O'Toole v Charles David Pty Limited

[1990] HCATrans 84

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S120 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

TOOHEY J

O'Toole(2)

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 1 MAY 1990, AT 10.19 Ai~

Copyright in the High Court of Australia

ClTl/1/JH 1 1/5/90

MR R.C. KENZIE, QC:  May it please the Court, in this matt~r

I appear with my learned friend, MR W.R. HAYLEN,

for the applicant. (instructed by Maurice May & Co)

MR D.F. JACKSON, QC:  May it please the Court, I appear with

my learned friend, MR M.R. COCKBURN, for the

respondent. (instructed by Michie Shehadie & Co)

MR G. GRIFFITH, QC, Solicitor-General io::::- t...17.e Comoonwealth: If '.:he Court

pleases, r appear with my le.an:ied friends, MR D. J. ROSE and MR p. S1--IARP,	for
the Attorney-General tor the Commonwealth intervening in the interests of the applicant. (instructed by the Australian Government Solicitor).

Your Honours, we have had some discussion

about the issues that seem to be raised in the case and

subject to the Court's convenience, I think we are

agreed that my learned friend, Mr Jackson, should go

first.

MASON CJ:  Yes, that is acceptable, Mr Solicitor.

Mr Jackson?

MR JACKSON:  Your Honours, may I hand to the Court copies of

our outline of submissions? There are two documents

with tne outlines, Your Honours will see. One is an

annexure to which I will come which summarizes some of

the material in the case and the other consists of some

extracts from the Federal Court Rules to which I

wish to refer.

MASON CJ:  Yes, Mr Jackson. You will proceed to the

preliminary question first?

MR JACKSON:  Yes. Your Honours, should I say that in doing so,

I will need to go a little to the course of the

proceedings but I shall endeavour, if I come to the

major part of it, not to repeat that.

MASON CJ:  Yes.

MR JACKSON:  As Your Honours will see, the first group of

issues concerns the appropriate course for the Court to

take in relation to proceeding to hear the case and

the issues raised by that were foreshadowed to and by

the Court on the hearing of the application for removal.

(Continued on page 3)

ClTl/2/JH	2	1/5/90
O'Toole(2)

MR JACKSON (continuing): As your Honours will see the issues

which arise under that heading are two: the first

of them is whether because of the lateness, to
put it shortly, of the application for removal,

that is between the delivery of judgment in the

Federal Court and the taking out of the order,

the Court should do more than remit the matter
to the Federal Court or the Court - that raises,

of course, the question whether the Court can do

more - can remit the proceedings to the Federal

Court.

Together with the question of lateness are

allied a number of other matters relating to the

exercise of discretion; may I come to those in

a moment.

Your Honours, the second aspect of it is involved

in the first and that is that the desirability

of remitting the matter to the Federal Court may

be enhanced by the fact that the issues before

that Court were largely whether it had jurisdiction
to enter upon some constitutional questions and

here the whole cause in the Federal Court has been

remitted to the Court and there cannot be any question

about the Court's jurisdiction to deal with the

constitutional or any other questions.

Your Honours, in order to make clear the point which I am seeking to make, may I say just a little more about the proceedings. And the starting point is section 119(1) of the CONCILIATION AND ARBITRATION

ACT. And that provides that:

Where any organization or person bound

by an order or award has committed a breach

or non-observance of a term of the order or

award, a penalty may be imposed by the Court -

and so on.

Your Honours, as is apparent from the terms

of section 119(1), it requires for its operation

that there be an award, that the person upon whom

a penalty is to be imposed be bound by the award
and that there have been a breach or non-observance

of that award. Allied to that is section 119(3)

and Your Honours will see that in proceedings against
an employer of the nature referred to in section 119(1)

if:

it appears to the Court that an employee of

that employer has not been paid an amount

to which he is entitled under an order or

award, that Court may order -

payment, in effect.

ClT2/l/ND	3	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, the present

proceedings are ones in which the secretary of an association of employees registered under the Act

commenced proceedings under section 119, claiming

under section 119(1), and claiming also the relief

contemplated by section 119(3) in respect of one

employee. Since then, on 28 August last year,

Mr Justice Marling joined another 152 employees as

applicants in the proceedings as well, but the order

is not in the book. That occurred on 28 August 1989.

Your Honours, if I could ask you to remain

for a moment with section 119, Your Honours will see

that jurisdiction to determine applications of the nature referred to in section 119(1) is given to a number of courts, including that described as

"the Court". The court was originally the

Australian Industrial Court but the reference

became one to the Federal Court upon its

establishment, as appears from section 118A(l).

Your Honours, the jurisdiction of the Federal

Court, which is derived by the combination of

section 118A and section 119 is exercisable in

accordance with the FEDERAL COURT OF AUSTRALIA ACT,

as appears from the concluding words of

section 118A(l)(a). Your Honours, the term "award"

is defined by section 4(1) of the CONCILIATION AND

ARBITRATION ACT to mean, relevantly, an award made

under the Act, and the proof of awards is facilitated

by section 193 of the CONCILIATION AND ARBITRATION

ACT which provides for a method of proof by:

An office copy of an order or award,

purporting to be sealed with the seal

of the Commission or certified to be

true under the hand of the Registrar.

Your Honours, I have taken a moment to get to the

proceedings.	The issue that arose relevantly in
the proceedings arose from the circumstance that the

respondent wishes to defend the proceedings by
contending, Your Honours, amongst other things, that

the award relied upon was not made validly.

(Continued on page 5)

ClT3/l/HS	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, Your Honours, by saying

"not made validly", I mean that in, if I might

summarize it for the moment, three senses of the

term. One is because there was no industrial

dispute within the meaning of that term in the

CONCILIATION AND ARBITRATION ACT. Your Honours,I

am indicating headings as it were without being
very precise about them. There are summaries in

annexure A to the outline of submissions. Secondly,

because there was not any relevant industrial

dispute in terms of section Sl(xxxv) of the

CONSTITUTION and thirdly, because the award was

not one which was made bona fide. Your Honours, could

I indicate a little more specifically what is

contemplated in that regard by taking Your Honours

to annexure A to the outline of submissions.

Your Honours, this is a document which was before

the Full Court of the Federal Court in a slightly

different form in the sense that, I think, there

were no headings to each of the paragraphs, and

also the references at the conclusion of each

paragraph are different. Now, Your Honours, the

contentions may be sunnnarized in this way. First,

there was a question, as Your Honours will see in

paragraphs 1 and 2, about whether the award made was

relevantly within the ambit of the industrial dispute

and Your Honours will see a particular industrial

dispute is referred to as being"that having been

found to exist in particular numbered proceedings'.'

The next question which arises is the question whether

the award, this is paragraph 3, could validly apply
to persons who were not members of a union which

was the subject of the demand. The issue was one

raised by the GRAZIERS ASSOCIATION case.

GAUDRON J: This was an employer's log of claim, C No 4342?

MR JACKSON:  Yes. Your Honours, paragraph 4 refers to the fact

that imperturbably making the award in a settlement

of the industrial dispute in the nominated matter,

the commission was settling an industrial dispute

which was irrelevant to the making of the award,

Your Honours,many paragraphs are there referred to.

What it means is this, that there was a local dispute,

that is a dispute in South Australia, and there was

also an interstate paper dispute constituted by

non-acceptance of a log of cla:irns. The award, in fact,

wa3 in settlement of the local dispute, but it

purported to be in settlement of the interstate dispute.

Your Honours, that is what is sought to be asserted in

paragraph 4 and in the various paragraphs referred to

in it.

CIT4/l/CM	5	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, Your Honours, paragraphs 5 and 6

relate to sheep slaughtering tallies, as indeed

does paragraph 2. Paragraph 2 urges the contention

that if it is right to say the relevant dispute was that in the matter there nominated that the

prescription made by the award was outside ambit,

paragraph 5 asserts that there was in fact, at the

time, when that log of claims was served no such

dispute. Paragraph 6 in the alternative alleges

that if there was a dispute it was not an

interstate dispute.

Now, Your Honours, paragraph 7 deals with a

different matter and that is that the award was

one which was not made bona fide and so on in the respects

specified in paragraph 7. The relevance of that is

that it seeks to bring to bear the exception, as

it were, to section 60 of the CONCILIATION AND

ARBITRATION ACT to which I shall come.

Now, Your Honours, it was notified to the

respondent that it would be contended on behalf of

the applicant that section 60 of the CONCILIATION

AND ARBITRATION ACT precluded the respondent from

challenging the award relied on by the applicant

and, Your Honours, could I go very briefly to

section 60 and, Your Honours, the provision which

was that most apposite, section 60(l)(b),which

says that:

Subject to this Act, an award .....

(b) shall not be challenged, appealed

against, reviewed, quashed or called in

question in any court.

Now, Your Honours, the respondent in response to

the proposed reliance upon section 60 gave a notice

of a constitutional matter under section 78B

which appears at page 211. Subsequently the applicant

requested the judge at first instance in the

Federal Court to state a case to the Full Court of the FederaJ Court and the judge acceded to that request and the special case is at page 177. Could I take Your Honours to that.

(Continued on page 7)

ClTS/1/JL	6	1/5/90
O'Toole(2)

MR JACKSON (continuing): At page 177, Mr Justice Gray said

that he reserved a number of questions for the

consideration of the Full Court and Your Honours

will see the questions go from page 177 to page 179.

And the questions raised by the special case fall

into groups. Your Honours, the first group consists

of questions (a), (b) and (c). Question (a) asks

whether section 60(1):

preclude the Court -

meaning the Federal Court, of course -

..... from receiving evidence for the purpose of
determining whether the Award was or was not
made within the constitutional jurisdiction of

the Australian Conciliation and Arbitration

Commission?

Question (b) is not a constitutional question but it

asks whether that section precludes the Federal Court
from receiving evidence for the purpose of determining

whether the award was ~r was not made bona fide.

Question (c) asks if the Court is precluded from

receiving evidence of those kinds, is section 60(1)

invalid. So then, Your Honours, that is the first

group of questions and the criticial questions
really are (a) and (b), we would think, but that is

the first group.

Your Honours, the second group of questions

consists of paragraphs (d) and (e). Paragraph (d)

asks whether section 119 confers jurisdiction on

the Federal Court:

to impose a penalty for breach or non-observance of the Award if in fact the Award is made beyond the constitutional jurisdiction of the

Australian Conciliation and Arbitration

Commission? (Continued on page 8)

C1T6/1/LW	7	1/5/90
O'Toole(2)

MR JACKSON (continuing):  And question (e) asks:

If and to the extent to which s. 119 of

the Act confers iurisdiction on the -

Federal -

Court to impose a penalty for breach or non-observance of the Award, where the

Award was in fact made beyond the

constitutional iurisdiction of the

Australian Conciliation and Arbitration

Comm is s ion , is s . 11 9 of the Act in val id -

and, Your Honours -

II cons t i tut ion a l

BRENN AN J : What is m cant by i u r i s d i c t ion"

there, Mr Jackson?

MR JACKSON:  Your Honour, what is meant is the iurisdiction

which is caoable of being conferred under

s e C t i On 51 ( xx.xv ) . y Ou r HO n Ou r ' the e X pr C s s i On i s

explained - it is obviously a shorthand expression

but it is explained a little in the iudgmcnt of

Mr Justice Gummow speaking for the maiority in

the Federal Court and I will come to that a

little later, Your Honours, if necessary.

Your Honours, questions (f) and (g) arc separate, both from the other questions and from

each other; (f) as~s:

To the extent to which s. 60(1) of the

Act precludes the Court, in a proceeding under s. 119 of the Act, from receiving

evidence that the Award was made beyond the
constitutional iurisdiction of the Australian

Conciliation and Arbitration Commission, is

s. 119 -

ultra vires, and question (g) as~s whether:

S. 119 of the Act requires the applicant
to prove as part of his case the validity of
the Award of which the respondent is alleged

to have committed a breach -

Now, Your Honours, a court of five iudges was

convened in the Federal Court to deal with the

question and it delivered judgment on 9 September

last year and that court's decision by a maiority

of three to two answered the questions in favour
of the respondent but before the order was entered

the application to remove it was made. At the

time when it was removed, however, there was left

open the question whether the court should in fact

ClT7/l/SH 8 MR JACKSON , QC :_/5/90

deal with the case substantivelv. That 1ssue was adverted at page 336, commencin.g about line Jg :.:1 the observations of Your Honour Justice Deane, and

Your Honours, the discussion proceeds on that page

and going over then to page 338, Your Honour

the Chief Justice, commencing about line 24 and,

Your Honours, as is apparent from page 340,

commencing about line 41 and going on to the next
page, what the Court did was to remove the whole

cause.

Your Honours, I should mention if one is

looking at the transcript, there was an application

by the applicant's side to remove only the stated case but the Court removed the whole cause which, of course, included that case.

(Continued on page 10)

ClT7/2/SH	1/5/90
O'Toole(2)
MR JACKSON (continuing):	Now, Your Honours, our preferred

position, if I can put it that way, is that the Court

should not deal with the issue substantively but that

the case should proceed to a hearing at first instance.

It may ultimately end up here again, if I can put it

that way, but again, it may not.	Your Honours, could
I come - - -

MASON CJ:  Just to take you up on one thing that you said

that is not of substantive importance, but, although

the application was framed as an application to remove

the stated case, the Commonwealth ultimately moved

for the removal of the cause, did it not?

MR JACKSON:  Yes, Your Honour. And, Your Honour, what

happened then was that the cause was removed rendering

unnecessary any other question.

MASON CJ:	Yes.
MR JACKSON:	Your Honours, could I take Your Honours now

to the relevant provisions of the JUDICIARY ACT and

may I start, Your Honours, from section 40(1)?

Now, Your Honours will see that under section 40(1):

Any cause ..... arising under the CONSTITUTION

or involving its interpretation that is at

any time pending in a federal court other

than the High Court ..... may, at any stage

of the proceedings before final judgment,

be removed into the High Court under an

order of the High Court, which .....

shall be made as of course upon application

by or on behalf of the Attorney-General

of the Commonwealth.

(Continued on page 11)

C1T8/l/JH	10	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, Your Honours, that gives the

Commonwealth a right to have the cause removed to the

Court.	Once removed, however, two provisions
relevantly apply;	the first is section 41 which

deals with the course of proceedings in the Court and

it says that:

further proceedings in that cause .....

shall be as directed by the High Court.

But the other provision, which is material, is that

the Court has power to remit the proceedings to the

court from which the proceedings were removed.

Your Honours, that comes about from section 42(1)

which says that:

Where a cause ..... is removed into the High

Court under section 40, the High Court may,

at any stage of the proceedings, remit the

whole or a part of that cause or part of

a cause to the court from which it was

removed, with such directions to that

court as the High Court thinks fit.

Your Honours, may I return in a moment to the ambit

of that provision but, before doing so, deal with

the present situation so far as the proceedings are

concerned.

Your Honours will see from section 43(d) of the JUDICIARY ACT that, where a cause is removed:

all injunctions, orders and other

proceedings granted, made or taken in

the cause before the removal remain in

full force and effect until the

High Court otherwise orders.

Your Honours, so that the matter is, in effect, at

the stage it was at in the Federal Court. Could I

go then, Your Honours, to the document which I

handed to Your Honours with the outline of submissions
which sets out the relevant part of the Federal

Court Rules and may I take Your Honours to

Order 35 rule 3 which says that:

(Continued on page 12)

ClT9/1/HS	1 1	1/5/90
O'Toole(2)

MR JACKSON (continuing):

A judgment or order shall take effect

on the date on which it is pronounced or m3de,

unless the Court orders that it take effect

at an earlier or later date.

And, Your Honours, Order 35 rule 7 ( 1) says that:

The Court may vary or set aside a judgment

or order before it has been entered.

And provision for entry of orders is made in

Order 36 rules 1 to 8.

Your Honours, the position which emerges from

that is that the effect of removal of the proceedings

to the Court is twofold: one is that the Court

is being asked to, in effect, vary or set aside

the order of the Federal Court which, as is provided

for by Order 35 rule 3, took effect at the time

when it was made; the second is that the proceedings

in the Court are proceedings in which the Court

has yet to hear or deal with or, indeed, give

directions for the further hearing of the substantive

matter, namely whether there has been a breach
of the award.

Your Honours, in one case, ATTORNEY-GENERAL FOR NEW SOUTH WALES V COMMONWEALTH SAVINGS BANK,

(1986) 160 CLR 315, the Court expressed what, in
our submission, was a tentative view that the Court
had no power to remit an appeal removed to the

Court as of right. Could I take Your Honours first to page 321 of that decision which sets out, in the first new paragraph on the page, the state

which the proceedings had reached in the Court

of Appeal, New South Wales.

Your Honours, the Court then proceeded at

page 329 to say something about its powers and

Your Honours will see, in the first new paragraph on page 329, that the Court said:

Although it is a matter of concern to

us that removal will result in an abortive

hearing in the Court of Appeal with a

consequential waste of time and money, we

have no discretion to refuse removal on the

Attorney-General's application. The absence

of a discretion to refuse removal tells against
the exercise of a discretion, if any, in the

circumstances to remit the appeal, once removed,

back to the Court of Appeal for determination.

In any event it seems likely -

and so on.

ClTl0/1/ND	12	1/5/90
O'Toole(2)

Your Honours, in our submission, the Court does have a power in relevant senses to remit the

matter to the court from which it is removed.

The Court must remove a matter if required to do

so by a person entitled to insist upon it as a

right under section 40(1) but it does not follow.

with respect, that it must proceed to entertain

the matter once removed if it regards it as

undesirable or inappropriate to do so.

Your Honours, the breadth of the powers set

out in section 42(1) militates against that view because Your Honours will see that section 42(1) says that where the matter:

is removed ..... the High Court may, at any

stage of the proceedings, remit the whole

or a part of that cause or part of a cause

to the court from which it was removed, with

such directions to that court as the High

Court thinks fit.

(Continued on page 14)

ClTl0/2/ND	13	1/5/90
0'Toole(2)

MR JACKSON (continuing):  Now, Your Honours, there is no

reason, in our submission, why the Court should read down the ambit of that provision. It is a provision which enables the Court to deal with

a matter which of its natur~ so far as section

41 is concerned,would be constitutional, in the

way which seems most appropriate to the Court

once the matter has been removed to the Court

and, in our submission, the ambit of the discretion

should not be treated as being reduced.

Now, Your Honours, the other feature I wanted

to mention in the present circumstances is

that if one turns from section 42(1) to the present

case the removal of the cause to the Court has

meant that section 45 of the JUDICIARY ACT has

come into play and Your Honours will see that

section 45 provides that:

When a cause is removed in whole or in part

from any court into the High Court, the

defendant may set up by way of defence any

matter that he might have set up if the

cause had been commenced in the High Court,

notwithstanding that the court from which
the cause was removed did not have jurisdiction
to entertain the matter of defence or could

not entertain it in the same cause.

GAUDRON J:  Do you go on from there to say that section 60

has no application in a proceeding under section 119

when that proceeding is in this Court?

MR JACKSON:  Yes,- Your Honour.

GAUDRON J: Well, that is a matter I would find some difficulty

in accepting without going - - -

MR JACKSON:  Your Honour, I am sorry I have acceded too widely to what Your Honour said. What I was going

to say was that the issues concerning the application

of section 60 and concerning the validity of

section 60, or its application to particular

circumstances, are ones which the Court can decide,

whether the Federal Court could or could not.

GAUDRON J:  Why do you say that?

MR JACKSON: Well, Your Honour, I was going to say that because

the Court's jurisdiction under section 30, for

example, entitles it to examine whether the

terms of section 60 are valid, the Court is

entitled to examine whether the particular

circumstances are one to which section 60 applies.

ClTll/1/JL	14	1/5/90
O'Toole(2)

Your Honour, just a moment I was going to go on to that in if I may.

GAUDRON J:	I do not follow that.
MR JACKSON:	Your Honour, I am sorry, I was going to identify it by reference to the various questions which the Court was asked and I wonder if I could come to
that in just a moment because that is the
particular point I want to deal with.

GAUDRON J: Yes, thank you.

MR JACKSON:	Your Honours, perhaps if I could go immediately to the questions that the Federal Court was being
asked.  Your Honours will see those at page 177.
BRENNAN J:	Mr Jackson, before you go to those, could
I just ask about the effect of the answering
of questions by the Federal Court. Those
answers to the questions are they an order
which is now of effect?
MR JACKSON:	Yes, Your Honour.
BRENNAN J:	In these proceedings which have been removed?

MR JACKSON:  Yes. Your Honour, the order itself is at

page 219. It has not been entered, but that

is the order that was made, so that is why I

was submitting earlier, Your Honours, that that

order is effective but the present proceedings

are,in effect,for the Court to vary that order.

BRENNAN J:  What jurisdiction has this Court got,having

removed the cause,to affect that order?

MR JACKSON: Well, Your Honour, the jurisdiction must arrive,

in our submission,from the fact that the order

was capable of having its effect altered or removed;	of the Federal Court though effective was one which	it was not final in that sense, Your Honour, so
there remains before the Court proceedings in which
an order which is presently effective but capable
of being rendered ineffective is sought to be impugned.

BRENNAN J: Well, does that mean that effectively the

jurisdiction which we would be asked to exercise

upon removal, is the jurisdiction contained in

Order 35 rule 7 of the rules of the Federal Court

or some other and what jurisdiction?

MR JACKSON: Well, Your Honour, can I say this,I was referring

fact that it had had effect.

to that rule not to indicate so nuch the Court's jurisdiction but notwithstanding the

to indicate by the presence of that rule that the order of the

ClTll/2/JL	15	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, Your Honour, the

Federal Court Rules would seem really tro have no future operation in the court unless, pursuant to section 41,

the court were, in effect, to adopt them as its own

rules governing the future conduct of the case.

Your Honour, subject to that, one would have to then

look at the court's rules to see what the present

position was, Your Honour~, if no direction were given.

I mean.

BRENNAN J:  It is not a nuestion of the manner of the

exercise of this Court's ;urisdiction. It is a

nuestion of what jurisidiction we hAve.

MR .TACK SON:	YPs, Your Honour.
BRF.NNAN J:	Anri, it seems to me that whilst one readily

a~prPci~te~ the familiAr power in rulP 7 of Or~er 35
for reca 1 ling an unpe-rfe 0 ted. order and changing it
before it is entered, that seems to me, perhaps, not
to be the kind of jurisdiction which was in mind of
the party moving when the cause was removed to this Court

and, if that be so, then the question i8 does this Court on a cause remove~ when there is an effective order of the Federal Cour½ have a jurisdiction like to

an appellate jurisdiction to set aside the order of

the Federal Court?

MR JACKSON:  Your Honour, our submission would be that the

answer is, yes, that it does have jurisdiction.

Your Honours, the jurisdiction derives - and I am not

speaking at all about the exercise of it, Your Honour -

from the fact that there is an order which is in

force in the sense that it is operative but capable of

being altered. The question whether it should be

altered is a question which is for the Court but it is

a question whether that power should or should not be

exercised and the Court derives that power, in our

submission, from the fact that the matter is removed

to the Court; it is removed at the time when there is

an order which is one capable of being changed and the

question whether it should be changed is a question

which the Court then has to consider.

Your Honour, that is the way in which we

put it. Your Honour, I cannot suggest any source of

jurisdiction to deal with it.

C1Tl2/l/JH	16	1/5/90
O'Toole(2)

BRENNAN J: Well if the Court has a jurisdiction to look at t~e

merits of the case and on that account to deoart fro~

the order which was pronounced by the Federal Court,

then it seems to me that the argument in favour of

remitting to the Federal Court must be tenuous indeed.

MR JACKSON: Well, with respect, Your Honour, no. I really had

not developed the next point I wanted to deal with - - -

BRENNAN J:	Of course.
MR JACKSON:	- - - and that is the point - I am looking at ,,-;hat

the Court is doing. Your Honours, the present

situation is that the cause before the Court has two

aspects. One is that there is the substantive hearins,

in effect, which is the hearing of the question

whether there is or is not the breach of the award.

Now, Your Honours, that would take place at some

point and it would not come as a great shock, I suspect,
if in the end the Court did not hear that question.
But, there is also the question of what happens to
the decision given by the Full Court of the Federal Cour:

in terms of the special case that came to that court,

and, Your Honours, the reason why I say that is that

if Your Honours look at the various questions which

are the subject of the order Your Honours will see -

and I am referring to page 177. Your Honours,

question (a) - all the questions,in effect, but if

I could turn to question (a) first - was a question

directed to the jurisdiction of the Federal Court.

Now, Your Honours, if the proceedings, the cause

having been removed to here, question (a) is

fundamentally irrelevant.

GAUDRON J: Except,would not the same question arise as to this

Court?

MR JACKSON:  Your Honour, the question arises, undoubtedly.

GAUDRON J:  And it is exactly the same question except that

it is a question of this Court rather than the

Federal Court?

(Continued on page 18)

C1T13/l/LW	17	1/5/90
O'Toole(2)

MR JACKSON:	Your Honour, except that the foundation of the notion that the Federal Court did not have
jurisdiction seems to be that only this Court has
jurisdiction to decide a question of that nature.
GAUDRON J:	That may be so, but it is not simply a question

of jurisdiction, is it? It is also a question of

the nature of the proceeding in which that
jurisdiction is invoked. It may well be that the
effect of section 60 properly construed, or construed

in accordance with constitutional principle, is that

this Court has this jurisdiction, but not in a

proceeding under section 119.

MR JACKSON:  But, Your Honour, section 45 of the JUDICIARY ACT

brings into play section 30(a) which gives the -

GAUDRON J:	Yes, but that is not the same - the iurisdictior to which section 30(a) of the JUDICIARY ACT refers
is not the same jurisdiction as that which operates,
for example, that which is invoked when a writ of
prohibition is sought.
MR JACKSON:	No, Your Honour.
GAUDRON J:	And jurisdiction as to matters arising under the

CONSTITUTION, other than prohibition and so forth,

are matters in which the Commonwealth may pass la,.,1s

conferring jurisdiction on this Court. The question

would then arise whether they have limited the

conferral of jurisdiction by reference to proceedings

under section 119 of the CONCILIATION AND ARBITRATION

ACT.

MR JACKSON:  Your Honour, if I could put it this way:

if one has a proceedings brought in the Court

pursuant to section 119, the courts - and defence

to those proceedings, if I can put it that way,

is that either the award was one which was not

constitutionally validly made or, if it is put that

if it would otherwise be protected by section 60,

then section 60 itself is a provision which is not

constitutionally valid; all those issues, in our

submission, leaving aside the question whether they

arise as part of the same matter which is a matter

to which I want to come later, is a matter which,

in our submission, arises under the CONSTITUTION
or involves its interpretation, it is a matter of

defence to a claim, it is a matter in which the

jurisdiction of the Court is attracted by section 45

and the jurisdiction attracted is that which includes

section 30(a).

C1Tl4/l/HS	18	1/5/90
O'Toole(2)

GAUDRON J:	Yes, but the question I am putting to you is whether that iurisdiction itself is not limited
by section 60 as distinct from iurisdiction
conferred on this Court under section 75. The
ultimate source of that iurisdiction of which
you now talk is section 76(i) of the CONSTITUTION,
not section 75 of the CONSTITUTION.
MR JACKSON:	No.
GAUDRON J:	Would not a question arise whether the 76(i)

iurisdiction is not in itself limited to the

~amc extent, if any, that the Federal Court's

jurisdiction is limited?

MR JACKSON:  Yes, Your Honour, I accept the question

arises. It, in our submission, would not be
answered in a way unfavourable to us but I
accept the question arises but the answer would

be of the nature that I have given already and,

Your Honours, I would want to come to some cases

in due course about it but the answer would be,

Your Honour, essentially that section 60 is not

a provision or is a provision which is subicct

to, in effect, two limitation: one is a limitation

that it on 1 y ope r a t e s t o v a 1 i d a t e , in e f f e c t , o r d c r s

that arc made within the possible scope of an

enactment and the second is that it does not

validate the things that are constitutionally

invalid. Your Honours, I will come to that in

due course but that is, essentially, what we

would be saying about that.

Your Honours, I was going to go on to say that

if one looks at the questions (b) and following

they are all questions which deal with the position

so far as the Federal Court is concerned.

Your Honours, our submission is that it is better

in the end for the Court to exercise the power

under section 42(1) to remit the cause to the

Federal Court, first of all, because of the

stage which the proceedings had reached in the

Federal Court; the application for removal was made, as it were, between the stirrup and the

ground. Your Honours, the second feature of it

is the fact that the issues may, in the end, become

issues which are hypothetical because of the way

in which they are dealt with in the first instance

and the third feature is the matter to which I

have just referred; that where one is really dealing

with questions of the limitation on the iurisdication
of the Federal Court and those are quest1ons which

are inapt in our submission for removal because of

the matters to which I have referred. Your Honours,

I should add we do not dispute, of course, that the issue is one, in the end, of some importance nor do

we dispute that it is one on which different minds

ClT15/l/SH	19	1/5/90
O'Toole(2)

might, perhaps, take different views but we
would submit the present proceedings are rcallv

an appeal under the guise of a removal.

In fact, Your Honours, those are the submisstcn;

I wanted to make in relation to those issues.

(Continued on page 21)

ClTlS/2/SH	20	1/5/90
O'Toole(2)

McHUGH J:  Mr Jackson,would you just help me, because I am

not following this. At the moment I do not see

how the question of dealing with the

answers of the Full Court arises. It is the

prosecution that has been removed into this Court

and now we can deal with that prosecution. That is

what is before us.

MR JACKSON:  Your Honour, this is, if I may say so, with respect,

perhaps a Court a little 9ver qualified for giving

directions about the future conduct of it, but that

is what would have to hap2en in the end. There would

have to be a trial of it,1our Honour.	Your Honour,
I am putting that too shortly.	At present there

really are two proceedings, if I could use that

expression, before the Court. One is, as

Your Honour says, the application under section 119,

in respect of which there has to be a trial. The

other is the proceedings uncompleted, save to the

extent -~he proceedings on the case stated, which are

only not completed so far as the possible variation

of the unentered order is concerned.

McHUGH J: That is why I am having difficulty. Where is it

suggested that we get the power to alter those

answers? I mean, supposing the prosecution had

started and there had been a ruling on evidence and

then we brought the case in here, we would not be

reversing that ruling on evidence. It is just

something that has happened. It is a historical fact.

MR JACKSON:  Your Honour, could I say two things. The first,

we are content with the answers and that is why we

were making the submissions we were making before,

but Your Honours, the jurisdiction possibly exists
in the way in which I was submitting before, that is
that the order is one which has not yet been entered
so it carries with it the possibility of change. The

Federal Court cannot change it, because the matter is

no longer there. The only court that can change it

consists of Your Honours. It is a question whether

Your Honours do want to change that. It may - - -

McHUGH J:  Where is it suggested we get the power to change

those answers?

MR JACKSON:	Your Honour, the only place I can suggest is that, because the order is one which is not yet in
its most final form,that the Court could theoretically
enter upon the further argument of the matter and
itself vary it by dealing with the matter under
section 41.  That is the source to which I could
direct attention. Others may be able to do better
on that.

CIT16/l/CM	21	1/5/90
O'Toole(2)

BRENNAN J:	Mr Jackson, do you have any submissions as to whether or not the answers to the questions are in
the nature of an interlocutory order, so that on
the final resolution of the matter and on appeal those orders would not bind the appellate court?

MR JACKSON: Well, Your Honour, they are orders which deal

with questions, all of which, as I recall them,

are questions dealing with the course of procedure.

The subject-matter, first of all, if I could deal

with that, the subjec~matter of them all is that

they constitute an expression of view by a Full Court

of the Federal Court about the course of procedure

that should be followed by a judge who has asked

for directions as to the course of procedure.

Your Honours, the second feature about them, if one

looks at the form of them, is that they are

proceedings which are, in their nature interlocutory

because they are proceedings which are derived from -

Your Honours, I think is is section 24(6) or 25(6)

of the FEDERAL COURT OF AUSTRALIA ACT, in which a

judge sitting at first instance has a power to
request the Full Court to express a view on a case

stated. Your Honour, could I come to the provision in just a moment, but both in form and in substance

they are interlocutory, in our submission. No doubt

the judge hearing the matter at first instance would

be bound by them, but there would not seem to be any

particular reason, except as a question of precedent,

why anyone else would be bound by those decisions,

Your Honour.

BRENNAN J:  I thought that I noticed in the course of debate

on the application for removal some suggestion that

this Court would be bound upon an ultimate appeal by

the order made by the Full Court if this Court were

not able now to entertain an appeal from that order.

MR JACKSON:  Yes. Your Honour, it is a suggestion that is vrrong,

in our submission. (Continued on page 23)

CIT16/2/CM 22 1/5/90

GAUDRON J: Mr Jackson, could I ask, are the answers to

questions really orders? I ask that because the

assumption underlying the procedure adopted in

SMITH V SMITH where this issue, I think, was adverte~

to was that answers to a stated case did not, even

if perfected, constitute an order which could be

the subject of an appeal to this Court?

MR JACKSON:  Yes, Your Honour.

MASON CJ: That is the reason why the application for removal

was made, was it not?

MR JACKSON:  Your Honour, no doubt that is so. The question,

however, is a slightly different one in the sense

that one is talking about two different things,

Your Honours. With respect, one is talking on

the one hand about what is contemplated by

section 73 of the CONSTITUTION and on the other

hand what is contemplated by the particular rule

in the Federal Court Rules and the order that was

made - if I can use the expression for a moment,

Your Honour - in the Federal Court in this case

was expressed to be an order - and I am referring

to page 219 -

MASON CJ:  Page?

MR JACKSON:  Page 219. Your Honours, there is not, in our

submission, a particular reason why such an order

would not be an order within the terms of Order 35

rule 3 nor, we would submit, is there any reason

why, for the purposes of Order 35 rule 3, it would
not be a judgment of the Court.

The provision to which I wished to refer the Court earlier in answer to Your Honour Justice Brennan

was section 25(6) of the FEDERAL COURT OF AUSTRALIA

ACT which allows:  The Court constituted by a single Judge

..... may state any case or reserve any question

concerning a matter with respect to which

an appeal would lie from a judgment of the

Judge to a Full Court of the Court for the

consideration of a Full Court ..... and the determine the case or question.

Your Honours, one might assume, with respect, that the order appearing at page 219 is an order

made in the exercise of that power and that is

to hear and determine the question and such a

determination, we would submit, whatever might

be its effect for the purposes of section 73 of

C lT 17 /1 /ND	23	1/5/90
O'Toole(2)

the CONSTITUTION	would perfectly adequately, we
would submit, be	a judgment or order in terms of
Order 35 rule 3.	There would be no particular
reason to put it	in a special category.

Your Honours, there is, I think - I do not

have the rule immediately to hand - a rule of the

Federal Court, as there is in most - an Order of

the Federal Court dealing with special cases under

that provision.	I just do not have it to hand
immediately.

So, Your Honours, we would submit there is

no particular reason why such an order would not

be an order or judgment in terms of the rule.

GAUDRON J:  And if it is not an order from the perspective

of this Court, it would follow, would it not, that

there is no difficulty once it is all removed,

notwithstanding the statement in the removal

sections that it is all according to the procedures

previously adopted, there would be absolutely

no bar, would there, in providing different answers?

MR JACKSON:	There would not be, Your Honour.
GAUDRON J:	I mean, subject to the law, of course.
MR JACKSON:	But one would have to first set different questions.

GAUDRON J: No, I am saying, if it is not an order at all,

from the perspective of this Court, if it is not to be viewed as an order, the matter having been

removed into this Court, there is no bar to giving

different answers at all, is there? There would

be nothing.

(Continued on page 25)

C 1Tl7 /2/ND 1/5/90

O'Toole(2)

MR JACKSON:  No, there is no - Your Honour, I suppose there

would not be a bar to giving the answers but one
would be answering questions which have no

immediate relevance because -

GAUDRON J: Well, I do not know. If you take the questions

back at page 179 and say "a court"; wherever you '..-lave

got "the court", "a court". Does that not raise the

question really that is directed by section 119

in combination with section - - -?

MR JACKSON: 

Your Honour, I do not doubt that the questions

are capable of being altered to make the questions
applicable to the Court.

GAUDRON J: But the substance is not altered, is it? It is

only the question whether it is "the" or 11 a 11 court.

MR JACKSON: 

Your Honour, the nature of the question is not

altered, although for reasons I have submitted earlier,

the answers might be significantly different and reall:;
would not, in our submission, touch upon the matter

that one might have thought was the whole purpose of

having the question stated and that was to

determine what, in the end, a judge might do at first

instance in the Federal Court, because, Your Honours,

it may be that - I hope Your Honours would forgive

a degree of scepticism on our part in saying so -

the Court would, itself, in the end decide the questions,
but we suspect it will not - I am sorry -decide the
case in toto, we suspect that at a point it will be

remitted elsewhere.

DEANE J:	Mr Jackson, how firm or how strong are the decisions
that indicate that the answers to questions in a case
such as this are not susceptible of an appeal with
leave to this Court?

MR JACKSON: Well, Your Honour

MASON CJ: There is YULE V JUNEK, is there not?
MR JACKSON:	Yes.
DEANE J:	I had an impression that - perhaps this is not the
right word - the Court tended  to duck that
question in recent cases.

MR JACKSON: Well, Your Honour, FISHER V FISHER, (1986) 161 CLR 438,

at page 450, has been given to me by my learned friend.

If the Court were ducking the questions the pole was high, in this sense that Chief Justice Gibbs there said about two-thirds of the way down the page:

ClT18/l/LW	25	1/5/90
O'Toole(2)

In the light of these authorities it should be

held that the answers given by the Full Court
of the Family Court to the questions of law in
the present case, which by themselves were not
decisive of the rights of the parties, could not
be described as a judgment, decree or order

within section 73 of the CO~TSTITUTION.

If Your Honour asked me how strong they are, the cases

seem to be, as I recall them, all one way. They

start, for practical purposes, from MINISTER FOR

WORKS (W.A.) V CIVIL AND CIVIC in which the ooint

was taken strongly by the Court, as I recall.it,

and the issue has been one that has been, at least

ever since then, around - if I could put it that way -

and, Your Honour, I do not recall any case where the

Court has diverted from it.

DEANE J:	My impression seems to have been quite mistaken.
MR JACKSON:	Your Honour, it is a provision in which the

Court has - it is related in one sense to the advisorv

jurisdiction question so far as original jurisdiction"

is concerned and the Court really, both in relation

to appeals and in relation to original jurisdiction,

has eschewed the notion of having an advisory

jurisdiction because, fundamentally, Your Honours,

I suppose, of a view as to the concept of judicial

power, both in original and appellant jurisdiction.

(Continued on page 27)

ClT18/2/LW	26	1/5/90
O'Toole(2)

MASON CJ: Yes,and there are other practical reasons, too.

You could have pure questions of law excised

on a stated case with the Court having no

discretion as to whether or not it could deal

with them at all.

MR JACKSON:  Yes, and Your Honour, what happens, of course,

as here, is that questions are asked, decided

upon and, in the end, the facts upon which they

might have arisen are decided the other way.

MASON CJ:	Yes.
MR JACKSON:	And, Your Honour, many of the considerations

which militate against the appropriateness of a

case as being one for special leave are germane.

BRENNAN J:  It would be right to say, at least in this

case, the jurisdiction of this Court which is sought

to be invoked by the removal order is original

jurisdiction?

MR JACKSON:	Yes, Your Honour.
BRENNAN J:	Not appellate?
MR JACKSON:	No, Your Honour. Well, I have not heard it

suggested before and I have no basis for suggesting

it is appellate, Your Honour.

BRENNAN J:	Fine.
MR JACKSON:	Your Honour, I do not think I quite concluded

what I wanted to say in answer to Your Honour

Justice McHugh. As things stand, Your Honours,

subject to an alteration of the questions, then

there is not any - we would submit, there is no

particular reason why the Court would answer
questions directed to the jurisdiction of a court

which ex hypothesi is not hearing the proceedings,

is no longer hearing the proceedings and that

leaves the position that there seem to be three possibilities. One is to do tha 4 to answer the questions concerning the jurisdiction of the

Federal Court with a view to the fact that in the

end the matter may well go back there. The second,

Your Honours, is to deal with the questions as if

apply to 11the1 court as distinct from the	they were, in effect, amended so that they would
Federal Court. Your Honours, that is a question - those are issues which, I suppose, the Court could
deal with. They are ones which, in a sense, we
would submit, have a practical irrelevance because
whilst it might be a matter of importance, in a sense, for the resolution of the present case to
determine whether the High Court, in dealing with

C1Tl9/l/JH	27	1/5/90
O'Toole(2)

applications of this kind, could deal with these
aspects, it is extremely unlikely that in the

future these cases are going to be coming here

all the time. The Court is not going to be

dealing with section 119 cases all the time.

Your Honours, the third possibility, if that

the Court does not answer any of the questions,

remits the matter back to the Federal Court and then
the Federal Court deals with the case and if the

case is one appropriate for the grant of special

leave, special leave, in due course, is given.

Now, Your Honours, I should have said there is

a fourth possibility. The fourth possibility is

that the Court does not answer the existing

questions or new questions but simply proceeds to

deal with the future conduct of the matter and that

is why I mentioned before, Your Honours, that it

would be necessary but perhaps unusual for the

Court simply to give directions as to the trial of

the matter.

DEANE J:  From a practical point of view, the position that

you contend for is_ strange, is it not, in that

the answers given to questions in the stated case,

particularly this sort of question, could govern the

conduct of all proceedings in a court until in due

course the matter was heard and it then finally filtered through on appeal to this Court and on
the approach that you would contend for, if the
order embodying the answers have been taken out,
there would be nothing that anybody could do about

it with all the proceedings going on for what one

would imagine could well be a period of years.

MR JACKSON:  Yes, that is so, Your Honour. Your Honour,

we are not - - -

DEANE J:	I am not blaming you for it.
MR JACKSON:	No, Your Honour, we are not willingly a party to any of this.	We did not ask for His Honour to

state a case. His Honour stated a case; I

understand we appealed against the order but did not proceed with the appeal. We did not ask for

that case to come here. We were perfectly happy

to deal with the case at first instance and after
the decision in the Full Court but, as I said,

between the stirrup and the ground the matter was

brought here and so, Your Honour, we would like to have

it disposed of at first instance in accordance with the

decision of the Federal Court which will allow the

issues to be raised there, decided for or against us

and then if the issues remain the case will come here.

C1Tl9/2/JH	28	1/5/90
O'Toole(2)

No doubt, it will not take long in the Full Court of the Federal Court on that point and perhaps

the court might even grant the indulgence to

someone of coming here by bypassing the Full Court.

Your Honour, I do not know that I can advance

those issues further.

MASON CJ:  Yes, thank you, Mr Jackson. Yes, Mr Kenzie?

(Continued on page 30)

ClTl0/3/JH	29	1/5/90
O'Toole(2)

MR KENZIE:  May it please the Court, we hand to the Court

copies of our outline of submissions in relatton

to this discrete point. Your Honours, they go

to some extent beyond the matters that have been
traversed by Mr Jackson and the Court will pardon

us for that.

MASON CJ:	Yes.
MR KENZIE:	Your Honours, may we say initially that we arc also in a sense not willing parties to the present
debate. The Court may recall that the application that our clients made was for removal, but for
removal only of the proceeding in so far as it
related to the questions.
MASON CJ:	That would have run you into a lot of difficulties of its own, Mr Kenzie, so I do not think that you can regard yourself as entirely blameless in the
matter.

MR KENZIE:  No, Your Honour. We submit that the matter was

properly removed under section 40 and the submission

is that what the Federal Court has done in answering
the questions in the stated case is to do no more
than answer those questions and not to make valid

curial orders in the sense contemplated by the

authorities including the COMMONWEALTH SAVINGS BANK

case.

The result of the removal of the whole

proceeding, in our respectful submission, is that the High Court is in a position and invested with jurisdiction to answer those questions in the

way that the Court thinks fit, assuming that the

Court, in its discretion, decides not to remit.

In our respectful submission, that approach

1s consistent with authority and, in particular,

it is consistent with the approach that was taken

in SMITH V SMITH which I do not presently ask

Your Honours to open but which did involve a removal in the circumstances analogous to the

present and consistent with FISHER V FISHER for the reasons that I think Mr Jackson has already

briefly developed. ·

The barrier that has been suggested in

relation to section 40 proceedings is whether the proceedings have stood dismissed by valid

curial order.	Those words appear in the
COMMONWEALTH SAVINGS BANK case, (1986)	160 CLR 315,

and in our respectful submission these proceedings

do not stand determined and dismissed by valid CURIAL

order in that sense so that one is not dealing with

ClT20/l/SH	30	1/5/90
O'Toole(2)

the question of whether the Court is somehow

invested with appellate jurisdiction so as to

examine afresh the questions as though determini~g

the correctness of them at first instance. The question is whether the Court, having regard to

the removal of the whole matter to it, is invested

with the jurisdiction to simply determine the

correctness or otherwise of the questions.

BRENNAN J:  How docs it have that jurisdiction because the

whole matter is remitted? I mean the matter

is here. Part of the history of these proceedin~s

is that a case was stated, answers have been

given. With the answers given, the matter is

here. Well, then, should we not proceed to

hear and determine the matter?

MR KENZIE:	Your Honour, the matter has not progressed to the stage where an order has been taken out. If
the matter was before the Federal Court, the Federal Court itself could determine the matter
afresh, in our respectful submission. There would
be nothing to prevent the Federal Court, had the
matter not been removed, from considering the matter further in the face of the absence of an
order being taken out and this Court is in no
different position, in our respectful submission.
DAWSON J:	What would be the basis of the Federal Court looking at the matter again?
MR KENZIE:	Your Honour, there arc precedents for this sort

of thing. I think on the Attorney's list of

authorities is the case of HARRISON'S SHARE UNDER

A SETTLEMENT, which was mentioned when the

applications for removal were made. It would

be appropriate for a variety of reasons for a

court to correct a decision on the stated case

if it thought that something had been said

which was ultimately said to be inappropriate.

DAWSON J:	But it would only do so if it thought it was
wrong, but it docs not think it is wrong.
MR KENZIE:	Yes, Your Honour, it could do so if it thought

it was wrong and this Court is in no different

position, in our respectful submission. If this

Court felt that the questions had been answered

wrongly, this Court could similarly say so.

BRENNAN J: That sounds very much like appellate jurisdiction

to me, Mr Kenzie.

MR KENZIE: Well, Your Honour, it is not suggested that the

Court is being asked to exercise appellate jurisdiction.

No order has been taken out and it the Federal Court

itself were reconsidering the correctness of the

questions, which it could do, no one could seriously

suggest that the court was there exercising appellate

jurisdiction.

ClT2O/2/SH 31 1/5/90

MR KENZIE (continuing):  That is what this Court can do,

as the Federal Court could have done, in our

respectful submission. Considerations arising

if a valid curial order had been taken out can be

set aside because on the authorities removal would

be inappropriate under section 40.	They are our
short submissions.

BRENNAN J:  So it is jurisdiction under Order 35 rule ;

that you say this Court should exercise?

MR KENZIE:  Yes, Your Honour, that is so. Now, if the Court

did that, it would be exercising its original

jurisdiction - that is the Federal Court - and it

cannot be said that if the whole of the matter is

removed to this Court that this Court is somehow

in a different position. That is really the way

we put it, but that is not an exercise of appellate

jurisdiction in our respectful submission.

Your Honour, that submission is consistent

with the approach in SMITH V SMITH, and in FISHER's

case and really, it is a short submission, but that

is the way we put it, Your Honour.

TOOHEY J:  What is the extent of the power under rule 7(1),

Mr Kenzie? Subrule (2) identifies with some

precision the circumstances in which the Court

can vary or set aside a judgment where it is not

exercising its appellate jurisdiction, but is

subrule (1) just open-ended?

MR KENZIE:	Your Honour, it is at least open-ended enough to allow the Federal Court to reconsider a decision
that the Court has given before an order has been entered, in our respectful submission. If it found
generally that that decision was not sustainable
it could say so and that is consistent with the
language of rule 7(1).  There is nothing in - - -

TOOHEY J:  But it has just found that it was sustainable

by definition,	a bench of	five has been
constituted.	Are you just	simply suggesting that

the matter could be returned	to the Court for
reargument?

MR KENZIE:  Well yes, Your Honour. any of this would be a normal course of events by We do not suggest that

any means, but we are dealing with the question of

what is the jurisdiction of the Court, and all that

we have to say and all that we do say is that if this did happen the Court would have that power.

The fact that it may not be frequently exercised

is another question.

GAUDRON J:  ls it any more than that? There is nothing that

the Federal Court can now do, the matter having been

removed. The matter is in this Court and the Court

ClT21/l/HS	32	1/5/90
O'Toole(2)

can exercise all its powers, including determine

the proper law to be applied, remit it with

directions, and, at that stage, the Federal Court

is bound by the directions so remitted by force of

theprovisions of the JUDICIARY ACT.

MR KENZIE:  Yes, Your Honour. That is really the second pJr~

of what we put. There is an obvious inconvenience

in a more limited approach to the matter, but we Jdopt

what Your Honour puts in relation to that. The

Federal Court can now do nothing, subject to remitt2L, and the matter is before this Court with plenary power.

GAUDRON J:  And we are not, in any way - the matter being bound

before this Court, we are bound by the procedural steps, or we must take notice of them, but we can

set them aside but, in any event, we are not bound

by an expression of opinion as to the law.

MR KENZIE:  That is consistent with SMITH V SMITH, in our

respectful submission, and that is the end of it,

we would submit, Your Honour. But it is not

appellate jurisdiction in any way, shape or form.

Your Honour, we do have some submissions in relation

to the question of discretion, if we may refer
the Court briefly to those.

We have, in our written submissions, really anticipated that Mr Jackson might be saying something

about section 44 and we would invite Your Honours to

pass over that. We had anticipated perhaps that it

might have been suggested that section 44 was equally

relevant to a remittal of proceedings originally

removed under section 40. That has not been

suggested.

DEANE J:	Mr Kenzie, you refer to FISHER V FISHER but, in so far as it goes, is not it against you in that the main
judgment was that of Chief Justice Gibbs who said
on page 451:

Obviously this Court would not have

proceeded to determine the application

on its merits, and since there was no

valid invocation of its appellate

jurisdiction it is difficult to see

how it could have interfered with the

Full Court's answers.

MR KENZIE:  Yes, Your Honour, but that is explicable on the basis

of the stage of the proceedings that had been reached

in FISHER V FISHER.

C1T21/2/HS	33	1/5/90
O'Toole(2)

DEANE J: What, the formal order had been taken out?

MR KENZIE:  The decision had been acted on, Your Honour,

in some way. I think the matter had been

referred back to the court and I think

His Honour's comments, in that regard, are explicable on that basis. Yes, at page 450

at the bottom of 450 the Chief Justice

refers to section 40:

Had a removal been effected before the

Full Court of the Family Court had given

its decision there would have been no

difficulty. This Court could then have

proceeded to answer the questions raised by the

special case if it had considered it appropriate

to do so. However if the Full Court of the

Family Court had given its decision and ordered

a remitter to the trial judge and, after removal,

this Court had taken a different view of the

matter from that taken by the Full Court, trere

would have been technical difficulties in

dealing with the matter. Obviously this Court

would not have proceeded to determine the

application on its merits, and since there was

no valid invocation of its appellate jurisdiction

it is difficult to see how it could have

interfered.

And, Your Honour, in our respectful submission, the decision is explicable on the basis that the matter

had really proceeded to the stage of having been

remitted in the manner indicated.

DEANE J: That may be so, it does not seem to be the

distinction His Honour is drawing which is before

and after decision.

MR KENZIE: Well, he does refer to technical difficulties in

dealing with the matter, Your Honour,which is

consistent with the unravelling of the procedure

following the determination of the questions

so that it is not entirely free from doubt but

certainly distinguishable to that extent.

GAUDRON J:	Is that a case in which the whole cause was removed?
MR KENZIE:	I think it was not at all removed.

GAUDRON J: It was an application for removal -

MR KENZIE: Yes, I am not sure whether of the whole cause or -

GAUDRON: Of what, of the whole cause or of some aspect of it?

C1T22/l/JL	34	1/5/90
O'Toole(2)

DEANE J: Again, His Honour seemed to have dealt with it

on the basis that it was an application for an

order for the removal of the cause?

MR KENZIE:  Yes, Your Honour.

DEANE J: In that paragraph you refer to?

MR KENZIE:  Yes, I do not think that it is specifically set out,

but it seems to have been treated as such an

application.

Now, Your Honours, we do say something about the question of discretion - - -

DEANE J: Yes, Mr Kenzie.

MR KENZIE:  Your Honours, I was going to the question of

discretion. We do not contend that the effect of

the COMMONWEALTH SAVINGS BANK case is to deprive this

Court of all discretion in a case where a proceeding

has been removed to this Court on application of the

Attorney. There may be a suggestion to that effect in the COMMONWEALTH SAVINGS BANK case but it was certainly not determined. There was a suggestion that that may

be the position. Our contention would be that properly

understood the passage referred to by Mr Jackson

supports the view best that any application for

remittal of a proceeding removed into this Court

under section 40 by the application of the Attorney

would be a step that would only be taken in the

clearest of cases. The effect of section 40(1),

as everyone recognizes, is to confer upon the Attorney

really the right th have the matter removed into this

Court. That is a right, or an entitlement, that

would be set at nought if upon removal the Court

were able to determine, without change in circumstance,

that the matter ought to be remitted.

BRENNAN J:  The very purpose of the power of the Attorney

is to ensure that this Court and not some other court

should answer the question which the Attorney

has an interest in.

MR KENZIE: Yes, Your Honour.

(Continued on page 36)

C1T22/2/JL	35	1/5/90
O'Toole(2)

BRENNAN J:  And here the Attorney left his application

until after the other court had given the answer.

MR KENZIE:  Your Honour - and that is an appropriate thing to

have arisen in circumstances where it has not had

do, in our respectful submission, because this

the benefit of the reasons of the court from which

the proceedings were removed. Could I give

Your Honours an illustration of that? We have

referred, in our submissions, to FENC0TT V MULLER,

152 CLR 570, and at 598, the top of the page, the

four members of the Court were dealing with the

course of the proceedings and referrin~ to the appeal

that had been taken to the Full Court of the Federal

Court, the four members of the Court said, at the

top of the page:

They appealed to the Full Court, but

regrettably we do not have the assistance

of the Full Court, for the Attorney-General

for the Commonwealth thought it expedient

to apply under s 40 of the JUDICIARY ACT

to remove into this Court that part of the

cause which related to the validity of s 82 -

et cetera. Your Honour, we do not suggest there

is anything magical in that passage but it is

supportive of the proposition that relevant to

discretion the Court is now asked to exercise,

assuming it has it, is the issue of the desirability
or the question of the desirability of the Court

on removal having the benefit of the views of the

Federal Court.

BRENNAN J:	That is a question of an appellate jurisdiction, is it not?
MR KENZIE:	Yes, Your Honour, but it is no less appropriate

in the present set of circumstances, assuming

jurisdiction in the Court to deal with the questions

on removal, it cannot be said to be undesirable
for the Court to have the benefit of the Federal
Courts judgments, in our respectful submission.

Your Honours, we submit, and this is at the

bottom of page 3 of our submissions, that the stated
purpose of the removal on the application of the
Attorney-General was to permit the question, the
subject of the stated case, to be answered although
the way in which the matter was pressed by the
Attorney on the application for removal was for
the matter to be removed so as to provide the Court

with what was described as as much flexibility

as possible. None of that, of course, meant

that this Court is now bound to answer the questions

or any of them. The matter has been removed to

C 1T23/1 /ND 36 1/5/90

0'Toole(2)

the Court and subject to whatever limitations

might arise by virtue of the ultimate disposition

of parts of it by the Federal Court in the manner

contemplated in the BANK case this Court would

have full power to deal with the matter.

Only one of the possibilities is the answerin~

of the questions. In our respectful submission that is the course that should be followed and, assuming the existence of a discretion to remit the matter to the Federal Court, notwithstanding

its removal by the Attorney under section 40(1),

the appropriate course would probably be, although
this may depend upon the answers given to the

questions, to then remit the matter to the Federal

Court to be disposed of in accordance with the

view of this Court.

Your Honours, in our respectful submission,

it cannot be doubted that the questions are very

important questions. Five members of the Federal

Court have divided on the important question of
the extent to which a federal award is unexaminable.

In earlier proceedings, ROUNDSTREET V BROWN, to which Your Honours will be taken assuming the

failure of our friend's submissions, three members

of the Federal Court expressed views consistent

with the minority in the present case.

If the majority in the present case are correct

the decision, of course, will have repercussions

and, in any event, the decision will have

repercussions beyond enforcement of federal awards

before the Federal Court because the reasoning

of the Federal Court will apply to enforcement

of awards wherever such enforcement is sought to

be effected, consistent with section 119, or more

appropriately the INDUSTRIAL RELATIONS ACT 1988.

Your Honours, the importance of the questions

has not diminished because the CONCILIATION AND

ARBITRATION ACT was replaced in March 1989 by the

INDUSTRIAL RELATIONS ACT. I do not think it is

necessary to take Your Honours to it but what was

section 60 has now been split up into two sections

of the INDUSTRIAL RELATIONS ACT but the language
of the section has not been changed and neither,

one would think, has its interaction with the

provision of the INDUSTRIAL RELATIONS ACT which

replaced section 119.

C1T23/2/ND 37 1/5/90

O'Toole(2)
MR KENZIE (continuing): It has not been suggested that the

importance of these questions has in any way gone

away because the CONCILIATION AND ARBITRATION ACT

is no more. The Full Court was informed,of course,

of the enactment of the INDUSTRAIL RELATIONS ACT in the proceedings before it and the proceedings before it were conducted on the basis that that

made no difference to the proceedings because of

CONSEQUENTIAL PROVISIONS legislation, but the

importance of the questions remains. So,Your Honours,

we would submit that, assuming the Court has a

discretion, we say it has, that discretion would not

be exercised so as to remit the proceedings.	To
remit the proceedings in the present set of

circumstances would really admit of the existence of

a circuitous devise, in a sense. It is not suggested

that anything has changed since the proceedings

were removed and no good reason for remittal exists.

They are our submissions.

MASON CJ:  Thank you, Mr Kenzie. Mr Solicitor, you, at least,

seem to have been responsible for the removal.

MR GRIFFITH: Yes, Your Honour, and possibly,Your Honour,having

regard to our original notice of motions,Your Honour

pointed out, we might have overshot slightly by

removing the entire matter, but we have been

responsible. May I hand the Court our submissions.

MASON CJ:  Thank you.

(Continued on page 39)

CIT24/l/CM	38	1/5/90
O'Toole (2)

MASON CJ:	Yes, Mr Solicitor?
MR GRIFFITH:	In ATTORNEY-GENERAL (NSW) V COMMONWEALTH

SAVINGS BANK, 160 CLR 315 at 324, this Court said,

of the removal provisions, that:

the policy sought to be achieved by the

removal provisions in enabling

important and urgent constitutional

questions to be brought to this Court

for resolution, this Court being bound to

make an order for removal as of course on

an application by an Attorney-General.

Well, Your Honours, it is pursuant to this policy

that application was made to remove these questions

and it is our submission that the issue of the

propriety of this proceeding was, in fact, determined

by this Court in SMITH V SMITH. In that case

there was an application for removal pursuant to

section 40(1). At the application, before three

Justices of this Court, this issue of the

appropriateness of the procedure at the time after

judgment on a case stated but before the final

order had been made in that an order had been made

and is sued none t..h.e less enab 1 ed removal with the

Court having the advantage of the reasons of the

court down below.

When the matter came on before the Full Bench

for hearing on the merits on 17 September 1985,

this issue was again agitated up to the point of

page 7 of the transcript when I was stopped by

Your Honour the present Chief Justice,

who was acting Chief Justice:  Your_Honour

indicated that you need not trouble me any further

about that issue. When one reads, of course, the

decision of the Court in SMITH V SMITH, there is

no mention of that issue being specifically

determined by the Court but our submission is,

sub silentio, as it were, the Court did dispose with

the issue of the propriety of the proceeding, the issue having been argued before the Court both on the removal application and on the substantive

hearing. Contrast that with MULLANE V MULLANE,

158 CLR 436, where there was an appeal on a case

stated and the Court heard the appeal as if it were

an appeal as of right. We, of course, accept the

view of FISHER V FISHER as, of course, it was

already established in YULE V JUNEK and in

MINISTER FOR WORKS V CIVIL AND CIVIC PTY LIMITED,

that an answer on a case stated could not constitute

a matter which could be appealed pursuant to

section 73 of the JUDICIARY ACT.

ClT25/l/JH	39	1/5/90
O'Toole(2)

BRENNAN J:  Did you say that in SMITH V SMITH the

Full Court had answered the question?

MR GRIFFITH:  In SMITH V SMITH, Your Honour, the iudgment

had been given so that it got to the saLle

point as in this case, Your Honour.

In SMITH V SMITH, the court gave an answer to

question 1. Your Honour, that question was an answer which was adverse to the view which the

Attorney-General of the Commonwealth wished to argue. It would have disposed of the issue in

SMITH V SMITH had it been answered the other way.

In those circumstances, the parties repaired

to the Full Court of the Family Court again and
obtained an answer to the second question. That
also was adverse, Your Honour, to the view which

the Commonwealth Attorney sought to vindicate and

it was at that time, Your Honour, the Full Family Cour~

was asked to proceed no further as to entering its

order so that the application could be made to this

Court and that was what was done and that was

explained to the Court both on the removal

application and also on the substantive hearing.

MASON CJ:	Was it argued on the substantive hearing?
MR GRIFFITH:	Your Honour, I could give the Court the

transcript of the argument after lunch. There is

seven pages, Your Honour, of the initial argument

and, as I said, Your Honour, I was stopped.

MASON CJ:  Yes, I understood you to say that on the removal

application.

MR GRIFFITH: No, Your Honour, I am sorry. It was on the

substantive hearing.

MASON CJ:  Was it?

MR GRIFFITH:  Yes. Your Honour, the hearing had an unusual

course because Your Honour the present Chief Justice

presided on 17 September although, as is clear from

the report, a judgment was given by the then

Chief Justice as well.

(Continued on page 41)

ClT25/2/JH	40	1/5/90
O'Toole(2)

MASON CJ:	Yes.
MR GRIFFITH:	The reason for that, Your Honour, was that the matter was relisted for further hearing on the
issue of inconsistency and, Your Honour, it was
agreed by the parties that the Chief Justice should give a decision on both matters including the part
where he was not present during argument. That is
not noted in the Commonwealth Law Report but it is
picked up, I think, in 66 ALR 1, as a footnote.

So, Your Honour, although we would not take t~e

issue of SMITH V SMITH very far other than to say,

Your Honour, it was regarded, we would submit, as a

determination by this Court of this very issue which

is sought to be agitated by my learned friend

Mr Jackson today.

ViASON CJ:  Mr Solicitor, you said that you would be able to hand

up a copy of the transcript of the argument.	Could
you do that?

MR GRIFFITH:  Your Honour, I will have to have that copied.

I have one copy here, Your Honour.

MASON CJ:  Yes, perhaps you might have it copied if you would.

MR GRIFFITH: Yes, I can straight away, Your Honour.

Just the relevant pages, Your Honour?

MASON CJ:	Yes.
DEANE J:	What was argued, whether it could be removed or what
the Court could do after it was removed?
MR GRIFFITH:	Your Honour, I think it was assumed that the

Court could do what it likes but what was done

really by acquiescence was for this Court to answer

the questions itself, and the order made, Your Honour,

by the Court was in answer to those questions.

Your Honour, I do have one copy of that transcript.

Can I hand that to Your Honour for the moment?

MASON CJ:  Yes, just hand that up. What are the relevant pages,

Mr Solicitor?

MR GRIFFITH: It is 1 to 7, Your Honour.

MASON CJ:	Page 1 to 7, thank you.
BRENNAN J:	So the record in that case would have revealed

two orders inconsistent, but the first unappealed

from?

ClT26/l/LW	41	1/5/90
O'Toole(2)

r1R GRIFFITH:  Your Honour, I think the view as taken as to the

Family Court order, Your Honour - they were made

on two different occasions - that they were judgments

delivered, but orders not entered and taken out.

Your Honour, none the less, they were reported in the

CCH and other Family Law Reports and stand, as it

were, Your Honour, as judgments on the first occasion

that those issues were determined and the judgment

delivered by this Court, Your Honour, was the second

occasion and, of course, there was no issue as to

which answer then would prevail when the matter went

back to a single judge, Your Honour. He had authoritative

direction from this Court and we would say, Your Honour,

there is no inconsistency in having those two matters
standing - a judgment delivered by the Full Court of

the Federal Court, or the Family Court, which has

answers to the questions one way with a possibility

as sought by the Attorney for this Court to deal with

the issues and determine some of the issues to the

contrary.

BRENNAN J: It is the fact that you are then left contingently

on the answers given by this Court with two sets of

answers, the first inconsistent,one with tre other,

and the first set not interferred with by any appellant

process.

r1R GRIFFITH:	Your Honour, it is only a case stated and the function of a case stated, we would submit,Your Honours,
is merely to give authoritative directions as to the
matters covered by the questions to the trial judge hearing the matter. The ordinary order in the case
stated, Your Honour, for example, in arbitration if there is a case stated, if it goes to a single judge,
Your Honour, there is no appeal from a single judge
to a Full Court.  The matter goes back to the single
judge, from the judge to the arbitrator. The
arbitrator then is necessarily bound by those answers as
to matter of law as to the form of his award, Your
Honour. If a party is dissatisfied with an award
given in accordance with the answer given to the first
judge, the usual course then is to appeal, Your Honour, on the basis of error of law in the arbitral award and seek that application to be put down before a
Full Court, and that sometimes happens.

(Continued on page 43)

ClT26/2/LW	42	1/5/90
O'Toole(2)

BRENNAN J:  That is because the answers arc intcrlocutorv.

MR GRIFFITH: Well, Your Honour, we would submit they are

interlocutory here, too, so far as the Federal

Court is concerned. The judge is bound to accept

them and that could be tested; if the matter ~ocs

back to the judge as has been pointed out in

argument with my learned friend, Mr Jackson, he
then will be bound to proceed in accordance with

the directions and hear evidence as to these

matters.

Now, that is one possibility, Your Honour. Another possibility is as he is on the threshold

of engaging in that argument it would be possible

for the Attorney again to apply as a right to this
Court pursuant to section 40(1), for the issue
to be removed to this Court to determine whether
the judge was correct in proposing to comply with

the directions as to law given by the Full Court.

BRENNAN J:  The answer would have to be yes.

MR GRIFFITH: Well, Your Honour, we would submit that this

Court could look at the merit of the answers and

say no.

BRENNAN J:	Why?
MR GRIFFITH:	Because, Your Honour, our contention would be

that the direction was wrong at law and that would

be the issue we would desire to remove.

I suppose as a possibility, Your Honour, 1t

the Court took a contrary view, it could possibly

think about remitting the matter back again but,

ultimately the issue of what is the correct answer

at law can come to this Court, in our submission.

BRENNAN J:  I can understand that, Mr Solicitor, but at the

moment, having regard to the course which these

proceedings have taken and the removal of the
whole cause to us, it seems to me that the

answer having been given by the Full Federal Court

and not having been appealed from, the next stage

in the resolution of the proceedings is to apply

those answers to the hearing of the matter.

MR GRIFFITH: Yes. Well, Your Honour, we do refer to the

possibility that the next stage may be, if it

goes back to the judge with that in mind, to

bring the issue back here as an issue which is

necessarily involved and one where the Attorney
would seek to correct the direction as to law

given by the Full Court.

ClT28/l/SH	43	1/5/90
O'Toole(2)

BRENNAN J:  I can understand that being done in the exercise

of an appellate jurisdiction oE this Court but 1
do not understand it in terms of bring back a
question as to whether a primary judge should be

bound to apply the answers given by the Full Court.

MR GRIFFITH: Yes. Your Honour, perhaps before taking it to

the final resolution of that issue, could we make

some comments as to this procedure which, as in

paragraph 1.4 of our contentions, we concede is

inelegant but we would submit, Your Honour, that

it does have advantages for this Court. It does,
we submit, fulfil the policy sought to be attained
by the removal provisions to enable important and
urgent constitutional questions to be brought before

the Court for resolution and we would submit,

Your Honour, it has a great advantage of avoiding

premature and unnecessary applications for removal.

DAWSON J:	What is it you will be asking this Court to do,
to answer questions which have already been answered
or to vary the answers which have been given pursuant to some power?

MR GRIFFITH: Well, Your Honour, for the Court itself to

answer the questions and to give answers which

are different from those of the Full Court.

DAWSON J:	So it is not a question of variation of the
answers already given but it is answering the questions a second time.
MR GRIFFITH:	Yes, Your Honour, we desire the Court to answer

the questions afresh and we would submit that as in

SMITH V SMITH, that will be sufficient and correct

direction to the single judge to whom the matter is

remitted after the answering of those questions and

the Court has a discretion as to whether to give the

direction by way of answering the same questions or

merely covering the substance which will correct the

error to be seen in the answers below.

DEANE J: Is not really what you are asking the Court to do

is to direct that the matter not proceed in

accordance with the answers?

MR GRIFFITH:  Yes, Your Honour, that is another way of

expressing it.

DEANE J:	If there be a sound theoretical basis for your
submissions, must it not lie in the basis, whatever it be, pursuant to which it has been held that the
orders of the Federal Court involved in answering
the questions do not found an appeal because they are not the sort of orders that found an appeal?

ClT28/2/SH	44	1/5/90
O'Toole(2)

MR GRIFFITH: That is our problem area, Your Honour. If this

Court would overrule YULE V JUNEK	on	tl-, is	issue
of answers on case stated -

DEANE J: Well,it may not be a matter of overruling it. It oay

be that if one accepts that implicit in it is

acceptance of the notion that the answers to questions

are not interlocutory orders in the ordinary sense

because an appeal would commonly lie from an

interlocutory order by leave.

MR GRIFFITH: Yes. Your Honour they may be a special form

of orders lying somewhere between interlocutory and

final, because, we would say, Your Honour, for

the reasons -

DEANE J: Well,they may not even reach the ordinary interlocutorv

order stage on - - -

McHUGH J:  They have been held not to be a judgment or order

have they not?

MR GRIFFITH:  Yes, Your Honour, and as we indicated in

answering Justice Brennan, Your Honour, one can get

around an answer by the mechanism that we mentioned,

Your Honour, of challenging an award made on the

basis of answers.

McHUGH J: But do you have to do anything more than rely on

section 41, that further conduct of the proceedings

are to be as directed by the High Court?

MR GRIFFITH: 

Your Honour, yes, but we understand the point

put against us is that there is not anything validly
here and we -

McHUGH J: 

The cause is here.

MR GRIFFITH: Well, Your Honour, in our submission,the cause

is here, then it is put against us, Your Honour, well

the cause here is the cause with the questions

answered. Those answers have the effect as an order

pursuant to rule 3 of Order 35. There is nothing more for the Court to do. We understand that is

my friend's first submission. His second submission:

as a matter of discretion the Court should not do

anything further and,we submit, Your Honour, that

the cause having been removed, the Court can deal

with this issue in any form that it seeks fit. One

convenient way, Your Honour, is by reference to the

questions. Another way, Your Honour, is just to

go to the issue itself of the proper - - -

CIT28/l/CM	45
O'Toole(2)

McHUGH J: Well can we not direct the Full Court as

Mr Justice Deane pointed out, or the trial judge,

to disregard the answers?

MR GRIFFITH:  Of course, Your Honour, and we would submit,

Your Honour, SMITH V SMITH, in effect, did that.

DEANE J:	But what I was asking you about would have the
implication that it did not matter whether the order had been taken out or not, which varies a
little bit from the way you have been putting it.
MR GRIFFITH:	Your Honour, we would agree with that

because if the order had been taken out, Your Honour,
it may be a question as to the manner in which the

removal application should be made. In the case of

FISHER V FISHER, Your Honour, the application was

not made as of right.

DEANE J:	But if the order had been taken out, the question must be,"This is called an order, but in view of
what this Court has held to be its nature in terms
that it cannot found an appeal pursuant to leave to
call it an order does not take you very far'.' You
must look at what it is and that is where it comes
into your submission as to its nature as a direction
for the future conduct.

MR GRIFFITH:  Yes. I am indebted to Your Honour for rhat

analysis, Yes, Your Honour, we say that it is the issue

that is concerned here and there is no final order,

Your Honour. That is the hinderance on the appeal

but,we submit, Your Honour, it is the advantage on

the removal that the issue is before the Court and

the Court has a discretion, within the context, that

the Attorney-General has indicated. By applying

that,it is the view of the Attorney-General that it

is an important and urgent constitutional question

that should be considered sooner, rather than later,

by implication but, of course, that is a matter

also perhaps with the ultimate discretion of the

Court.

(Continued on page 47)

CIT28/2/CM	46
O'Toole(2)
MR GRIFFITH (continuing):	I was going to make the point that,

we would submit, that adopting this course of

procedure does have its advantages for this Court.

The point has been made already by my learned

friend Mr Kenzie, that the Court then has the
advantage of the reasons of a lower court which

is something the court often express, say a desire

to receive, and secondly admitting that this is

very significant, that it does avoid premature

unnecessary applications for removal. SMITH V SMITH,

for example, was a case where there were

constitutional wishes which arose but where if

they had been decided contrary to the way they were

determined by the Full Court, the Attorney-General

would not have exercised his right to remove.

Similarly, it could be put in this case that if the questions had been answered otherwise than the way

they are answered there would not have been

application as of right to remove these issues to

the Court, so that it means that unnecessary

applications are not removed. If it is not possible

~0 have a wait and see in circumstances such

as this where this is no right of appeal well then,
of necessity, there will be protective applications

for removal which will, of course, involve the Court

in consideration of issues which maybe were the matters

run by the contrary practice, be matters which would

be resolved on the facts or some other way and not

come before the Court. So, that it will be a

necessary consequence of any repudiation of this

procedure adopted here that there will be protective

applications under section 40(1). Our submission is

that that is not a desirable course to be followed if

there is sorm alternative rrechanism to obtain the result,

and the result is for this Court to consider where
there are important constitutional issues, a

particular issue no matter what is the form of the

mechanism of the consideration down below.

BRENNAN J:  If that were a real problem the real question might

be whether it was possible for this Court to exercise

a jurisdiction on a hypothetical foundation.

MR GRIFFITH: Yes, Your Honour, of course one cannot exercise

a jurisdiction on a hypothetical foundation but as

the case stated here shows Your Honour, there is a

real issue between the parties which is directly
relevant to the litigation between them and the same

in SMITH V SMITH,Your Honour. Of course, if there

was an abstract issue that would be a different matter

Your Honour, but here there is a cause, Your Honour,

there is a matter between the parties involving this

question of challenge to the validity of an award, as

distinct from issues arising on an enforcement of the

award for the imposition of a penalty under section 19(a).

C1T29/1/JL	47	1/5/90
O'Toole(2)

Section 60(1) says that these issues shall not be

entertained in the Federal Court and that the subscance

of the judgment of the Full Court is that they may be,

and that is the issue, Your Honour, it is a real issue.

It concerns these parties and, Your Honour, it does concern the Attorney because of the fac½ as my learned

friend Mr Kenzie pointed out, Your Honour, it could

involve a challenge to the validity of the award, not

merely in Federal Court proceedings but also in all

other proceedings including in magistrates courts
and, Your Honour, we submit that that is a matter of

real importance and one, Your Honour, which is

closely intertwined with the history of section 60 and

itspredecessors going right back to the inception of

the CONCILIATION AND ARBITRATION ACT. A provision

such of this sort have always been of the essence of

the operation of the mechanism for conciliation and

arbitration established by that Act.

So, drawing the threads together on that,

our submission is that this matter is validly removed

into the Court and the Court then has a discretion
as to the manner in which it deals with the issue of

substance which arises from the questions as stated

to the Full Court of the Federal Court and, we submit,
that the appropriate course for the Court to adopt

is either by reference to those questions or by

reference to the substantial issue between the parites
to determine whether or not section 40(1) is
effective to prevent the judge of the Federal Court
hearing evidence dealing with issues going to the
validity of the award in the proceedings for the

imposition of a penalty for contravention.

Turning to the operation of sections of the

JUDICIARY ACT on removal, as has been mentioned I think by

Your Honour Justice Brennan clearly we would say the

jurisdiction is original jurisdiction and that is

stated	in	ATTORNEY GENERAL OF NSW V COMMONWEALTH
SAVINGS BANK, (1986) 160 CLR 315, at page 324.	(Continued on page 49)

ClT29/2/JL	48	1/5/90
O'Toole(2)

MR GRIFFITH (continuing): It is also something which is

referred to by His Honour the Chief Justice, as

he then was, in FISHER V FISHER, 161 CLR 451.

At page 451 the Chief Justice referred to the fact

that:

there was no valid invocation of its

appellate jurisdiction -

in that case.

In FISHER V FISHER the matter initiated on an appeal. It then was pointed out that there

might be a problem with respect to an appeal because

of the fact that it was a case stated and the

application was then made as a protective application

for removal and it was in that - - -

GAUDRON J:  Removal not of the whole cause, I think,

Mr Solicitor, but of the application that was before

the Full Court of the Family Court.

MR GRIFFITH:	I think that was the case, Your Honour.
GAUDRON J:	I think - I checked that a little - it is referred to in one of the passages in the judgment.
It was an application to the Full Court that was
sought to be removed, that application having been
dealt with and the matter having been remitted
to a single judge.  So there was nothing actually
before the Full Court to remove.

MR GRIFFITH: Yes. Well, it really established the point

which was anticipated, we would submit, in SMITH

V SMITH that that would make the difference

although, as we have said, if the matter had been remitted back to the single judge we would submit

it would still be possible for an application to

be made for removal and seek to engage the Court
on the issue itself. And, indeed, that could happen

in this case.

GAUDRON J: Except that the whole cause is here?

MR GRIFFITH: Well, the whole cause is here, yes.

GAUDRON J:  Which is a different situation from that the

subject of the application in FISHER?

MR GRIFFITH:	Yes.
GAUDRON J:	It is nowhere else, it is here.
MR GRIFFITH:	Yes, and, Your Honour, we seek the Court to

do something with it when it is here and then to

send it back to the judge and we submit that the

ClT30/l/ND	49	1/5/90
O'Toole(2)

jurisdiction of this Court is original and it is

conferred pursuant to section 76(i). It is not

the jurisdiction of the Court pursuant to

section 75(v) of the CONSTITUTION and we would

submit that that distinction is relevant because
in our submission whether the jurisdiction be
regarded as the jurisdiction of the Federal Court

or of this Court in each case, we submit, the

jurisdiction is subject to section 60.

We say that the jurisdiction of section 30(a),

section 45, is effectively and validly subject

to the exclusions of section 60 of the CONCILIATIO~;

AND ARBITRATION ACT as is the jurisdiction of the

Federal Court pursuant to section 119 and 118A

of the CONCILIATION AND ARBITRATION ACT. And,

in that context, we submit that it is quite

appropriate for this Court to permit the parties
to agitate again the issues covered by the answers

by the Federal Court on the questions in the case

stated and we submit that this Court should confine

its consideration to those issues.

If it mattered, we make the suggestion that

perhaps the issues could be narrowed by revoking

the order for removal of the entire matter and

substituting an order to remove the case stated

but perhaps it is not appropriate for me to pursue

that suggestion because we would submit that on

any view the Court has the whole cause and it can

identify the elements that it is appropriate for

it to consider which are relevant to the constitutional

issues which are those sought to be agitated as

a result of the removal.

(Continued on page 51)

C1T30/2/ND	50	1/5/90
O'Toole(2)

MR GRIFFITH (continuing): We also make the point that it is

appropriate for the Court to consider the matter

thus far and not merely to remit the matter straight

down again. The suggestion has been referred to thJt

possibly there is an absence of discretion after

removal as of right to immediately remit the whole

matter down again. One could just have a circularity

of removals as of right and remitters if that
happened, or perhaps that could continue until the
right of remitter was removed by amendment to the

Act. But, in our submission, the function of these

proceedings is to put the Court in the position of
doing what is appropriate in all the circumstances.

Firstly, of course, it has to satisfy itself

that there is a real constitutional issue but, being

so satisfied, it is our submission that the Court ·

should proceed to dispose of that issue, so long

as it is not one dependent on the finding of

constitutional facts or something of the sort. We

would submit that if the matter is remitted, either

as my learned friend suggests or after the Court

does determine the constitutional issue which arises,

it would be the case that the matter remitted under

section 42(1) would be the same one that came up to

the extent that it was subject to the operation of

section 60.

Our submission is that there is no liberation

from the inhibitions of section 60 affected merely
by the fact that the cause is remitted to this Court
and the Court therefore is seized with its original

jurisdiction to deal with constitutional issues which arise. The jurisdictional limitation imposed by the

Federal Court, we sub~it, cannot be destroyed by the

device of removal followed by immediate remittal,

and as to section 42(1), we say that this qualification

on section 42(1) is implied and that certainly that

this Court should not countenance the proposition

that one can, by a device, usurp the operation of the

statutory limitation which is the subject-matter of

the dispute between the parties, the subject-matter

of the case stated.

So, for those reasons, it is our submission that

the Court firstly has jurisdiction to proceed to

consider the issues which are subsumed in the questions

arising on the case stated and, secondly, we submit

that it is appropriate for the Court to consider the

merit of those issues and then to remit the matter

for further consideration in accordance with the

Court's judgment by the judge of the Federal Court.

DEANE	J:	Mr Solicitor, what do you say about the extent of the Court's discretion if your basic argument be
accepted?
ClT31/l/HS	51	1/5/90
O'Toole(2)

MR GRIFFITH:  Your Honour, we say that the Court has a

discretion with respect to the important constitutionJ

issue which is involved in the case.

DEANE J:	No, I was taking you back to the jurisdiction.
MR GRIFFITH:	I am sorry, Your Honour.

DEANE J:  Must the discretion not be a wide one? I mean,

if, for example, neither of the parties wanted the
answers given by the Full Federal Court reopened

the Court, one would think, could obviously turn its

back on an argument by the Attorney-General that, the

matter having been removed, one should go back, as

it were, to first base and reargue the stated case.

(Continued on page 53)

ClT31/2/HS	52	1/5/90
O'Toole(2)

MR GRIFFITH: Yes. Well, Your Honour, if there was an

important c0nstitutional issue such as we submit

there is in the answers to these questions, we

would submit the Court could only turn its back

with difficulty if the Attorney-General had

intervened to removed.

Your Honour, there arc two aspects of the

intervention; one is to intervene in the public

interest which is, we would say, a statutory right

in the Attorney. :'he second one, Your Honour, is

to intervene because there is an important questi0~

involving the construction of the CONSTITUTION and

we would submit, Your Honour. in considering that,

the Court s hou 1 d rco-a rd as irrelevant the vi cws of	0
the parties.	The important issue may transcend

entirely the issues between the parties and,

indeed, might be contrary to both their interests.

DEANE J:  It cannot regard them as completely irrelevant. The'}

might get up and tel1 us the case has been sct~lcd.

MR GRIFFITH:  Your Honour, that might be an interesting

situation because none the less there could be th~ difficulty of the Full Court judgment being extant

and being relied upon by magistrates. Now, I

suppose one answer can say, "Well, wait until

a magistrate relics on it and then challenge it"

but one can sec there could be arguments there as

to the extent to which the Court, as Your Honour

said, might turn its back. They arc very

interesting possibilities but we would submit
this is the strongest of cases where the parties

arc locked into serious battle inter partcs on this issue involving the imposition of a quasi penalty or a real penalty.

DEANE J:	I did not have this case so much in mind but we
arc in a problem area partly because of the
limitations upon the right of appeal where, if
one, as it were, fills the gap by extending the
effect of removal other than in the context of a very wide discretion, the result could well
be that the Attorney-General is given effective
powers which arc wider than one would expect to
be.

(Continued on page 54)

ClT32/l/SH	53	1/5/90
O'Toolc(2)

MR GRIFFITH:  Your Honour, that is not sought and, indeed,

the very rarity of the exercise is a power to

remove or demonstrates that and, Your Honour,

there is this inhibition that we would mention,

Your Honour, against applying too early in case a

wait and see indicates it is unnecessary but after

all those factors are taken into account, Your Honour,

if the Attorney does move and there is a real

constitutional issue, in our submission, Your Honour,

it would take a close examination of the

circumstances for the Court to say that it should

not hear the matter other than for technical

reasons such as it is necessary to have constitutional

facts found or that it was thought to be premature

for some such reason or that the issue was not a

real issue but merely an advisory one. But,

Your Honour, we cannot be exhaustive about those

situations and it must be conceded, Your Honour, that

the Court, of course, has a discretion to ensure that

the judicial power of the Commonwealth is vindicated -

if the CONSTITUTION, I should say, Your Honour,

is vindicated by the Court only dealing with
proceedings as are appropriate having regard to

this Court's jurisdiction established both by the

CONSTITUTION and by the JUDICIARY ACT.

If Your Honour pleases.

BRENNAN J:  Mr Solicitor, can I take you back to a matter

that Justice Deane raised with you, namely, the

nature of the, whatever it is, that emerged from the

Full Court in response to the questions. It may not be it is not an order for the purposes of

section 73 of the CONSTITUTION.	What is it
internally within the Court?

MR GRIFFITH:  Your Honour, we would submit and this seemed

to be the view taken in SMITH V SMITH, it is a

judgment given answering question on a case stated

which, Your Honour, we submit, until an order has	been taken out has no further effect, and indeed,
when one reads the order referred to in the appeal
book by my learned friend, it is headed, "Minutes
of Order", and then there follows a direction that
it should be taken out pursuant to Order 36.

McHUGH J:  But, does it make any difference whether the

order has been taken out or not? It is only an

advisory opinion, is it not, even when it is taken

out.

MR GRIFFITH:	Yes, Your Honour, quite so.
McHUGH J:	Is it?
MR GRIFFITH:	Your Honour, we accept that, Your Honour, but

for anything further to happen from the Federal Court, it 1MJuld

be necessary to take out the order, at the very least, to get

the ITE.tter rEmitted back to the judge at first instance.

ClT33/l/JH 54 1/5/90

BRENNA.J.'\J J: Is it an advisory oninion which the judge tryins

the proceedings is at liberty to disregard?

MR GRIFFITH: Well, Your Honour, in theory he could,but we would

submit with difficulty because of the hierarchv in

which the order is made.

TOOHEY J: Because the section which empowers a single judge to

refer the matter to the Full Court finds its nlace

under the heading "exercise of appellant juri~diction".

MR GRIFFITH:  Thank you for pointing that out, Your Honour.

TOOHEY J: Well I am not sure what the implications of that

are.

MR GRIFFITH:  We submit it is not an appeal, Your Honour, on the

nature of its advice as to a legal issue given by the

Full Court, and it is a mechanism, Your Honour, which

could apply, as it often does, in an arbitral
proceeding between an arbitrator and a single judge

of the supreme court and we submit it is, in essence, the same as between a single judge and the Full Court of the Federal Court.

TOOHEY J:  But whether an order is extracted or not, is it

conceivable that the single judge can simply ignore

the answers given to the case which he, himself,

is stating?

MR GRIFFITH:	Your Honour, with difficulty, t~Bt is conceivable.
MR BRENNAN:	Looking at the section to which Justice Toohey

refers, 26(1) gives the jurisdiction to the Court

to hear and determine the case or question. Now,

is not the act of hearing and determining the case

or question the definitive act of the judicature

constituted by the Federal Court with respect to that
case of question?

MR GRIFFITH:	Your Honour, it could also be regarded as the function of the judge who hears the matters and who
has sought, in effect, the advice of the Full Court,
but we would submit - - - ·

BRENNAN J: Why do you say advice? It is not a case of advice

in terms of 26(1). It is hearing and determining.

MR GRIFFITH:  Your Honour, the process of the judge is to determine

the entire matter and in the course of that he has

some input from an outside source which as of course

he must be expected to abide with. But, we would submit,

Your Honours, it is not necessarily the case that
in all circumstances the judge would be bound to comply

with the letter of that.

ClT34/1/LW	55	1/5/90
O'Toole(2)

BRENNAN J:  Arc there any authorities that vou

know of which interpret a prov(sion corrcspondin~

to 26(1)?

MR GRIFFITH:	No, Your Honour, not presently.
TOOHEY J:	I thought there were some s1Jch prov1s1ons 1r. some
of the repatriation statutes or some of those Acts
which establish tribunals which empower the tribun3l
to state a case for the opinion of the Federal Court.

MR GRIFFITH:  Yes. In fact, all I can say to the Court is

we will have a look and advise the Court if there

is some way in which we can assist on this issue.

GAUDRON J:  Maybe the matter should be approached from a

different perspective in this sense: the answers having been given, the immediate question now is,

is this Court bound by them? Clearly, it cannot

be.

MR GRIFFITH:  Yes, Your Honour.

GAUDRON J: That can be the only question that now arises

and it could not be the case that we arc bound bv

answers given in another Court?

BRENNAN J:  Why do you say that? I am asking the

Solicitor-General - - -

MR GRIFFITH: Well, Your Honour, we would say in a matter

where this Court has iurisdiction it is not bound

by a determination of-law as distinct from a matter

which might be an issue cstoppcl or something between

the parties.

GAUDRON J: It could be bound by orders which determine the

issue between the parties, the matter between the parties but "the" matter has not been determined.

All that has happened is that a decision has been	given about a question of law. It is still "the"
matter, the subject-matter of the proceedings
have now to be determined and so long as they arc
in this Court they can only be determined in
this Court and in that process this Court must
apply the law as it secs it.

(Continued on page 57)

ClT35/l/SH	56	1/5/90
O'Toolc(2)

MR GRIFFITH: Well, Your Honour, perhaps we could say that

in Your Honour's proposition there are two

propositions:  one is that this matter is validly

in this Court and we say "Yes" and then we say once it is there the Court has jurisdiction to

determine the underlying issue. We say "Yes" to

that and our submission is that is the end of the

matter subject to any consideration of a

residual discretion in this Court to avoid for

the moment determing these issues for particular reasons if they arise. And we submit that there

is no particular reason here, in fact, to the contrary.

DEANE J:	Of course, if you be wrong, the matter having been
removed, if this Court were to go ahead and determine
the whole proceedings without upsetting the answers given, the result would be an unappealable order of this Court which precluded effectively any appeal from those answers ever being brought anywhere.

MR GRIFFITH:  Yes, Your Honour. As Your Honour made that

proposition I was about to express a comment, in

that case we would appeal but, of course, we have

no appeal and that is Your Honour's point, that

it must be the case that this Court can get to
the correct answer, in our submission, and we submit
this is the occasion to do it, using the exceptional

procedure of section 40(1), for the matter to be

now before the Court. And we do emphasize it is

an exceptional procedure, that is why it is so

infrequent that this application is made before

the Court to bother it as to constitutional issues

any earlier than the ordinary course of proceedings,

but this is one such case. The Court would not

have been bothered had the answers been otherwise.

If the Court pleases.

MASON CJ:	Thank you, Mr Solicitor.
MR GRIFFITH:	Your Honour, I have the copies of the

transcript. If I could hand those up.

MASON CJ:  Yes, thank you.

(Continued on page 58)

C1T36/l/ND	57	1/5/90
O'Toole(2)

MR JACKSON:	Your Honours, if I can sav a couple of things by way of reply. Our learned frien<l's
arguments demonstrate, in our submission, the
correctness of the proposition which we advanced
earlier, namely, the fact that a case may be brought
to the Court asof right does not carry with it
the consequence that the case is appropriate to
stay here and, Your Honours, for some it will be inappropriate particularly where the issue which
is involved is one which relates to the jurisdiction
or powers of the Court from which the removal has
occurred. Your Honours, what I mean by that is
this that in the present case the issues in the
special case before the Federal Court were questions as to the powers of the Federal Court in the hearing
of proceedings before it, but there are no longer
any proceedings in the Federal Court and the issues
are in a strict and in a practical sense irrelevant.
The alternative is for the Court now to decide any
questions being new questions, as to the powers of
this Court. Now, Your Honours, what possible reason,
we would ask with respect, is there for the Court to
proceed to state and answer questions about its own powers when as a practical matter it is not going
to hear matters of this kind as a matter of course in the future.
Your Honours, the real questions, in fact, in the case are those which were answered by the
Federal Court in the special case.  Your Honours,
we would submit, if I could offer two alternatives,
be remitted to the Federal Court to allow the trial to proceed and to see if an appropriate case for special leave is made out where the real question of jurisdiction of the Federal Court will be an issue. The alternative, if the matter is to remain in the
with respect, one alternative is the matter should of the case before a justice; one should then see
what evidence is sought to be tendered before the
justice and see if the justice then decides to state
a case to the Court under section 18. And,
Your Honours, the case that might be stated to the
Court under section 18 is a case which would at least have the advantage of being one stated,
not in a theoretical sense but with respect to
evidence which it is sought to tender before him
him or her, I am sorry Your Honour, and is sought
to be tendered before the Court on that occasion and one would then see questions reserved pursuant to
section 18.

Your Honours, perhaps I add one thing,

Your Honour Justice Brennan was asking about the effect of the

ClT37/l/JL	58	1/5/90
O'Toole(2)

expression "here and determine" in section, I

think, 25(6) of the FEDERAL COURT OF AUSTRALIA ACT,

Your Honours, that would seem to involve a

determination by the Federal Court constituted by
a Full Court of those questions, in so far as that
determination is one which is by its nature capable

of being final, it would seem to be.

(Continued on page 60)

ClT37/2/JL	59	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, a similar expression,

of course, is used in section 18 of the

JUDICIARY ACT and when a case or a question is

brought to the court by an order of a justice

under that, the court hears and determines that

question and,Your Honours, that would seem to be

a determination by the court in its original

jurisdiction, but by a court constituted by

many members as distinct from one.

MASON CJ:  Mr Jackson, the Court is minded to hear argument

on the substance of the matter, reserving its

opinion on the question that has been debated thus

far. Does the agreement between parties extend to

the presentation of your argument on the substance

of the matter first?

MR JACKSON:  Yes, Your Honour. Your Honour, could I say that

a question does arise as to what is meant by the substance, in that case, and I do not mean to be

creating an undue difficulty about it, but the

substance really has two aspects. One aspect is

whether the substance relates to the questions,
which, in the end, concern the powers of the

Federal Court, and Your Honours will see from the

outline of submissions that is what we would

understand the reality of the case to be, as
distinct from the powers of the Court, if the
matter remains here, and Your Honours, subject to
the Court's views, that is what I would propose to

argue.

MASON CJ:  Yes and could I ask you, Mr Jackson, how long you

think the argument will take?

MR JACKSON:  Your Honour, I would expect my argument to take

an hour to perhaps an hour and a half.

MASON CJ:	Mr Kenzie and Mr Solicitor, what is your opinion.
MR KENZIE: About the same time.

MR GRIFFITH: Less, Your Honour.

MASON CJ : Yes, Mr Jackson, we will hear the beginning of your argument.

MR JACKSON:  Your Honours, could I go back for a moment to

section 119(1) of the CONCILIATION AND ARBITRATION ACT,

and Your Honours will see that if one looks at the

situation arising under section 119(1) and by that

I mean, Your Honours, the situation arising, leaving out of account for the moment the operation of

section 60 of the Act. The question which arises

under section 119(1) is whether there has been a

breach of an award and,of course, that involves the

question whether there is a relevant· award?

CIT38/l/CM	60
O'Toole(2)

Your Honours, the term 11 award 11 is defined by

section 4(1) to mean an:

award made under this Act.

Now Your Honours, in our submission, one would think

that, prima facie, leaving aside the operation

of a provision such as section 60, the jurisdiction
conferred on the Federal Court pursuant to
section 119(1) would include jurisdiction to decide

all questions which it was necessary to decide, in

order to determine whether there had been a breach

of the relevant award. Now, Your Honours, that

question, if I could just interpolate, the determination

of the questions arising under section 119(1) involves,

as the Court said in RE CRAM; EX PARTE NEWCASTLE

WALLSEND COAL CO PTY LIMITED, (1987) 163 CLR 140 at

148, involves the exercise of judicial power. Could

I refer Your Honours to the second new paragraph

on the page, where in the joint judgment of the five

members of the C ourt saying:

(Continued on page 62)

CIT38/2/CM	61
O'Toole(2)
MR JACKSON (continuing):	Page 148:

A claim for the payment of wages due and

payable by an employer to an employee is

a claim for the enforcement of an existing

legal right. Likewise, a claim for the

enforcement of a provision in an award

for the payment of wages to an employee

is also a claim for the enforcement of

an existing legal right -

and I would refer Your Honours also to the next

two sentences. Now, Your Honour, could I refer

also to Your Honour Justice Gaudron at page 158

and, Your Honours, to the last paragraph on page

158:

A claim for wages -

and so on. So that, Your Honours, the matters

arising under section 119 are matters which attract

the exercise of federal judicial power.

Your Honours, that power, in our submission, is

sufficient to enable the Federal Court to decide

all the questions which it is necessary to decide in

order to determine whether there has been a breach

of the award.

Your Honours, I wonder if I might give

Your Honours a number of references but start with

one conveniently in the Federal Court itself;

a decision of RE TOOTH & CO LTD (NO 2), (1978) 34 FIB 112,

and, Your Honours, that was a case in which the
Chief Justice, Mr Justice Franki and

Your Honour Justice Brennan were the members of the

court and the particular question which arose

concerned the extent to which the Federal Court

might enter into the determination of questions of

constitutional validity in the exercise of a

jurisdiction otherwise conferred pursuant to sec ti on 7 6 ( 2 ) .

Could I take Your Honours first to page 119

and Your Honours will see that the Chief Judge in the

second new paragraph on the page said:

The constitutional issue raised by

question (d) raises a "matter" -

and the questions to which he was referring appear

at page 115 in the second new paragraph on the page.

His Honour went on to say at page 119:

The next question is whether it is a matter

which arises under the Act, or whether it

arises under the CONSTITUTION alone. A

ClT39/l/JH	62	1/5/90
O'Toole(2)

matter arises under legislation when the

legislative provision forms an integral

part of a claim or defence. It appears

from the judgment of Latham CJ in .....

EX PARTE BARRETT, that not only the

construction of a law but also the question

of its validity may be involved in a

matter which arises under that law. In

the present case, the validity of

section 47(9)(a) which is raised by

question (d), does not appear to me to
arise under the CONSTITUTION alone. It

involves the construction of that provision

and also the question of its validity.

Being a matter it is one which, in my

opinion, may properly be described as

arising under the Act.

Your Honours, at page 130, Mr Justice Franki, at

the bottom of the page expressed the view that:

In my opinion the constitutional validity

of a provision is necessarily part of the

question of what is its operation and

effect since if it is invalid it can have

no operation or effect. I therefore

consider that the question of validity

may be determined under the power conferred

by section 163A -

and so on.

Your Honours, Your Honour Justice Brennan,

at page 139, at the bottom of the page, in the

last two lines, after referring to section 163A of

the TRADE PRACTICES ACT said:

(Continued on page 64)

ClT39/2/JH	63	1/5/90
O'Toole(2)

MR JACKSON (continuing):

The jurisdiction conferred by this section

is necessarily characterized as jurisdiction

in a matter "arising under a law of the

Parliament" (CONSTITUTION, s 76(ii)), but a

matter of that kind may also be a matter arist~g

under the CONSTITUTION or involving its

interpretation ..... When iurisdiction to

determine a matter which falls withins 76(i;)

of the CONSTITUTION is conferred, the

jurisdiction may be exercised to hear and

determine a matter which answers that

description whether or not the matter also

answers the description contained ins 76(i).

Could I ask Your Honours to refer to the remainder
of that paragraph in which the proposition is furt~cr

made out and, Your Honours, the point to which lam

directing these submission is this: that if one

looks at section 119, putting aside for the moment

section 60, then if a question arose as to the

validity of an award on constitutional grounds

or on other grounds, that the determination of

that question is something which prima facie

would fall within the matter in respect of which

jurisdiction is conferred on the Court by

section 119(1) or section 119(3), as the case

might be.

Your Honours, without labouring Your Honours

with particular citations in extenso, may I give

Your Honours some references concerning the ambit

of the concept of "matter" in terms of the extent

of the questions which it enables to be determined.

Your Honours, one is CARTER V EGG AND EGG PULP

MARKETING BOARD, (1942) f6 :LR 557,at pages 586 to

587, "593 and 602 and also PHILIP MORRIS INCORPORATED

V ADAM P. BROWN MALE FASHIONS PTY LIMITED,

( 1981) llf8 CLR !-f37, at pages 497 to 499 and I ,,..rn.clcr if

I could ask Your Honours to refer to FENCOTT V

MULLER, (1983) 152 CLR 570,at page 608.

Your Honour, in the joint judgment of four

members of the Court in the first new paragraph on the page, Your Honours will see in the fifth

line, the expression:

For precisely this reason, however, it is

"b II II

necessary to attr1 ute to matter ..... a

connotation which does not deny to federal

judicial power its primary character: that

is the power of a sovereign authority "to

decide controversies between its subjects,
or between itself and its subjects, whether

the rights relate to life, liberty or property".

ClT40/l/SH	64	1/5/90
O'Toole(2)

The unique and essential function of the

judicial power is the quelling of such

controversies by ascertainment of the

facts! by application of the law and by

exercise -

We would refer Your Honours oarticularlv to the

remainder of that paragraph ~nd to the ~bservatio~

by Your Honours that it is:

erroneous to exclude a substantial part or

what is in truth a single justiciable

controversy -

and so on.

Now, Your Honours, as part of the matter there

may be issues of fact, there may be issues of law

and the issues of law may include questions which

are Constitutional questions so that, in our

submission, if one took things as they stand so

far and by that I mean by looking at section 119,

there is no reason why, in our submission, in the

exercise of the jurisdiction conferred by

section 119, the Federal Court might not decide

the issues which arise in connection with the

award and, Your Honours, the decision of those

issues would be the decision of issues which

form part of the matter, jurisdiction with respect

to which has been conferred on the Federal Court.

They form part of the matter because they go to

the question whether there is a valid award for

breach of which relief is sought.

MASON CJ:	Would this be a convenient time to adjourn,
Mr Jackson?
MR JACKSON:	Yes, Your Honour.

MASON CJ:  We will resume at 2.15 pm.

AT 12.56 PM LUNCHEON ADJOURNMENT

ClT40/2/SH	65	1/5/90
O'Toole(2)

UPON RESUMING AT 2. 16 PM:

MASON CJ:	Yes, Mr Jackson.
MR JACKSON:	Your Honours, may I say something in relation

to the question which was discussed earlier this

morning, having had the opportunity to see the first seven pages of the transcript of SMITH V

SMITH, and that is, Your Honours, that what is

said there, in our submission, does not really

decide any relevant issue one way or the other.

Your Honours, may I return then to the argument

I was advancing before lunch and the point with

which I was dealing was, leaving aside for the

moment section 60, whether there was jurisdiction

in the Federal Court under section 119 to determine
a question of the validity of the award; and the
submission that we made was that there was because
the decision of issues of that nature was the decision
of issues forming part of the matter, jurisdiction

with respect to which had been conferred on the

Federal Court.

Your Honours, may I give Your Honours a

reference to one short passage in PHILIP MORRIS

INCORPORATED V ADAM P. BROWN MALE FASHIONS PTY

LIMITED, 148 CLR 498, and, Your Honours, the

particular passage to which I wish to refer was,

of course, the well-known quotation from

Mr Justice Williams about two-thirds of the way

down the page and then Justice Gibbs went on to

say:

Accordingly, there is one matter of the

kind referred to ins 76(i) when an applicant for habeas corpus contends that his detention is unlawful on the ground that the statute

under which he is held is unconstitutional,

and on the further ground that the procedure

prescribed by that statute has not been followed.

And, Your Honours, His Honour is there referring

to a matter arising under section 76(i) as including

both the constitutional and the non~constitutional

issue and the same situation would obtain, in our

submission, with respect to section 76(ii).

Your Honours, if, contrary to the submission

which I have just mad~ the true situation is that

the determination of issues of the nature adverted to would not form part of the matter arising under

section 119, one would then go either to the

additional jurisdiction of the Federal Court under section 32(1)

of the FEDERAL COURT OF AUSTRALIA ACT or to the accrued

jurisdiction of that court.

C1T41/l/ND	66	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, may I deal with those

bases in that order. Your Honours, I wonder if

I could go first to section 32. Section 32(1)

of the FEDERAL COURT OF AUSTRALIA ACT provides that:

To the extent that the CONSTITUTION permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its

jurisdiction that are associated with matters

in which the jurisdiction of the Court is

invoked.

Your Honours, as section 32(1) says, it operates

to confer on that Court jurisdiction and the jurisdiction

so conferred is in respect of matters which have two

characteristics. The first characteristic is that

they are matters not otherwise within the jurisdiction

of the Federal Court and that appears to be a
statement to the effect that the matter is one in

which there has not been a specific conferral of

jurisdiction on the Federal Court by an Act, other

than the FEDERAL COURT OF AUSTRALIA ACT itself.

And in that regard, could I refer Your Honours to

section 19(l)of the FEDERAL COURT OF AUSTRALIA ACT

which says in relation to original jurisdiction that:

The Court has such original jurisdiction

as is vested in it by laws made by the

Parliament.

Your Honours, the FEDERAL COURT OF AUSTRALIA ACT
itself not directly conferring jurisdiction with

respect to any nominated matter.

(Continued on page 68)

ClT42/l/LW	67	1/5/90
O'Toole(2)

MR JACKSON (continuing):  But, the first characteristic

of section 32(1) is, in our submission, that

it is conferring jurisdiction in respect of

matters where a jurisdiction has not elsewhere

been specifically conferred upon the Federal Court.

Your Honours, the second characteristic to

attract the further jurisdiction contemplated by

section 32(1) is that the matter in question be one

associated with a matter in which there has been a

specific conferral of jurisdiction.

Now, Your Honours, whilst there has been some

debate or difference of view in the Court about the
extent to which section 32(1) might confer
jurisdiction upon the Federal Court in respect of

non-federal matters and, Your Honours, the result

appears to be that to the extent to which

section 32(1) might do that it is not itself valid,

there seems to be no question but that the opening

words of section 32(1):

To the extent that the CONSTITUTION permits -

had the result that to the extent to which
jurisdiction in respect of matters mentioned in
section 75 or 76 of the CONSTITUTION might have been,

but has not been, conferred upon the Federal Court

then the Federal Court has jurisdiction with respect

to those matters provided that the association test

referred to in section 32(1) is satisfied.

TOOHEY J:  Mr Jackson, I am not sure that I follow that.

Section 32(1), in so far as it uses the term

"jurisdiction", I take to be using it in the sense

of subject-matter as distinct from power.

MR JACKSON:	Yes, Your Honour.
TOOHEY J:	What is the relevance of section 32 in that sense

to what is now before the Court?

MR JACKSON:	Your Honour, what I am seeking to deal with is this: if it be that the issues upon which it sought
to have the Federal Court adjudicate by way of defence to the claim under the award are not, in
truth, part of the matter arising under section 119
but are a separate matter, they are yet a matter associated with matters in which the jurisdiction
of the Court is invoked, that is, under section 119
and the jurisdiction to determine whether the award is
one which is validly made in one of the two senses
is a jurisdiction on that assumption in respect of a
matter and, Your Honour, because of the association
the Federal Court would have jurisdiction to deal
with that matter pursuant to section 32(1) if that. issue is not part of the matter in the first place.

ClT43/l/JH	68	1/5/90
O'TOOLE (2)

MR JACKSON (continuing):  Now, Your Honours, the jurisdiction

conferred by section 32(1) is jurisdiction which is

to the point which 1 have been seeking to

wide, in our submission, and includes jurisdiction relation

which might have been specifically so conferred.

make. The first is PHILIP MORRIS lNCORPORATED-V ADA~\

P. BROWN MALE FASHIONS PTY LTD, 148 CLR 457, and

could I take Your Honours to a number of places in

those reasons for judgment.

The first is at page 494. Your Honours will see

half-way down page 494 His Honour sets out the terms

of section 32(1) and goes on to say that:

It follows from what has already been said

that this sub-section cannot validly confer

on the Federal Court jurisdiction in respect
of matters other than those enumerated in

ss 75 and 76. However, the sub-section is

capable of some valid operation. It is

expressed to operate to the extent that

the CONSTITUTION permits, and the

CONSTITUTION does permit a valid law to

be made investing the Federal Court with

jurisdiction in respect of matters not

otherwise within its jurisdiction that

are associated with matters in which the

jurisdiction of the Court is invoked,

provided that the former matters are

matters of a kind mentioned ins 75 or

s 76. As has been seen, the jurisdiction

of the Federal Court may be invoked in

a matter arising under the TRADE PRACTICES

ACT. Once the jurisdiction of the Court

is so invoked, its jurisdiction is extended

bys 32(1) to associated matters which

arise under other laws made by the

Parliament, even though the Parliament

has not (except bys 32(1)) conferred

jurisdiction on the Court in respect

of those matters. (Continued on page 70)

C1T44/1/HS	69	1/5/90
O'Toole(2)
MR JACKSON (continuing):

For example, an action for infringement

of copyright.

And then, Your Honours, in the fourth line on page 495:

The effect of that sub-section is that

that is

jurisdiction is conferred on the Federal infringement of copyright

associated with matters otherwise within

the jurisdiction of the Court.

Now, Your Honours, at page 506, Your Honour the

Chief Justice was of the view that section 32, I think

in the end was invalid so far as it concerned

non-federal matters because it was unnecessary,

perhaps Your Honour, unnecessary and inappropriate

as describing a matter,but what Your Honour said

about it is in the paragraph cormnencing about a

quarter the way down the page:

Plainly it was intended to vest a jurisdiction

in the Federal Court to hear and determine
matters not otherwise within its jurisdiction,

matters that are "associated with matters in

which the jurisdiction of the Court is invoked".

The expression -

Your Honour quotes the opening words

suggests that s.32 is directed, not merely to

jurisdiction to hear and determine matters

arising under federal laws not otherwise

vested in the Federal Court, but also to

jurisdiction arising under State or other

non-federal laws. Problems of constitutional

validity arise in relation to the latter, but

words of s.32(1) would serve no purpose at all	not in relation to the former. The opening	if the sub-section was exclusively directed
to matters arising under federal laws.

And, Your Honours, at page 521, Justice Murphy in the

last paragraph on the page referred to the fact that: Parliament's provision in s.32 confers

jurisdiction ..... on the Federal Court of

Australia to deal with associated matters

federal and non-federal ..... On the

assumption that "associated" matters includes

more than those which are not separate and

distinct, and on the assumption that

Parliament cannot enable a federal court to deal with matters non-federal in origin which are separate and distinct from those in which its

C1T45/l/JL	70	1/5/90
O'Toole(2)

federal jurisdiction is invoked, it is,

of course, necessary to read down s.32 .....

to apply only to those matters non-federal

in origin which are not separate and

distinct -

and so on -

Thus the Federal Court has federal

jurisdiction in respect of the trade practices claims, and any associated

copyright claim, and also in respect of
otherwise non-federal claims which are not

separate and distinct from both the trade

practices and any associated copyright

claim.

Your Honours, there is no suggestion that the

jurisdiction does not extend to ill federal

jurisdiction.

TOOHEY J:	Mr Jackson, if I could just return to that question
I asked you a moment ago, in terms of section 32 could you identify the matter in which the court
has jurisdiction without the assistance of
section 32 and the associated matter where it said that it has jurisdiction by virtue of section 32.

(Continued on page 72)

ClT45/2/JL	71	1/5/90
O'Toole(2)

MR JACKSON:  Your Honour, I am making an assumption, of course,

in doing this, because we would submit that the

whole case falls within the one matter.

TOOHEY J: Yes, I appreciate that. That is why I said for

the purpose of the section 32(l)argument.

MR JACKSON:  Yes, of course, Your Honour. Your Honour, so far

as that is concerned, the first matter, and that

is the matter in respect of which jurisdiction

would be specifically conferred pursuant to

section 19, would be the jurisdiction conferred by
section 119(1), that is, the matter being whether

there had been a breach of the relevant award.

Now, Your Honour, in defending that, one then has

another matter arising. The other matter which

arises is the question whether the award is one

which was made constitutionally validly, if I

can put it that way. Now, Your Honour, that matter

is one which the Federal Court does not have

jurisdiction specifically conferred upon it in

respect of, but it is one which would attract the

operation of section 32(1). Your Honour, a similar

issue was dealt with in RE TOOTH & CO in the

Federal Court and I will come to that in just a

moment. Your Honours, dealing if I may with

PHILIP MORRIS could I go, Your Honours,to page 538

and in the judgment of Justice Aickin. Your Honours

will see the first new paragraph on page 538,

His Honour says:

Since the power of the Parliament to confer jurisdiction on federal courts is

limited to the subject matters specified in

section 75 and 76, the proper course is to
read section 32(1) as conferring a jurisdiction

limited to such matters falling within

section 75 and 76 as are "associated" with

matters otherwise within the jurisdiction of

the Federal Court pursuant to some other

Act of Parliament.

Now, Your Honours, an alternative argument is

referred to and His Honour goes on to state his

views through to the end of the continuing paragraph

at the top of page 539. Your Honours, could I give

Your Honours references to section 32(1) in two further cases

in the Court and then come to the operation, in
our submission, correctly attributed to section 32

in a case sufficiently similar to the present to

be material in RE TOOTH & CO. The references are
FENCOTT V MULLER,152 CLR 571,zt page 625 and

STACK V COAST SECURITIES (No.9) PTY LTD ,154 CLR 261,

at pages 278 and 292. Now,Your Honours, what we would

submit is this, that the effect of section 32(1)

CIT46/1/CM	72
O'Toole(2)

is that if the validity of the award, whether

for constitutional or other reasons, is a matter

different from the matter which attracted the

jurisdiction of the Federal Court in the first olace

section 32(1) confers jurisdiction to determine·

that matter, because the two matters are associated,

and Your Honours they are, in fact, associated

' '

sequentially in the sense that the decision on one

must precede the decision on the other. Could I

take Your Honours now to a decision to which I

referred earlier:RE TOOTH & CO. LTD. (No.2),

(1978) 34 FLR 112, and I wanted to refer first to page 130.

At the bottom of page 130 Mr Justice Franki

expressed the vi PW that the:

constitutional validity of a provision is

necessarily part of the question of what is

its operation and effect -

and thus saying it was part of the same matter.

But he then went on to say, at the top of the next

page:

Alternatively I consider the jurisdiction

conferred on the court by section 32 ..... is

relevant. That section provides:

and His Honr)11t' cited it, then he went on to say

in the sixth line on the page:

(Continued on page 74)

CIT46/2/CM	73	MR JACKSON, QC 1/5/90
O'Toole(2)

MR JACKSON (continuing):

Section 77(i) of the CONSTITUTION permits the Parliament to define the jurisdiction of this Court with respect to matters set out

in ss 76 and 76 of the CONSTITUTION.	One oE
those is any matter arising under the

CONSTITUTION or involving its interpretation

(s 76(i)). The Parliament could have

conferred very broad powers on this Court.

Although it has not done so in specific

terms, in my opinion, it has by s 32 of the

FEDERAL COURT OF AUSTRALIA ACT invested this

Court, to the extent that the CONSTITUTION permits, with jurisdiction in respect of

matters not otherwise within its jurisdiction

that arc associated with matters in which the
iurisdiction of this Court is invoked. I
~onsidcr this invests the court with the

jurisdiction set out ins 76(i) of the

CONSTITUTION in the appropriate case.

And His Honour went on to set out his summary

in the next paragraph.

Then, Your Honours, Your Honour Justice Brenn3n

at page 140 - Your Honour had made the observation

at page 140 in the fourth line that:

When iurisdiction to determine a matter

which-falls withins 76(ii) -

1s concerned -

the jurisdiction may be exercised to hear

and determine a -

section 76(i) matter as well. But then

Your Honour went on to say at the bottom of

page 140 that Your Honour had a doubt whether

the jurisdiction to make a declaration given

by section 163A of the FEDERAL COURT ACT extended

to the making of a declaration that part of a section was invalid but said at the bottom of the page:

It is not necessary to resolve these doubts, for s 163A docs not stand alone, ands 32(1)

of the FEDERAL COURT OF AUSTRALIA ACT 1976

supplements the jurisdiction otherwise conferred

upon the court. Ifs 163A docs not confer the

jurisdiction which the parties seek to invoke,

s 32(1) docs.

Your Honour quoted the section and pro~ccdcd to

say that:

ClT47/l/SH	74	1/5/90
O'Toolc(2)

The jurisdiction -

was -

ex hypothesi, additional to any jurisdiction

conferred by other provisions of the FEDERAL

COURT OF AUSTRALIA ACT or by other statutes.

Your Honour then referred - and I take Your Honours

to the end of that paragraph - to the fact that

there needed to be an association for it to come

into operation and, in dealing with that question,

Your Honour used expressions which apply, in our

submission, mutatis mutandis here; that is:

When there is an issue as to a statutory

prohibition of conduct in which a party

engages or proposes to engage, three

questions arise:  the validity of the

relevant statute, its operation and effect,

and the nature of the conduct. The three

questions are associated for each has to

be answered in order to determine whether
the conduct is legally prohibited, the
answer to that ultimate question depending

upon the answers given to the three

associated questions.

Your Honour dealt with the particular case and

then in the second-last paragraph on the page,

said:

The dispute upon the question of the

validity of s 47(9)(a) or a part of it, is

a "matter" in the Constitutional sense of

that term, and the CONSTITUTION permits the

Parliament to confer upon this Court

jurisdiction in respect of a matter of

that kind. Those conditions of the

application of s 32(1) are satisfied.

Buts 32(1) requires that the other

questions, with which the matter of validity

is associated, should also be amenable to
determination by the exercise of this

Court's jurisdiction in a "matter".

And that question, Your Honour proceeded to deal

with and, Your Honour, the application of the

question of association to the particular case

goes over to the end of the paragraph that

continues on to page 142.

ClT47/2/SH	75	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, Your Honours, there seems not

to have been in the Federal Court any specific

reference to section 32(1) and, Your Honours,

although RE TOOTH is referred to in the judgment

of Justice Gum.mow at page 318 - I am sorry,

following page 318. Your Honours will see at the

bottom of page 318 that one of the contentions

advanced on behalf of the applicant was that there

were two discrete matters, that is, one a section 76(ii)

matter and the other being a section 76(i) matter.

His Honour then went on to refer to RE TOOTH & CO.

on the next page. We would simply submit that if

one takes the case as dealt with so far, it is

simply one where either the two are part of the one
matter, or if the two are not part of the one matter,
then the section 76(i) matter is inevitably associated
with the section 76(ii) matter in respect of which

jurisdiction is specifically conferred on the Federal

Court.

Could I turn then, Your Honours, to section 60

of the CONCILIATION AND ARBITRATION ACT with a view

to determining whether its provisions affect the

submissions which we have so far made.	Your Honours
will see that section 60 provides that:

Subject to this Act, an award (including an award

made on appeal) -

(a) is final and conclusive;

(b) shall not be challenged, appealed against,

reviewed, quashed or called in question in any

court; and

(c) is not subject to prohibition, mandamus or

injunction in any court on any account.

Now, Your Honours, the opening words of section 60(1),

that is, " Subject to this Act", are plainly apt enough

to refer to the fact that an award may be the subject

of an appeal to the Full Bench of the Commission

under section 35(2) or that an application for review

of it may be made pursuant to the immediately
preceding section, section 59, which allows an award
to be set aside or varied, so that those words are

clearly enough apt to refer to that.

But, Your Honours, although the expressionsin

section 60 (1), such as "shall not be challenged .....

quashed or called in question in any court" on one
view of such provisions are wide enough to prevent
a challenge of any kind, be it constitutional or

otherwise, in fact, the meaning of "provisions", such

as section 60 and the cognate provisions and its

ClT48/1/LW	76	1/5/90
O'Toole(2)

predecessors, has been established,in our submission,

in judgments of the Court under propositions

which emerge from those judgments may, we would

submit, be summarized in various ways no doubt

but we would put them as being four, and I will come,

Your Honours, to seek to make them out in just a

moment if I may.

(Continued on page 78)

ClT48/2/LW	77	1/5/90
O'Toole(2)

MR JACKSON (continuing):  The first of them is, that a

provision such as section 60 is subject to the

CONSTITUTION and cannot validate something which

could not have been authorized legislatively.

The second proposition, Your Honours, is that,

absent any want of constitutional power, a

provision such as section 60 may have effect - and

I say, may, for a reason I will mention in a moment -

to validate purported exercises of power which

otherwise would be, ultra vires, the relevant statute.

McHUGH J:  You say "validate" but why is it validating?

It is not validating it. If it is bad, it is bad.

It only means that in those particular courts it cannot be challenged, quashed, reviewed.

MR JACKSON:  Yes. Your Honour, why I say "validate" is for

two reasons. One is that I was adopting the

language of the Chief Justice and Justice Brennan

in COLDHAM's case as to the effect of it. The

second is, that in truth that is, in our submission,

the effect because what it does is to say that

although if one looked at provisions of the
statute other than section 60 what has been done
would not be, intra vi res, the statute or would be

the subject of some prohibition in the statute.

The effect of section 60 is to give validity to that

provision and, Your Honours, the third proposition

I was -

McHUGH J:  Would it not cause some problems about the

constitutionality of section 60 in any event if its

purpose was to validate something that was invalid.

MR JACKSON:  Your Honour, I am not talking about

constitutionall~ invalid.

McHUGH J:  No, I know.

MR JACKSON:	Well, Your Honour, not if one is speaking about something for which Parliament would otherwise have
had power to legislate.  Your Honour, if I could
separate  out two types of invalidity, in
effect.  One is, whatever the Parliament says, it has
not got constitutional powers so to enact. The other is,
that it is enacted in a way in which the order or award in question contravenes specific provisions, for example, or is not in accordance with the
power given by the provisions but Parliament might
have enacted in such a way to enable there to have
been a provision of that kind.  Now, Your Honours, it
is that gap, in effect, that section 60 is capable
of filling.

ClT49/l/JH	78	1/5/90
O'Toole(2)

Your Honours, the third proposition I was going to

submit is really the qualification to the second and

it is the reason why we said that it may have that

effect and it is this: that the detennination of

the actual effect of a provision such as section 60

depends on the particular statute and a provision

such as section 60 - and Your Honour I am using the

words from an earlier case - cannot affect the

operation of a provision which imports inviolable

limitations or restraints upon the jurisdiction or

powers of the body in question.

Your Honours, the final proposition, and I

mention it really for completeness, is that such a

provision does not render nugatory the Court's

jurisdiction under section 75(v) although the effect

of a provision such as section 60 in a

non-constitutional case may be that it makes within

power something that otherwise would not have been.

Your Honours, there have been many cases dealing

with provisions of the nature of section 60 and may

I refer at this point to three of them.	The first
is, RV HICKMAN; EX PARTE FOX AND CLINTON,

(1945) 70 CLR 598. As is apparent, Your Honours,

from the headnote, if I could go there for just a

moment, the case was concerned with wartime

regulations which:

apply to industrial matters relating to the

Coal Mining Industry -

and the expression, "the coal mining industry"
and the ambit of that concept was the matter which

was of importance.

Your Honours, the provision which was the

relevant equivalent of section 60 was regulation 17

which is set out in the headnote and provided that:

the 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.

Your Honours, at page 606 and, Your Honours, if I

could just say something before going on to this

passage and other passages, the propositions which I

was submitting were the case a moment ago appear in
various parts of the judgment and, perhaps, without

attempting to separate out judgments into the particular

propositions in the order in which I gave them, may I

indicate to Your Honours the relevant parts recognizing

that they cover a number of areas on some occasions.

ClT49/2/JH	79	1/5/90
O'Toole(2)

MR JACKSON (continuing): Your Honours, the first of them

is at the bottom of page 606 and about three-

quarters of the way down the page His Honour said:

Prima facie, therefore, the Court has

jurisdiction to grant a writ of prohibition

against them -

that is the board

if they exceed their jurisdiction.

Regulation 17 provides -

and he sets out the regulation; and then, six

lines from the bottom of the page says:

Such a provision, it is settled, cannot exclude

the jurisdiction conferred upon this Court

bys 75(v) -

and then he goes on to say that:

(s 75(v)) is not limited to the grant of

prohibition upon constitutional grounds.

His Honour goes on to say then at the top of page 607 that:

In my opinion, it should not be held that
the effect of reg 17 is to extend the
jurisdiction of a Local Reference Board beyond
the coal mining industry.

And then says, at the end of that same paragraph: the Regulations, including reg 17, should

be construed as limited in their operation

to the coal mining industry, and the powers

of a Local Reference Board should be

interpreted accordingly.

Your Honours, that part of the case to which I

have just referred is one which deals with the

obvious proposition that the effect of a particular

provision depends on the enactment.

Could I go, Your Honours, to Mr Justice Rich

at page 610. He referred at the top of the page

to the fact that it is the present jurisdiction

with section 75(v) which was not affected by

regulation 17. And Sir Owen Dixon, at page 614,

in a number of passages, dealt with the operation

of provisions of this kind.

Your Honours, at the end of the first paragraph

on page 614, that is the one finishing about a

ClTS0/1/ND	80	1/5/90
O'Toole(2)

quarter of the way down the page, he expressed

the view:

that the operations of the employers, who

are the prosecutors in this application, do

not fall within the natural meaning of the

expression "coal mining industry."

He then went on to say, half-way down the page,

that:

The jurisdiction of this Court ..... is

invoked upon the footing that the Board are

officers of the Commonwealth -

et cetera. He set out regulation 17 and then,

a little past half-way down the page, said:

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.

His Honour then proceeded to the constitutional

questions.

In the first plac~ 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.

I pass over the next sentence and then in the last

sentence in that paragraph said:

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.

(Continued on page 82)

ClTSO/2/ND	8 l	1/5/90
O'Toole(2)

MR JACKSON (continuing): Your Honour, it seems clear enough

in the context that His Honour is there speaking oE

non-constitutional validity and then he went on to

say at the bottom of the page:

Both under Commonwealth law, and in

jurisdictions where there is a unitary

constitution, the interpretation of

provisions of the general nature of

reg 17 is well established. They are not

interpreted as meaning to set -

aside -

at large the courts or other judicial

bodies to whose decision they relate.

Your Honours, might I just pause there to say, as

Your Honours will see from the top of that page,

page 615, His Honour is speaking about the interpretation

of provisions such as regulation 17 and section 60.

I mention that, Your Honours, for a reason to which

I will come. Your Honours will see that he then

proceeds, at the top of page 615, to deal with the

question of the meaning and, because of meaning,

operation of a provision such as that.	He says in
the fourth line 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

on the ground that it has not conformed

to the requirements governing its
proceedings or the exercise of its

authority or has not confined its acts

within the limits laid down by the instrument

giving it authority, provided always that its

decision is a bona fide attempt to exercise

its power, that it relates to the

subject matter of the legislation, and

that it is reasonably capable of

reference to the power given to the body.

Now, Your Honours, His Honour goes on to deal with

the matter further and without reading it out may I

ask Your Honours to refer to the remainder of that

page and to the top of the next page and the new

paragraph commencing on page 616.	Your Honours, at
page 616 His Honour goes on to say:

It is, of course, quite impossible for the Parliament to give power to any

judicial or other authority which goes

beyond the subject matter of the

legislative power conferred by the

CONSTITUTION. The relevant subject

ClTSl/1/HS	82	1/5/90
O'Toole(2)

matter in the present case is naval

and military defence. It is equally

impossible for the legislature to

impose limits upon the quasi-judicial

authority of a body which it sets up

with the intention that any excess of

that authority means invalidity, and yet,

at the same time, to deprive this Court

of authority to restrain the invalid

action of the court or body by

prohibition. But where the legislature

confers authority subject to limitations,

and at the same time enacts such a clause

as is contained in reg 17, it becomes

a question of interpretation of the whole

legislative instrument whether transgression

of the limits, so long as done bona fide

and bearing on its face every appearance

of an attempt to pursue the power,

necessarily spells invalidity.	In my
opinion -

and then His Honour goes on to deal with the same question and the passage goes through to page 617

to the paragraph ending about the middle of the page.

(Continued on page 84)

ClTSl/2/HS	83	1/5/90
O'Toole(2)

MR JACKSON (continuing): Now, Your Honours, finally in

relation to that case may I take Your Honours

to the judgment of Justice McTiernan at page 620,
and in the last paragraph on that page

His Honour refers to the - what I would put as

the fourth proposition that ..... does not bar

section 75(V).

Your Honours, the second decision to which I

wish to refer is the joint judgment of the court

in RV KIRBY; EX PARTE TRANSPORT WORKERS UNION

OF AUSTRALIA, (1954) 91 CLR 159, and could I take

Your Honours to page 173. Now, Your Honours,

in the last paragraph on page 173 Their Honours

speak of a:

difficulty in the matter -

having been -

occasioned by the intimation made to the

arbitration court -

which was an intimation that -

there was no dispute or no dispute

extending beyond the limits of any one

State - Your Honours say in the third line of that paragraph:

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 under s.37 of the

Act. The difficulty is not overcome by the

provisions of s.16(1) 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.

Now, Your Honours, there is some discussion of the

facts immediately following that at page 174 and

then in a passage commencing - a little before

half-way down the page:

But of what value are these indications when

the representative of the respondent commission,

ClT52/l/JL	84	1/5/90
O'Toole(2)

after consideration, deliberately concedes

for the purposes of the applicationbefore

the arbitration court "that before the

agreement was made and certified no dispute

existed which extended beyond the limits of

any one State".

And then, Your Honours, at the bottom of the page:

In these circumstances it is clear that
the certification ..... did not add anything

to its efficacy.

And, Your Honours, in the first new paragraph on

page 175:

To overcome the difficulty apparent upon the statement of this proposition the respondent

commission relied upon the provisions of

s.16(1) ..... 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,

(Continued on page 86)

C1T52/2/JL	85	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, the last case to

which I wish to refer at this point is

REG & COLDHAM EX PARTE AUSTRALIAN WORKERS'

UNION (1983) 153 CLR 415. Your Honours, could

I go first in that regard to page 417, the

commencement of the joint judgment of Your Honour

The Chief Justice and Justice Brennan and

Your Honours say, at the bottom of the page:

we prefer to express our own reasons for

concluding that section 60 ..... is no bar

to the relief which is sought by the
prosecutor.

And then Your Honours proceed to summarize the cases on section 60 and its predecessors

in cognate provisions. At the top of page 418:

The jurisdiction of the Court conferred

by section 75(v) of the CONSTITUTION to grant

mandamus and prohibition •.... cannot be ousted

by a privative clause. However, it has been

established by a long course of judicial decisions in this Court that a privative

clause in the form to be found in section 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 11 ••• namely that the

purported exercise is a bona fide attempt to

exercise the power, it relates to the

subject matter of the legislation, and it is

reasonably capable of being referred to the

power (i.e. does not on its face go beyond the	power) ... 11 to use the words of Justice Kitto
in REG V COM11ONWEALTH CONCILATION AND
ARBITRATION COM11ISSION:  EX PARTE AMALGAMATED
ENGINEERING UNION.

Now after referring to various cases, Your Honours

went on to say:

As Justice Dixon explained in MURRAY, and in

other cases, it is a matter of reconciling the

prima facie inconsistency between one

statutory provision which seems to limit the

powers of the Tribunal and another provision,

the privative clause, which seems to

contemplate that the Tribunal's order shall

operate free from any restriction. The

inconsistency is resolved by reading the two

provisions together and giving effect to each.

The privative clause is taken into account in

ascertaining what the apparent restriction or

restraint actually signifies in order to

determine whether the situation is one in

which prohibition lies.

CIT53/l/CM	86
O'Toole(2)

The object of a provision of this kind

is generally to protect the award or order

from challenge. Consequently, the making

of the award or order is the occasion for

taking the privative clause into account in

interpreting the Tribunal's authority or power

more liberally. Before the award or order

is made the Tribunal will be held to a strict
construction of its powers uninfluenced by

the clause -

and then, Your Honours, the first new paragraph

on page 419:

But a clause like section 60 cannot affect

the operation of a provision which imposes

inviolable limitations or restraints upon

the jurisdiction or powers of the Tribunal.

And I would ask Your Honours to read the

remainder of that paragraph. And Your Honours

at page 427; section 60wa.s dealt with by
Your Honour Justice Deane and Your Honour

Justice Dawson in the first new paragraph on page 427, set out section 60(1) and then say:

Such a statutory provision is effective

to exclude any general judicial review of

the proceedings of the Commission. It is not,

however, effective to preclude ..... section 75(v)

of the CONSTITUTION.

Your Honours refer to HICKMAN's case and then

Your Honours deal with the particular operation of

section 60 at page 428 in the first new paragraph.

(Continued on page 88)

CIT53/2/CM	87
O'Toole(2)

MR JACKSON (continuing): Now, Your Honours, those cases

in our submission demonstrate that the terms of

section 60 have the meaning and the effect to

which I have already made reference and the

question which then arises concerns the

Federal Court's powers to enter upon those questions in determining the application under

section 119. It is convenient at this point,

if I may,to go to the questions in the special

case and to the answers to them given by the

majority. Could I take Your Honours first to

question (b). It is convenient to go to it

at page 326 where it forms part of the reasons

for judgment of Mr Justice Gummow. Could I

take Your Honours first to what the question is

and the question is whether:

S 60(1) -

precludes -

the Court, in proceedings under s 119 ....

from receiving evidence for the purpose

of determining whether the member of the

Australian Conciliation and Arbitration

Commission who purported to make the Award

did or did not act or attempt to act bona

fide in the course of his authority under

the Act?

Now, Your Honours, question (b) relates to the

application in the Federal Court of the tests

in HICKMAN and COLDHAM; that is, assuming that

there would have been power to legislate to

make the award, the question is whether

section 60(1) validates the award if it otherwise

would not have been so.

Now, Your Honours, that question (b), t1rst

of all, relates to the application of those tests

and that it was so understood by the majority is

apparent from two things. The first is the

question itself but the second is the reference

to it by Mr Justice Gummow at page 325 line 15.

His Honour said - it is one of the questions

and answers referred to in the passage to which

I am about to come - His Honour said:

There should also be answers favourable to the respondent to those questions which raise the

issue of whether evidence is admissible in the

prosecution to show that the Commission in
making the Award did not comply with the
three conditions or tests referred to earlier

in these reasons.

ClT54/l/SH	88	1/5/90
O'Toole(2)

Those three conditions or tests appear in his

reasons in the passages commencing at page 305,

line 15. His Honour refers to the:

Settled course of authority in construing

s 60 of the Act in relation to provisions

such ass 119.

He said:

This shows thats 60 operates to validate

certain awards otherwise not made under the

Act.

Then, goes on, Your Honours, at page 306, about

line 42, to refer to COLDHAM and to the three tests

there referred to. His Honour said immediatelv

after the quotation on page 307 that he drew ,

attention to the use in the passage of the word
"validate" to describe the effect of s 60 and

His Honour's discussion of the issue goes on to

page 308 down to about line 25 and His Honour

sets out the three tests at page 308, lines 13 to

18 and goes on to summarize his view of the

effect of section 60, between lines 20 and 24.

Now, Your Honours, might I at that point go

back to the structure of the proceedings in the

Federal Court.

(Continued on page 90)

ClT54/2/SH	89	1/5/90
O'Toole(2)

McHUGH J: Just before you do, if you use the word "validate"

and apply it literally, it certainly strengthens

your hand, but if the real question is whether or
not section 60 is directed to jurisdiction, you

might get a different answer, may you not? It is very difficult to conceive that the various tests

laid down in HICKMAN and so on were intended by the

legislature to apply to proceedings before a stipendiary magistrate or a police magistrate

because if the answers to the questions in the court
below are correct, then in any proceedings for tte

enforcement of an award in front of any magistrate,

po lice stipendiary or otherwise, the matter is at large.

MR JACKSON:  Yes, Your Honour, but that comes about for a number

of reasons.	One is because the legislature has chosen
to confer jurisdiction on those courts.	Your Honour,

the second thing is that in so far as cases of that nature

might raise constitutional questions, then there is,

as Your Honours have heard so much this morning,

the possibility of removal of them and, Your Honours,
generally speaking, all the courts in Australia have

jurisdiction in constitutional matters.

Mc HUGH J:  Am I right in thinking that there is a difference between

validating an award and defining jurisdiction in the court?

MR JACKSON:  Your Honour, there can be, yes. I do not doubt

it is	capable of being a description of particular
provisions as one or the other.	What we would submit

is that if one looks at the terms of section 60

it is not talking in terms of jurisdiction at all,

with respect. It does not use, in particular in

section 60(l)(b),anything that speaks of jurisdiction.

McHUGH J: Well, why does it not say that this matter is not in

issue in the courts, however by reason of the CONSTITUTION

it cannot apply literally in this court?

MR JACKSON: Well, Your Honour, because to take that view,

with respect, would be to, in our submission,

overrule what has been described as the settled
course of authority with respect to the meaning of

provisions of this kind.

McHUGH J:  But all those remarks are made in a very different

context in proceedings in this Court.

MR JACKSON:	Your Honour, with respect, the proceedings - may I start again, Your Honour. If one looks at
section 60, what has been said - if I could put it
this way - to be its meaning, Your Honour, is that
section 60 is effective to make valid - if I could put it my way for a moment, Your Honour - something
which ex hypothesi is not valid. Now, Your Honour,

ClT55/l/LW	90	1/5/90
O'Toole(2)

it makes it valid by saying that it is incapable of

being challenged, even though it would otherwise

not be an award. But, Your Honour, in order to

determine whether it is something which is in the

category of things which cannot be challenged

one has to look to see whether it is something

which satisfies the three tests. Now, Your Honour,

there is no reason at all, in our submission,

why those three tests are three tests that apply

only to proceedings in one court rather than to another.

Your Honour, if I could put it this way: why

should section 60 operate in respect of an award

which is not made bona fide in one court but not in

another when there is no particular reason in any

provision, with respect, which says that it should?

(Continued on page 92)

ClTSS/2/LW	91	1/5/90
O'Toole(2)

McHUGH J:	I follow the force of that, Mr Jackson.
GAUDRON J:	In that same vein, your argument, it seems to me,

proceeds on the basis that what has been said

in cases such as COLDHAM and HICKMAN is an

exhaustive statement of the effect of section 60.

I must say, I have some difficulty that it is an

exhaustive statement.	Those cases seem to be a
statement of the relevant effect.	Now, if I can

go on from there and ask, is it not possible to

say that one effect of section 60 is that where

there has been a purported exercise of the award-making

power and work is offered which is covered by that
purported exercise and work is accepted, being work

which is covered by that purported exercise, the

rights and liabilities of the employer and employee

shall be in accordance with the award unless it is

set aside or varied in accordance with the Act or

by prohibition under section 75(v). That is to say,

really, why subject to constitutional validity of

that effect, why could it not have the effect of a

form of statutory estoppel?

MR JACKSON: 

Well, Your Honour, I suppose it is possible to

say, with respect, that the earlier decisions did
not exhaust the possible operation of section 60 and

it is possible to say that those decisions were

decisions which dealt with their own particular

circumstances. Your Honour, having said that, if one

looks at the decisions, they are, again ex hypothesi,

decisions in which the Court is not concerned, for·
present purposes, with any constitutional question,

because that has already been excluded, but simply

with the question whether a provision like section 60
operates to put within power something that otherwise
is not and operates to put it within power so that
otherwise, in the absence of a provision such as

section 60, would have been the subject of prohibition

because of the absence of jurisdiction.

Your Honour, there seems, if I could put it that -

GAUDRON J: 

I do not know that what I have said necessarily

has anything to do with putting things in power or not.

It is a question of conferring rights and imposing

liabilities by reference to something that has

happened.

MR JACKSON:  Yes. Your Honour, in our submission, section 60(1)

is not framed in that way. What Section 60(1) is

doing is to select something and to define the

circumstances in which that provision shall not be

challenged or, if challenged, its validity shall not

be called into question or, if not otherwise valid,

is to be taken to be valid. Now, Your Honour, what

we were seeking to do - and this is why I was dealing

with question (b) - was simply seeking to say that one

ClT56/l/JH	92	1/5/90
O'Toole(2)

of the matters which the Federal Court would have

jurisdiction to deal with was the question, whet~er

the three conditions referred to in the cases were

satisfied. If they are satisfied, that is the end

of the matter. The section is effective but,

Your Honour, there is not any reason, in our

submission, why section 60 should be read so that

it has an effect to make unchallengeable something

which, for example, is not a bona fide attempt to

exercise the power or is something which does not

potentially relate to the subject-matter of the

legislation or is not reasonably capable of being

referred to. Your Honour, those are tests which are

apposite and used in respect of similar provisions

and there is no particular reason why the

Conciliation and Arbitration Commission's awards

should have a greater protection than that, with

respect.

(Continued on page 94)

ClT56/2/JH	93	1/5/90
O'Toole(2)

McHUGH J:	You may be able to challenge, in the Federal Court,
on those three grounds on the proviso in HICK.."1-1.AN
but not on the constitutional grounds.

MR JACKSON: Well, Your Honour, I want to deal with this one

first and then move on to the constitutional one

and all that question (b) deals with is that it

raises the question whether these issues are ones

that can be raised in the Federal Court and what

I was about to do, Your Honours, a moment ago was to

deal with the way in which the issue arises and to

try to demonstrate that if it was either part of the

same matter or else it was sufficiently associated

with the matter to confer jurisdiction on the

court. And, Your Honours, could I also perhaps

observe simply in passing, with respect, that if it

is correct to say that COLDHAM and the earlier cases
do say something about the meaning of provisions
of this kind then it is more appropriate, with
respect, for those seeking to depart from those, or

have the court depart from those, to indicate a basis

why a different reason	- a different approach
should be taken.

Your Honours, I was dealing with question (b) and what I was seeking to do was to say that

question (b) simply related to the application in

the Federal Court of the HICKMAN and COLDHAM tests

and I was about to, Your Honours, go back to the

structure of the proceedings in the Federal Court.

Now, Your Honours, if I could just say this about

the structure of those proceedings, it is this: the

applicant claims that there is a breach of the award;

the respondent says, amongst other things, the award

is not an award made under the Act because it is

ultra vires the Act; Your Honours, there is no

constitutional issue involved; the applicant then,

in response to the defence that the award is

ultra vires the Act says to the respondent, in

effect, if the award were otherwise ultra vires

it is protected or validated by section 60 and,

Your Honours, to defeat that reliance upon section 60

the respondent then in effect says, but section 60

will only validate in effect or protect the award

if the three conditions in COLDHAM and HICKMAN are

satisified, and we want to show that they are not.

Now, Your Honours, all that is being done in

those circumstances by the court is to determine

whether the conditions precedent to the application

of a statutory provision which would defeat a defence

have been satisfied. And, Your Honours, in our

submission, that is something which we would submit

is clearly within the matter in respect of which

jurisdiction is conferred on the Federal Court because

ClT57/l/JL	94	1/5/90
O'Toole(2)

Your Honours, of course the matter is the subject-matter for determination. Could I give

Your Honours one of the more recent references

to that statement, CROUCH V COMMISSION FOR RAILWAYS,

(1985) 159 CLR 22 at page 37 and Your Honours

there said that the word means, Your Honours

about a quarter the way down the page:

the "word ..... means not a legal proceeding
"but rather the subject-matter for
determination in a legal proceeding".

That general meaning of the word "matter"

has been accepted in subsequent cases. It

should, in our view, be accepted as the

settled prima facie meanin~ of the word

in Ch.III of the CONSTITUTION.

And, Your Honours, we would submit that the matter

involved the question of the validity of the award;

we want to say it is not made pursuant to the Act;
section 60 is relied upon to prevent us doing so;
we say, well section 60 only applies in certain

circumstances, we want to show those circumstances

do not apply. And, Your Honours, that is why, in

our submission,the majority were correct in

answering question (b)	at	page	326 in the
negative.

DAWSON J:	What was the sort of evidence you wanted to call?
MR JACKSON:	Your Honour, it is dealt with in the last paragraph

in annexure A but, Your Honour, the effect of it,

I think, Your Honour, I cannot say I have gone through

the detail of it, is that the award was one made at a
time when it was known that it was not to settle any

relevant interstate industrial dispute but was simply

made to satisfy a local agreement.

(Continued on page 96)

C1T57/2/JL	95	1/5/90
O'Toole(2)

DAWSON J:	And you would call witnesses for this purpose?
MR JACKSON:	Yes, Your Honour.

GAUDRON J:  Would you call Commissioner Gough? I ask that

quite seriously because it does seem to me that

once you put that proposition you are really setting

up something which is quite different from the normal

method by which the validity of awards is challenged
in the exercise of 75(v) jurisdiction by the issue

of prerogative writs.

MR JACKSON:	Your Honour, there is no doubt it is different.
GAUDRON J:	So it is not really a different jurisdiction. It

necessarily involves quite different procedures

and different evidence and it has a result which by the nature of the proceedings is inter partes and quite different from the result that operates

in consequences of the grant of prerogative

relief.

MR JACKSON:  Your Honour, the provisions of section 75(v)

preserve to the court the ability to correct
excesses of jurisdiction or by Commonwealth officials
or cases where they choose not to exercise jurisdiction
or where it is appropriate to grant an injunction.

That is preserved to the court, there is no doubt about that, and that involves particular procedures

and it may involve, Your Honours, in a case, for example,

where it was said that the three tests in HICKMAN and

COLDHAM had not been satisfied, the court would have

to enter into the question whether, for example,

the award had been m~de bona fide. Now, that would

have to be dealt with by a justice or perhaps the
issue might be remitted somewhere, but it is a

question which would have to be resolved.

Now, whether in a case like that the Commissioner

could be called or would be called is a question, but

the question would arise there. The procedure might

be different but the factual issue would have to be

resolved somehow or other. Your Honour, if there is

any difficulty in the present case, it is because

of the way in which Parliament has conferred the
jurisdiction, but one really should not be frightened

by the prospect that commissioners, or indeed former

commissioners, might be called to give evidence

about their activities.

GAUDRON J:	But it just does seem an odd consequence of your argument, particularly when - I must say you may be
right that it is a consequence in prohibition but I
had not thought that that was how the question of
bona fide had been approached in the grant of prerogative relief.

ClT58/1/LW	96	1/5/90
O'Toole(2)

MR JACKSON: Well, Your Honour, it depends on a number of things.

The absence of bona fides is something which one

might seek to establish in a number of ways. Now if

one took the worst case, there would be an allegation

of a bribe, for example. If one took a case which

was at the other end.of the spectrum or one might

have a situation where a commissioner - and Your Honour

I do not want to get into ANISMINIC questions really -

had misunderstood what he was doing in a particular

respect in such a way that it was obvious from the

face of what had been done by looking at the

transcript. So there is a spread of things, Your Honour.

A similar problem would ~rise if one looked at

situations under section 39 B of the JUDICIARY ACT
where the Federal Court, in respect of tribunals

other than the Conciliation and Arbitration Commission
or the Family Court, had to deal with similar questions.

So, Your Honour, there are issues around and they have to be decided by someone and it is the court who has

in the past done it but, Your Honour, it is just a

question of looking to see what court is their

jurisdiction. Unless one finds something taking

away the power of the Federal Court to deal with the

matter so far as one has dealt with it, there is no

reason why it does not.

(Continued on page 98)

C1T58/2/LW	97	1/5/90
O'Toole(2)

MR JACKSON (continuing): Your Honours, could I move then

to question (a)? Question (a) deals with whether

section 60(1) precludes the Federal Court in proceedings under section 119 from receiving

evidence and for the purpose of determining whether

the award was or was not made within the

constitutional jurisdiction of the Conciliation

and Arbitration Commission.

Your Honours, the cases to which we have made

reference already demonstrate, in our submission,

that a provision such as section 60 cannot
transcend limitations upon constitutional power.

And could I add some reference to those which I

have given already: one is to RV METAL TRADES

EMPLOYERS ASSOCIATION EX PARTE AMALGAMATED

ENGINEERING UNION, (1951) 82 CLR 208, at pages 247 and 248. And I wanted to refer Your Honours to

the bottom of page 247.

Sir Owen Dixon, at the bottom of page 247,

said:

But I think the validity of the order is concerned only with an alleged excess of the
saved by the presence of s 32 in the Act.

jurisdiction conferred upon the Arbitration

Court by the Act. The case does not touch

the limitations which the CONSTITUTION imposes

upon the power of the legislature to confer

jurisdiction. The legislature might have

conferred power upon the court in terms which

would have justified the order.

His Honour then said, in the next paragraph:

In my opinion in such a cases 32 operates

to give validity to the order. The general

policy of the Act is to give efficacy to the

completed proceedings of the Arbitration Court

and no doubt also of the conciliation

commissioners. This can be seen from the

provisions contained ins 32 and ins 16.

No doubt there are instances in the Act where
imperative duties or inviolable limitations

or restraints are imposed by the Act on the

Arbitration Court or the commissioners.

Your Honours, on the next page His Honour, at

page 249, deals with the tests apposite and then

is there dealing with non-constitutional problems and

it is. apparent, Your Honours, from the bottom

ot 247 and 248 that the principle he is there

referring to deals with the non-constitutional

questions.

C 1T59 /1 /ND	98	1/5/90
O'Toole(2)

Could I also mention to Your Honours the

TRA1'1WAYS case (NO 1), (1913) 18 CLR 55, and, more

particularly, CALEDONIAN COLLIERIES LIMITED V

AUSTRALASIAN COAL AND SHALE EMPLOYEES' FEDERATION,

(1929) 42 CLR 527, at page 552 where four members

of the Court said - and it is in about the last six or eight lines immediately above the middle of the page:

If on 19th December 1929, when the award was

made, the dispute did not extend beyond the

limits of any one State, and its extension

was not threatened, impending or probable,
the award is not only beyond the jurisdiction
which the Parliament has conferred upon the

Court of Conciliation and Arbitration, but

it is beyond any jurisdiction which under

the CONSTITUTION the Parliament could possibly

confer upon it.

(Continued on page 100)

C1T59/2/ND	99	1/5/90
O'Toole(2)

GAUDRON J:  You have to show in your case too, do you, that

there was no possibility of a threatened, impending

or probable dispute at the time when the award was

made, I presume, do you, in Federal Court to bring

in the full effect of what you say is the test

applicable to section 60?

MR JACKSON:  Yes. say so with respect, that is correct but the Your Honour, as a matter of theory and I

practical application of that may not involve

much difficulty and what I mean by that is that

in so far as an award was made, it purports to be
in settlement of a particular dispute so that

the generality of what Your Honour puts to me,

I would accept the - - -

GAUDRON J:	Yes, in the particular circumstances you do not.
MR JACKSON:	Yes, and what Your Honours says might cause unsuperable difficulties in many cases, particularly
where there had been trouble over some time in an
industry. Perhaps it will cause difficulty in
this case but in the event it is an issue which
may have to be dealt - - -
GAUDRON J:	Does that mean that in these proceedings the

validity of an award cannot be sustained by

reference to anything other than what appears

on its face? It just seems to me that once
you open up proceedings in this way you do have

a lot of hares to chase down holes.

MR JACKSON:  Yes. Your Honour, why I hesitate in answering

that is that the provision - yes, Your Honour,

section 193 allows an award to be proved in a

simple way. It does not mean that is the only - - -

GAUDRON J: Well, I suppose it has had the objection to its

tender by reference to all these arguments.

MR JACKSON: 

Well, it may be, Your Honour, and no doubt the

judge would then say, "Well, that depends on
whether the arguments succeed or not" and would

reserve that question pending the resolution of

those issues but one - perhaps there would be

objection to its tender but, with respect, it

could be dealt with easily one way or the other.

The question goes to substance not form.

GAUDRON J:	Yes.
MR JACKSON:	But answering what Your Honour put to me, there

seems no particular reason why one could not seek

to support an award by matters other than the

simple tender of it and it would, in the end,

depend on how the evidence went.

ClT60/l/SH	100	1/5/90
O'Toole(2)

Your Honours, I was going to refer also to the well-known passage in SHRIMPTON V THE COMMONWEALTH,

(1945) 69 CLR 613 at page 630, at the top of the page:

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 unexaminable

what is done in ostensible pursuance of a
further delegation of authority must, to

that extent, fail.

Now, Your Honours, what that means, of course,

is that a provision such as section 60 cannot overcome

the CONSTITUTION; different question, of course, what

courts may deal with the question whether section 60

applies or not.

(Continued on page 102)

ClT60/2/SH	101	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, if I could return

then to section 60 and in relation to question (a),

the position, in our submission, is that the

question of the application of section 60 to
the particular case was put in issue by us in

order to defend the proceedings and Your Honours,

section 60 cannot, in our submission, validate

something which the CONSTITUTION could not have

authorized Parliament or those purporting to act

with legislative authority to do, and the question

whether a valid award might have been made, was

thus, in our submission,	part of the matter which
was before the Federal Court.	Now, Your Honours, if

it was not part of the matter in the ordinary sense

of the matter, it was clearly a matter which was

associated in terms of section 32(1).

DAWSON J: But Parliament can remove from the jurisdiction of

the Federal Court if it is otherwise there, matters involving the interpretation of the CONSTITUTION matter?

MR JACKSON:	Yes, Your Honour.
DAWSON J:	And is it not the ar_gLUTie!lt that that is exactly what section 60
does.  It is a specific provision which takes
that away.
MR JACKSON:	Your Honour, in our submission, it does not

do so. If I can just put it this way, Your Honour,

section 60 -

DAWSON J: It cannot do it in relation to this Court, but it

can in relation to other.

McHUGH J:	And indeed, in the earlier cases, it was specifically
said it was an exception,  it did take away
jurisdiction, was it not? In the cases in the run-up, certainly until fairly recent time?
MR JACKSON: Well, Your Honour, with respect,I would submit

that the answer is no to that. I wanted to come

in a moment to COCKS's case,which would not, with

respect, seem to support that view of it, but

before doing so, could I just say this in answer

to Your Honour Justice Dawson: one is looking at

section 60 and in relation to section 60 there are,

in our submission, two questions. The first of

them is, what is its operation assuming the awarrl

might otherwise have been made valid by an Act of

the Parliament? The second question is, in the

particular case, is the award one which might have

been made constitutionally validly?

CIT61/l/CM	102
O'Toole(2)

Now, Your Honours, the cases, in our submission,

decide that section 60 does not protect such
an award and the only question then is, we would

submit, whether the Federal Court has jurisdiction

to decide that question? Now, we would submit,

that section 60(1) does not take away jurisdiction

to decide that question or certainly does not do

so specifically. There is no particular reason,

Your Honours,why one should treat section 60 as

having that effect. What we would submit is that

if one looks at the - and Your Honours, perhaps I

should say that one has to read section 60 with

section 118A, which is the provision which gave

jurisdiction to the Federal Court,and section 118A(l)(a)

said that:

the jurisdiction ..... vested in -

the Federal Court was-

exercisable in accordance with the

FEDERAL COURT OF AUSTRALIA ACT.

Now the FEDERAL COURT OF AUSTRALIA ACT, Your Honour,

amongst other things, contains section 32. Now,

we would submit, if one is looks at section 119 of

the CONCILIATION AND ARBITRATION ACT, which ties up

with section 19 of the FEDERAL COURT OF AUSTRALIA ACT,
and the statutory direction given to go to the

FEDERAL COURT OF AUSTRALIA ACT, takes one as well to

section 32. Now, if it is a separate matter,

Your Honour~ why should one treat section 60 as

taking away the jurisdiction which the

CONCILIATION AND ARBITRATION ACT says is to be

exercisable?

(Continued on page 104)

CIT61/2/CM	103
O'Toole(2)
DAWSON J:	Well, because it is a special provision before which

general provisions must come.

MR JACKSON: 

Your Honour, undoubtedly, it is a special

provision in the sense that it is a provision
contained in this Act but, Your Honour, there is

no reason, we would submit, why one should treat it

as applying to constitutional questions particularly.
The question of the constitutional validity of an

award is something which, in a sense, is anterior to

section 60. Section 60 applies, we would submit,

to - Your Honour, and I refer to the case I referred

to earlier - validate, in effect, awards that are not

constitutionally invalid but awards that are invalid

for non-constitutional reasons.  So that, if one says

section 60 is a specific provision, the question is

what does section 60 do and, Your Honour, section 60

does not touch constitutional questions.

DEANE J: 

Perhaps, if section 119 confers power on the

Federal Court to punish for breach of an

unconstitutional award, a question would arise as

to the validity of section 119 and its jurisdiction.

MR JACKSON:	Yes.
DAWSON J:	That.is ~eally yovr argument then, in the end, that

a nullity_ is a nullity is a nullity. You cannot get

away from that. If there is no constitutional power,

then there is no award and no section can erect one.

MR JACKSON:	Yes, Your Honour.
DAWSON J:	You do not need to complicate that argument.
MR JACKSON:	No, Your Honour, I rather had not hoped that I

had complicated it unduly.	One can say, of course,
an award is an award or it is not an award,	nullity,

nulli~y, null~ty but, Your Honour, in the end ,

someone has to say when it is a. n\lllity and .the

question in the end is which - - -

DAWSON J:  Then, that is merging into the other question.

Is it a question of jurisdiction or is it a question of power?

MR JACKSON:  Your Honour, perhaps I should say it does not

matter very much in the end, we would submit. But, if one looks at the case as one where there is only

one matter, then the question seems to be a question

of power. If it is a question of there being more

than one matter, then the questi0n becomes one of

jurisdiction to entertain the separate matter.

BRENNAN J:	Mr jackson, is your proposition that the Parliament cannot direct any court or invest it with
jurisdiction in such a way that it would be bound to
resolve disputes before it otherwise than in
accordance with the CONSTITUTION?

ClT62/l/JH	104	1/5/90
O'Toole(2)

MR JACKSON:  Your Hqnour~ I wouldhsubmit that and in doing

it, I woula cto uo more tan rP.ly upon section)

of the Commonwealth of Australia CONSTITUTION ACT.

BRENNAN J:  Yes.

DAWSON J: But - and I am not suggesting this is right for a

moment - the other side of that coin is, than the High Court, the power to determine the constitutional question and the two do not fit well together.

MR JACKSON:  Yes, Your Honour. I am not sure what "two"

Your Honour is referring to.

DAWSON J:  Well, the fact that no court can be compelled to

act in an unconstitutional manner and yet it can have

removed from it the power to determine whether

something is constitutional.

MR JACKSON:  Yes, Your Honour, but those two things, in a

sense, do sit well together because what is

recognized is that it might sometimes be thought

inappropriate for particular courts to be deciding

particular questions of a constitutional nature.

Now, if it be right to say, Your Honours, that all

courts in Australia are able to decide constitutional

questions, subject to the question of removal, all

that has happened has been that the legislature

has said that on some occasions it is less appropriate

for courts to be deciding constitutional questions

than others .

(Continued on page 106)

ClT62/2/JH	105	1/5/90
O'Toole(2)

DAWSON J: Is that not .. ··· rather that if a court is

to be deprived of answering a constitutional question, the matter which gives rise to the question must be removed, but you cannot leave

the matter which raises the question there and

then say you cannot answer it.

MR JACKSON:  Yes, Your Honour, yes I am sorry I was putting

it too shortly I think, but, Your Honour having

BRENNAN J:	I think it raises the question 0£ ....
MR JACKSON:	Your Honour, there is no particular reason, for

example,why there could not be provision for

removal of the constitutional question to, say,

the Federal Court.

DEANE J:  But that really brings you back, does it not, to

the beginning in that one is then led to ask

"What is the questions"and if, for example, you

focus on order in section 119, it would be completely

understandable for the legislature to say, "It will
be an offence to breach an order while it stands"

and for that to be seen as incidental to a legislative

power which would not, itself, extend to the making

of that particular order but as incidental in the

sense that it affirms the authority of the order

of the tribunal while the order stands.

MR JACKSON:	Provided it is not made unchallengable in any way, Your Honour, yes.
DEANE J:	Which means that on that approach the offence against

section 119 to breach of an order does not depend

on the validity of the order at all. I am not

suggesting that that is correct but that is a

question in the line of the argument that one is going.

MR JACKSON:

Your Honour, if one looked at section 119 what

you find is that there has to be a breach of

something that is an award. Now, Your Honour,

first of all in terms of the Act that means an

award made under the Act but if one goes back to

a stage anterior to that it also means something

which the Act could constitutionally permit the

making of.

Now, Your Honour, if one is looking at the case

purely from the point of view of that provision
then, Your Honour, a critical issue-and I am not

talking about onus of proof-but a critical issue

is whether there is such an. award. Now that,

one would think, is not just an ancillary matter,

that is one of the things at the heart of the matter.

ClT63/l/JL	106	1/5/90
O'Toole(2)

Now, Your Honour, one has to look then to see,if

there is a challenge to that issue,whether there

is an award,one would have thought, leaving aside

section 60, that clearly that is something within

jurisdiction of the Federal Court either as part

of the matter as would be our preferred submission
or under section 32 ( 1) . Now, Your Honour, one would

only get away from that, we would submit, if one

could say that section 60 has the effect of taking

away from the Federal Court the ability to

entertain those questions. One only gets to that

point by seeing what section 60 does. Section 60,

in our submission, has to be read subject to the

two qualifications. First it cannot, we would submit,

make valid that which is not constitutionally

valid; secondly, if one is looking at a question of

power within the statute it will make valid that

which otherwise would not be if it satisfies a number

of tests.

Now, Your Honours, those questions are all,

in our submission, questions which derive directly

from the matter and, Your Honour, from the nature

of the matter and we would submit have not been

taken away by section 60 because one has to see

what section 60 does in the first place. And, Your

Honours, to put it that way in the sense because one

can deal with the case without regard held to

section 32(1).

(Continued on page 108)

ClT63/2/JL	107	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, the issue raised

in these proceedings was it was adverted to in

the Court in REG V THE INDUSTRIAL COURT EX PARTE

COCKS, (1968) 121 CLR 313. I wonder if I could

take Your Honours to that case.

In the joint judgment of Chief Justice Barwick

and Justices Taylor and Owen, the passages

commences relevantly at page 321, about the middle

of the page:

But we have held that the subject matter of sub-cl (l)(a) of cl 30 was not capable of

giving rise to an industrial dispute as

defined and the question which immediately

arises is whether this means that the fine

was imposed without jurisdiction. In other words has the prosecutor been convicted and

fined for what is, in effect, a non-existent
offence?

The problem is not without some complexity but the Industrial Court did not decide that

the clause was valid; it assumed that it was

debarred 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. 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

before it. validity of any award, or award provision, The broad test to be applied -

was in BASKET SHOES

and we need not further elaborate. It is

enough to say that if the Industrial Court

had pronounced in favour of the sub-clause

we would have no doubt that it would be

incumbent on this Court, if it considered
the provision to be beyond the authority of

the Commission, to hold that the Industrial

Court had acted without jurisdiction. However,

as we have said, the Court did not consider

C 1T64/1 /ND 108 1/5/90

O'Toole(2)

or pronounce upon the question of validity

and the case is a clear one for prohibition.

Your Honours, the observations there, of course,

do not purport to decide the issue finally and

the question does not appear to have been argued.

But what the Court, so far as there is a suggestion

in those observations - it is that the Industrial

Court was empowered to enter upon the question

of the validity of the award notwithstanding

section 60.

Your Honours, a different view, I think it correct

to say, was taken by Justice McTiernan at page 323

in the last paragraph of his reasons for judgment,
although it is not 100 per cent clear whether

His Honour was taking that view or not because he said:

Although the Commonwealth Industrial

Court was not competent by reason of s 60
..... to give a binding decision on the

question of the validity of cl 30 -

and, Your Honours, Justice Kitto, at page 326,

in the second-last paragraph of his judgment -

I am sorry, I should have taken Your Honours to

the top of the page:

(Continued on page 110)

ClT64/2/ND	109	1/5/90
O'Toole(2)
MR JACKSON (continuing):

For this reasons 60 could not
constitutionally have an operation which

would validate cl 30(l)(a) in its application

in respect of non-employees, even if on its

true construction it affected to do so.

Equally s 119 considered by itself, being

construed so as to be constitutionally valid,

cannot be interpreted to mean that a penalty

may be imposed for a breach of something which,

though appearing as a term of an award, is

not one that in its nature is capable of

being included as part of the settlement of

an industrial dispute in the constitutional

sense of the expression.

I am therefore of opinion that the

learned judges of the Commonwealth Industrial

Court were not precluded by the provisions of

s 60 or by any other consideration from

investigating the question whether the

application they were being asked to give to

cl 30(l)(a) was one which carried it beyond

the authority of the Commission under the Act

and beyond the power of the Parliament to

authorize. Proceeding as they did to give the

clause the application contended for and to

impose a penalty accordingly, their Honours,

in my opinion, treated their power under

s 119 as being wider than it was or

constitutionally could be.

Now, Your Honours, Justice Menzies at the bottom of page 328 said in the second line of the last

paragraph:

Cl 30, as we now decide, is not part of that award and the conviction of the prosecutor

was therefore, despites 60 ..... something

outside the power of the Commonwealth Industrial

Court.

Your Honours, it is not 100 per cent clear - it

is not clear really whether His Honour was intending

to say that the Industrial Court could have entered

into the question or not. So, too, in the judgment

of Justice Windeyer at the top of the next page,

where he agreed with the -

BRENNAN J: Is that not implicit in letting prohibition go?

MR JACKSON:  Your Honour, I am sorry, I was not making myself

clear. What I was endeavouring to say was this:

that prohibition went because the High Court decided

that the Industrial Court did not have jurisdiction.

ClT65/l/SH	110	1/5/90
O'Toole(2)

I do not know that His Honour was expressing a view on

whether the Industrial Court itself could have

override n, in e f f e c t, sec L ion 6 0 .

BRENNAN J:  But if the Industrial Court were bound to act

as it were in disregard of the c,onstitutional
limitation, they would not have been in excess

of their jurisdiction.

MR JACKSON:  Your Honour, that may well be correct, with

respect, yes. I am sorry, Your Honour, I should withdraw what I said .... l was about to refer to what

was said by Justice Windeyer at page 329.	He agreed
in the conclusion in the joint judgment.

Your Honours, could I go then back to question (a)

and Your Honours will see that the way in which

question (a) was answered - at page 326 - was that

the majority were of the view that section 60 did
not preclude the Federal Court from receiving
evidence for the purpose of determining whether

the award was or was not made within the

constitutional jurisdiction of the c'ommission.

Now, Your Honours, those two questions that

I submitted earlier were related to the third question, question (c) and Your Honours will see

that question (c) asked:

If and to the extent to which s 60(1) of the

Act precludes the Court, in proceedings under

s 119 of the Act, from receiving evidence of

the kinds contemplated in questions (a) and

(b), is s 60(1) of the Act invalid -

the answer given by the majority was that:

Sub-section 60(1) of the Act, construed in

accordance with the answers to quest ions (a)

and (b), is not invalid.

What we would simply is that perhaps if one .....

the questions, the answer should have been that the

question did not arise but, in any event,

Your Honours, the answer was correct, in our

submission.

(Continued on page 112)

ClT65/2/SH	111	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Your Honours, could I move then

to questions (d) and (e). Now, Your Honours will

see that question (d) asks whether:

section 119 ..... confer jurisdiction on
the Court to impose a penalty for breach
or non-observance of the Award if in

fact the Award is made beyond the

constitutional jurisdiction of the

Australian Conciliation and Arbitration

Commission?

And, Your Honours, in our submission the answer
is simply no, on the basis of the argument we have already submitted and that is, that if it

is beyond and one is talking about constitutional

jurisdiction, our submission is that the answer is

that it could not if there is in no award which

could be constitutionally justified.

Your Honours, if I could come then to

question (e), Your Honours will see that question (e)

is one which depends upon the answer to question (d)
and our submission is that the answer given at

page 327 is correct but one might equally say that

the question does not arise.

GAUDRON J:  Can I take you back to (d), Mr Jackson, because

it does seem to me that there must be an argument

available that it is within the implied incidental

power to:

confer jurisdiction on the Court to impose

a penalty for breach -

of the term of something which purports to be an

award which has not otherwise been set aside and

that does not seem to have been addressed, of course,

but it does seem to arise quite directly and it goes
back to the question, what is the effect of section 60?

If you take the view that section 60 has different

effect depending upon the nature of the proceedings

in which it is invoked, then there may be all sorts of questions as to whether that effect is one which

is within the implied incidental power and whether,

in consequence, section 119 might authorize the

imposition of a penalty in certain circumstances.

MR JACKSON:  Your Honour, may I say a couple of things in

response to that? The first is, that the questions

are not of our choosing, may I say that, and on one

view, Your Honour, which we would in the end think,

I submit, is the better view, questions (a), (b) and (c)

are the questions the resolution of which makes
the resolution of the other questions with, perhaps,

the exception of the last question, unnecessary.

ClT66/l/JH	112	1/5/90
O'Toole(2)
GAUDRON J:	Well, I am not too sure that it does.	I would

not have thought (a), (b) and (c) did render (d)

unnecessary.

MR JACKSON:  Well, Your Honour, what I put to Your Honour

depends, perhaps, on a view of the operation of

section 119 but if one accepts the proposition that,
leaving aside section 60, section 119 confers
jurisdiction on the Federal Court with respect to

the matter which would include the constitutional

issue then, Your Honour, it would follow, we would

submit, that if one looks at the terms of

question (d) which is concerned with section 119

rather than section 60, that section 119, we would

submit, did not confer jurisdiction to - I am
sorry, Your Honour, may I start one stage back -

section 119 is expressed in terms of there being a

breach of an award. We would submit it must be

taken to mean an award which could be made in terms

of section Sl(xxxv).

(Continued on page 114)

ClT66/2/JH	113	1/5/90
O'Toole(2)

MR JACKSON (continuing):  Now, the question is whether

section 119 confers jurisdiction on the court to impose a penalty. If, in fact, the award is

made beyond the constitutional jurisdiction
we would submit that section 119 itself does not
do so. Your Honour, that in a sense is really,

I suppose, no more than the application of the

stream not rising above the source notion.

Your Honours, as to question (e), we would

submit that question is dependent upon question (d)

and it does not arise. Your Honour, so far as

question (f) is concerned, what it says is that:

To the extent to which section 60(1) of the section 119 of the Act, from receiving evidence

that the Award was made beyond the constitutional

jurisdiction of the Australian Conciliation

and Arbitration Commission, is section 119 of the
Act beyond the legislative power of the

Commonwealth under the CONSTITUTION? Now, Your Honours, the answer given is that:

Sub-section 60(1) of the Act is not to be
construed in the manner stated in this

Question and section 119 is not invalid -

and that, in our submission, is a correct answer to

that question.

Your Honours, so far as question (g) is concerned,

what it asks is:

Does.-section 119 of the Act require the applicant to prove as part of his case the validity of the Award of which the respondent is alleged to have committed a breach or

non-observance?

We would submit that it is clear enough that an

applicant may rely upon the prima facie position

that an award is intra vires and if section 60

has an affect, it would appear to have at least that

affect, and there is no reason, we would submit, why

"i":he Act cannot be treated as having, in ef feet, the

practical onus of requiring that the absence of validity

be something to be demonstrated by the respondent.

ClT67/l/LW	114	1/5/90
O'Toole(2)

MR JACKSON (continuing): Your Honours, in that regard, we

would refer the Court to MILICEVIC V CAMPBELL,

(1975) 132 CLR 307, and it was held there in that

case that a provision of section 233B(l) of the

CUSTOMS ACT which provided that a:

person who "(ca) without reasonable excuse

(proof whereof shall lie upon him) has in

his possession any prohibited imports .....

shall be guilty of an offence".

And, in that case, the provision reversing the

onus of proof, in effect, was held to be one which

was valid under section 51(i).

Could I take Your Honours to page 310? Your Honours, at the bottom of page 310 Your Honours

will see the references by Chief Justice Dixon

to BURTON V HONAN and, going over to the top of

page 311, His Honour thought there was a reasonable

connection between the relevant provision and

section 51 (i).

Your Honours, at page 316, in the judgment

of Justice Gibbs, in the new paragraph commencing

on that page, going over to the top of the next

page, and at page 318, in the judgment of the page, going over to the next page.

Your Honours, question (g), I suppose, is

the question that was answered against us to the

extent to which it would impose a greater burden

upon us and we are content with it.

(Continued on page 116)

C 1T68/l /ND 115 1/5/90

O'Toole(2)

MR JACKSON (continuing): Your Honours, those are our

submissions.

MASON CJ:	Mr Kenzie.
MR KENZIE:	If it please the Court we hand to the Court

a copy of our outline of submissions.

MASON CJ:  Thank you. Yes.

MR KENZIE:  Your Honours, in our respectful submission, the

questions ought to have been answered in the manner

that they were answered by Mr Justice Northrop,

at page 272 of the application book with this

qualification. Your Honours, that His Honour

with whom Mr Justice Gray agreed answered

question l(a) "yes"~ It would appear - it is

difficult to see why if there is a qualification

in the answer to l(b), which relates to the
capacity of the Federal Court to"consider whether an

award in evidence is on its face wholly or partially

invalid"that is not a qualification which would be

relevant to (a). Aswell, with that exception, we

submit that the questions ought to be answered in

the manner that the minority in the Federal Court

answered them. I will come to the detail of

Mr Jackson's submissions in relation to the questions

later on if I may.

Could I come to the outline of submissions and,

like Mr Jackson, we cormnence the analysis by

leaving out section 60 and considering the

CONCILIATION AND ARBITRATION ACT, apart from

section 60, and Your-Honours, it is informative

to do this. The Court will be aware that the

CONCILIATION AND ARBITRATION ACT certainly prior

to the cormnencement of the operation of the Federal

Court provided a complete industrial scheme in

the sense that it not only provided for machinery

for the creation and variation of awards and the

setting up and administration and control of

organizations but the Act itself contained provisions

relating to the establishment of the Australian

Industrial Court which, prior to the introduction

of section 118 of the CONCILIATION AND ARBITRATION ACT,

was the court which had the jurisdiction under
section 119, so that the whole was a scheme, including
the creation of the court to have jurisdiction to

enforce awards.

ClT69/l/JL	116	1/5/90
O'Toole(2)

MR KENZIE (continuing):  Your Honours, on page 1 of our

outline we direct the Court's attention to various

sections of the CONCILIATION AND ARBITRATION ACT

which support the proposition that absent

section 60 the scheme of the Act, as a whole, does

not support the proposition that a collateral attack

on the validity of the subject award in enforcement

proceedings was permissible in any event.

That proposition is supported, as we say, by

the scheme of the Act including detailed provisions

whereby awards made by the Conciliation and

Arbitration Commission can themselves be made the

subject of appeal, set aside or varied, pursuant

to section 35, the appeal provision, section 59,

which immediately precedes section 60, the section

in question, or section 62 which provides the

cancellation of awards.

Section 59 of the CONCILIATION AND ARBITRATION

ACT provides that:

The Commission may, if for any reason

it considers it ~esirable to do so, set aside

an award or any of the terms of an award.

And 59(2)

The Commission may, if for any reason

it considers it desirable to de so, and shall

if it considers it desirable for the purpose

of removing ambiguity or uncertainty, vary

any of the terms of an award.

Section 62 provides for cancellation and section 35,

if I may remind the Court, subject to satisfying

a Full Bench of the commission that an appeal raises

a matter of sufficient importance:

An appeal lies to the Commission -

from any decision of a commissioner, including

a decision to make an award.

Your Honours, we have given Your Honours a

reference to the case of RE BRACK, (1984) 58 ALJR 125,

and if I could take Your Honours to that very briefly.

It was a case where the Federal Court of Australia had, pursuant to section 110 of the CONCILIATION
AND ARBITRATION ACT, interpreted the federal award

in a particular way. And following the interpretation

of the award steps were taken within the Conciliation

and Arbitration Commission to have the award varied

to give effect to the true intention of the commission.

C 1T70/l /ND 117 1/5/90

O'Toole(2)

MR KENZIE (continuing):  That appears, Your Honours, from

page 125 of the report at about line F,

column 2:

On 25 June 1981, shortly after Marling J

heard the argument ..... the respondent
applied for a variation of the Award, the

effect of which would be to eliminate or

diminish the entitlement -

et cetera and what that led to is shown in the

next sentence:

This application was heard by dated 5 January 1982 varying clause 10

of the Award by inserting in that clause

a new subclause (lA) in the following terms: -

and he varied it in (a) and in (b) he provided that:

The preceding paragraph shall come into force from the beginning of the first

pay period which commenced on or after

27 June 1979.

So that, what he did, was he made an award that was

retrospective by some two or three years and

effectively overcame the interpretation of the

Federal Court and that matter was dealt with by the commissioner might have been criticized for not

paying regard to certain of the reasoning of

Mr Justice Marling, what he was entitled to do,

consistent with his charter, was to vary the award

to give effect to the intention of the commission

and he had done that and prerogative relief was

refused.

Your Honour, if I might give Your Honours a

simple reference to another case which, unfortunately,

did not find its way into our list of authorities,

THE CROWN V COLDHAM EX PARTE THE BUILDER'S

LABOURERS FEDERATION, (1986) 64 ALR 215; that appears

to be the only report. In that case, this Court

held that notwithstanding the existence of

limitations on the time during which an appeal could

be lodged under section 35, the commission had complete

power to vary the time limits in the section so that

the effect of the Act was that the commission could

entertain an appeal from the decision of a commissioner

including a decision to make an award effectively at

any time that the commission, in its discretion, saw fit.

ClT71/l/JH	118	1/5/90
O'Toole(2)

Now, Your Honours, we would submit that,

as we say, that the scheme of the Act, having

regard to the plenary powers given to the

commission to deal with any problems that might

arise in relation to awards including, no doubt,

the power of the commission to set aside an award

upon the admission of evidence that that award had

been made so as to bind a party who was not truly a party to the award or in circumstances in which the award had been made beyond the jurisdiction

of the commission, tells against the existence of

the right to mount a collateral attack on the

validity of an award in proceedings under

section 119.

(Continued on page 120)

ClT71/2/JH	119	1/5/90
O'Toole(2)

BRENNAN J: Why do you say that in the light of the fact that

the Act is silent as to any prohibition a~ainst

curial inquiry into the matter? All these provisions

relate to Commission's supervision of its own

awards.

MR KENZIE:	Yes, Your Honour.
BRENNAN J:	But collateral attack is a judicial sin.
MR KENZIE:	Yes, Your Honour, but there is a line of authority

which supports the view that if legislation permits

an appeal from a decision so that the legislation

contains other procedures within it, by way of an

appeal, that that is supportive of the proposition

that no collateral attack can be made. Your Honour,

that is the reason that we have put in our list of
authorities the older English case, THE VESTRY OF

ST JAMES AND ST JOHN, (1890) 24 QB 703. I do not invite Your Honours to go to that now but that was

an example of a case where the entitlement to make

a collateral attack was refused because there was an

alternate remedy within the legislation; namely, the

existence of an appeal. True it was a judicial

appeal.

In our respectful submission, and we do not want

to put this too highly because we have to deal,

secondly, with the situation where section 60 is

there, but we simply submit that absent section 60,

there arc clear suggestions in the Act that there

are other methods whereby persons who have the sort

of complaint that might give rise to the examination

in the Federal Court, might take in the Commission.

Now, Your Honours, we then come to the

construction of section 60 itself against that

background and we submit that section 60(l)(b)
properly construed imposes a limitation on the

jurisdiction of the Federal Court preventing the

court from determining the validity of a subject	award in a proceeding commenced under section 119
provided that the award is not invalid on its face.

(Continued on page 121)

ClT72/l/SH	120	1/5/90
O'Toolc(2)

MR KENZIE (continuing): Now, Your Honour, that approach,

may we say in passing, is an approach that has

found the support of the Federal Court in

proceedings other than the present proceedings and

if we could give Your Honours a reference to
ROUNDSTREET V BROWN, (1987) 14 FCR 50 and,

Your Honours, if I might take the Court to this-

decision briefly, not that it adds anything to the

reasoning of the Federal Court in this case but

it is consistent with the submissions that we

make. It was a decision of a Full Court of the

Federal Court and Mr Justice Evatt and

Mr Justice Northrop agreed with the reasoning of

Mr Justice Keely and his judgment commences on page 52 and he was dealing with a number of the

matters that Mr Jackson has taken the Court to.

At page 53 point 5 he dealsw1th what is referred to

as the TRANSPORT WORKERS case, I do not read

that, but it was the proceeding which gave rise

to the case of RV KIRBY which Mr Jackson went to

a short time ago in 91 CLR, that is referred to

at the top of page 54. Mr Justice Keely deals

with that and having referred to the decision of the court to the effect that Their Honours, this

is line 4:

decided that they were "precluded by

s16(1) of the Act from questioning

'whether the dispute as a result of

which the conciliation commissioner

certified the agreement was of an interstate

character -

and he concludes that in his opinion the court -

neither said nor implied that -

the industrial court -

had erred in law in so deciding.

He refers to the fact that section 16(1) -

could not preclude the High Court from
considering that question because of the

jurisdiction conferred upon it by s75(v) -

and that that was consistent with the decision of the

court. He refers to COCKS' s case in · the Industrial

Court at page 54 point 5 - I do not read that but that is

another decision of the Industrial Court consistent

with the decision of the minority in this case.

C1T73/l/JL	121	1/5/90
O'Toole(2)
MR KENZIE	(continuing):	And at the bottom of page 54

he comes to the decision of the High Court in COCKS,

to which we will return in due course, and he says
at page 54, point 9- he refers to the judgment of the

three members of the court in COCKS:

(at 321-322):

" ... the Industrial Court did not decide that the

clause was valid; it assumed that it was

debarred by section 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 -

and to that passage in which Your Honours says 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."

The reasons I am reading this to Your Honours now is

because of what follows. His Honour then deals in a

manner that our learned friend Mr Jackson did not,

with that part of Justice Kitto's judgment which

explains the decision of the majority of the court.

He refers to Mr Justice Kitto at 325 where

Mr Justice Kitto explained that the defect in the

award in that case was a defect which was apparent
on its face and the defect was that the award was

an award that purported to bind independent

contractors and not employers and that was clear

from the face of the award.

So Mr Justice Keely explains and correctly explains -

we will come back to it - the decision of the majority

in COCKS's case on the basis that the majority did

not decide, neither did they imply that in a case
where an award was bad on its face, the Industrial

Court could not look behind that award or into that

award and refused to enforce it under section 119,
and that is the true explanation of COCKS's case
and that is the basis from which we submit that COCKS's

case did not decide anything, contrary to the submissions

of the applicant in this matter.

Your Honours, having dealt with COCKS's case,

Mr Justice Keely refers to COLDHAM's case and says at

page 56, point 2:

C1T74/1/LW	122	1/5/90
O'Toole(2)

In my option section 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. That opinion is consonant with the authorities to which reference has

been made; the appellant's counsel have

failed to persuade me that the High Court has said

anything to the contrary in COCKS's case -

a conclusion which, in our respectful submission, and

His Honour then refers to section 75(v).

(Continued on page 124)

C1T74/2/LW	123	1/5/90
O'Toole(2)

MR KENZIE (continuing):  Now, Your Honours, those conclusions

are consistent with the conclusions of the

minority. Indeed Mr Justice Northrop was a

member of that minority in the Federal Court here.

We submit, Your Honours,,in paragraph 2. that the

language of the subsection, section 60(1)(b), is

consistent with the limitation of jurisdiction and

although it is sufficiently wide, if construed

literally, to exclude all challenges to validity

raised in enforcement proceedings, it is quite

apparent from authority, including the authorities

to which Mr Jackson referred, that it cannot

remove the right to prohibition for absense of

jurisdiction.

BRENNAN J:  Your submission has to live with covering clause 5

of the CONSTITUTION, does it not?

MR KENZIE: Yes, Your Honour, it does, but -

BRENNAN J:  How do you reconcile·them?

MR KENZIE: Well, Your Honour, we submit that - I take it

Your Honour means that submission -

BRENNAN J:	The CONSTITUTION is binding on all courts.
MR KENZIE:	Yes, Your Honour. The reconcilliation is that

properly understood, section 60, section 119 and

section 118 confer jurisdiction on the Federal

Court in relation to enforcement proceedings and

the effect of those provisions is, in effect, to

say that an award can be, enforced in the

Federal Court regardless of questions going to

constitutional validity, but there is always a

judicial review in relation to the award that is

available and the effect of the legislation is

to provide that review of an award, though available,

is a review that is not available in the

Federal Court, but only in the High Court.

DEANE J:  And what would the High Court do, grant prohibition

preventing the Federal Court from dealing with the

matter?

MR KENZIE: Well I suppose that it would depend upon the stage - - -

DEANE J:  Could it also grant a mandamus ordering it to deal

with it on the way you say it should deal with it?

MR KENZIE: Well it would depend upon the stage at which

the matter reached the Court, Your Honour. I mean,

it would be conceivable that proceedings, once

commenced under section 119, might be affected by

a prerogative writ granted during the proceedings.

CIT75/l/CM	124
O'Toole(2)

DEANE J: Well that would involve the proposition that

this Court would grant a prohibition preventing
the Federal Court from doing what on your

argument it was under a statLtory obligation to do, that is act on the basis that the award was

a valid and effective one.

(Continued on page 126)

CIT75/2/CM	125	1/5/90
O'Toole(2)

MR KENZIE:  No, Your Honour, the effect of it would be

that, under section 75(v), that the Court would be authorized to determine that the award was not an

award and - - -

DEANE J:	Make what order?
MR KENZIE:	The order that was suggested in COCKS's case

was an order preventing the Industrial Court from

proceeding further on the application.

DEANE J:  Well then, such an order direct to the Federal Court

would prohibit it from doing what you say it is

under a statutory obligation to do. There is

possibly an answer to the conundrum but I was

just trying to get it.

MR KENZIE:	Yes, Your Honour, I wonder if I may consider that.
MASON CJ:	Well, perhaps you might have an adjournment until

10 o'clock tomorrow, Mr Kenzie, and we will see if

there is answer to it then.

MR KENZIE:  Yes, Your Honour, if it please the Court.

AT 4.37 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 2 MAY 1990

ClT76/l/JH	126	1/5/90
O'Toole(2)