commission.

(Continued on page 134)

ClT6/l/SH	133	2/S/90
O'Toole(2)

MR KENZIE (continuing):

It is not, however, effective to preclude

this Court from exercising the powers

directly conferred upon it by section 75(v)

of the CONSTITUTION.

And that is the approach to section 60 which

we say is consistent with the approach of

Your Honour The Chief Justice and Justice Brennan,

acee_pting that the language used in the judgment

correctly represents the situation if understood

to refer to validating in the sense of preserving

from attack. Now, Your Honours, we against that

background submit that section 60 validly excludes

from the s·crutiny of the Federal Court federal

awards on non-constitutional grounds. Your Honours,

if it be accepted as it was in COLDHAM and other

cases, that the effect of section 60 is to preserve from attack to the maximum extent permissible under the CONSTITUTION, then it logically would follow

that non-constitutional grounds are preserved from

attack on the same basis and in the Federal Court.

No violence is done regardless of the submissions about constitutional matters if the words of

section 60 are given their full effect and plainly,

on a literal reading of those words, they would

be capable of excluding the Federal Court from

that sort of scrutiny.

Your Honour, there are good reasons for that,

but perhaps before taking Your Honours to that, we

might go on to make our second submission and our

second submission is that those words, on a proper

construction, preclude the Federal Court from

examining the question of whether a federal award

was made beyond the constitutional jurisdiction

of the commission, save for circumstances where

the award is manifestly bad on its face. It was

accepted in COCKrs case, and we accept this for

the purposes of the case that, where an award is

bad on its face, then the Federal Court would act	accordingly and would not proceed on the basis of
its validity under section 119. Your Honours - - -

McHUGH J: What about that it is a bona fide~ attempt to

exercise the power? Is that covered by your

exception?

MR KENZIE:  Well yes, Your Honour. We would submit that

section 60 is effective to exclude an examination

of - and this is really our first submission -

everything save matters going to constitutional

validity. We would say that it would also exclude

from examination matters going to constitutional

validity and therefore attempts to examine the

bona fides of the coi:ilffiission.

CIT?/1/CM	134	2/5/90
orToole(2)

McHUGH J: They are two separate concepts.

MR KENZIE: Well yes, Your Honour.

McHUGH J:	But it not HICKMAN against you on that? At 615
in HICKMAN when Mr Justice Dixon is talking about
how provisions such as regulation 17 are being
interpreted by courts and other judicial bodies,
he says it does not protect the decision or
bona fide attempt to exercise power or one that
does not relate to the subject-matter of the
legislation when it is not reasonably capable
of reference to the power given to the body.

MR KENZIE: Well, yes,Your Honour, that is so.

McHUGH J: Well surely those matters can be examined by the

Federal Court or by any court.

MR KENZIE: Yes,I would have to concede that HICKMAN is

against the submissions that I have put, Your Honour,

on the plain reading of HICK11AN. That appears to

be so, Your Honour. Your Honours, we were going on

to submit, however, that the section plainly excludes
a tax on the constitutional basis of the award and
we turn to the history of the development of the
section and its relationship to other provisions,

including provisions of the JUDICIARY ACT to support

that contention. to be made.	And Your Honour, we say
this - - -

(Continued on page 136)

CIT7/2/CM	135	2/5/90
O'Toole(2)

DEANE J: But if you have to read down the section 60

to permit a constitutional attack in this

Court why would you not read it down in a

sensible way instead of leaving a situation

where the constitutional validity remains

an open question which can only be litigated

in this Court with all the expense and

everything else that involves?

MR KENZIE: Well, Your Honour, there are good reasons for that,

in our respectful submission, there are two

answers, Your Honour. One is that it has been

accepted that section 60 would be interpreted as

protecting awards to the maximum extent permissible

under the CONSTITUTION.

DEANE J:  But it does not add protection if it leaves the

constitutional question at large, it simply

imposes an outrageously inappropriate procedure

if that open question cannot be dealt with in

the proceedings, but has to be dealt with in this

Court.

MR KENZIE: Well, Your Honour, it may be accepted that it does

involve the use of a more difficult and possibly

more expensive procedure in a given case but it is

consistent, although it might appear inconvenient

in certain contexts, it is based on logic and common

sense, Your Honour. These are matters that the

minority in the Federal Court in this proceeding

referred to and, indeed, relied upon and,

Your Honours, I was about to go to those judgments

which provide an answer to the matter that

Your Honour Mr Justice Deane is asking me about.

DEANE J:  Well, while I am putting the problems you also need to

add to it that most of these cases are completely

inappropriate to engage the attention of this Court

at the expense of other cases.

MR KENZIE: Well, yes Your Honour, and this Court has, at

various times, conunented adversely on the

prosecutions before the Full High Court of

matters relating to questions of fact and often

at some extent. But, Your Honours, the fact

remains that the capacity has always been there

to have constitutional matters litigated in this

Court under section 75(v). Nothing that this Court decides is going to affect the capacity of people

to ultimately have the constitutional validity of

an award examined in this Court.

DEANE J:  No, but what I was asking is if you are going to

read down section 60 to permit attack on

constitutional grounds why not do it in a

sensible way instead of a way that produces

extraordinary inappropriate results?

ClT8/l/JL	136	2/5/90
O'Toole(2)

MR KENZIE: Well, Your Honour, in our submission, the reason

for doing that is that Parliament has deliberately

chosen a statutory scheme which whilst it might

appear, depending upon one's position,inconvenient,

is there and it is there for a very good reason, or

at least it is there because Parliament has decided

very consciously that it should be there.

Your Honour, these submissions are consistent with the history of the development of the section which

if the history does nothing else it demonstrates

a real determination on Parliament's part to
preserve awards subject to the ultimate jurisdiction

of the High Court and the history of the development

of the section, in our respectful submission, is
consistent with that. Your Honours, and with a view

to answering Your Honour Mr Justice Deane's question,

could we do two things,Your Honours; could we hand

to the Court extracts which really show the

development of section 60 since 1904.

(Continued on page 138)

ClT8/2/JL	13 7	2/5/90
O'Toole(2)

MR KENZIE (continuing):  I hasten to add that I am not going

to go into them in detail now, Your Honours, but

I propose to give Your Honours a reference to

Aronson and Franklin, Review of Administrative

Action, 1987 edition, page 691 to 701. The

Solicitor-General has made copies of it available,

Your Honour, so I wonder if it is convenient if we make - - -

MASON CJ: Yes.

MR KENZIE:  - - - available to the Court copies of the text

and it will be more readily understood if Your Honours

have available copies of the documents which show

the development of the section.

McHUGH J: Is your point that section 60 was intended to protect

all awards, even though invalidly made under the

CONSTITUTION, except in the High Court?

MR KENZIE:	Yes, Your Honour.
McHUGH J:	If that was the intention of Parliament, why would they

distinguish between the High Court or any other court?

MR KENZIE:  Does Your Honour mean at various points in time in

the -

McHUGH J:  No, I mean now. I mean I can understand the submission

that section 60 was intended to oust the jursidiction of

every court including the High Court but irrespective

of Parliament's intention by reason of the CONSTITUTION

they cannot achieve -

MR KENZIE:  Yes, Your Honour.

McHUGH J:  That is one construction. The moment you concede

that as a ~atter of construction it is subject to

a constitutional exception, why should the exception

be confined to the High Court as opposed to the

Federal Court and other courts?

MR KENZIE: Well, Your Honour, we would submit that a construction

along those lines would accord with the history and

would accord with other legislative provisions.

McHUGH J:  What do you mean by those lines? What is 11 those"?

MR KENZIE: Well, a construction that did not confine the

exclusion to the High Court. Your Honour, the

Parliament has in section 39B of the JUDICIARY ACT

made it as clear as it can that the Federal Court,

although it has other jurisdiction to grant

prerogative relief, does not have jurisdiction

to grant prerogative relief against officers of the

Commonwealth who are exercising jurisdiction under

C1T9/l/LW	138	2/5/90
O'Toole(2)

the INDUSTRIAL RELATIONS ACT 1988 or the

CONCILIATION AND ARBITRATION ACT before it.

That demonstrates a parliamentary purpose, Your Honour, to preserve these matters from direct attack by

means of prerogative writ. In addition, in our

respectful submission, although we do not pause

to go through the history at great length now

because a full understanding of it would require

a specific reference to a large number of cases which

no doubt were responsible for some of the amendments

that were made, shows clearly a determination, in

our respectful submission, to preserve from attack,

other than under section 75(v), the provisions of the

federal award.

Your Honours, section 60 really came into its

. '

existing form in 1956 and it must be assumed at all

material times that Parliament was fully aware

of the numerous cases under section 75(v). No one

would deny that,and the construction for which we

contend is not affected by the opening words of

section 60, namely "subject to this Act".

The proper interpretation is that section 60

preserves to the cormnission the right to set aside or vary awards and the words "subject to this Act" are a clear recognition - or at least ensure that

there can be no doubt that the commission. has that

power and is unaffected by section 60 - otherwise
the terms of section 60(l)(b), read against a background

of the development of the section and the authorities

under 75(v),is consistent with the construction that,

subject to the right of the cormnission to set aside or
vary, it is to the High Court under 75(v) that the
questions relating to the validity of awards are

entrusted.

(Continued on page 140)

ClT9/2/LW	139	2/5/90
O'Toole(2)

MR KENZIE (continuing):  Your Honours, those submissions

are consistent with an approach which gives

section 60 its maximum extent possible under the

CONSTITUTION and we will have to come to our

submissions as to whether, if we are right on that

construction, the legislative scheme which we

advance is constitutionally defensible and we say

it is.

Your Honours, secondly, in answer to

Your Honour Mr Justice Deane, could we give

Your Honours a reference to the judgments of the

minority in this proceeding in the Federal Court

and, Your Honours, appeal book. page 249 point 6,

Mr Justice Northropp says this:

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 taking in reliance of an award
which has been held to be invalid. The saoe
result does not follow with respect to

ClTl0/1/JH	140	2/5/90
O'Toole(2)

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.

Your Honour, could I also refer the Court to the

judgment of Justice Gray at application book page 284

point 9 to page 286 point 5. I will not pause to

read that now, Your Honours, but it is the

paragraph where His Honour says:

There is every reason why parliament would

have wanted to give to awards made under

the Act the maximum possible protection of the kinds envisaged by section 60(1).

I do not pause to read it now, Your Honours, but in

answer to Your Honour Justice Deane and in support

of our submissions, we say that there are good

reasons why it should be done. It would be a chaotic

situation that would prevail if individual parties

in section 119 proceedings could raise matters

which would affect only the parties but which would

leave other parties to awards in a different position

so reasons of convenience are relevant here, in our

respectful submission.

(Continued on page 142)

ClTl0/2/JH	141	2/5/90
O'Toole(2)

MR KENZIE (continuing):  Now, Your Honours, we also refer -

and I do not repeat our reference - to

section 39B of the JUDICIARY ACT in this regard.

Your Honours, may I remind the Court of a couple

of authorities that Mr Jackson went to in his
submissions yesterday and firstly may we take the

Court to the case of REG V KIRBY EX PARTE TWU,

(1954) 91 CLR 159. This was a case in which

there had been proceedings before a commissioner

and following those proceedings there was action

taken before the Court of Conciliation and Arbitration
to vary the award in question and during the course

of the proceedings before the Conciliation and

Arbitration court the representative of the

employers had informed the court that, in fact,
the award, which was the foundation of the
application for variation, had been made without

the existence of an interstate industrial dispute.

During the proceedings before the court that

assertion by the representative of the employer was agreed with by the organization so that the proceedings before the Court of Conciliation and

Arbitration, which was being asked to vary the

award, were proceedings in which the parties

before it were accepting that there had been no

jurisdictional basis.

Your Honours, against that background, on

page 173 point 8, and I know some of this has been

read, the Court said this:

The real difficulty in the matter is

occasioned by the intimation made to the

arbitration court by the representative of the

commission for if there was no dispute or no
dispute extending beyond the limits of any one

State in settlement of which the agreement was

made, it is difficult to see how for any

purpose the agreement could have acquired any

of the attributes of an award by a purported

certification ..... The difficulty is not overcome

by the provisions of s 16(1) -

that is, the privative prov1s1on -

for that section, however far its operation may

extend, cannot operate to render inviolate and

so clothe with validity an award or order the

making of which, having regard to the limits of the relevant constitutional power, could not in the first instance have been authorized by the

legislature.

And, Your Honours, that is incontestable, one would

say because the High Court was looking there at the

ClTll/1/SH	142	2/5/90
O'Toole(2)

the question of whether section 16 could preserve

from attack in the proceedings before

the court.

Their Honours went on:

Apart from the intimation which was given to the court there would seem to be sufficient

material -

to indicate that there had been in existence an

industrial dispute but, at point 4:

But of what value are these indications when

the representative of the respondent commission -

that is, the employer, Your Honours -

after consideration, deliberately concedes for

the purposes of the application before the

arbitration court "that before the agreement

was made and certified no dispute existed which

a misapprehension as to the significance of the

extended beyond the limits of any one State."

finding -

et cetera, and then, at point 7:

But whether the concession was made under a

misapprehension or not it was, as we have saLd,

deliberately made and should in this Court, 3S

it was in the arbitration court, be treated as

conclusive of the facts to which it refers.

So that there was never any doubt about the position

either in the court or in the High Court that t~cre

was simply no basis for it and no one wa~ pretending

there was an award.

(Continued on page 144)

ClTll/2/SH	143	2/5/90
O'Toole(2)

MR KENZIE (continuing):

It is unfortunate that the concession

is stated in the form of a conclusion and

that the relevant facts upon which the

conclusion was based were not stated or

proved but in the absence of the precise

facts this Court is left to do its best

with the material before it. This being

so, it must be assumed for the purposes

of the case that at no relevant time

was the commission a party to any dispute

with the union extending beyond the

limits of any one State.

No one could argue with that.	At page 175 point 2
the Court says:

To overcome the difficulty apparent upon

the statement of this proposition the respondent commission relied upon the provision 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, that it was not, pursuant

to s 48 of the Act, continued in force -

et cetera. Now, Your Honours, in our respectful

submission, that case correctly proceeds on the

basis that nothing that the privative provision did

could prevent the constitutional position being

examined in the High Court. It also shows that the

High Court thought it appropriate that when the

Conciliation and Arbitration Court was being asked

to vary an award it was quite all right for the

Conciliation and Arbitration Court to ask itself

when it was being asked to exercise power to vary

whether there was a constitutional basis, and

no one could deny that the Conciliation and Arbitration

Court could have asked itself that question but the primary
question examined was whether the privative

provision was sufficient to preserve the award

from constitutional attack and, of course, it

was not.

ClT12/1/HS	144	2/5/90
O'Toole(2)

Secondly, Your Honours, we refer in paragraph 10 of our submissions to COCKS's case, 121 CLR 313, and, in our submission, that case did not decide that

the Federal Court, or rather the Industrial Court in

those days, had jurisdiction to determine whether a

federal award was validly made. That is a general

proposition. There are passages in the judgments

which support the conclusion that the Industrial

Court was invested with jurisdiction to determine

that a federal award, which was manifestly bad on its

face, was not an award and so declined to grant an

application under. section 119.

Your Honours, at page 321 point 6, having referred

to the possibility of a conviction and fine for a

non-existent offence, the Chief Justice and

Justices Taylor and Owen say:

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 bys. 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.

Pausing there, it is not said by the applicant in

these proceedings that the Federal Court would be

debarred by section 60 from pronouncing upon the

question that was before the Industrial Court

in COCKS.

(Continued on page 146)

C1Tl2/2/HS	145	2/5/90
O'Toole(2)

MR KENZIE (continuing): The reason for that, as I will show

Your Honours in a moment, was that the award in

COCKS was bad on its face and was accepted by

Mr Justice Kitto as an award that was bad on its

face. And it was bad on its face because it

manifestly tried to cover people who were beyond

the constitutional jurisdiction being independent

contractors and not - - -

GAUDRON J:  What process results in that reading down of

section 60?

MR KENZIE:  That is a difficult question, Your Honour. We

accept the force of the existence of COCKS's case
in Mr Justice Kitto's judgment for the purposes
of our submissions. Logically it is difficult

to see why there is an exception in relation to

permitting an examination of an award that is bad

on its face and not other awards save this, that

consistent with HICKMAN and other authorities

"award" in section 60 may be taken to refer to

a purported award or an award that is prima facie

valid. And the language of Justice Dixon in

HICKMAN's case supports that approach.

If you assume that it does mean - as we contend

it means - prima facie valid then there is a

distinction between an award which is bad on its

face and another award. That appears to be the

basis for the judgment of Mr Justice Kitto. In

any event, we have no quarrel with that conclusion

for the purposes of this proceeding. We accept

that the Federal Court could act on the basis th:1t

an award was bad on its face.

So what Their Honours were saying at page 32 I

point 6, was that they thought, without hearing

argument, that the Industrial Court could not be
completely debarred from looking at an award and,

in that case, an award which was bad on its face.

We accept that. They then went on to say, at 321

point 7:	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.

So they throw up the question there as to whether the Industrial Court might have the power to

ClT13/1/ND	146	2/Si90
O'Toole(2)

determine such questions conclusively, a question

which one would think might be easily answered

and, indeed, Their Honours answer that question

at the top of page 322. Having thrown up that

question they immediately answer it by saying, at
point 2:

However, as we have said, the Court did not consider or pronounce upon the question of

validity -

I withdraw that.

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.

And that, really, is an answer to the question

of whether there was a conclusive right to determine

constitutional questions posed on the previous

page, in our submission.

Mr Justice Kitto's judgment, Your Honours,

commences so far as presently relevant, at 324

point 9; the judgment itself starts at 323 point 7.

His Honour says:

In this connexion it is necessary to bear in minds 60 of the Act, providing that

"subject to the Act" an award is final and

conclusive ..... 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 treats 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 thats 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.

Reference to authority:

C1Tl3/2/ND	147	2/5/90
O'Toole(2)

MR KENZIE (continuing):

The mode of reconciliation which is

established by such cases ..... is to

interprets. 60 as validating

and that is the passage I mentioned before -

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 ..... no one would question; but,

as the reasons that have been given in the

joint judgment show, cl. 30(l)(a) on its face

travels into an area in which the Cormnission

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 -

et cetera. So, His Honour is able to find on that

basis or say on that basis that section 60 could not

have had a wide enough ambit to protect that

award. We, as I say, have no submissions to make

contrary to that approach which, on our submission,

accepts the construction of "award" in section 60

which is prima facie an award.

Now, Your Honours, in the next part of our written submissions, we come to the question of

validity assuming that the construction for which

we contend is correct and that section 60 does

extend to constitutional matters. We say that no

invalidity arises from the acceptance of the

limitation on the jurisdiction of the Court.

Whilst the Parliament cannot prevent the High Court

exercising its jurisdiction under 75(v) Parliament

can limit the jurisdiction of a court created by

section 71 and that in accordance with section 77

the sections in question, including section 60(1)(d),
define the jurisdiction of the Federal Court in

respect of applications for a penalty for breach of

an award. That is really the submission we have already

made. We say, Your Honours, that that is consistent

with an allocation of the judicial power of the

Commonwealth in relation to the question of enforcement

of awards. We point out, in paragraph 12, that matter

in chapter 3 is a reference to subject-matter for

determination in a legal proceeding and not to the

proceeding itself, I do not really mean the whole

C1Tl4/l/JL	148	2/5/90
O'Toole(2)

proceeding there, Your Honours, but the proceeding

and, Your Honours, could we take Your Honours

briefly to COLLINS V MARSHALL, 92 CLR 529, which

really supports that proposition and proceeds to

apply it. At page 541 point 8 the Court says:

"It was suggested in argument that 'matter'

meant no more than legal proceeding, and

that Parliament might at its discretion

create or invent a legal proceeding in

which this Court might be called on to

interpret the CONSTITUTION by a declaration

at large. We do not accept this contention;

we do not think that the word 'matter' in

sec. 76. means a legal proceeding, but

rather the subject matter for determination

in a legal proceeding. In our opinion there

can be no matter within the meaning of the

section unless there is some irrnnediate right,

duty or liability to be established by the determination of the Court. If the matter

exists, the Legislature may no doubt prescribe

the means by which the determination of the

Court is to be obtained, and for that purpose

may, we think, adopt any existing method of

legal procedure or invent a new one".

And, Your Honours, that approach to 11matter 11 is, of course, consistent with that in CRCUCH' s case,

and our submission is, Your Honour, that if it be

accepted that Parliament can confer jurisdiction

on the Federal Court in respect of a matter,that

Parliament can define or limit the scope or extent

of the matter. Your Honours, that approach was

not the approach that appealed to the majority in

this proceeding in the Federal Court and could I

give Your Honours a reference to the decision of

Mr Justice Gurrnnow in application book pages 323 point 3

to 325 point 2.

(Continued on page 150)

C1T14/2/JL	149	2/5/90
O'Toole(2)

MR KENZIE (continuing):  And Your Honours, His Honour says

at 323 point 3 - he really sets out the

applicant's submissions and at 323 point 8, he

says - that is line 22, Your Honours:

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.

He refers to FONTANA, which he says:

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 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, Mr Justice Mason has said that it

"goes almost without saying".

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

section 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 -

you can go to the High Court et cetera. Now,

Your Honours, our submission is that Parliament can define the jurisdiction of the Federal Court and, so long as Parliament defines the jurisdiction

in a manner which preserves the exercise of

judicial power, that does not offend the

CONSTITUTION. That fact separates this case from

cases such as FONTANA which was an attempt to

conclusively deem a registered organization liable

CITlS/1/CM	150
O'Toole(2)

for acts of its members and the like. It is,

apart from cases where people are deemed to be

prohibited irmnigrants under legislation which

makes that conclusive, the scheme here is that

Parliament has said that the Federal Court is

not allowed to decide the question of the

constitutional validity, that being a matter

which is within the province of the High Court,

which of course is exercising the judicial power

of the Cormnonwealth.

BRENNAN J:  And are we correct in speaking always in terms of

jurisdiction? Section 60(l)(b) refers to

questions of jurisdiction, but it also purports

to refer to questions of the law to be applied

in the exercise of jurisdiction, and the problem

that arises, perhaps acutely in this case, is

not whether the Federal Court has jurisdiction

under section 119, but what law it should apply

in exercising that jurisdiction. And the question

of collateral attack is not so much one of

jurisdiction, as one of law.

MR KENZIE: Well, Your Honour, be it accepted, that would not,

in our respectful submission, accept the validity

of section 60, unless we missed the point of

Your Honour's question.

(Continued on page 152)

CIT15/2/CM	151
O'Toole(2)
BRENNAN J:	Not the validity of section 60, but the operation of section 60.

MR KENZIE:  Yes, Your Honour. We have put our submissions

on the basis that section 60 has the widest ambit

that one could imagine and we defend it on that

basis, Your Honour, and we say that even given that

ambit, it is defensible because the CONSTITUTION

would not prohibit the enactment of section 60
on the basis that it was dealing with the question
of what law as opposed to the question of who could
exercise jurisdiction. Neither would the
CONSTITUTION prevent Parliament really dividing

judicial responsibilties in relation to section 60.

BRENNAN J:	But is there not a problem if one construes section 60 as saying, "A court which is invested
with federal jurisdiction to determine a given
subject-matter shall not apply the law, being the CONSTITUTION, pursuant to covering clause (v)"?
MR KENZIE:	Well, Your Honour, no more, in our respectful

submission, than the enactment of a law which

provides for the exaction of a tax and provides
another judicial machinery for the purposes of
determining the constitutional validity of that
exaction and that is the matter which is referred to
in the BUILDER LABOURERS case and the TAXATION case

to which we would presently come.

So, Your Honour, we would answer Your Honour's

question by saying that it would not be invalid so

long as there is preserved a procedure whereby the person said to be affected can exercise his rights

to a judicial hearing so that his liability can be

examined. That is what the CONSTITUTION requires.

That is what the scheme, as we contend, achieves.

MASON CJ:  Well, that is the real, question, is it not, whether

or not it is consistent with the exercise of

judicial power for Parliament to divide judicial

responsibilities in that way?

MR KENZIE:  Yes, Your Honour.

MASON CJ:	So that a court is under an obligation not to,give effect to the CONSTITUTION.
MR KENZIE:	Well, Your Honour, put at its baldest, that is

so, Your Honour, but with the proviso that the

scheme permits that question to be examined by another

judicial tribunal. Absent that proviso, Your Honour,

our submissions would fail but it is the division
of responsibilties and the presence of section 75(v)

that preserves the legislative scheme, in our

respectful submissior.,and we say that is permitted.

C1Tl6/l/JH	152	2/5/90
O'Toole(2)

There is no reason why constitutional questions should be regarded as different from any other

questions in relation to the division of the

judicial power of the Connnonwealth, in our

respectful submission, at least. Provided that

there is a judicial machinery for the examination of the constitutional question, then no violence

is done to tne CONSTITUTION by virtue of the

defining of jurisdiction of a Federal Court in

such a way as to, in effect, Your Honour, prevent

it from examining that question and - - -

McHUGH J:  What about covering clause (v) of the

CONSTITUTION?

MR KENZIE:  Your Honour, we would submit that there is no

violence done to covering clause (v) by the creation

of a scheme which does no more than allocate the

judicial power. Your Honour, it has not.been doubted

that this can be done.

McHUGH J:  But the effect of your argument is that the

Federal Court is obliged to ignore the CONSTITUTION,

when covering clause (v) says the CONSTITUTION is

binding on all the courts.

MR KENZIE:  Your Hunour, the effect of the argument is that

the Federal Court is obliged to observe the

jurisdictional limits which it has, and the Act

creates a situation in which the judgment of the

Federal Court is subject to decision of this Court

under section 75(v). That is the crucial distinction.

That is what you find here but you do not find in

cases like FONTANA. I mean, it would not have

availed the trade union in FONTANA to say, "Well,

look, we are not really responsible. We'll go

somewhere else and complain about it". There was

no other judicial recourse, in our respectful

submission. Once the Act was valid, it was valid and

that was the end of it. But here, the whole sche~e

is that whatever happens under section 119 is

subject to section 75(v). (Continued on page 154)

C1T16/2/JH	153	2/5/90
O'Toole(2)

MR KENZIE (continuing): That is a matter which everyone must

assume the Parliament was well aware of when it

enacted section 60.

Now, Your Honours, we say that our submissions 1n

this regard are consistent with - - -

GAUDRON J: Could I interrupt there, Mr Kenzie, because, to

answer the covering clause (v) issue, do you not

have to go at least so far as to say that it is

within constitutional power for the Parliament to

provide that the rights and obligations of persons

who are purportedly or who appear as parties to a

purported award shall be in accordance with that

award unless and until set aside, pursuant to

section 75(v) of the CONSTITUTION. Is that not the

only answer you could make to the covering

clause (v) issue?

MR KENZIE:  Yes, Your Honour, it is. The other answer we can

make is that there is some authority which supports

the validity of the legislative enactment if it

provides another judicial means of review and we

will come to that in a moment but the bald answer

to Your Honour's question we think is yes.

McHUGH J: That means your argument means that the determination

of paper rights is an exercise of judicial power

because that is all they are, paper rights.	They
are not rights - - -

MR KENZIE:  Your Honour, they are defeasible by action under

section 75(v). That is not a ground for invalidity,

in our respectful submission. It depends upon when

proceedings are taken under section 75(v). If they

are taken before the proceeding, the Federal Court will act on the basis of the High Court's view; if

nothing has happened, then you have the situation

you had in COCKS'S case. You have a determination of

the Federal Court and a penalty exacted, subject to

attack by prerogative relief.

McHUGH J: But, does this mean that there are rights and

obligations until they are set aside or, rather

in the conventional vie~ that if it was

constitutionally invalid they would have no

effect at all and any citizen could ignore it.

MR KENZIE:	Your Honour, if no one took the point in the Federal Court until some years later and the matter
went by default and a penalty was imposed, one might
ask whether the Federal Court was acting absent
jurisdiction, with respect.
BRENNAN J:	But that question could only receive one answer and that would be in the negative.

ClT17/l/SH	154	2/5/90
O'Toole(2)

MR KENZIE:  Perhaps that is - - -

BRENNAN J: In other words, it is not acting outside its

jurisdiction and the decree of the superior court

provides its own charter of rights and obligations.

MR KENZIE:  Yes, and that is what section 119 would permit and

permits it if no one takes the point and it would be

the same situation if an onus of proof provision

applied and the onus of proof could not be satisfied.

In this situation, you have a provision which is, in one respect, analogous to the sort of procedural

provisions that you had in MILICEVIC V CAMPBELL

where procedural legislation is defended. This

legislation can be defended on the basis that the

procedure for attacking the validity of an award
is the procedure of prerogative writ under

section 75(v).

Your Honours, we would submit that there is no

authority contrary to this submission but it does

gain support, at least to some extent, from authority

including the BUILDERS LABOURERS' case,

(1986) 161 CLR 88. In this case, Your Honours

referred to the earlier decision of the

Chief Justice and Mr Justice Williams in

DEPUTY FEDERAL COMMISSIONER OF TAXATION, at

page 95.

(Continued on page 156)

ClT7/2/SH	155	2/5/90
O'Toole(2)

MR KENZIE (continuing):  Your Honours, that earlier case is

not on our list of authorities. That earlier

case is DEPUTY FEDERAL COMMISSIONER OF TAXATION V

BROWN, (1957-1958) 100 CLR 32, at page 40. We have

not given that case to Your Honours but if I might

give Your Honours that reference now. It is a

short passage, Your Honours, and at page 40 the

Chief Justice said:

Although there is no judicial decision to

that effect, it has, I think, been generally assumed under the CONSTITUTION liability for tax cannot be imposed upon the subject without

leaving open to him some judicial process by

which he may show that in truth he was not

taxable or not taxable in the sum assessed,

that is to say that an administrative assessment

could not be made absolutely conclusive upon

him if no recourse to the judicial power were

allowed -

et cetera, and that is taken up at page 95 where

the Court says in the BUILDERS LABOURERS' case:

The view, discussed by Dixon C.J. and

Williams J. in DEPUTY FEDERAL COMMISSIONER

OF TAXATION V BROWN (16), that under the

CONSTITUTION liability for tax cannot be

imposed upon a subject without leaving open to him some judicial process by which he may show

that he is not taxable, or not taxable in t~e

sum assessed, has no application here.

That view proceeds on the basis that a law imposing liability to an incontestable tax would be invalid because it would confer on an

administrator power to determine conclusively
issues on which the constitutional validi r,, of

of a law with respect to taxation depends. ·

Although the analogy is not perfect it proceeds on the

basis that the availability of another means of

judicial review would cure a defect which goes to

a constitutional source, and we rely on that passage,

if it please the Court.

Your Honours, we have referred to FONTANA and

WILLIAMSON's case and we do not take Your Honours

to those now. We have referred to those; thev

were relied upon or referred to by the majority in

Mr Justice Gummow's judgment and we say that they

are distinguishable in the circumstance that is

presently before the Court.

C1T18/1/LW	156	2/5/90
O'Toole(2)

Your Honours, what we say on the top of page 7

really perhaps is repetitious having regard to the

debate but we say merely because Parliament cast
legislation in terms which prevent a Court from

determining all questions which might be said to

form part of a general controversy between parties,

it does not mean that the subject-matter of

legislation is something less than a matter within

77(1). This is so regardless of whether the area

removed from scrutiny might be relevant to constitutional

jurisdiction if the jurisdiction of the Court was more

widely defined and we say - and I do not invite

Your Honours to go to this authority now - it is an

example of the allocation of judicial power.

Although it has constitutional overtones, it is an

allocation of judicial power in the same sort of

sense as was contemplated in the old inter se

cases where the validity of section 40 of the

JUDICIARY ACT was looked at and the validity of the

sections was upheld, notwithstanding the fact that inter se

questions were automatically removed from analysis to

the High Court, the validity of the section was

upheld on the basis that it did no more than allocate

the judicial power of the Corrnnonwealth.

DAWSON J: What do you say the matter confided to the Federal Court

is in section 119?

:MR KENZIE:  We agree with the analysis of Mr Jackson, that is,

that the matter is the question of the enforcement
of the federal award as opposed to the determination

of its constitutional validity.

DAWSON J:  If you put it in that way you then must have to

decide whether an award exists.

(Continued on page 158)

ClT18/2/LW	157	2/5/90
O'Toole(2)

MR KENZIE: Well, Your Honour, if award - I am really using

"award" in the sense - - -

DAWSON J: Well, if you say it is to enforce purported awards - - -

MR KENZIE:	Yes, Your Honour.
DAWSON J:	that is a different matter.

MR KENZIE: Yes, I am sorry,Your Honour, I was using 'award"

in the sense that I have put submissions on before

and I apologize for that, Your Honour, but that

is the sense in which we say that it should be

understood.

DEANE J: What do you say is the basis of the commission's

jurisdiction, is it the commission's finding

that there is an industrial dispute, or is it

that there is, in fact, an industrial dispute?

MR KENZIE:	The latter, Your Honour.
DEANE J:	I appreciate that there is a lot of authority that

says that, but the Act does not seem to me to

read that way.

MR KENZIE:  No, but decisions of this Court would suggest

that that is the answer Your Honour.

DEANE J:  Because why would it not be within constitutional

power to say that if the expert body in this

field is of the view that there is an industrial

dispute it will have jurisdiction?

MR KENZIE:  In my respectful submission, there would be nothing

at all to prevent - - -

DEANE J:  Then what is the main authority against that

proposition?

MR KENZIE: Against that proposition?

DEANE J: Yes.

MR KENZIE: Well, Your Honour, in our respectful submission,

the judgments of this Court in the WOOLDUMPERS

case are - although there are different judgments,

they do not all go to that issue - but such of the

judgments as go to that issue are highly supportive

of the proposition of Your Honour's second

suggestion. Indeed, I think Your Honour's judgment

in WOOLDUMPERS and I think, Your Honour the

Chief Justice's judgment in WOOLDUMPERS touches

upon that issue and suggests the existence of

jurisdiction on the second basis that Your Honour puts.

C1Tl9/l/JL	158	2/5/90
O'Toole(2)

DEANE J: Because if that were so, it would make your path

a lot easier would it not?

MR KENZIE:  Yes.

DEANE J: In that it would be readily comprehensible that

what would be said would be, if you want to

attack the award you have to attack the connnission's

view but while that finding stands the award will

be final and binding.

MR KENZIE:  Yes, Your Honour. Well we would assert that

the existence of the finding, whilst it may

be a convenient means of establishing the

existence of· jurisdiction and perhaps providing

the basis of attack in some cases, is by no means

coextensive with the jurisdiction of the connnission
and, Your Honours, I do not have the authorities

at my disposal at the moment but in addition to

WOOLDUMPERS there is the decision in BAIN V CADBURY

SCHWEPPES, Your Honour - I do not have the reference -

which support the wider jurisdiction of the

connnission, and this is apart from the question of

whether the connnission can form the view there is

a pending, or probable, dispute as opposed to an

actual dispute of course.

DEANE J:  To that extent the comparison with the taxation

position where you can attack the assessment, or

that you can attack the making of the assessment,

pursuant to the provisions of the Act,that if the

attack is not launched in that way the liability

is indisputable?

MR KENZIE:  Yes.

DEANE J: That, of course, though would leave a problem as to

whether section 75 of the CONSTITUTION comes

into it?

MR KENZIE: Well, yes Your Honour, we accept that, but we

do put that the task in front of someone who

wants to actually show that the connnission did

not have jurisdiction to make an award is a more

difficult task than simply showing that the finding

did not reflect - was not a proper paper finding.

Your Honour, quite apart from WOOLDUMPERS there are

the authorities which are to the effect that if the

cormnission purports to act under one head of power

mistaking that head of power as the relevant head of

power for another but jurisdiction was available

under the other head of power, the jurisdiction

stands. RV GRAHAM, and other cases, support that

contention. So that there are a large number of hurdles

that face anyone who seeks. as it were, overturn the

C1Tl9/2/JL	159	2/5/90
O'Toole(2)

award. And my learned junior reminds me of the
RV TURBET where the commissioner in question found

the existence of an award which was thereafter disputed and said to be based on an intrastate dispute.

(Continued on page 160)

ClT19/3/JL	160	2/5/90
O'Toole(2)

MR KENZIE (continuing): When the matter came to the Court the

Court, accepting the narrow analysis of intrastate

dispute, said that in fact the alleged intrastate
dispute was, when looked at, but a part of a wider

interstate industrial dispute and, although the

commission had certainly not proceeded on that

basis, upheld the jurisdiction. So that there

are a number of questions that arise but whether

now is the time to proceed more deeply into those.

In any event, Your Honours, we submit that the

provisions are valid for the reasons that we submit

and, accordingly, we would submit that the questions

ought to have been answered in the way that

Mr Justice Northrop and Mr Justice Gray answered them; that is, that although at first blush one

might perceive section 119 as simply allowing the

Federal Court to proceed on the basis of ignoring
the CONSTITUTION, in fact the legislative scheme
provides for relevant judicial review and it is

a matter of the definition of the jurisdiction

of the court and not an attack on the judicial

power of the Commonwealth as was suggested - - -

MASON CJ:  Can you give me the reference to the CADBURY

SCHWEPPES case, in due course, if you - - -

MR KENZIE:  Yes, Your Honour, we certainly will.

Your Honours, we do not need to take Your Honours

in any more detail, I think, to the answers to

the questions. We have submitted that they ought

to have been, accordingly, answered in the way
that Justice Northrop otherwise answered them.

We have not dealt with section 32 of the FEDERAL

COURT ACT. Our friend submitted - and this really

returns to construction, we apologise for that

but we have dealt with it in this way in our

submissions. At page 8 we come to section 32 of

the FEDERAL COURT ACT.

Mr Jackson has submitted that the two matters,

namely validity of the award and its enforcement

or application, are really one; alternatively,

that they are associated in the way contemplated

by the Federal Court in the TOOTH case, 34 FLR;

and therefore section 32 of the FEDERAL COURT ACT

is attracted.

Your Honours, may we simply submit that those submissions do not seem to take account of

section 60 itself. Section 60, firstly, makes

more difficult the task of suggesting that the

question of validity is associated with the first

question that Your Honour Justice Dawson asked

me about but if that be wrong then none the less if

it would be assumed that the matters are still

associated, notwithstanding section 60,

C 1T20 /1 /ND	1 6 1	2/5/90
O'Toole(2)

section 60(1)(b) is a special provision

dealing with the question of the extent to which

the awards can be examined and section 32 is a

general provision, and our submission would be that

even if we were wrong about everything else,

section 32 would not prevail over section 60, the

special provision.

BRENNAN J: That is rather the problem of looking at this

in terms of jurisdiction and associated matters.

Section 60(l)(b), as I read it, deals with

jurisdiction in part and deals with the law

relating to collateral attack in part. We are

not concerned in this case with jurisdiction because

there is no question of an appeal against a review

of or a quashing of the award. What we are concerned

with, however, is a collateral challenge to and

a calling in question of the award in proceedings

under 119.

MR KENZIE:  Yes. Your Honour, in so far as one approaches

section 60 in that way, it becomes a question of

construction and we have put our submissions on

questions of construction. We have submitted that

when you have a look at the whole of the legislative

scheme, really, absent section 60, it permits various

remedies in relation to the respondency to an award

to be availed of and the fact that they are not

judicial, Your Honour, is, in our respectful

submission, irrelevant for this purpose. If the

Act is cast in such a way as to permit a number

of avenues of escape or attack to a person said to be a party to an award then that is relevant to the question of whether collateral attack can

be mounted.

(Continued on page 163)

C1T20/2/ND	162	2/5/90
O'Toole(2)

MR KENZIE (continuing):  The availability of collateral

attack is made doubly hard by the terms of

section 60, and of course we have put our

submissions on that and we have dealt more

recently with the question of jurisdiction.

Your Honours, it is for those reasons that we

submit that the legislation is valid, given the

wide construction for which we have contended.

Your Honour, the reference to BAIN - - -

MASON CJ: Yes, I have discovered it - 159 CLR 163.

MR KENZIE: If it please the Court.

MASON CJ: Yes. Thank you, Mr Kenzie. Yes, Mr Solicitor.

MR GRIFFITH: Could I hand the Court our contentions?

Whilst the Court is reading these contentions,

may I also hand up compilation of extracts from

legislation answering Justice Brennan's question

to me yesterday?

MASON CJ: Yes. Thank you. Yes.

MR GRIFFITH: Could I take the Court first briefly to the

second document in response to Justice Brennan's

question yesterday. There is a summary, with

attached extracts of legislation, indicating that
in the case of bodies other than a judge in a
court_ the uniform practice in Commonwealth

legislation seems to have a statutory direction that an answer on a case stated should be given effect to. There is a rather unusual expression

of this in respect to the COPYRIGHT ACT which is

the first attachment, the first two pages. In

the other legislations it is more direct. In

respect of legislation dealing with the judge or
a court stating a case, there seems to be no such

provision. Extracts are included from the

FEDERAL COURT OF AUSTRALIA ACT,	INCOME TAX ASSESSr1ENT
ACT,

ARBITRATION ACT, if I could correct the spelling of INDUSTRIAL RELATIONS ACT and CONCILIATION AND

conciliation in the second-last line. It might be

a matter of inference from that difference that the

position of a judge in a court is somewhat different

from that provided specifically in respect of a

person or body other than a judge in a court, but -

BRENNAN J:  Mr Solicitor, I might just raise one question for

your consideration before you go on to this next

part of your argument and it is this. If the

reason why no appeal lies to this Court from answers

to questions in a stated case is that the answers

are advisory only, as distinct from orders which

determine the mutual rights and liabilities of

the parties, then is it open by a procedure of removal under section 40 to invite this Court to

CIT21/l/CM	163
O'Toole(2)

exercise, in lieu of the court to which the

case is stated, a like jurisdiction,that is,

one which is advisory only and not determinative

of the rights and liabilities of the parties?

And if it is, and if this is an advisory opinion,

which is all hypothetical matters open for

argument, is the ultimate order which this Court

should make an order which revokes the order of

removal?

MR GRIFFITH: Well, Your Honour, perhaps first in response to

that question we would say that if the Court takes
the view that the judge is obliged to abide by

the order, well then that would determine the matter,

Your Hono~r, and of course the issue would be a

matter that would be an issue estoppel between the

parties, as to determination, so that it would

determine the matter with finality and we would submit, Your Honour, that must be expected to be

the ordinary consequence of the case stated. We

have not overnight been able to find an example

where a judge has not complied with a direction

of a case stated and in respect to the formal

procedure under arbitration Acts, Your Honour,

it is clearly stated that an arbitrator is obliged

to comply with the answers given on a case stated,

so that might be an answer preliminary to getting to

the point that Your Honour postulates. If we get

to the point that Your Honour postulates, we would

submit, Your Honour, that on removal to this Court,

then such characteristic would change, because

the effect of an answer, either in the form of

an answer to the question or by the Court dealing

with the substantive issue, which we have submitted

is 1he alternative choice in the discretion of this

Court, that would be a final determination between

the parties of the issue of law, and when the

matter was remitted to the judge, Your Honour, that

would be an order which had complete finality and

not one which could, in any way, be regarded as

advisory and that is because, Your Honour, the

issue has been removed from this Court as one

involving the construction of the CONSTITUTION,

which is determined with finality by this Court's

judgment or order. If Your Honours please.

(Continued on page 165)

CIT21/2/CM	164
O'Toole(2)

MR GRIFFITH (continuing):  If I could briefly give the

Court a reference to section 9 of the

INDUSTRIAL RELATIONS ACTS 1988 which is the

section which provides for the present proceedings

to be continued under the present Act. I do not

think that section has been mentioned to the Court yesterday. It is not in issue that the proceeding continues under the old Act but for completeness

we give the Court that citation.

We also mention to the Court that it is the

case that the respondent was given the opportunity at an early stage in these proceedings to apply to

the High Court rather than to continue to pursue

its argument that it could agitate these issues of

validity in the Federal Court. That opportunity arose in the Federal Court on 5 June 1989 before

the Chief Justice Mr Justice Merling and Justice Gummow

when the matter came on for hearing - I think the

occasion was the appeal against the stating of the
case in the first place. It was not the hearing, of

course, which proceeded before five judges and we

have extracts of the transcript of that occasion,

pages 9 to 14/15, which indicate the court gave a

specific opportunity - - -

MASON CJ:  You are returning now to the preliminary

question, are you?

MR GRIFFITH:  Your Honour, also to the question of the

issue of the appropriateness of the respondent saying

that it is entitled to pursue this issue of

validity because presumably, Your Honour, it says

this is the appropriate forum for it to do so, the

matter of the enforcement of the award being

proceedings before the Federal Court subject, of

course, to section 60 and subject to the valid

operation of section 60. What we say is, Your Honour,

that the appropriate procedure is that if there

is to be challenge to the validity of the award, well then proceedings to that are to be taken to a	court which has jurisdiction which, we submit, is	this Court and only this Court and what we say is
in this case, Your Honour, a specific opportunity to do just that, as part of the proceedings in the
Federal Court, was given to the respondent and it
chose not to take it. So what we say, Your Honour,
is there is a split jurisdiction and it may be,
Your Honour, of course, that that jurisdiction must
be exercised having regard to, as may be, for
example, covering clause (v) of the CONSTITUTION.

But, if there is a split jurisdiction,

Your Honour, so that the vesting of jurisdiction

provides that one aspect should be determined in one

court, a constitutional aspect, for example, in

ClT22/l/JH	165	2/5/90
O'Toole(2)

another court, we refer to this element of transcript

to indicate, Your Honour, that those two matters

can consistently and, on the basis of ordinary comity

between courts operate. If the respondents

desire to raise a constitutional issue, our

submission is, there is jurisdiction in this Court

to do so if they raise it in proper form and,

we submit also, Your Honour, that they were not cut

out or denied an opportunity to do so. To the

opposite, they were given the opportunity and they

declined it. So, we do submit it is relevant to

the second issue.

As we engage in the opening paragraphs of our contentions·, it is our submission that section 119

read with section 60(1) of the

CONCILIATION AND ARBITRATION ACT is a law defining

the jurisdiction of the Federal Court under

section 77(i) of the CONSTITUTION we say, merely

with respect to a matter arising under a law made by

Parliament within section 76(ii). So, we say,

that paragraph 76(i) has no relevance.

As to the matter raised by Justice Dawson to

my learned friend, Mr Kenzie, a few minutes ago, it

is our submission that the scope for matter in this

case is determined by the terms of the Act defining

jurisdiction. We submit that the relevant matter is

the dispute over liability to penalty for breach of

an award. If you like, "award" can be put in

inverted commas and one could say, "apparent award"
or, for example, an award proved under section 193

of the Act to which my learned friend has already

taken the Court. That is what we mean by "award" but

what we say is, that is made clear when these sections

are read together that is what is excluded from che

matter as defined where jurisdiction is vested, is

issues concerning the validity of the award. In 0 1--1r

submission, such exclusion, at least in the case of

non-constitutional grounds or facts, has been one chat

has been held valid in this Court and we refer to

HARRISON V GOODLAND, 69 CLR 509, in particular, the

judgment of the Chief Justice at page 516.

(Continued on page 167)

C1T22/2/JH	166	2/5/90
O'Toole(2)

MR GRIFFITH (continuing):  The Court will recollect that

HARRISON V GOODLAND was referred to both in the

judgment of Justice Gummow and also in the

judgment of Justice Gray.	We would submit also
that this view - - -

BRENNAN J:  Mr Solicitor, if the Court 1s

left necessarily in the state of not determining

whether the "award" is a valid award or not, how does

it determine liabilitj to penalty under it?

MR GRIFFITH:  Our submission is, Your Honour, that the award

is accepted as being a valid award. If there is to

be a challenge to it, Your Honour, our submission is·

that the challenge is to be made pursuant to the
provisions of the CONSTITUTION which enable it to
be done in proceedings in this Court. If that is
not done, Your Honour, then, in our submission,

the award is properly to be accepted by the

Full Court as valid and we would submit that -

perhaps to take up Your Honour's question to my learned friend, Mr Kenzie, of a few minutes ago

also - if section 60 is regarded as also a law
dealing with collateral attack, we would submit

section 60 is a law dealing with jurisdiction in

respect of collateral attack. It, in effect, is

expressing by way of negatives that the only basis

for collateral attack also is by proceedings in this

Court, pursuant to section 75(v).

BRENNAN J:  But collateral attack is not a problem of

jurisdiction, is it?

MR GRIFFITH: If there is no jurisdiction to deal with the

issue raised by the collateral attack, in our
submission, that does go to a matter of jurisdiction
of the Court and we submit that it is not necessary
to justify section 60 in this aspect, for example
under the arbitration power, if one regards it as

dealing with collateral attack. We say, none the

less, it is a section which says that jurisdiction

on issues of this sort, including collateral attack,

are to be determined by the High Court and the

High Court solely within its jurisdiction under

75(v) or some other jurisdiction conferred by a

law of the Parliament within section 76 or,

Your Honour, it could be in some other manner.

For example, there could be jurisdiction in the

State court in respect of these matters.

BRENNAN J: If we leave for the moment - let us look at

section 119 and forget for the moment which court

the jurisdiction is vested in. In determining
that matter to finality, must the court that

determines it not decide whether or not the award

is valid?

ClT23/l/SH	167	2/5/90
O'Toole(2)

MR GRIFFITH:	We submit, no, Your Honour.
BRENNAN J:	Must  it not decide whether that which is

propounded as an award is an award falling within

the meaning of section 119?

MR GRIFFITH:  Your Honour, it must deal with the question of

parties, whether or not the parties to the proceedings

for enforcement are parties to an award. Of course,

those issues can be determined but we submit,

Your Honour, when one gets to the heart of the issue

as to --where there is an attack here on

constitutional grounds to validity of the award,

that is a matter to which the Court is excluded

from its consideration of the issue of imposition

of a penalty and is in the position that unless

and until the award is affected as to its validity

by some order of this Court, the Court is in the

position that having satisfied issues of formal

validity of that sort, that the award is to be

given force according to its terms and it becomes

a matter of construction of the award, not an issue

of consideration of validity of the award, in our

submission.

BRENNAN J:  I understand the argument but it seems to me that

the argument leads to this result, does it not: that

if there be an issue under section 119 as to whether

that which is propounded to be an award is an award

for the purposes of section 119, there is no court

which has jurisdiction to determine that issue in

that matter?

MR GRIFFITH:  Your Honour, we would submit that if that is an

issue as to whether or not the award is valid, that

is a matter which is vested in respect of

constitutional validity. The issues are vested

in this Cou~t under section 75(v) of the CONSTITUTION.

BRENNAN J: Section 75(v) has nothing to say about section 119

collateral attacks.

MR GRIFFITH:  Your Honour, it gives jurisdiction to attack

the validity of an award and we submit what

section 60 does is to say that in so far as it 1s

constitutionally possible, all attacks on the

validity of an award including, if you like,

collateral attacks, are excluded from the jurisdiction of all courts, including the

High Court.

(Continued on page 169)

C1T23/2/SH 168 2/5/90

O'Toole(2)
GAUDRON J: Another way of saying it though is, so far as

is constitutionally possible for the purposes of

determining th~ rights and liabilities, the question

of constitutional validity is irrelevant unless and

until it is determined in another way.

MR GRIFFITH:  I am indebted to Your Honour.

GAUDRON J:  Not that it is excluded, it is just irrelevant.

MR GRIFFITH:  Yes, we accept that, Your Honour, as another

way of obtaining the same result in effect.

DAWSON J:  And that ~oes mean that you could not then prohibit

• •	the Federal ·court from proceeding to enforce an
award on the basis that it was beyond power?

MR GRIFFITH:  It may be, Your Honour. Of course, the obvious - - -

DAWSON J:  But it must be, must it not?

MR GRIFFITH:  The mechanism for attack, Your Honour, is to

attack the person who made the award in proceeding

under 75(v) and, Your Honour, we say that the

availability of that mechanism is sufficient to say

that there is a mechanism available to attack the

validity of an award, and of course, Your Honour,

it may be as a matter of discretion, for example

issuing prohibition,the Court could take the view

that it would not issue an order because it was
too late, for example, for the application.

Well, none the less, Your Honour, we would say that
the CONSTITUTION is satisfied and vindicated.

There is this jurisdiction in the Court which is

available to be exercised by a party, as soon as an

award is made, who cavils at its validity

DAWSON J:  I just want to investigate how far that goes.

There would be no circumstances in which you could prohibit the Federal Court from doing what you say

it has jurisdiction to do, that is, to proceed on the

basis of a purported award.

MR GRIFFITH:  Your Honour, if this Court had determined that

the award was invalid and made an order for prohibition

and the Federal Court - - -

DAWSON J: Prohibiting whom?

MR GRIFFITH: Prohibiting the person who made the award, Your Honour.

DAWSON J:	From doing what?
MR GRIFFITH:	From acting on the basis that the award is valid,

or from the parties to the award acting in respect

of it, Your Honour. If there was a proceeding on

ClT24/1/LW	169	2/5/90
O'Toole(2)

the making of the award between the parties to the

award against an officer of the Commonwealth,

Your Honour, the Commissioner or the - - -

DAWSON J:  So the prohibition would be to prevent or to prohibit

someone from bringing proceedings to enforce the

award?

MR GRIFFITH: Well, from taking any further action in respect

of the award, Your Honour.

DAWSON J: Yes.

MR GRIFFITH:  Now, if there were such an order made, Your Honour,

and at some time after that the Federal Court purported

to take proceedings and to entertain proceedings for

the imposition of a penalty, one would expect,

Your Honour, that there would be a mechanism available

to prevent those proceedings continuing because

it would have been demonstrated, Your Honour, that

the purported award, if you like, was not an award.

DAWSON J: That is the step I find difficult, if there is

jurisdiction to act on a purported award.

MR GRIFFITH:  Your Honour, we submit there is until such time

as it is established in this Court that there is no

award and it is for this Court to establish that.

When that is established, we submit that - - -

DAWSON J:  If you can proceed on the basis of a purported

award it does not matter that there is no award.

MR GRIFFITH:  Your Honour, if in fact there is no award

we would submit, Your Honour, in that case one could

not say it is even a purported award.

McHUGH J:  But supposing the court of petty sessions or the

industrial magistrates convicted somebody, what

remedy · has he got?

MR GRIFFITH: When there is an issue as to constitutional validity?

McHUGH J: Constitutional validity.

MR GRIFFITH:  The remedy, Your Honour, is to,before the conviction,

take proceedings in this Court. As a matter of

comity between courts, Your Honour, one would expect

such opportunity to be given as it was in this case.

If you choose not to take it, Your Honour, you have

nothing to complain about.

ClT24/2/LW	170	2/5/90
O'Toole(2)

McHUGH J:  But he cannot take any remedy in respect of the

proceedings against him, could he? He could not

restrain the industrial magistrate from proceeding

with the matter. All he could do, under your argLID1ent,

would be to seek to have the award set aside at some

earlier stage before the magistrate had decided the

summons.

MR GRIFFITH:  Yes, Your Honour. He has an opportunity to

challenge the validity of the award elsewhere if

that is what he wishes to do. If he does not wish

to do that that is his choice. So that when he

gets a summons, Your Honour, he can make up his mind

whether to take proceedings here under 75(v) or not.

If that is his point he takes proceedings here.

If it is not his point, Your Honour, then he goes on with his defence.

DAWSON J:  I understood you to say he could take proceedings

to prohibit the party who is seeking to enforce the

award before the industrial magistrate from doing so.

MR GRIFFITH: Yes, Your Honour. It all comes back to the

question of taking proceedings within the

jurisdiction of this Court to challenge the validity

o f the award and the en tree to th a t i s -

DAWSON J:  Yes, but there is a remedy in relation to the

proceedings before the industrial magistrate.

MR GRIFFITH:  Yes.

McHUGH J:  But why? What is the remedy? How could he stop

the proceedings being continued before the magistrate?

It has got jurisdiction by hypothesis.

MR GRIFFITH: Just as in this case, Your Honour, the magistrate

would say,. "Well, you want to challenge the val id i ty

of the award, I'll stand this down, you can go and

finish your challenge and then we'll come back and

see where we are." That is what would have happened

here.

McHUGH J: It is not a challenge to the proceedings itself.

MR GRIFFITH: It is to the validity of the award, Your Honour.

McHUGH J:	Which is a different proceeding altogether.
MR GRIFFITH:	Yes, Your Honour, but that is the only way you

can challenge, in our submission, the validity of

the award. If that is an issue he seeks to raise

it must be done, we say, in proceedings in this

Court and nowhere else. That is what Parliament has sought to ensure with section 60 and its

predecessors as is summarized by the course of

legislative history that has been referred to by ~y

learned friend, Mr Kenzie, Aronson and Franklin.

C 1T25 /1 /ND	2/5/90
O'Toole(2)

Perhaps if I could just read it, on page 694

of that extract which was distributed. In this

summary of section 31(1) and now section 60(1),

about the middle of the page it is stated:

The government's intention was to exclude

High Court intervention in arbitration matters as much as was constitutionally possible.

And I do not know whether it is somewhat impolite for

me to take the Court to the rather extravagant and,

we would say, unfair - - -

MASON CJ:  I do not think it is necessary, is it? We have the

advantage of it and for what it is worth we have

imbibed it?

MR GRIFFITH: Yes, that is right. Quite so, Your Honour,

but it shows - - -

McHUGH J:  You are spurred on by the demon of eternal hope

in this case, are you not?

MR GRIFFITH: Precisely, Your Honour. It does show what

Parliament is about and, in a way, that is somewhat

an answer to Justice Deane's point that this is a

very inconvenient way of doing it. Clearly, that

is so but it is part of this internal hope to cut

down, so far as constitutionally is possible, all

reviews as to validity of awards including those based on facts and those based on constitutional

facts. There is a limit, it is accepted, and we

submit that that limit is if you wish to challenge

an award you do so in proceedings properly

constituted under section 75(v). If you do not,

either initially or at some time before the end of

completion of proceedings for the imposition of a

penalty, you cannot say that you have been
unconstitutionally foreclosed from an argument, be

it called collateral or a principal argument, from

challenging the validity of the award as part of
those proceedings. That is what Parliament has intended to do,

we say, by the expressions of section 60(1) and

that intention being made clear, we submit, the

only issue is that constitutionally valid? And

we submit it is because of the fact that this

Court's jurisdiction remains. It is the only jurisdiction that remains. It is inconvenient for

the Court that it remains, but- Parliament has done

its best over the years to ensure that the very

minimum of what is constitutionally required,

accepting the load of inconvenience on the Court,
is to be the position in respect of challenge to
the validity of awards because the intention is

not to undermine the operation of the scheme

established by the CONCILIATION AND ARBITRATION

ClT25/2/ND	172	2/5/90
O'Toole(2)

ACT and continued now in the INDUSTRIAL RELATIONS

ACT by enabling collateral and late attacks of

this sort as to validity of awards. And the ethos

of that is perhaps sufficiently sumnarized in the two
extracts on pages 249 and 284 and 286 of the appeal

book that were referred to briefly by my learned

friend, Mr Kenzie.

BRENNAN J: What it comes down to is this, is it, that when

one reads the word "award" in section 119 in

conjunction with section 60, one construes "award"

in section 119 as comprehending inter alia a

purported unquashed, invalid award and the question

that arises is whether if section 119 applies to

impose a liability enforceable under that section

for a breach of an unquashed purported but invalid

award it lies within the legislative power of the

Commonwealth?

(Continued on page 174)

ClT25/3/ND	173	2/5/90
O'Toole(2)

MR GRIFFITH:  Your Honour, we would seek to take out the adjective "invalid". We say there is

nothing invalid about an award until in

proper procedures in this Court, it has been

held invalid. So that one can not, we say,

predicate for the purpose of section 119 that

an award that appears, if you like, complete

and regular on its face, proved under section 193,

is invalid.

BRENNAN J: If you like quashable but unquashed?

MR GRIFFITH: Well, Your Honour, we say that one does not

entertain any thought as to whether it is

quashable or unquashable; we say that it is there

and until it is determined in this Court it is

invalid it is to be treated as being an award,

if you like, complete and regular on its face.

McHUGH J:	Is this a rejection of the declaratory theory of judging that Acts are declared invalid only
when a court does declare them?

MR GRIFFITH: Well, Your Honour, it is acceptance of the fact

that on these issues there is a clear vesting of

jurisdiction in two different courts to determine

these issues. Usually of course, Your Honour -

of course FENCOTT V MULLER et cetera establish the

view that it is convenient to.have all relevant
matters, both associated jurisdiction and the

pendant jurisdiction heard in the one court. That

is so, but this legislation, Your Honour, we submit,

goes entirely the other way. It causes inconvenience,

Your Honour, but it is done for a purpose to vindicate
the policy aspects which were referred to by my
learned friend Mr Kenzie in respect to establishing

the regime of the operation of awards, giving parties

their constitutional rights to challenge validity

but absolutely no more than their rights, certainly

doing nothing to make it convenient for them to do

it when the matter comes to their attention in

enforcement proceedings. But it does require an

element of anticipation. If you think in 15 years

time that you do not want to comply with the award you

should take the proceedings at the time the award

is made which binds you. But, we submit, that that

is within the discretion of Parliament to take a

rather robust view as to the position of the parites

if they desire to challenge validity. It is not

something left at their leisure, Your Honour, it is something where they must fit in within the scheme, procedures and jurisdiction prescribed both by the

CONSTITUTION and both by this legislation which,

of course, is intended to bottle up the jurisdiction

as much as possible. That is plain. But we submit

ClT26/l/JL	174	2/5/90
O'Toole(2)

that is effective unless it is regarded by

this Court as being unconstitutional.

DEANE J: If an award is unconstitutional does the person

cotlmlit an offence under section 119 in the absence

of a prior challenge to what he has done?

MR GRIFFITH: Well, Your Honour, we submit until an award

is held unconstitutional it is constitutional

for all purposes.	So, we would say that question
does not arise.	We say there can be no

unconstitutional award, Your Honour, unless

and until it is held unconstitutional.

DEANE J: It does arise in the question I asked you - - -

MR GRIFFITH:  I am sorry, Your Honour.

DEANE J: And that is, assume that there is an award and

and assume there is then a challenge in this	assume the person purportedly bound breaches it on your argument has the person connnitted an
offence?

MR GRIFFITH: Is that before or after the imposition of

a penalty Your Honour?

DEANE J: Before.

MR GRIFFITH:  If it is before the imposition of a penalty we

would say that would be the end of the matter,

Your Honour.

DEANE J: But has he cormnitted an offence in breaching an

award which purported to bind him at a time

when there had been no challenge?

MR GRIFFITH:  Your Honour, we would say for the purpose of

determining whether he has connnitted an offence

which can only be determined at the time one

determines that, there would not be an award which

could be regarded as the fountain for an

offence.

DEANE J: Well, then if the challenge.came afterwards, had

he cormnitted an offence and been wrongly

convicted or had he never committed it?

MR GRIFFITH: Well, Your Honour, it is the old question of

what is a consequence of this Court deciding

something is unconstitutional when there are people

convicted or imprisoned on the contrary view. That

is the question, Your Honour, where in a way these mtters have
to be teased out in this Court to indicate the extent to which
one does affect the validity of convictions on erroneous views

as to the (X)NSTITUTION's operation.

ClT26/2/JL	175	2/5/90
O'Toole(2)

DEANE J: Yes. While I am interrupting you, Mr Solicitor,

might I suggest that the problem with section 119

from your point of view may lie more in the word

"bound" than in the word "award" in that it, as it

were, starts with a statement of fact.

MR GRIFFITH:  Your Honour, we had been hoping our problems were

more about section 60 and there was no problem with

section 119 but we would submit that so far as

section 119 is concerned, there is a clear

expression of jurisdiction in the Court and other

courts, Your Honour, with respect to the imposition

of penalties for non-observance.

DEANE J: But, I mean, take "award", which is better from your

point of view: It is e~sy to see while

an order is there, it can bind. What it the person

concerned were to institute proceedings in this

Court seeking a declaration that he was not bound by the order because it was invalid?

MR GRIFFITH:	For constitutional reasons?
DEANE J:	Yes.

MR GRIFFITH: Well, Your Honour, the issue then would be whether

that was within the jurisdiction of the Court under

section 45 and section 30(a). We would say it is not.

DEANE J: But, the purpose of my question is to direct your

attention to the word "bound".

MR GRIFFITH:  Yes.

DEANE J:	I mean, if this Court could hold that he was not be_,,	by
the order because it was invalid, why would not Lhc

Feder a 1 Court a 1 s o be ab 1 e t o s a y , "We 11 , you ' r ,.'

not bound by this because it is a nullity"?

MR GRIFFITH:  Your Honour, we firstly would submit that t~is

Court is not able to make such an order; that

section 60, we submit, operates in this Court and

would prevent this Court from making that order.

DEANE J: What - well, a declaration as a preliminary to 1ssu1ng

a prerogative writ on constitutional grounds?

MR GRIFFITH: Well, Your Honour, if it is pursuant to

s~ction 75(v), then it would be within jurisdiction

but we submit that this Court has this jurisdiction under 75(v) because it is jurisdiction that it has.

It cannot be affected by legislation. We submit

that, in so far as the Federal Court is concerned,

its jurisdiction is limited because it does not

have the constitutional jurisdiction under 75(v).

Of course, this Court has further jurisdiction

under 30(a) and 45 of the JUDICIARY ACT but that is a

ClT27/l/SH	176	2/5/90
O'Toole(2)

jurisdiction that is subject to qualification by laws

of the Parliament.

DEANE J:	Yes, I follow, thank you.
MR GRIFFITH:	Yes, although I am not quite sure that I have

convincingly dealt with "bound", Your Honour, but

perhaps I have got a little more to contribute on that.

DEANE J:	I can see the force of it.
MR GRIFFITH:	At that stage, we have probably said sufficient

about what we say is the plain object and purpose of

the legislation to exclude courts' interventions in

arbitration matters as far as is constitutionally

possible and we submit that section 60 should be

regarded as an expression of limitation of jurisdiction.

It is a form of what cannot be done by the courts and

we do accept what Your Honours Justices Deane and

Dawson said in REG V C0LDHAM, 153 CLR at 427, as has

already been referred to that it is effective to

exclude any general judicial review.

We then list on page 2 several of the decisions

of this Court where there has been discussion of

section 31 as it then was, as a provision

purporting to deny jurisdiction and we would
submit that it is really only with the judgment

of Justice Dixon in HICKMAN that one first had

references to expressions such as "shall not be

regarded as invalid" as was used by Justice Dixon

in HICKMAN in 70 CLR 616.

(Continued on page 178)

ClT27/2/SH	177	2/5/90
0'Toole(2)

MR GRIFFITH (continuing): Although that was repeated by

Justice Dixon in several cases and also as we

have seen has been picked up by Justice Kitto

and also the phrase "using validity" was

referred to by Your Honour the acting Chief Justice,

as you then wereand Justice Brennan in COLDHAM.

McHUGH J:	Did Mr Justice Dixon say "shall not be regarded
as invalid" or did he say "shall not be invalidated"?
MR GRIFFITH:	Your Honour, I thought in HICKMAN at page 616it was

"shall not be regarded as invalid".

McHUGH J:  The passage I had in mind was on 615, he says:

Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated -

MASON CJ:	Yes, "not be· regarded as invalid", half-way down 616.
That is the passage you had in mind, Mr Solicitor?

MR GRIFFITH:  Yes, Your Honour, yes. Your Honour, I can give

you three other references to Justice Dixon using

similar phrases and perhaps as Your Honour has

asked this question I should. The first is

R V MURRAY, 77 CLR 387 at page 399. The second

is RV METAL TRADES EMPLOYERS ASSOCIATION; EX PARTE

AMALGAMATED ENGINEERING UNION,(1951) 82 CLR 208 at page 249 and the third is COAL MINERS' INDUSTRIAL

UNION OF WORKERS OF WESTERN AUSTRALIA V AMALGA11ATED

COLLIERIES OF WESTERN AUSTRALIA LIMITED,(1960)

104 CLR 437 at page 442 to 443. So we do accept

that Justice Dixon did use expressions having regard
to describing the operation section 60 by tenns
of using the expression "invalid" or "invalidity",

but, at the same time, we do note that in

REG V THE MEMBERS OF THE CENTRAL SUGAR CANE PRICES

BOARD, 101 CLR 246,at 255	Chief Justice Dixon
with Justices Kitto and Windeyer, while referring to these earlier cases we have mentioned stated	that the effect of such provisions is that, subject
to various qualifications, the validity of an award
is not open to challenge, so that is, we would say, more an expression in the form that we say
section 60 operates. It says it is not open to challenge because the court does not have jurisdiction to hear your challenge. So, we would submit that
when one has regard to the judicial descriptions by
Justice Dixon and Justice Kitto and other judges as
a validating provision, rather than a provision
which, according to its terms, purports to deny
jurisdiction to review a decision, is to refer loosely to consequence, rather than direct operation.
So that one can accept that validation might be
descriptive of the result. It might be, in a loose

CIT28/l/CM	178
O'Toole(2)

way, described as a practical effect of a

valid and effective denial of the power of any

court to review the decision. If you cannot find

a court - in a particular court if that court is

not able to consider your claims of invalidity,

because it has no jurisdiction, well then it

is perhaps descriptive to say well ..... result
is a practical effect that, for the purposes of

the litigation, you have to accept that it is valid. We say, not because it is declared valid, and indeed

one can see obvious reasons why the Parliament

would not seek to use that course of operation for

section 60, because plainly it would be invalid if

it purported to express constitutional validity as

a matter ·of legislative decree and we would submit

that that tends to corroborate the fact that what

is intended is what one has picked up from the

history of the entire legislation of this sort,

that what is intended is, so far as possible, denial

of jurisdiction, excepting the fact that the

legislature will never be victorious over this

Court in this issue, because this Court has a

constitutional jurisdiction which cannot be

impinged upon, particularly that jurisdiction -

BRENNAN J: I think we might go to the CONSTITUTION rather than

to the court.

(Continued on page 180)

CIT28/2/CM	179
O'Toole(2)

MR GRIFFITH:  Yes, Your Honour, I should say that, Your Honour,

to the CONSTITUTION, yes. So, Your Honour, we

submit that the discussion ready headed by

Justice Dixon and, perhaps, drawn together in

HICKMAN, does not alter the nature of the

provision as a jurisdiction denying provision and

we make the comment that, perhaps, one explanation

of what could be thought of judicial contortions

in this area is the fact that until 1930 there

could be a problem of an operation of reading down

a provision of this sort which is now illuminated

by section 15A. We do not have to address argument

to this Court that, of course, the operation of

section 60 is subject to the CONSTITUTION but,

before 1930, that fact would have expressed death

to the section because it purported to exclude

all jurisdiction subject, of course, to the Act as

it was expressed.

We do say that this intended operation is

confirmed by the history of the provision and the

Court has the extract from Franklin and also by the

policy of the Act and it, perhaps, is merely

descriptive to refer briefly to the judgment of

Justice Isaacs in CALEDONIAN COLLIERIES LTD

V AUSTRALASIAN COAL AND SHALE EMPLOYEES' FEDERATION,

42 CLR 550, where Justice Isaacs there in dissent,

dealing with the operation of the old section 21M,
which the Court will pick up from the history in
Aronson and Franklin, enabled this Court to make,
not premature, but early decisions as to validity of
the awards. But, having discussed the obvious

tension between the desirability of having stability

in industrial awards and the operation of

section 21AA, says towards the bottom of the page:

But it omits to invest the Court with power

to decide authoritatively and finally the

fact of a dispute, the very foundation of

its arbitral proceedings, and, as

interpreted, throws all its orders and

directions at any distance of time and at

even when evidence may be weakened or lost.

any cost into the crucible of this Court, award to-day has any existence except on

sufferance. And it must be remembered that

for present purposes the power of this

Court is destructive only: it can neither

rebuild nor amend. Can such a system,

giving with one hand and taking back with

the other, conserve or promote peace? It
invites thousands to a peaceful journey on

a Lusitania, and then provides the torpedo

that destroys the vessel. It is not for me,

ClT29/l/JH	180	2/5/90
O'Toole(2)

but for the Legislature, to consider how

far such a system conduces to its

declared high purpose by inspiring

confidence in arbitration -

et cetera. Well, that is very colourful but it does

tend to make the point that what Parliament is

about is seeking so far as it goes, to continue the

journey without the torpedo excepting, of course,

that this Court must vindicate · the CONSTITUTION

and that, of course, provides a natural tension

because it is quite natural, of course, that in

this Court, as in any other court, there is an

inclination to accept the view expressed forcibly

by Justice Gummow down below that it should be the
proper function·::BI1.dexercise of judicial power

under Chapter III to quell all matters in the controversy. Well, that is the case but here

there is a statutory qualification which, we say,

is firstly made specific and, secondly, which is

in power and we have already been referred by

Mr Kenzie to section 39B of the JUDICIARY ACT

which, we say, confirms this exclusion in the case

of the Federal Court.

As we assert in paragraph 2.3 of our contentions,

we say, section 60 does nothing to validate the

award. Its effect is to preserve an award from

attack and as such it is merely an expression of a

limitation to the court's jurisdiction; we say,

including so far as constitutionally possible,

this Court's jurisdiction.

(Continued on page 182)

ClT29/2/JH	181	2/5/90
O'Toole(2)

MR GRIFFITH (continuing): Dealing with the question of whether

or not this provision is within power, we submit

that the power is a matter of straight construction

pursuant to section 77(i) of the CONSTITUTION.

Parliament's power is to define the jurisdiction

with respect to any of the matters in section 75 and

76. That expression may be contrasted with the power

only to confer jurisdiction in a matter. So we would

cavil with Justice Gummow in his judgment below

where the view is expressed that, in effect, because

Chapter III requires that the Court be able to
quell all controversy, that it must be the whole of

the matter that is vested in the court, including

any associated or accrued jurisdiction. To some

extent there is a preliminary question even on that

postulation because one must first define the matter

and we define the matter as we have in paragraph 1.3

of our propositions as excluding -

Your Honour, we then in paragraph 3.2 make our

contention. We say it is entirely appropriate to

say that section 77(i) admits legislation that

confers jurisdiction in one aspect in one court, and

in another aspect in another court, or indeed only

vests jurisdiction in one aspect in a court.

And we give examples there that there is no reason

why Parliament should not provide that facts of a

particular matter be decided in one court or aspects

of law and that of a differing kind or different

issues be decided in another court. And perhaps

if we could give examples we would submit in respect

to a trade practices matter, facts could be decided

by a supreme court and it could be provided that legal

aspects could be decided by the Federal Court and we submit that that is within power under section 77(i)

to define the jurisdiction of a Federal Court, also
to define the vesting of federal jurisdiction in a
State court.

Similarly, for example, in family law it could be provided that facts could be decided in a

magistrates courts, family law aspects to be decided

in the Family Law Court, any company or commercial

questions could be decided in the Federal Court or

a State court. We submit such mixture in what

otherwise might be regarded as one matter, one
controversy, between parties are within power.

And as to that, our submission is there is no need

to distinguish constitutional issues so long as there

is a procedure by which the Court can determine them.

Here the procedure is under section 75(v), possibly by proceedings in a jurisdiction specially conferred

on the High Court under section 76(i) if that

jurisdiction is not subject to an exclusion of

section 60 or something of the sort. And also,

ClT30/l/LW	182	2/5/90
O'Toole(2)

of course, one could say that there is jurisdiction
in the State supreme court under the JUDICIARY ACT

section 39(2) with the right of appeal to the

High Court. There are various ways in which

procedures could be provided for dealing with

constitutional issues.

COLLINS V CHARLES MARSHALL has already been

referred to as an example of litigation where there
were closely related matters in two courts. That was

referred to by my learned friend Mr Kenzie and we

refer also to T.N.T. SKYPAK V FEDERAL COMMISSIONER

OF TAXATION, (1988) 82 ALR 175, at page 181, which we.

say is of same effect.

Our submission is that the position that we contend

for is similar in the United States. It has been held in the case of YAKUS V UNITED STATES which I will hand

to the Court together with an extract from Tribe's

American Constitutional Law, second edition 1988,

which discusses this principle. And without taking the

Court to the decision in YAKUS itself, there it was held

in the supreme court that Congress may confer jurisdiction

on the Federal Court to determine factual questions -

here as to whether a price control order was breached -

and may limit jurisdiction to determine whether

the federal law was valid to a superior federal court,

and that was held to be valid by the United States

Supreme Court.

And in paragraph 4.1 we make, I think, a fairly

obvious proposition that I will not read to the Court

and, we submit, in paragraph 4.2 that the effect

of section 119, read with section 60(1) is to define
the jurisdiction of the Court so as to limit it

to the matter whether there is a liability to penalty

for breach of an award. The claim that the award

exceeds constitutional limitations, we submit, is

a separate matter which is excluded from the

definition of the Court's jurisdiction.

In paragraphs 5.1 and 5.2 we deal with the

contention which was also covered by my learned friend

Mr Kenzie that some reliance might be made to the

preface to the chapeau subject to the Act to section 60

and we answer that proposition in paragraph 5.

(Continued on page 184)

ClT30/2/LW	18 3	2/5/90
O'Toole(2)

MR GRIFFITII (continuing): In paragraph 6 we pick up shortly

the contention that we submit section 60 does
qualify what otherwise would be the general operation

of section 32.

In paragraphs 7.1 and 7.2 we make, in effect,

a fallback submission that in so far as section 60

might not be regarded by this Court as being a

provision passed pursuant to section 76(ii) and

77(i) dealing with jurisdiction, we would submit

that the operation is regarded within power under

the arbitration power as being something which
extends to the preventing of an indirect impairment

of an award made in settlement of a dispute and,

therefore, within power.

Can I mention briefly, then, the question of

the covering clause (v) point which was raised in

discussion. We would accept what Justice Gaudron

put to my learned friend, Mr Kenzie, in respect of

that but we would say that there is, really, no

issue here of the CONSTITUTION being ignored or

not being enforced. Section 60, we submit, is to

be applied according to its terms subject to the

CONSTITUTION, to give effect to the CONSTITUTION

by enforcing an award until it is set aside under section 75(v). We say that there is no direction

which is to be given effect to by a Federal Court
judge by section 60 which is contrary to the
direction of covering clause (v). Indeed, to
the contrary; we would submit that inasfar as
covering clause (v) operates, it is a direction to
a Federal Court judge to comply with valid laws of
the Commonwealth and we submit, Your Honour, that
the question of whether laws are valid or not is
something to be determined by this Court, not by
a Federal Court judge and, at the very least, we
submit section 60 must be regarded as something
which is enacted within power pursuant to the

CONSTITUTION and pursuant to the provisions of the

JUDICIARY ACT. Therefore, the obligation of a

Federal Court judge inasmuch as it might be

affected by covering clause (v) is to give effect

to it.

I did indicate to the Court that it was the

INDUSTRIAL RELATIONS ACT, section 9, which had

effect of continuing the proceedings. Could I

correct that reference? It was, in fact, the

INDUSTRIAL RELATIONS (CONSEQUENTIAL PROVISIONS)

ACT, 1988, section 9, which continue these

proceedings. I apologize to the Court for that

error in reference.

DEANE J:	Are the sections of the present Act similar to
section 119 and section 60, Mr Solicitor?

ClTJl/1/SH	184	2/5/90
O'Toole(2)

MR GRIFFITH:  Yes, they are, Your Honour. The prov1s1ons are

continued.

DEANE J:	They are.
MR GRIFFITH:	But, I think we are agreed, Your Honour, that

apart from indicating continuing intention of

Parliament, they are not relevant to these

proceedings.

We have already made submission to the Court

on the issue of how the Court should deal with this

matter and we submit it is within the discretion of

the Court as to whether it should express its orders

by reference to the questions which are asked in the

case stated or merely by effect of an order which gives
effect to the determination of the issue of substance.

This is the operation of section 60, if the Court

pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Jackson.

MR JACKSON:  Your Honours, there area number of matters with

which I wish to deal and may I turn, first, to the

reliance placed by my learned friend, Mr Kenzie,
upon the decision of the Full Court of the

Federal Court in ROUNDSTREET PTY LIMITED V BROWN,

14 FCR 50.

Your Honours, the argument on behalf of the

applicant seeks to make out by reference to that

decision that the only power of the Federal Court

to examine the award in enforcement proceedings is

to see whether the award is bad on its face.

Now, Your Honours, it is apparent, in our submission,

that in arriving at that view, to the extent to which

it did arrive at that view,and there is an element of

doubt about that with respect to Their Honours, the

Full Court in ROUNDSTREET misinterpreted what had been

said by Mr Justice Kitto in REG V THE COMMONWEALTH

INDUSTRIAL COURT EX PARTE COCKS. Your Honours, I

will come to that in a moment.

(Continued on page 186)

ClT31/2/SH	185	2/5/90
O'Toole

MR JACKSON (continuing): But may I go first to ROUNDSTREET,

and in particular to page 55 and to so much of
page 55 as deals with quotation from Justice Kitto,
and Your Honours will see looking half-way down

the page on page 55 that what was said was, if

Your Honours look at the fourth line of the

quotation, he says:

if on its face -

emphasized -

it appears to be within power and is in

fact a bona fide attempt to act in the

course of the relevant authority.

Your Honours, it is quite apparent that two tests are
being applied - two different tests - not just one
which relates to the question whether it is bad on

its face. Now, Your Honours, if one goes from that

to the last part of that page Your Honours will see
that what is drawn from that by Mr Justice Keely

is that he says, in his opinion Mr Justice Kitto was

saying:

that the ...... Commonwealth Industrial Court

were not precluded by the provisions of s 60 -

that he was referring only to a situation where the

award provision, on its face, travelled into an

area in which the commission had no power to tread.

Now, Your Honours, that is not what His Honour

said, with respect, he said two things: one was

"on its face", the other was "bona fide attempt".

Your Honours will also see that the last

paragraph of the part quoted on the same page leaves

open another question and that is the question whether

the application they are:

being asked to give ..... was one which carried	it beyond the authority of the Commission
under the Act and -

Your Honours -

beyond the power of the Parliament to authorise."

So the constitutional issue was raised there as well.

And three issues were raised and it was not, with

respect, correct for His Honour to say, at the bottom
of page 55, that the only possibility left open was

the question whether the award was bad "on its face".

Now, Your Honours, it is difficult, with respect,

to see that Mr Justice Kitto's observations could have

ClT32/l/JL	186	2/5/90
O'Toole(2)

been interpreted so narrowly. But, Your Honours,

it i:s not entirely clear that is what

His Honour did becaus~ if one goes to the bottom

of page 55 to the last lin~ Your Honours will

see that it is said:

In the present appeal, the award provision

that the appellant is bound by the terms

of the award is plainly not such a provision - meaning apparently not such a provision as is

bad "on its face" -

On the contrary -

as Your Honour said in COLDHAM's case and His

Honour joins up two parts of COLDHAM's case the: "three conditions are fulfilled" ... namely -

and he cites the three conditions and then goes on to

say -

In my opinions 60(1) of the Act provides that

in those circumstances such a provision

cannot be challenged, nor can its validity

be called in question in this Court.

Now, Your Honours, if one took the passage to which
I have just referred on page 56 it supports the

case which we have made in relation to question (b)

and His Honour was in fact deciding that if those
three conditions were satisfied then section 60(1)
operated, but it was a question of course whether
those three conditions were satisfied.

Now, Your Honours, I am not at all certain that the other members of the Court who adopted His Honour's reasons would have arrived at that

conclusion and I say that to Your Honours because

if Your Honours look at the end or the penultimate

paragraph of the reasons for judgment of

Mr Justice Evatt and Mr Justice Northrop, they

agree with Mr Justice Keely but, Your Honours, they

seem to say in the paragraph commencing in the middle

of the page of page 51 that:

There was a lengthy hearing before the

trial judge. In his reasons for judgment,

the learned trial judge expressed three

opinions -

the third of which is the relevant one -

ClT32/2/JL	187	2/5/90
O'Toole(2)

---and Their Honours. seem to.assume

the.re and ,Your Honours ,also in the long paragraph

at the start of the next page and perhaps also

the paragraph following, that the only basis of

attack could be on the face of the award. Now,

Your Honours, it is not necessary, no doubt, for

Your Honours to interpret the case in great detail but it is susceptible on one view,of their view,

that in fact is supports our case; it certainly,

in our submission, cannot be regarded as one which

supports the other side. Now, Your Honours, if

one goes from ROUNDSTREET to the actual passage in

the judgment of Justice Kitto in COCKS,121 CLR 324,

at page 325 it is also apparent, in our submission,

that he was not suggesting a test as narrow as

''bad on its face" and,Your Honours, could I refer Your Honours to page 324. It is a passage which

commences in the last paragraph on 324 and it

goes through to page 325.	Your Honours have been
taken to it already.	May I just make these

observations about it. One is that Your Honours

will see immediately before the middle of page 325,

His Honour is applying HICKMAN and the other cases, and he says:

The mode of reconciliation which is established -

and he has the prefatory remarks before that on

that page and on the preceeding page which obviously

relate to those tests. Then he goes on to say,

after the quotation, that the method of reconciliation:

is to interpret section 60 as validating, so far

as it can validate it constitutionally, any

award provision which is outside the power of

the Commission if -

and then he sets out the test which he puts as two,

but are the ones which equally can be parsed as

three. Your Honours, one notes there, I might

observe in passing, that His Honour uses the

expression "validate" and that expression is used

on a number of occasions and even in the passages from HICKMAN in Justice Dixon's judgment to which

Your Honours were referred a moment ago, whilst one

sees expressions such as"protecting validity" or
"preventing validity" being inquired into, the

expression is also used as one involving giving

validity. Your Honours, I mention that in passing,

simply because there is a reference to it in that

sense at page 325.

Now, Your Honours, if I could move on from those

two cases to the second point which I wish to raise,

and that is that it was submitted by my learned friend,

Mr Kenzie, that an award in terms of section 60

CIT33/l/CM	188
O'Toole(2)

means a purported or de facto award. Now,

Your Honours, it is true to say that if one looks

at HICKMAN, which is 70 CLR 615, that the observations

which are made by Justice Dixon at that point say

something to that effect. Now, Your Honours, it is

the bottom of page 615 "°'Thereit ia said in the last

five or six lines:

To confine the meaning of those words -

speaking of regulation 17 -

to acts done lawfully and within the

jurisdiction of the tribunal ignores the

clear,. distinct and unmistakable intent of

the regulation.

And so on,and His Honour is there quoting from

Justice Starke in the AUSTRALIAN COAL AND SHALE

EMPLOYEES FEDERATION case but,Your Honours,

the quotation of that is only a step on the way to His Honours ultimate conclusion on the point

which Your Honours will see at page 617 in the first

new paragraph of the page, where His Honour says

that:

the decisions of a Reference Board should

not be considered invalid if they do not -

and so on.

(Continued on page 190)

CIT33/2/CM	189
O'Toole(2)

MR JACKSON (continuing):  So that, Your Honours, it is

right to say that in arriving at the conclusion,

His Honour refers to one of the cases which said,

not surprisingly, that an award might contemplate

an award which was only purported or de facto, for

the purpose of section 60, but the ultimate

conclusion arrived at is that whether by

prevention of examination of validity or by
giving validity perhaps does not matter, the
ultimate conclusion is that the operation of the

clause is as stated in that last paragraph.

Your Honours, it is suggested in paragraph 4

of our learned friend Mr Kenzie's outline of

submissions and was argued by him, that it is

consistent with authority to treat section 60(1)

as a limitation on jurisdiction of the Federal Court.

Your Honours, in some respects that is correct

because it prevents procaedings being instituted

there in order to challenge directly the decision

of the Conciliation and Arbitration Commission,

as it was, in making an award. But, Your Honours,

the section does have a number of functions and

the authorities relied on do not support, in our
submission, the view that section 60 in all its
aspects is something which is limiting the

jurisdiction of the Federal Court.

Your Honours, could I go first, again, to

HICKMAN, 70 CLR at 614, and Your Honours will see

the passage relied on is one which commences at

page 614 about point 6 where there is the reference to:

The jurisdiction of this Court under

section 75(v).

If Your Honours follow the passage through until the top of the next page, what is being spoken about is

not the jurisdiction of a court dealing with matters

coming to it from the Conciliation and Arbitration

Commission or the equivalent body but with the

jurisdiction of that body itself. Your Honours,

a similar observation may be made in respect of the

other passage which is relied on and that is in

COLDHAM, 153 CLR 419 commencing at point 1 and

going through to page 419 point 2, where again

what is being spoken about is not the jurisdiction

of a court to review a decision of a tribunal

below but rather the jurisdiction of the tribunal

itself. It is true to say that each of the passages

is prefaced by discussion of the jurisdiction of

the High Court but that really does not touch upon

the point, in our submission.

C1T34/l/JH	190	2/5/90
O'Toole(2)

Your Honours, there is one matter also I want to refer to in relation to COLDHAM and that

is a passage at page 427 about point 1

in the joint judgment of Your Honours Justice Deane

and Dawson, where Your Honours said in the passage

in the first new paragraph on the page that:

Such a statutory provis~on is effective to

exclude any general judicial review of the

proceedings of the Conn:nission.

And, Your Honours, undoubtedly that is correct but,

no doubt, we would submit, Your Honours were using

the expression "judicial review" in its ordinary

meaning as being a judicial review by proceedings

in which the decision of the Commission is sought

to be reviewed, the ordinary administrative law

proceedings, whether by way or prerogative writ or

whether it be by way of declaratory action.

Your Honours, that appears - it is difficult to

construe Your Honours judgments, of course, in a

sense, but that would seem to be the position, we

would submit, if one looks at the next sentence

because having referred to the provision being:

effective to exclude any general judicial

review of the proceedings of the Commission - Your Honours then turn to the fact that it was not:

effective to preclude this Court -

under -

section 7 5 (v) -

which, of course, is part of judicial review.

(Continued on page 192)

C!T34/2/JH	191	2/5/90
O'Toole(2)

MR JACKSON (continuing):  I should also say, Your Honours,

the conclusion of that passage seems to indicate

that no departure was being intended by

Your Honours from the principles in HICKMAN.

Your Honours, I mentioned earlier that in

HICKMAN the expression "validate" was also used

in the passages to which reference has been made.

Could I take Your Honours back for a moment to

70 CLR.	At page 615, the second new sentence on
the page:

Such a clause is interpreted as meaning that

no decision which is in fact given by the

body concerned shall be invalidated -

and then if Your Honours look on the next page,

page 616, in the first new paragraph on the page,

Your Honours will see in that paragraph, about

the middle of it:

to restrain the invalid action of the court

or body by prohibition.

And then, about six lines further on:

necessarily spells invalidity.

And then, in the same paragraph at the end of it:

shall not be regarded as invalid.

Your Honours, the next point to which I wish

to go is this: reliance is placed by our learned

friends upon REG V KIRBY, EX PARTE TRANSPORT

WORKERS' UNION, (1954) 91 CLR 159, and that case

it was said did not support the view that the

Federal Court in this case had the power to examine
the validity of the award. Whilst the case is

not 100 per cent clear on the point the better

view, in our submission, is that it does support

the notion that the Federal Court had the

jurisdiction.

(Continued on page 193)

192   2/5/90

O'Toole(2)

MR JACKSON (continuing):  Could I take Your Honours very briefly

to page 165 where Your Honours will see what happened

in the Commonwealth Court of Conciliation and

Arbitration which, of course, was at that stage

regarded as a court for the purposes of the

CONSTITUTION.

At page 165, about a third of the way down the page, the judgment of the Court of Conciliation and

Arbitration starts and what occurred in the

proceedings appears on the next page and, if one

goes to about the fifth line and in the passage

which follows, down to about almost half-way down

the page, it appears that it was in the end agreed

that there had been no relevant interstate dispute.

Section 16 is then referred to half-way down the page, which is the privative clause, and then there

is a discussion of that.	Then, at the top of the next
page, the second line:

We therefore are of opinion that we cannot

question -

and so on.

Now, Your Honours, that was the decision made

by the court below and it was that decision which was being dealt with by the Court when it came to

the Court and Your Honours will see at page 172,

in the last paragraph on the page, Their Honours

are reciting what happened in the Court of

Conciliation and Arbitration and they say:

Upon the application coming on for

hearing -

and so on, and then that is recited through to the

end of that paragraph on page 173. Then, on the

same page, page 173, a different submission is

dealt with in the next paragraph, but at the bottom

of the page, in the paragraph commencing: The real difficulty -

going on to the next page, Their Honours seem to be

dealing, we would submit, with what had been the

incorrect course of proceedings in the Court of

Conciliation and Arbitration.

(Continued on page 194)

ClT36/l/SH	193	2/5/90
O'Toole(2)

MR JACKSON (continuing):  Their Honours, in our submission,

probably - I put it that way because it is not

stated expressly - Their Honours probably are saying,

we would submit, that the Court of Conciliation

and Arbitration should not have treated itself as

precluded by section 16(1) from dealing with those

points.

Your Honours, the remainder of the case

dealing with it does not really seem to illuminate

the issue one way or the other.

Your Honours, reliance was placed also on

HARRISON V GOODLAND, 69 CLR 509 and, Your Honours, that was a ca.se which came to the Court by way of

an appeal from the Court of Conciliation and

Arbitration. The case was not one where the question

was whether the relevant privative clause did or
did not have an application to proceedings before the
court below. It was accepted, in effect, that the
provision did apply in the court below without any
consideration of the question whether the

requirements necessary for it to operate had not

been satisfied and the question which arose on the

appeal to the Court was whether the Court could then go

in the exercise, in effect, of appellate jurisdiction

to determine an issue of the constitutional validity

on appeal when it could not have been raised at first

instance. I am sorry, I should not have

said constitutional validity.

If one goes, Your Honours, to the judgment of the Chief Justice, Your Honours will see that at

page 515 in the second new paragraph on the page, what

the argument was and then it was said - I am sorry,

Your Honours, I think that may be the incorrect reference - I should have given Your Honours

page 521. In the judgment of Justice Dixon in the

second last paragraph on the page, he refers to the

fact that:

(Continued on page 195)

ClT37/l/JH	194	2/5/90
O'Toole(2)
MR JACKSON (continuing):

Some parts of the order under

consideration appear to be judicial and, if

it had been appealed against, its correctness

might have been examined -

and then goes on to say:

The exception in favour of the High Court

cannot, in my opinion, operate to enable the
appellant to support an appeal from a conviction

for default in compliance with the order on the

ground that the order is bad in law. It cannot

do so because it is a ground which the Court

appealed from could not entertain and in hearing

and determining an appeal our duty is to consider

the correctness of the decision below and to do

whatever we think the Court appealed from ought

to have done.

Your Honours, that case, in our submission, cannot be

treated as assisting at all in the resolution of the

present questions.

Your Honours, reference was made to section 39B(2)

of the JUDICIARY ACT as indicating a legislative

scheme that the Parliament had decided that the

Conciliation and Arbitration Commission's decisions

should be immune from any consideration in the

Federal Court. Your Honours, section 39B does not

say that. What it says is that there is one court

and there is one tribunal in respect of which the

Federal Court does not have the jurisdiction to issue writs of mandamus or prohibition or seek an injunction

under section 39B(l).

Your Honours, the two tribunals - if I could

call it that for just a moment - are the Family Court

and also persons holding office under the CONCILIATION

AND ARBITRATION ACT as it was. Your Honours, one might

think that there are,perhaps, reasons of status why

that view might be taken, why it would be thought

inappropriate in the case, for example, of the

Family Court where there are two parallel courts

exercising federal jurisdiction, for one to have the

powers under section 75(v) in relation to the other.

It may equally be thought that the importance of the

work done by the Conciliation and Arbitration Commission

is such that it is only this Court which should be

able to deal with it by way of prohibition or mandamus

or by way of an injunction.

ClT38/1/LW	195	2/5/90
O'Toole(2)

MR JACKSON (continuing): But, Your Honours, a different

question altogether arises when what is sought

to be enforced is an order made by it in

proceedings which, at least, are quasi criminal.

Now, Your Honours, one might say that here,

that in cases of this kind, the considerations which

are apposite are those referred to by

Chief Justice Barwick and by Justices Taylor

and Owen in COCKS, 121 CLR at page 321, "In other

words"say, Their Honours, about the middle of the

page:

has the prosecutor been convicted and

fined.for what is, in effect, a non-existent

offence?

And, Your Honours, one has to bear in mind that that

is fundamentally the nature of the proceeding.

Your Honers, I am afraid I am a little longer than

I_ expected to be, I_ am sorry.·

Your Honours, the next point with which I

wish to deal was a question rais~d by Your

Honour Justice Deane .and that was, "Do the cases

require that there be an industrial dispute, in

fact, as distinct from a finding of an industrial

dispute". Now, Your Honours, there are many cases

on the question and, Your Honours, we would submit

however that there is a settled notion that there

is such a requirement and, Your Honours, may I give

one or two references now and if Your Honour desires I will be happy to look after further references and provide a list but, Your Honours, if I could just

give two references~ The first is to REG V THE FEDERAL

COURT; EX PARTE THE WESTERN AUSTRALIAN NATIONAL

FOOTBALL LEAGUE, (1979) 143 CLR 190, at page 226,

where Your Honour the Chief Justice in the paragraph

commencing in the middle of the page said in the second

sentence:

(Continued on page 197)

ClT39/l/JL	196	2/5/90
O'Toole(2)
MR JACKSON (continuing):

As the prosecutors point out, it has

long been accepted that the Conciliation

and Arbitration Commission cannot

conclusively determine the existence of

an industrial dispute extending beyond

the limits of one State. The actual

existence of such a dispute is a condition

of the exercise by the Commission of its

jurisdiction to deal with the dispute.

And so it was with the Commission's

predecessor, the Arbitration Court, which,

despite its name, was recognized -

and so on. Your Honours, that is but one reference.

There are many, in our submission, to the same effect.

Your Honours, reference was made by our learned friends

to REG V BAIN: EX PARTE CADBURY SCHWEPPES (AUSTRALIA)

LIMITED, 159 CLR 163. Your Honours, that case does

not, as we would see it, touch the position at all

and no particular passage was referred to.

A matter was raised by our learned friend,

the Solicitor-General, concerning the option - Robson's

choice, in a way, we would say - the option that was

given to come here in the first place, or the

suggestion that was made that we should come here in

the first place. Your Honours, one might ask why

are we obliged to come here if we are right? All

we wanted to do was to have the proceedings heard

in the Federal Court and we were brought, as it were,

from the judge of the Federal Court, by way of a

case stated then to which we did not agree, and

then the matter comes here, none of which at our

desire and there is no particular reason why we should

be treated, for any relevant purpose, as having

elected to deal with a case in a particular way

when, on the assumption that we are correct about

the Federal Court's jurisdiction, we have been
~trying to have a matter brought against us determined.	~~7-

Your Honours, one further matter - one reference

-"~perhaps I could give Your Honours in relation to the

question raised I think by Your Honour Justice Deane

concerning the extent to which one must have an award

and a person bound by an award in terms of section 119

is that in RE CRAM: EX PARTE NEWCASTLE WALLSEND COAL

CO PTY LIMITED, 163 CLR 148. It is a passage I

T41	gave Your Honours earlier, but it states in the
second new paragraph on the page the proposition very shortly and in the first sentence says that:

A claim for the payment of wages .....

is a claim for the enforcement of an

existing legal right -

C 1T40/1 /HS 197 2/5/90

O'Toole(2)

and the second sentence is to the same effect

so far concerns the enforcement of a provision in

an award and what they refer to, of course, is that

there must be an existing legal right.

Could I deal also with a suggestion that was made by the Solicitor-General for the Commonwealth that

the way in which one might deal with awards of this

kind is not to let the Federal Court have jurisdiction

in them, as it were, but that the making of the
award in the first place, or the continued operation

of it, I should say, should be prohibited by seeking

a prohibition from the Court against the person

seeking to enforce the award. Your Honours, perhaps

that might be done. It would, however, not seem to

accord very well with the words of secltion 75(v) of

the CONSTITUTION because what that provision says

is that they are matters:

In which a writ of Mandamus or

prohibition or an injunction is sought

against an officer of the Commonwealth. Now, it would seem difficult to constitute such

proceedings within the jurisdiction of the Court if

some relevant Commonwealth officer was not the

principal party to those proceedings, and there may

be difficulties in doing so in cases where the

relevant Commonwealth officer has resigned or

retired, or is dead.

(Continued on page 199)

C 1T41 /1 /HS	2/5/90
O'Toole(2)
GAUDRON J:	Well, of course, you could do what was done in

KIRBY's case, for example. You could seek

prohibition against the commission, or the other

members of the commission, to restrain any

variation or any action pursuant to the award.

MR JACKSON:  Yes, well, Your Honour, one could do that

but one would still be left with proceedings under

section 119 to which the Commonwealth officers

would not be parties and one would also - and

presumably the proceedings would be, as here,

instituted by an official of the organization and

restraining the future variation, for example, of

the award would not take one very far, Your Honour,

with respect;because the existing legal right that

would be being sued upon is one which would relate

to non-payment which had occurred at a time anterior

to that which might apply to a variation.

Your Honour, I do not wish to exclude the

possibility that some ingenuity might result in one
being able to do it in the end because it would seem

an unsatisfactory result if the fact that the

particular officer of the Commonwealth no longer held office for one reason or another prevented, for example, an ordinary section 75(v) case, but the need to resort to the more ingenious means of

doing so, Your Honour, tends to militate against the

view that that is the appropriate relief.

Your Honours, another matter that was raised

by our learned friend, the Solicitor-General,was this

that it was said that an award was not invalid until

it was declared to be so and I am speaking of

constitutional grounds. Your Honours, there seem to

be a number of cases against that proposition and,

Your Honours, with respect, not surprisingly.

(Continued on page 200)

ClT42/l/JH	199	2/5/90
O'Toole(2)

MR JACKSON (continuing): One is REG V KIRBY, 91 CLR 173

where what was said at the bottom of the page was

that:

The real difficulty in the matter is

occasioned by the intimation made to the

arbitration court by the representative of

the commission for if there was no dispute
or no dispute extending beyond the limits

of any one State in settlement of which the

agreement was made, it is difficult to see

how for any purpose the agreement could have

acquired any of the attributes -

and so on. The passage in COCKS to which I referred

earlier; that is, 121 CLR 321, it was said:

In other words has the prosecutor been convicted

and fined for what is, in effect, a non-existent

offence?

And, Your Honours, in SHRIMPTON V THE COMMONWEALTH,

(1945) 69 CLR 630, Justice Dixon said that:

An exercise of a power, whether legislative or administrative, cannot rise higher than

its source, viz., the power itself, and an

attempt under the power to make unexaminablc

what is done in ostensible pursuance of a

further delegation of authority must, to

that extent, fail.

Your Honours, there are two other matters with ~hich I wish to deal; one is that reference was made bv my

learned friend, Mr Kenzie, at the start of his

submissions, to various provisions of the CONCILIATION

AND ARBITRATION ACT dealing with the variation 2~d

so on of awards.	Your Honours, they seem to be icaling
with	~he variation et cetera, of valid awards,
we would submit.	The second thing, Your Honours,
is this: that so far as covering clause (v) of	the CONSTITUTION is concerned, it does say that
the CONSTITUTION is binding on the courts of the
States and other parts of the Commonwealth and
the people of the Commonwealth including, no doubt, the people in the various courts and, as Your Honours are the laws made pursuant to the CONSTITUTION.

Section 77(i) permits there to be laws made

with respect to a matter defining the jurisdiction
of the court and the ambit of the concept of "matter"

is referred to by the Court in FENCOTT V MULLER,

152 CLR 608 and what was said there by Your Honours

in the middle of the page was that:

ClTt\3/1/SH	200	~/5/90
O'Toole(2)

In identifying as 76(ii) matter, it would

be erroneous to exclude a substantial part

of what is in truth a single justiciable

controversy and thereby to preclude -

and so on. Your Honours, those are our submissions.

MASON CJ:  Thank you, Mr Jackson. The Court will consider

its decision in this matter.

AT 12.58 PM THE MATTER WAS ADJOURNED SINE DIE

ClT43/2/SH	201	2/5/90
O'Toole(2)