Public Service Assoc of SA Inc v Industrial Relations Court of SA & Anor No. Scciv-02-1765
[2003] SASC 407
•11 December 2003
PUBLIC SERVICE ASSOCIATION OF SOUTH AUSTRALIA INCORPORATED v INDUSTRIAL RELATIONS COURT OF SOUTH AUSTRALIA AND THE ASSOCIATION OF PROFESSIONAL ENGINEERS, SCIENTISTS AND MANAGERS AUSTRALIA, SOUTH AUSTRALIAN BRANCH
[2003] SASC 407
Full Court: Mullighan, Debelle and Gray JJ
MULLIGHAN J On 16th November 2000, The Association of Professional Engineers, Scientists and Managers, Australia, South Australian Branch, the second respondent, filed an application in the Industrial Relations Commission (“the Commission”) seeking an order varying the Medical Scientists (South Australian Public Sector) Award (“the Award”) so as to provide for it to be included as a party bound by the Award. I shall refer to the second respondent as the respondent. In order to invoke the jurisdiction of the Commission to vary the award, the respondent had to be a registered association of employees. Section 194(e) of the Industrial and Employee Relations Act 1994 (“the 1994 Act”) provides that proceedings before the Commission are commenced by an application made to the Commission by a registered association of employees.
The appellant is bound by the Award. It objected to the application on numerous grounds, including that the jurisdiction of the Commission had not been properly invoked because the respondent was not a registered association of employees. The respondent claimed that it was such an association and was registered under s 134 of the 1994 Act. It further claimed that it was a branch of an organisation registered under the Workplace Relations Act 1996 (Cth). “Organisation” is the expression used in that Act which includes an association of employers or of employees. The respondent was not a registered association of employees, it could not invoke the jurisdiction of the Commission.
Reference to a judgment of Commissioner Huxter of the Commission in Medical Scientists (SA Public Sector) and (SA) Awards [2000] SAIR Comm 6 (unreported 18th February 2000) reveals the basis of the commencement of the dispute between the appellant and the respondent. The appellant made an application to the Commission for a first award for medical scientists. An application was made in almost identical terms by the respondent. The appellant made the same contention before Commissioner Huxter that the respondent was not a registered association and therefore had no standing to make the application. Commissioner Huxter held that the onus of proving its registration was on the respondent and that it had not discharged that onus. He said that he was not satisfied that the respondent was a registered association as required by s 194 of the 1994 Act. The respondent did not say in those proceedings that it was registered in 1971 and asserted that it was registered pursuant to s 134 of the 1994 Act. Later, I mention the significance of registration in 1971. Following this decision, the respondent then sought to be included as a party bound by the Award.
On 2nd April 2001 a judge of the Industrial Relations Court, sitting as a member of the Commission, commenced to hear the application. The respondent contended that it was a branch of the organisation registered under Workplace Relations Act and it was registered pursuant to s 134 of the 1994 Act. It sought to prove its registered status by tendering two certificates of registration which were issued by the Industrial Registrar. The respondent asserted that, when read together, they had the effect of conclusively establishing that it was a registered association by virtue of s 134 of the 1994 Act. The two certificates issued by the Registrar are dated 2nd June 1971 and 25th October 2000 respectively.
The certificate issued on 2nd June 1971 is as follows:
“I, CEDRIC STANLEY CHISLETT, hereby certify that on the 2nd day of June, 1971, an association called:
THE ASSOCIATION OF PROFESSIONAL ENGINEERS, AUSTRALIA
(SOUTH AUSTRALIAN BRANCH)
was registered by that name under the Industrial Code, 1967-1971.
Dated at Adelaide this 2nd day of June, 1971.
C.S. Chislett (sgd)
INDUSTRIAL REGISTRAR”
A later Industrial Registrar, Mr John Correll, made the following handwritten notations on this certificate:
“Notations:
hAs at 31/12/97, by operation of the transitional provisions of the I.C.& A. (C.P.) Amendment Act 1991 the APEA (S.A. Branch) was considered registered under Div III of Part IX as a branch of the APESMA with the Rules of the APESMA.
hAs at 26 June 2000, the APEA (S.A. Branch) is an association registered under Chapter 4 Part 3 of the Industrial and Employee Relations Act 1994, with the Rules of the APESMA as registered for that organisation under the Commonwealth Workplace Relations Act.
26 June 2000
J. Correll [sgd]
INDUSTRIAL REGISTRAR”
The certified issued by the Industrial Registrar on 25th October 2000 is as follows:
“CERTIFICATE OF REGISTRATION
CHANGE OF NAME OF ASSOCIATION
SOUTH AUSTRALIA
INDUSTRIAL AND EMPLOYEE RELATIONS ACT 1994
I, JOHN CORRELL
hereby certify
that on the 23rd day of October 2000 the records for an association registered under Section 134 of the Act and bearing the name
The Association of Professional Engineers Australia, South Australian Branch were altered to a new name of
The Association of Professional Engineers, Scientists and Managers, Australia, South Australian Branch
DATED at Adelaide the 25th day of October 2000
[Signed]
JOHN CORRELL
Industrial Registrar”
Section 143 of the 1994 Act provides:
“Certificate of registration
143. (1) On registration of an association, the Registrar will issue a certificate of registration to the association.
(2)The registration of an association may be proved, in the absence of evidence that the association has ceased to be registered, by production of a certificate of registration issued under this Act or a corresponding previous enactment for the association.
Although this certificate has the heading “Certificate of Registration”, it may be seen that it sets out the change of name of the respondent, which is stated to have been registered under s 134 of the 1994 Act.
The respondent had not, since 1971, made any application to the Commission for registration as an association. An application made on 25th August 1998 by the Association of Professional Engineers, Scientists and Managers, Australia, an organisation registered under the Commonwealth Act, was discontinued on 25th October 1999.
The respondent submitted to the Judge that the Commission could not embark upon any consideration as to whether these certificates did what they purported to do, and further that the Commission could not embark upon consideration as to the validity of what the Industrial Registrar had indicated and written notations. Also, the respondent claimed that the Commission could not consider whether the respondent was what it claimed to be, an association registered under s 134.
On 22nd October 2001 the Judge held that the certificates were certificates of registration issued by the Industrial Registrar and were conclusive evidence that the applicant was a registered association for the purposes of s 194(e) of the 1994 Act. The Judge referred to Federated Engine-Drivers and Firemen’s Association of Australasia v The Broken Hill Proprietary Company Limited (1911) 12 CLR 398, Egan v Shop Distributive and Allied Employees’ Federation of Australia, New South Wales & Ors (1979) 143 CLR 325 and Sharpe & Ors v Goodhew & Ors (1990) 96 ALR 251 where statutory provisions in aid of proof were considered. In each of those cases the provision was what may be described as a “conclusive evidence” provision. They are similar in language and I need mention only the section considered in the first of these cases. Section 57 of the Commonwealth Conciliation and Arbitration Act 1904, at the time, provided that a certificate of registration of the Registrar “shall, until proof of cancellation, be conclusive evidence of the registration of the organization mentioned in it”.
The Judge expressed the view that these decisions supported the contention of the respondent that a certificate of the Industrial Registrar is by virtue of s 143(2) conclusive evidence of registration. I have not found support for that conclusion in the cases to which the Judge referred. The Judge went on to say that the legislative intention in the 1994 Act is clear. He said at para 36:
“Parliament intended a scheme which instilled confidence and dependability in the information formally issued by the Registrar. In the scheme it is important for people to know with the requisite level of assurance that the Registrar’s Certificate is dependable and that the unions they deal with, endorsed by certification, are to the degree of that certification dependable”.
He expressed the view that the words “in the absence of evidence that the association has ceased to be registered” in s 143(2) confirmed a reference to s 130, which relates to de-registration of locally based associations, and s 135 which relates to de-registration of federally based associations, in a restricting way. He went on to say:
“As such it would appear the jurisdiction of the Commission in s 194(d) is contingent on proof of the registration per se rather than proof that the registration was conducted in all respects in the requisite and due manner. If the matter is to be called into question then the legislation intends it to be done so pursuant to the deregistration provisions.”
His reasons are reported at [2001] SAIR Comm 47.
The appellant appealed against that decision to the Full Industrial Commission which referred questions of law to the Full Court of the Industrial Relations Court as follows:
“(1)Does s 143(2) of the Act have the effect that certificates of registration of an association issued by the Industrial Registrar are conclusive evidence that an association is a registered association for the purposes of s 194(e) of the Act.
(2)If yes to (1), are the certificates or either of them issued by the Industrial Registrar relied upon by the applicant and collectively exhibit A in the proceedings before Judge McCusker DP, certificates to which s 143(2) refers?
(3)If yes to (1) and (2) are the Certificates conclusive of:
(a) the fact of registration of the Applicant under the Act or a corresponding previous enactment?
(b) the validity of registration of the Applicant under the Act or a corresponding previous enactment?
(c) the continued existence of the Applicant as an association?
(d) the identity of the Applicant as the Association named in the certificate?
(4) If no to (1) or any arm of (3):
(a)is the applicant an association registered under s 134 of the Act, under ch 4 Pt 3 of the Act, or
(b)did the transitional provisions of the Industrial Conciliation and Arbitration Act (Commonwealth Provisions) Amendment Act 1992 (‘the 1991 Act’) have the effect that the association registered on 2 June 1971 and named ‘The Association of Professional Engineers, Australia (South Australian Branch)’ was taken to be an organisation registered under Div 3 of Pt IX of the 1991 Act?”
The Court answered all of those questions and each part of question (3) in the affirmative except question (4) which it concluded was unnecessary to answer.
The Court examined the various legislative changes since the Industrial Code 1967. In view of question (4) extensive submissions were made about the significance of those legislative changes. The Court accepted the reasoning of the Judge.
In my view, neither the Judge nor the Full Court construed s 143(2) but attempted to ascertain its meaning by what appeared to be the intention of Parliament and what it regarded as a meaning which would reduce, if not prevent, challenges to ascertain that associations were, and have remained, registered as asserted in certificates of this nature.
On 16th January 2003 a Judge of this Court granted to the appellant leave to appeal against the decisions of the Full Court on various grounds. The first respondent is the Industrial Relations Court. At the commencement of the hearing before us, we were informed by Mr Emery, who appeared for that respondent, that it would abide our decision and any order or orders made by us and he was granted leave to withdraw.
At the hearings in the Commission and in the Full Court of the Industrial Relations Court, the respondent claimed that it was registered pursuant to s 134 of the 1994 Act. Upon the hearing of this appeal, it asserted that it is the same association which was registered by the Industrial Registrar on 2nd June 1971 as it had been registered under earlier legislation. It claims that it had never lost that registration by any subsequent legislation.
The respondent submitted that we should rescind leave to appeal and not answer any of the referred questions. The basis of this submission is that we could not be satisfied that the Judge and the Full Industrial Relations Court did not properly address the issues raised in the initial application of the respondent. It is also submitted that the issues raised in the proceedings involve matters of difficulty and this Court is not an appropriate forum because of the paucity of factual material so far adduced by the parties. Also, it is contended, the questions posed do not set out precisely the issues to be resolved in the proceedings. Lastly it is submitted that the appellant could, and should have, sought to have the status of the respondent resolved by an appeal from the decision of the Registrar when the certificate was issued by Industrial Registrar Correll on 25th October 2000. Mr Heywood-Smith QC, who appeared with Mr Bourne, for the respondent, contended that at the time of the proceedings before Commissioner Huxter, the appellant made similar contentions about the certificates but did not adduce any evidence as to how the respondent ceased to be registered. As will be seen, I accept part of these submissions but I reject the contention that leave to appeal should be rescinded. It is essential to the resolution of the disputes between the parties that the preliminary issue about the status and effect of the two certificates be resolved now. Then the application of the respondent may be tried in the Commission in the usual way. I return to the other submissions made by the respondent later.
I first consider the submissions of Mr White QC, who appeared with Mr Moloney for the appellant, contending that the basis of registration of the respondent is a matter of significance. In view of the issues raised on this appeal and the orders which we are asked to make, I agree with that contention. It is necessary to move beyond the mere construction of s 143(2) of the 1994 Act and consider whether the respondent is the association registered in 1971 or whether it may not be the association referred to in the two certificates. If there was no real issue about that matter, the questions referred to the Full Court of the Industrial Court, and which are before us, would lack practical significance.
It was under the Industrial Code 1967, as amended, that the first certificate was issued in 1971. Under that Act, registration of an association was effected pursuant to s 120. The minimum size of an association was 20 members. Section 136(2) provided that the Industrial Registrar could refuse an application for registration if, in the same locality and connected with the same industry, there existed a registered association to which, in effect, the members could conveniently belong. Section 138 provided for registration if the association was qualified to be registered and upon registration the Registrar was to issue a certificate of registration. It is convenient at this stage to mention s 138(2) which provided:
“138(2)The certificate issued under subsection (1) of this section shall be conclusive evidence of the fact of such registration and of the validity thereof” (my emphasis)
The Industrial Code was replaced in 1972 by the Industrial Conciliation and Arbitration Act 1972 (“the 1972 Act”). Division I Part IX of that Act related to registrations of associations. Section 5(3) provided that the repeal of the Industrial Code did not affect, inter alia, any registration of an association having effect under the repealed Industrial Code. Section 137 provided that an association that was registered, or appeared or purported to be registered under earlier legislation whose registration had not been cancelled, was deemed to be a registered association within the meaning of the 1972 Act and that the provisions of that Act applied to such an association as if it was registered under that Act.
The registration provisions of the 1972 Act were similar to the 1967 Code. The minimum membership of 20 persons and the conveniently belong test were continued. Section 116(3) provided that upon an association being registered, the Registrar shall issue a certificate of registration. Section 117(1) provided:
“117(1)A certificate of registration of a registered association shall be and shall be deemed always to have been conclusive evidence of the fact of such registration and of the validity thereof.” (my emphasis)
The scheme for registration of an association changed by reason of the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (“the 1991 Act”). The provisions relating to registration under 1972 were repealed (s 41) and new provisions were enacted (Part IX). This scheme was designed to bring about an end to the existence of dual associations operating in the Commonwealth and South Australian Industrial Systems for reasons well understood in the area of industrial relations which are not relevant for present purposes. As will be seen, it was abandoned in 1997. Two types of associations of employers or employees were eligible for registration as locally based associations and federally based organisations, as branches, sections or parts of organisations registered under the Commonwealth legislation. I mention only associations or organizations of employees. Corporate status was given to locally based associations but not to federal organisations by virtue of registration: s 117(4). The requirements for registration of locally based associations are set out in Division II of Part IX. The conveniently belong test was preserved and the association had to keep proper financial accounts and statements.
The requirements for the registration of federally based associations are set out in Division III of Part IX. Sections 123(2) and (3) provides that the rules of these associations must provide for a South Australian Branch, and for a reasonable degree of autonomy in the administration and control of South Australian assets and in the determination of questions affecting solely or principally members resident in this State. The conveniently belong test was preserved: s 124.
Section 130 of the 1991 Act provided:
“130(1) On registration of an association, the Registrar will issue a certificate of registration to the association.
(2) The registration of an association may be proved, in the absence of evidence that the association has ceased to be registered, by production of a certificate of registration issued under this Act or a corresponding previous enactment in relation to the association.”
This provision applied to both locally based and federal associations. It is to be seen that this provision is markedly different from the conclusive evidence provisions mentioned earlier.
The transitional provisions, s 55 of the 1991 Act, provided that if an association registered before Part IX of that Act came into operation was a federally based organisation, it was also an organisation or a branch of a federal organization. It was taken to be as an organisation registered under Part IX of the 1991 Act and a locally based association was also taken to be registered under Part IX.
So, if an association was registered in 1971, it was taken to be registered as a locally based association under Part IX of the 1991 Act. There was a twofold registration system with each type of association being registered under one division or the other. If a group of persons of the required number, calling themselves by the name of a federally based organisation as the South Australian Branch, obtained registration under the 1991 Act, they were registered as a locally based association and not as a branch of a federal organisation: s 55.
Section 55(3) of the 1991 Act provided for a transitional period of four years, from the date upon which the repeal and re-enactment of Part IX took effect, which was 1st January 1993. During that period no challenge could be made, inter alia, to the legal existence of any association or its registration: s 116(2) and s 133 of the 1972 Act.
It was provided that at the end of the transitional period, each affiliated association ceased to have a separate legal identity and its property, rights and liabilities rested in, or attached to, the organisation with which it was affiliated: s 55(4)(a) of the 1991 Act. The combined effect of s 54(7) and Reg 4 of the Regulations under the 1991 Act was that The Association of Professional Engineers, Australia (South Australian Branch) was affiliated with the Association of Professional Engineers and Scientists, Australia. As has been seen, this was the name of the respondent which is set out in the 1971 certificate issued by the Industrial Registrar, Mr Chislett. Section 55(4)(b) of the 1991 Act provided that at the end of the transitional period the rules of the association formerly registered were revoked. Section 55(4)(c) of that Act provided circumstances in which the affiliated association became a federally based association. The transitional period needed to have expired. The rules of the organisation with which it was affiliated had to have particular provisions, which need not be mentioned for present purposes, and, depending upon what was set out in the rules of the federal organisation, the locally based association either became a federally based organisation or a state branch of such an organisation.
The name of the 1972 Act was changed to the Industrial Relations Act 1972 and that Act was repealed by the 1994 Act which came into operation on 8th August 1994. The 1994 Act continued the two-fold division of associations created by the 1991 Act and, also provided that only locally based associations had corporate status. The Commission had a greater degree of supervision and federally based organisations could only participate if registered in the State Commission. Clause 16 of the Schedule I to the 1994 Act provided that an association which was, immediately before the commencement of the Act, registered under the former Act continued as a registered association under the 1994 Act.
I mention that the transitional period under the 1991 Act had not expired when the 1994 Act came into operation.
The 1994 Act provided for registration and incorporation of locally based associations: Part 2, Division 2. It also provided for the registration of federally based organisations and a State Branch of such an organisation: Part 3, Division 2. This Division includes s 134 which provides that the Commission may register an organisation as a branch of an organisation. As has been seen, the respondent asserts in those proceedings that it was registered pursuant to that section.
The 1994 Act was amended by the Industrial and Employee Relations (Transitional Arrangements) Amendment Act 1996 (“the 1996 Act”). It provided that the transitional provisions in cl 16 of Schedule I to the 1994 Act be amended by striking out cl 16(2) which prevented objections of the nature prevented by the 1991 Act being taken for the prescribed period which was extended to 1st January 1998. Earlier I mentioned provisions of the 1991 Act which provided, inter alia, for the transitional period of four years and that at the end of that period each affiliated association would cease to have a separate legal identity, its property, rights and liabilities would be vested in the organisation with which it is affiliated and its rules would be revoked. The 1996 Act made it plain that the scheme established in the 1991 Act was to continue until the end of the transitional period fixed by the 1991 Act.
The 1994 Act was further amended by the Industrial and Employee Relations (Registered Associations) Amendment Act 1997. In effect the amendments made in 1996 were repeated but the provisions in Cl 16(1) of the First Schedule to the 1994 Act remained which, it will be recalled, provided that an association which was immediately before the commencement of the 1994 Act, a registered association under the 1972 Act, continued as a registered association under the 1972 Act. A new cl 16(2) was introduced which is of no relevance for present purposes.
Summary
This journey through the changes in the legislation has been necessary in order to determine if there is an arguable basis for the conclusion that the respondent was not registered as it asserts in these proceedings or that it is not the association referred to in the certificate issued by the Industrial Registrar in 1971 and, that there is a real issue to be tried in the Commission. It appears clear that by virtue of the 1991 Act, associations existing at that time became locally based registered associations or federally based organisations. If the respondent continued to exist at that time, it was a locally based association with corporate status and the subsequent legislation did not alter that position. The respondent did not become a branch of a federally registered association. If that is so, it is not an organisation registered pursuant to s 134 of the 1994 Act.
This scheme in the 1991 Act was to take effect on the expiration of the transitional period. The consequence of the 1997 Act and the revocation of the Industrial Conciliation and Arbitration (Affiliated Associations) Regulations 1992 which occurred on 21st August 1997 was that there ceased to be a transitional period. As there could not be a date upon which the transitional period expired, this scheme did not come into operation.
It seems to me that if the association registered by Industrial Registrar Chislett continued to exist when the 1991 Act came into operation, it was deemed by s 55(1) of the 1991 Act to be a locally based association under Division II of Part IX of the 1972 Act. If the association registered by the Industrial Registrar Chislett does not continue to exist, neither the scheme established by the 1991 Act, nor any notations or the recording of a name change by Industrial Registrar Correll, would give registered status to any other association.
It seems clear that when the Industrial Registrar made the Notations on 26th June 2000 on the certificate dated 2nd June 1971, he believed that the scheme in the 1991 Act remained operative after the 1997 Act. I accept that the scheme did not continue to operate for the reasons which I have given, and therefore the Notations made by him are of no effect. They could not give the association referred to in the 1971 certificate status that it does not otherwise have. The Notations did not effect a change in the registration or status of the association registered on 2nd June 1971.
On 19th October 2000 the Industrial Registrar Correll informed the appellant’s solicitors that the transition scheme in the 1991 Act was not “nullified” by the 1997 Act which had only removed some limitations. It appears that he relied upon the Second Reading Speech of the Minister for Industrial Affairs relating to the 1997 Act. The appellant contends that Industrial Registrar Correll is incorrect and that he has focused on the language of the Minister in that speech and not the language of the legislation. It is unnecessary to set out the content of the speech. I have considered it and I agree with the appellant’s submission that there was concern about the potential for State registered associations to lose State registration and separate legal identity, with property rights and liabilities being vested in a parent federal body. The legislation resolved those concerns by removing the provisions which could have had that consequence.
I return to the contentions of the respondent.
I first consider the last of the submissions. The appellant was successful at the hearing before Commissioner Huxter without any evidence being adduced. There was no occasion for it to appeal. It is submitted that the appellant could not then, and cannot now, adduce evidence about registration contrary to the respondent’s case. It is further submitted that whether the appellant has evidence available, relevant to the registration of the respondent and the status of that registration, that is not a matter which can be determined upon the information before this Court on this appeal. However, what is sought to be determined is that if such evidence is available whether it can be adduced if contrary to the facts asserted in the certificates, or at all, an issue which I address shortly.
I see no reason to rescind leave to appeal. The questions raise a matter of importance, namely the true interpretation of s 143(2) of the 1994 Act, as well as other matters of significance. This Court should answer the questions if it is necessary and appropriate to answer them.
The hearings before the Judge at first instance and the Full Court of the Industrial Relations Court proceeded on the basis that the nature of the certificates had to be decided as a preliminary matter. There has not been a trial on the merits of the application of the respondent. The appellant has not had the opportunity to present evidence to the Judge. The respondent has not had the opportunity to present evidence about registration of the respondent on 2nd June 1971 or pursuant to s 134 of the 1994 Act if such evidence is necessary. A decision of this Court that the respondent is not registered under that section would deprive it of that opportunity. I do not think an answer to question (4b) is appropriate at this stage of the proceedings. That issue should only be determined at the end of what I have called the trial. Also, the questions within question (4a) should not be answered without there being a full hearing of the respondent’s application and necessary conclusions being reached on such evidence as is adduced and upon consideration of the legislative history commencing with the 1991 Act.
The respondent contends that if the appellant seriously wished to challenge its capacity to bring the application, then it has other bases for appeal. The respondent submits that when the second certificate was issued, the appellant could have appealed to the Full Industrial Relations Commission pursuant to s 207 of the 1994 Act. If it had asserted that the Industrial Registrar had acted in an excess or want of jurisdiction, a challenge could have been made to the Full Court of this Court pursuant to s 206 of the 1994 Act. Instead it is submitted that the appellant waited until the respondent brought the subject application.
I do not regard these contentions as of assistance in resolving the issues on this appeal. There was no need for the appellant to take any action until the subject application was made. When the issue as to the scope and effect of the certificates arose, that issue was to be resolved as a preliminary issue. The appellant was entitled to agree to participate in that course and did so. It is unnecessary to decide but I have doubts as to whether the appellant could have proceeded pursuant to s 206 or s 207 as has been asserted.
The next contention made on behalf of the respondent is that at no time has the appellant specified when or how the respondent ceased to be an association registered pursuant to the 1994 Act. Furthermore, the appellant did not put forward any evidence upon which it could be decided that the respondent was not qualified to be registered. In my view, the stage where the appellant was required, in practical terms, to adduce evidence had not been reached. It was confronted by the resolution of the preliminary issue being decided against it.
It was submitted that all that the respondent has to establish is that it is a registered association of employees, pursuant to s 194(e) of the 1994 Act, and that it does not matter when or how it was registered. I do not accept that submission. The application of the respondent was to vary the Award so as to provide for it to be a party bound by the Award. It had to qualify as an applicable association to do so. I need not consider all of the matters of qualification, but it certainly had to establish who it was and that it was a registered association of relevant employees. It purported be qualified to do so by asserting that it was registered under s 134 of the 1994 Act. The respondent agrees that it has not made an application for registration since 1971. The question therefore arises as to whether the respondent could possibly be an association registered pursuant to s 134.
The respondent contends that nothing in the legislation, to which I have referred, altered its status as a registered association. It remained a locally based association, and by reason of the Regulations made pursuant to the 1991 Act, was deemed to be an association affiliated to the federal organisation. The respondent contends that it has remained registered, that it is the same body that was registered in 1971 and that the subsequent legislation did not alter that position.
It is further submitted that the Commission has been given wide powers regarding registered associations, and this Court should be reluctant to step in and interfere in the regulation by the Commission and the Industrial Relations Court of its affairs when the claimed basis is without merit.
This is an appeal on matters of law. The issues before this Court fall into a narrow compass. I accept that this Court should not go beyond resolving the legal issues raised on this appeal, but it should not reject the task of resolving these issues simply because the Commission and the Industrial Relations Court has made decisions about those issues. However, I acknowledge that we should not attempt to resolve what appears to be issues of fact which have not yet been heard and determined by the Commission. Whether the respondent is the association referred to in either of the certificates is a matter of fact.
I reject the respondent’s submissions. We must resolve the legal issues raised by the appeal but we should not attempt to do more, particularly when evidence is required to resolve issues of fact.
Mr Heywood-Smith acknowledged that the respondent was not registered pursuant to s 134 of the 1994 Act, in the sense of being first registered as an association pursuant to that section. He contends that having been registered in 1971, it is not an improper use of the English language to say that the respondent is registered under s 134 if the position is that it has become a federally based organisation pursuant to the legislation which has been mentioned. All the respondent is saying is that it is registered under s 134 and that it is a branch of an organisation registered under the Commonwealth legislation. As I have said, these are matters which remain to be established at the trial.
I do not accept these contentions. There is no basis for the assertion that the respondent was registered pursuant to s 134. The language of the section demonstrates that it is dealing with registration ab initio, not with continuation of earlier registration and it deals only with federally based organisations. Section 122 deals with locally based associations. Section 134 provides for qualifications for registration of an organisation, including that there is no other association registered under the 1994 Act to which members of the application organisation branch might conveniently belong. Also, s 131 provides for eligibility for registration of a federally based organisation and, by its terms, does not cover continuation of previously registered organisations.
Is s 143(2) a conclusive evidence provision?
The first observation to be made is that the section does not purport to be a conclusive evidence provision such as those in s 138(2) of the Industrial Code 1967, s 117(1) of the 1972 Act, and the provisions discussed in cases referred to by the Judge at first instance, which I have mentioned. Section 143(2) merely provides that registration of an association may be proved by production of the certificate. There is an obvious qualification and that is that proof may only occur in that way in the absence of evidence of the association having ceased to be registered. Without s 143(2), the fact of registration would have to be proved by appropriate and admissible evidence.
The second observation to be made relates to the change made by Parliament in the relevant legislation, from a conclusive evidence provision in the Industrial Code 1967 and the 1972 Act to the provision in s 143(2). I should also mention that s 67(1) of the Industrial Code 1920 provided that upon registration of an association, the Registrar shall issue a certificate and s 67(2) provided:
“(2)Such certificate shall be conclusive evidence of the fact of such registration and of the validity thereof.”
The change in the provision indicates that s 143(2) was not to be regarded as a conclusive evidence section. Indeed the change was made in the 1991 Act in s 130, which I have mentioned. Parliament first moved away from the provision of conclusive evidence of validity of registration in the Industrial Code 1920, and then from the provision of conclusive evidence of the registration of an association.
The consequence is that a party to proceedings, upon the admission into evidence of the certificate, is relieved from proving the registration of the association named in the certificate, unless that matter is put in issue by credible evidence to the contrary. Should that occur, the circumstances may require evidence from the party using the certificate to resolve the issue or the circumstances may be such that no such evidence is required. What is clear, however, is that the use of the certificate does not prevent a party from challenging the matters set out in the certificate. In this case, upon the certificate being admitted into evidence, the appellant will be at liberty to adduce evidence at the hearing of the application, through calling witnesses, cross-examination of witnesses, including senior officials, as may be called by the respondent and the tendering of relevant documents obtained by the appellant, including through the discovery process.
Consideration of the changes to the legislation in this State relating to industrial matters, which I have mentioned, and the assertions of the respondent that it was registered under the 1994 Act, if they are maintained, indicate that there may well be an issue as to whether the respondent is the association registered in 1971.
I do not think the presence of the words “in the absence of evidence that the association has ceased to be registered” in s 143(2) require the subsection to be construed as a conclusive evidence provision. It is possible in a proceeding that a party may want to prove that an association is registered without knowing that it has been de-registered. Once there is evidence that the association has ceased to be registered, the registration of the association may not be proved by the certificate.
The respondent submitted that question (1) is not whether the certificates of registration are conclusive evidence of registration of the association but whether a certificate tendered in proceedings pursuant to s 194(e) of the 1994 Act is conclusive evidence of registration of that an association pursuant to that section. Whilst I appreciate that question (1) is directly referring to registration in 1971, the answer to question (1) is relevant to the status of the respondent. It was submitted that the question relates to a certificate issued under s 143(2) and not s 143(1) and that an association may approach the Industrial Registrar at any time for a certificate pursuant to s 143(2).
I have set out the terms of s 143. I do not interpret the section as providing for two types of certificate. A certificate must be issued under s 143(1) when an association is registered. That registration may be proved by that certificate, as it must be a certificate issued under the Act or by a corresponding previous enactment. Regulation 31 of the Regulations made under the 1994 Act provides for the form of the certificate issued under s 143(1) and not for any other certificate. I expect that the Industrial Registrar may issue copies of the certificate from time to time upon request, but it is nevertheless a copy of the certificate of registration.
In my view, question (1) raises the issue of whether the certificates issued by the Industrial Registrar are conclusive evidence of registration of an association and I have answered that question in the negative.
I now turn to the Notations on the certificate signed by Industrial Registrar Correll. I do not think they can be, or be part of, a certificate under s 143. Subsection (1) provides that the certificate will be issued by the Industrial Registrar upon registration. It is that certificate which is referred to in subsection (2). The Notations were not part of that certificate and cannot be proved by the use of s 143(2). This section does not provide for proof of any facts or opinions stated by a certificate issued by the Industrial Registrar, only the fact of registration of an association by the certificate issued at registration. The facts or opinions asserted in the Notations, if relevant and admissible, will have to be proved without resort to s 143(2).
The same must be said about the certificate issued by Industrial Registrar Correll on 25th October 2000. It is not a certificate of registration issued by the Industrial Registrar at the time of registration. Also, it states that the respondent was registered under s 134 of the 1994 Act, which differs from the content of the certificate issued by Industrial Registrar Chislett on 2nd June 1971. It purports to have been issued under the 1994 Act, and it is an agreed fact that the respondent had not since 1971 made any application to the Commission for registration as an association.
Mr White contended that the correct answer to each of question (1) and questions (4)(a) and (b) is “No” and that it is unnecessary to answer questions (2) and (3). I agree except that I am not willing to answer question (4).
In my view the decisions of the Full Court of the Industrial Relations Court are not correct. I would allow the appeal and substitute the answer of “No” to question (1). That answer obviates the need to answer questions (2) and (3). I would decline to answer question (4).
DEBELLE J This is an appeal by leave from a decision of the Full Court of the Industrial Relations Court of South Australia. For reasons which are not apparent, the Industrial Court was named as the first respondent. Counsel for that Court has stated that it will abide the order of this Court. The protagonists in this appeal are, therefore, the appellant and the second respondent, which I will call “the respondent”.
On 16 November 2000, the respondent, the Association of Professional Engineers, Scientists and Managers, Australia, South Australian Branch applied to vary the Medical Scientists (South Australian Public Sector) Award so that it would be included as a party bound by the Award. In order to have standing to invoke the jurisdiction of the Commission, the respondent was required to be a registered association of employees: s 194 of the Industrial and Employee Relations Act 1994 (“the 1994 Act”).
On the hearing of the application, the Public Service Association of South Australia (“the PSA”) asserted that the respondent was not a duly registered association and so did not have standing with the consequence that the Industrial Commission did not have jurisdiction to hear the respondent’s application and with the further consequence that the respondent was not capable of being a party to the award. The Commissioner hearing the application referred the issue to Judge McCusker for determination.
On the hearing before Judge McCusker, the respondent responded to the challenge to its standing by applying to tender two documents as evidence of its registration. The first was entitled “Certificate of Registration of an Association”. The certificate comprised two parts. The first part was typed and had been issued out of the Industrial Commission on 2 June 1971. That part of the certificate was in these terms:
“INDUSTRIAL COMMISSION
33 King William Street
Adelaide, S.A. 5000
CERTIFICATE OF REGISTRATION OF AN
ASSOCIATIONSOUTH AUSTRALIA
I, CEDRIC STANLEY CHISLETT, hereby certify that on the 2nd day of June, 1971, an association called:
THE ASSOCIATION OF PROFESSIONAL ENGINEERS,
AUSTRALIA (SOUTH AUSTRALIAN BRANCH)was registered by that name under the Industrial Code, 1967-1971.
Dated at Adelaide this 2nd day of June, 1971.
C.S. Chislett (signed)
INDUSTRIAL REGISTRAR”
The lower half of the certificate was headed “Notations” and comprised two handwritten notes made on 26 June 2000. It was in the following terms:
“Notations:
●As at 31/12/97, by operation of the transitional provisions of the I.C. & A. (C.P.) Amendment Act 1991 the APEA (S.A. Branch) was considered registered under Div III of Part IX as a branch of the APESMA with the Rules of the APESMA.
●As at 26 June 2000, the APEA (S.A. Branch) is an association registered under Chapter 4 Part 3 of the Industrial and Employee Relations Act 1994, with the Rules of the APESMA as registered for that organisation under the Commonwealth Workplace Relations Act.
26 June 2000
J. Correll (signed)
INDUSTRIAL REGISTRAR”
A good deal of argument concerned the terms of this certificate. I will return to that issue.
The second document which the respondent tendered was entitled “Certificate of Registration”.
“CERTIFICATE OF REGISTRATION
CHANGE OF NAME OF ASSOCIATION
SOUTH AUSTRALIA
INDUSTRIAL AND EMPLOYEE RELATIONS ACT 1994
I, JOHN CORRELL
hereby certify
that on the 23rd day of October 2000 the records for an
association registered under Section 134 of the Act and
bearing the name
The Association of Professional Engineers Australia, South
Australian Branch were altered to a new name ofThe Association of Professional Engineers, Scientists and
Managers, Australia, South Australian Branch
DATED at Adelaide the 25th day of October 2000(signed)
JOHN CORRELL
Industrial Registrar”Although entitled “Certificate of Registration”, this second certificate constitutes no more than a certificate of change of name. I will examine the status of this document in a moment.
When tendering the certificates of registration, the respondent relied on s 143 of the 1994 Act which provides:
“ 143. (1) On registration of an association, the Registrar will issue a certificate of registration to the association.
(2) The registration of an association may be proved, in the absence of evidence that the association has ceased to be registered, by production of a certificate of registration issued under this Act or a corresponding previous enactment for the association.”
The respondent contended that the effect of s 143 was that the two certificates were conclusive evidence that it was a registered association for the purposes of s 194 of the Act. That submission was upheld by Judge McCusker in the Industrial Commission.
The PSA appealed to the Full Industrial Relations Commission. With the consent of the parties, the Full Commission stated a case for the consideration of the Full Court of the Industrial Relations Court pursuant to s 214 of the 1994 Act. The case stated included the following fact:
“The applicant (APESMA) had not since 1971 made any application to the Commission for registration as an association. An application made on 25 August 1998 by the Association of Professional Engineers, Scientists and Managers, Australia, an organization registered under the Commonwealth Act, was discontinued on 25 October 1999.”
The case stated does not state the nature of the application mentioned in the second sentence. The case stated also noted that the respondent had contended, among other things, that
(a)It was a branch of an organisation registered under the Commonwealth Act;
(b)It was registered under s 134 of the Act;
(c)A certificate of registration issued by the Industrial Registrar had the effect, by virtue of s 143(2) of the Act, of conclusively establishing that it was a registered association; and
(d)Two certificates issued by the Registrar, dated 2 June 1971 and 25 October 2000 respectively, when read together had the effect, by virtue of s 143(2), of conclusively establishing that it was a registered association under s 134 of the Act for the purposes of s 194.
The Full Commission stated the following questions for determination of the Full Court of the Industrial Court:
“(1)Does s 143(2) of the Act have the effect that certificates of registration of an association issued by the Industrial Registrar are conclusive evidence that an association is a registered association for the purposes of s 194(e) of the Act
(2)If yes to (1), are the certificates or either of them issued by the Industrial Registrar relied upon by the applicant and collectively exhibit A in the proceedings before Judge McCusker DP, certificates to which s 143(2) refers?
(3)If yes to (1) and (2) are the Certificates conclusive of:
(a) the fact of registration of the Applicant under the Act or a corresponding previous enactment?
(b) the validity of registration of the Applicant under the Act or a corresponding previous enactment?
(c) the continued existence of the Applicant as an association?
(d) the identity of the Applicant as the Association named in the certificate?
(4) If no to (1) or any arm of (3):
(a) is the applicant an association registered under s 134 of the Act, under ch 4 Pt 3 of the Act, or
(b) did the transitional provisions of the Industrial Conciliation and Arbitration Act (Commonwealth Provisions) Amendment Act 1992 (‘the 1991 Act’) have the effect that the association registered on 2 June 1971 and named ‘The Association of Professional Engineers, Australia (South Australian Branch)’ was taken to be an organisation registered under Div 3 of Pt IX of the 1991 Act?”
The Full Court of the Industrial Relations Court agreed with Judge McCusker in holding that s 143(2) of the 1994 Act had the effect that the certificates of registration issued by the Industrial Registrar were conclusive evidence that the respondent was a registered association for the purpose of s 194 of the Act. It answered all of the questions 1 to 3, yes and held that it was not necessary to answer question 4. From that decision, the PSA appeals by leave to this Court.
I deal first with the meaning and effect and operation of s 143(2) of the Act.
The Meaning of Section 143(2)
Plainly, s 143(2) is an evidentiary aid. It may be relied on by an association to facilitate proof of registration, except where there is evidence that the association has ceased to be registered. In other words, if a party to a proceeding before the Commission leads evidence that the association has in fact been deregistered, the certificate has no evidentiary force or effect. In this case, the PSA was not permitted to lead evidence because of the decision of Judge McCusker that the certificate was conclusive evidence of registration. However, it seems that the PSA did not intend to prove that the respondent had been deregistered. Instead, it sought to demonstrate that, by reason of changes in legislation and the fact that the respondent had not since 1971 made any application for registration as an association, it was no longer entitled to registration.
It will have been noticed that, unlike some of its statutory predecessors (see, for example, s 67 of the Industrial Code, 1920, s 138 of the Industrial Code, 1967 and s 117 of the Industrial Conciliation and Arbitration Act 1972 (“the 1972 Act”)), s 143(2) does not state that the production of the certificate is conclusive evidence of registration. Thus, whatever views might exist as to the operation of a “conclusive evidence” provision (an issue discussed in cases such as Federated Engine-Drivers’ & Firemen’s Association of Australasia v Broken Hill Proprietary Company Ltd (1911) 12 CLR 398; Egan v Shop Distributive & Allied Employees’ Federation of Australia (NSW) (1979) 143 CLR 325 and Sharpe v Goodhew (1990) 96 ALR 251 at 266 – 267), those views do not have to be considered. Instead, it is necessary to determine the natural meaning and effect of the actual language used in s 143(2) having regard to the context in which that provision is used: see Wells J in Baskerville v Lippett (1974) 9 SASR 575 at 582 – 583 and at 584 – 585.
It is convenient to consider the meaning and effect of s 143(2) as if the words in parenthesis do not exist. When the words in parenthesis are excluded, s 143(2) reads:
“The registration of an association may be proved by production of a certificate of registration issued under this Act or a corresponding previous enactment for the association.”
The section is expressed in terms which are permissive. The registered association may rely on the certificate or it may choose some other method of proof. The natural meaning of s 143(2) is that the production of a certificate establishes no more than the fact of registration. It does not prevent a party from leading evidence that the association is no longer registered or capable of being registered. In no respect does a certificate issued under s 143 constitute conclusive evidence of registration. It is prima facie proof only capable of being rebutted by other evidence. Had Parliament intended that the certificate should operate as conclusive evidence, it could easily have so provided as it did in earlier legislation. The history of this kind of legislation and the absence of any expression to the effect that the certificate is conclusive evidence only serves to reinforce the decision that the certificate is not conclusive evidence of registration.
The reasoning of both Judge McCusker and the Full Court of the Industrial Court does not address the terms of s 143(2) and, in particular, the absence of the epithet “conclusive”. Nor does it address the legislative history of this provision. Instead, it spells out policy reasons why it would be desirable for s 143(2) to be a conclusive evidence provision. As compelling as those reasons might be, they cannot displace the plain meaning of s 143(2).
The above reasoning applies only in respect of the typewritten part of the 1971 certificate. It does not apply either to the handwritten notation on that certificate or to the certificate of change of name. I set out the reasons for those two conclusions, dealing first with the handwritten notations.
The Handwritten Notations
The evidence is not clear as to how the handwritten notations came to be made on the 1971 certificate. There are two reasons why it is unnecessary to pursue that question. First, there is no statutory authority for making either endorsement. A certificate of registration may only be issued upon the registration of an association under the Act. That was the position under s 138 of the Industrial Code, 1967, s 116(3) of the 1972 Act and s 143(1) of the 1994 Act. There is no provision which authorises a Registrar to make endorsements of any kind and, certainly not, an endorsement which purports to change the status of the registered association. The Registrar could issue a certificate which had the effect of changing the status of the registered association only if the registered association had made an application pursuant to the Act for registration as a particular kind of registration and the application had been heard and determined in accordance with the procedures prescribed by the Act and the Rules made under that Act. Thus, the notations are of no force or effect. However, they are plainly severable from and do not in any respect invalidate the typed portion of the certificate.
The Certificate of Change of Name
Section 125 of the 1994 Act authorises an association registered under Part II of Chapter 4 of that Act to apply for registration of alterations to its rules. For the reasons given later, the respondent is an association registered under Part II of Chapter 4 of the 1994 Act and so could make such an application. The procedure is informal and does not require notice to other parties or a hearing. Rule 39(12) of the Industrial Proceedings Rules 1995 (which are the rules governing proceedings in the Industrial Commission and in the Industrial Court) provide for a certificate of change of name made in accordance with s 125. The evidentiary effect of the certificate is not spelled out in the Rules or in the 1994 Act. However, neither the Industrial Commission nor the Industrial Court are bound by the rules of evidence and, subject to the rules of natural justice, each may inform itself as it deems appropriate: s 154. It is entirely appropriate for the Court to rely on a certificate to the effect that a registered association has changed its name. The certificate would prove no more than the change of name and would be prima facie evidence of that fact. The certificate would not in any respect be conclusive evidence of the change of name and it will be open to a party challenging the status of the association to adduce evidence seeking to rebut the assertions in the certificate.
The Certificates are not Conclusive Evidence
For these reasons, both the Industrial Commission and the Full Court of the Industrial Relations Court have erred in deciding that s 143(2) has the effect that the two certificates of registration of the respondent issued by the Industrial Registrar were conclusive evidence that the respondent is a registered association for the purposes of s 194(e) of the 1994 Act.
I would thereafter answer question 1, no. It follows that the answers to questions 2 and 3 are no.
Question 4
There is little evidence on the issues arising under question 4. As the certificates are not conclusive evidence, the PSA is at liberty to adduce further evidence when this matter is remitted to the Industrial Commission for hearing and determination. It is not clear, however, whether the PSA will seek to adduce further evidence and, if so, what that evidence might be. In answer to questions from the court, Mr White QC, who appeared for the PSA, said that he did not know whether the PSA wished to lead further evidence but added that he believed that it would not.
I note the agreed fact that the respondent has not since 1971 made any application to the Industrial Commission for registration as an association and that, an application made on 25 August 1998 by the Association of Professional Engineers, Scientists and Managers, Australia, an organisation registered under the Commonwealth Act, was discontinued on 25 October 1999.
Had there been other relevant evidence, it is likely that the parties would have informed the Industrial Commission and that evidence would have been included in the case stated. I think it is appropriate, therefore, to answer the question 4. I am encouraged to do so because the issues appear to be limited to the question of the effect of the changes of legislation upon the status of the respondent as a registered association. However, out of what is perhaps an abundance of caution, the answers to question 4 must be qualified by the rider that they are subject to any further evidence led in the Industrial Commission.
In order to address the issues in question 4, it is necessary to examine the course which has been run by the South Australian Parliament in repealing and amending the legislation relating to the registration of associations of employees. That examination enables the conclusion that, by reason of the transitional provisions in each amendment or new statute, since 2 June 1971 the respondent has always remained a registered association. The examination also demonstrates that the precise status of the respondent under the current legislation is irrelevant to the issue whether the respondent has standing to bring its application. Thus, it is not necessary for the purposes of the respondent’s application to determine whether it is in truth registered under s 134.
On 2 June 1971 the respondent was registered as an association pursuant to the Industrial Code, 1967. The certificate issued by the hand of the Industrial Registrar on 2 June 1971 is prima facie proof of the fact that the association called “The Association of Professional Engineers, Australia (South Australian Branch)” was registered on that date. The certificate as to change of name is prima facie evidence of the change of name of the respondent. The reasons which follow demonstrate that the Association of Professional Engineers, Australia (South Australian Branch) has remained an association registered under the relevant industrial legislation. On 23 October 2000 it changed its name to the Association of Professional Engineers, Scientists and Managers, Australia (South Australian Branch). In consequence of its registration, the respondent was a body corporate: s 139 of the Industrial Code, 1967.
The 1972 Act
In 1972, the 1972 Act repealed the Industrial Code and enacted new provisions in its place. The repeal of the Industrial Code did not affect the registration of any association under the Industrial Code: see s 5(3)(a) and (b) and s 137 of the 1972 Act. Section 5(3)(a) and (b) were in these terms:
“ (3) Notwithstanding the repeal effected by subsection (2) of this section—
(a)subject to paragraph (b) of this subsection that repeal shall not affect any award, order, judgment, determination, direction, recommendation, decision, industrial or other agreement, proclamation, registration of an association or any other matter or thing whether or not of the same kind as the foregoing or having effect under any provision of the Industrial Code, 1967-1972, so repealed immediately before the commencement of this Act;
(b)except as provided in this Act, any matter or thing referred to in paragraph (a) of this subsection shall continue to have effect in the same manner and to the same extent as it would have had had this Act been in operation when it first had effect.”
Section 137 reinforced the effect of s 5(3). It provided:
“ 137. An association that was registered or that appeared or purported to be registered—
(a)under the Industrial Arbitration Acts, 1912 and 1915 and whose registration has not been cancelled—
(i) under that Act;
(ii) under the Industrial Code, 1920, as amended;
or
(iii) under the Industrial Code, 1967, as amended;
(b)under the Industrial Code, 1920, as amended, and whose registration has not been cancelled—
(i) under that Act;
or
(ii) under the Industrial Code, 1967, as amended;
or
(c)under the Industrial Code, 1967, as amended, and whose registration has not been cancelled under that Act,
shall be deemed to be and always to have been validly and effectually so registered and shall on and after the commencement of this Act be a registered association within the meaning of this Act and this Act shall apply to and in relation to that association as if that association were an association registered under this Part.”
The respondent had been registered under the Industrial Code, 1967. Thus, by reason of those provisions, an association registered under the Industrial Code continued to be registered under the 1972 Act as if it had been registered under the 1972 Act. In other words, the repeal of the Industrial Code did not in any respect affect the registration of the respondent. In 1972, the respondent continued to be a registered association.
The 1991 Amendment
In 1991, the 1972 Act was amended by the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (“the 1991 amendment”). The 1991 amendment introduced a new scheme of registration, distinguishing between organisations registered under the Commonwealth industrial legislation and associations registered under the South Australian legislation. The scheme provided for registration and incorporation of locally based associations (which was effected by Division II of Part IX of the Act) and of federally based associations (which was effected by Division III of Part IX of the Act). The new scheme was prescribed by Part IX of the 1991 amendment. The scheme was intended to deal with difficulties adverted to in Moore v Doyle (1969) 15 FLR 59 at 120 – 124 and occasioned by the fact that State branches of federal industrial organisations were incorporated under State legislation, difficulties examined in the Report of the Committee of Inquiry on Co-ordinated Industrial Organisations (1974) (“the Sweeney Report”).
It is unnecessary to examine the details of the scheme. It is sufficient to refer to the transitional provisions in s 55(1) to (4) and (7) of the 1991 amendment. Those provisions were in these terms:
“ 55. (1) An association registered (or purportedly registered) under Part IX of the principal Act immediately before the repeal and re-enactment of that Part takes effect will, on the commencement of the re-enacted Part, be taken to be—
(a)in the case of an association that is also an organization—an organization registered under Division III of Part IX;
(b)in any other case—an association registered under Division II of Part IX.
(2) During the transitional period no objection of the kind referred to in section 133 of the principal Act (as in force before the re-enactment of Part IX) can be taken to the registration of an affiliated association under Division II of Part IX nor can any objection to registration of such an association be taken under section 116(2) of the principal Act.
(3) The transitional period is the period of four years from the date on which the repeal and re-enactment of Part IX takes effect.
(4) Subject to subsection (5), on the expiration of the transitional period—
(a)each affiliated association ceases to have a separate legal identity and its property, rights and liabilities, vest in or attach to the organization with which it is affiliated;
(b)the rules of the association formerly registered under the principal Act are revoked;
and
(c)if the rules of the organization with which it is affiliated provide for a South Australian branch and confer on the branch a reasonable degree of autonomy in the administration and control of South Australian assets and in the determination of questions affecting solely or principally members resident in this State—
(i)if the organization has so nominated in accordance with the Rules—the organization will thereafter be considered to be registered under Division III of Part IX;
(ii)otherwise—the affiliated association will thereafter be considered to be registered as a branch of the organization under Division III of Part IX (with rules as registered for the organization under the Commonwealth Act).
...
(7) A reference in this section to an affiliated association is a reference to an association declared by regulation to be affiliated with a specified organization..”
Although most of the provisions in the 1991 amendment commenced on 1 July 1991, s 41 which repealed and re-enacted Part IX of the Act and s 55 did not come into force until 1 January 1993: see Government Gazette, 3 December 1992, p 1688. Thus, the transitional period referred to in s 55(3) was from 1 January 1993 to 1 January 1997.
The reference to “an affiliated association” in s 55 is explained by s 55(7) and by the Industrial Conciliation and Arbitration (Affiliated Associations) Regulations, 1992 published on 3 December 1992 (“the Affiliation Regulations”) which declared a number of associations to be affiliated with a specified federal organisation. The Affiliation Regulations declared the South Australian branch of the respondent to be an affiliated association of the Association of Professional Engineers, Scientists and Managers, Australia, which is, presumably, an organisation registered under the Commonwealth legislation. The scheme as propounded by the 1991 amendment did not remain in operation for long. It was repealed by the 1994 Act which came into force on 8 August 1994. However, the 1994 Act re-enacted a scheme very similar in operation to that provided by the 1991 amendment. Before examining the effect of the 1994 Act, it is necessary to examine the effect of s 55(1) of the 1991 amendment.
Section 55(1) operated immediately upon the commencement of what it called “the re-enacted Part”, that is to say, upon the commencement of s 41 of the 1991 amendment. As already noted, that legislation was proclaimed to come into force on 1 January 1993. It will have been noticed that s 55(1) changed the status of a registered association by operation of law. The change of status did not require an application.
The nature of the change effected by s 55(1) depended upon the nature of the registered association, that is to say, whether or not the registered association was also an organisation. “An organisation” was defined by s 5(j) of the 1991 amendment to mean, “an organisation registered under the Commonwealth Act”. It must be noted that the definition of an organisation is limited to an organisation registered under the Commonwealth Act. It does not include an association which is a branch of an organisation registered under the Commonwealth Act or an affiliated association. The respondent was not an organisation registered under the Commonwealth legislation. Instead, it was a South Australian branch of the federal body registered under the South Australian legislation. It remained a body corporate. It is common ground that the respondent had not applied for registration under Part IX of the 1972 Act. Instead, its status as a registered association had been continued by s 5(3) and s 137 of the 1972 Act and it was an association registered under the 1972 Act. In addition, the fact that the respondent had been affiliated with its federal body in 1992 was of no consequence. Thus, upon the 1991 amendment coming into operation and because it was not an organisation as defined, the respondent was deemed by s 55(1)(b) to be an association registered under Division II of Part IX of the 1972 Act. The status of the respondent was changed by operation of law, not in consequence of any application by the respondent. Section 55(1) deemed the respondent to be an association under Division II of Part IX, that is to say, s 55 deemed it to be a locally based association under that Act.
Section 55(4) enabled an affiliated association to be considered to be registered under Division III as a federally based association if its rules satisfied the requirements of s 55(4)(c) and the affiliated association had so nominated in accordance with the rules. Although there is no evidence of the content of the rules of the respondent nor any evidence as to whether the respondent or its federal body took any step to avoid the operation of s 55(4), that is of no consequence because s 55(4) did not operate unless the transitional period came to an end. As will be seen, that moment did not ever occur. Thus, the provisions of s 55(4) did not come into operation.
The Respondent’s Status after the 1991 Amendment
I summarise the position at this stage. The respondent was a registered association under the 1972 Act. Upon s 55(1) of the 1991 amendment coming into operation on 1 January 1993, the respondent remained a registered association but, by reason of the operation of s 55(1)(b), was deemed to be an association registered under Division II of Part IX, that is to say, it became a locally based association as distinct from a federally based association.
The 1994 Act
As already noted, this scheme effected by the 1991 amendment did not operate for long. The 1994 Act repealed the 1972 Act. The 1994 Act did not, however, repeal the 1991 amendment which had amended not only the 1972 Act but repealed and amended other legislation. The consequence is that those provisions in the 1991 amendment which had amended the 1972 Act were rendered inoperative by the repeal of the 1972 Act. Thus, the transitional period prescribed by s 55(3) did not come to an end with the further consequence that s 55(4) did not come into operation. Thus, at the time when the 1994 Act repealed the 1972 Act, the respondent continued to be an association registered under the 1972 Act but by virtue of s 55(1) had already been deemed to be an association registered under Division II of Part IX of the 1972 Act.
The 1994 Act, as amended from time to time, remains in force. That Act preserves the distinction between locally based associations and federally based associations. Its provisions in respect of registration are very similar to those in the 1991 amendment. It is, however, unnecessary for present purposes to consider those differences which do exist. It is sufficient to direct attention to the transitional provisions in the 1994 Act which are contained in Schedule 1 of that Act.
Section 16 of Schedule 1 of the 1994 Act was in these terms:
“ 16. (1) An association that was, immediately before the commencement of this Act, a registered association under the former Act continues as a registered association under this Act.”
Plainly, by virtue of s 16, the respondent continued to be a registered association and was deemed to be an association registered under the 1994 Act.
Section 16 of Schedule 1 was amended in 1996 by the Industrial and Employee Relations (Transitional Arrangements) Amendment Act 1996 which came into force on 12 November 1996, the date when it received the Royal Assent. However, the amendments did not affect the operation of s 16(1). The amendment was effected by s 2 of the 1996 amendment which repealed s 16(2) of Schedule 1 and substituted the following:
“ (2) During the transitional period, no objection of a kind that was formerly prevented by section 55 of the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 may be taken to the registration of an association under this Act.
(3) Section 55(4) to (7) of the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 continue to apply as if—
(a)the reference to the transitional period were a reference to the transitional period as defined in this section; and
(b)the reference to the principal Act were a reference to this Act; and
(c)the references to particular provisions of the former Act were references to the corresponding provisions of this Act; and
(d)the reference to a regulation in subsection (7) extended not only to a regulation made under the former Act for the purposes of that subsection but also to a regulation made under this Act.
(4) In this section—
‘transitional period’ means the period from the commencement of this Act to 1 January 1998.”
Before considering the operation of those provisions, it must be noted that the 1996 amendment was in turn amended in 1997 by s 2 of the Industrial and Employee Relations (Registered Associations) Amendment Act 1997 which commenced operation on 31 July 1997, the date when it received the Royal Assent. Section 2 of the 1997 Act repealed subsections (2), (3) and (4) which had been inserted by the 1996 amendment and substituted a new subsection (2) in these terms:
“ (2) No objection of a kind that was prevented by section 133(1) of the former Act immediately before the re-enactment of Part IX of that Act pursuant to section 41 of the Industrial Conciliation and Arbitration (Commonwealth Provisions) Amendment Act 1991 (and then prevented by section 55 of that Amendment Act) may be taken in relation to an association registered under this Act immediately before the commencement of the Industrial and Employee Relations (Registered Associations) Amendment Act 1997.” (Footnotes omitted.)
As the 1997 Act came into force on 31 July 1997, it commenced operation before the expiration of the transitional period provided by the 1996 amendment. To all intents and purposes, therefore, the 1996 amendment may be ignored.
This examination of the history of the legislation between 1991 and 1997 demonstrates that the transitional period did not ever come to an end. Instead, when considering whether any provision has affected the status of the respondent, other than s 55(1), it is as if the transitional period did not ever exist.
For these reasons, the 1996 and 1997 amendments did not in any manner affect the continued registration of the respondent. In other words, the status of the respondent as a registered association of employees has been continued in full force and effect by the 1972 Act and the 1994 Act. In short, the respondent was registered as an association in 1971 and remains a registered association. However, as already noted, by reason of s 55(1) of the 1991 amendment, the respondent was in January 1993 deemed by operation of law to be registered as a locally based association. Its status as a registered locally based association was preserved by s 16(1) of Schedule 1 of the 1994 Act and nothing occurred after 1994 to affect that.
Since it became a registered association by operation of law upon s 55(1) coming into operation the respondent has not made an application to the Commission. On 25 August 1998 an application was made by the federal body. The case stated does not disclose the nature of the application but that application was withdrawn on 25 October 1999. Thus, the matter can be approached on the footing that no applications be made either by the respondent or its federal body at any time. For the reasons already given, s 55 was repealed by the 1994 Act with the consequence that s 55(4) did not come into operation. Although the transitional amendment Act of 1996 revived the operation of s 55(4) to s 55(7) and extended the transitional period to 1 January 1998, those provisions were repealed in 1997. Thus, s 55(4) which operated only upon the expiry of the transitional period has not at any time come into operation. In consequence, the status of the respondent has not in any respect been affected by any provision in s 55 other than s 55(1). The only means by which the respondent can change its status as a locally based association registered under Part II of Chapter 4 of the 1994 Act to a federally based association registered under Part III of Chapter 4 by an application duly made under s 132 of the 1994 Act and the respondent would be eligible to make that application only if it complied with s 131(3) of the 1994 Act. As no such application has been made the respondent remains a locally based association registered under Part II of Chapter 4 of the 1994 Act.
The terms of s 143 of the 1994 Act authorised it to prove its registration either by the certificate issued under the Industrial Code 1967 which is preserved in force by s 143(2) or by a certificate issued under s 143(2). A certificate issued under s 143(2) would state that the respondent was registered under Part II of Chapter IV of the 1994 Act: see Rule 39(31) of the Industrial Proceedings Rules 1995.
Conclusion
For all of these reasons, I answer the questions stated by the Industrial Commission in these terms:
(1) No.
(2) Not necessary to answer.
(3) Not necessary to answer.
(4) Subject to any further evidence led in the Industrial Commission,
(a) No
(b) No.
GRAY J The history to these proceedings and the relevant facts have been set out in the reasons for judgment of the other members of the court. That history and those facts are only referred to in these reasons where necessary.
The question arising on this appeal is whether the Association of Professional Engineers Scientists and Managers Australia, South Australian Branch, the respondent, is entitled to be a party to the primary proceedings. The answer to this question turns on whether the respondent was a registered association of employees within the meaning of section 194(e) of the Industrial and Employee Relations Act 1994 (SA).
A judge of the Industrial Relations Court of South Australia heard an application by the respondent to be included as a party bound by an award. The judge considered the issue of the respondent’s locus as a preliminary matter. Certificates of registration were tendered. The judge ruled that that the certificates enlivened the provisions of section 143(2) of the Industrial and Employee Relations Act 1994 (SA). That section provides:
The registration of an association may be proved, in the absence of evidence that the association has ceased to be registered, by production of a certificate of registration issued under this Act or a corresponding previous enactment for the association.
The debate before the judge on the preliminary hearing raised for consideration the construction of section 143(2). The judge considered that the effect of the section was to render the certificates of registration conclusive evidence of the registration of the respondent as an association of employees. An appeal to the full Industrial Court was dismissed. The matter has now come before this Court by leave. The issue for immediate consideration is the proper interpretation of section 143(2).
The decision of the primary judge to hear and determine the preliminary issue, the procedure followed, and the ruling made, have precluded the parties from calling further evidence on the issue of the respondent’s locus. This process has had the effect of allowing interlocutory and appeal procedures to effectively “splinter” the proceedings causing expense and delay. An alternative course that could have been followed was for the primary judge to have heard all evidence on the issue of locus and then to deliver his ruling. Had this occurred, the full Industrial Court and this court would have been able to finally determine the issue of the respondent’s locus. However, for reasons later discussed, it is only possible for this court to consider the issue of the proper interpretation of section 143(2).
It is to be observed that the section 143(2) does not purport to be a conclusive evidence provision. The legislature uses the word “proved” and not the phrase “conclusively proved”. The section is permissive in its terms. The legislature used the word “may”[1]. The section permits proof of registration to be addressed by the tender of certificates of registration. However it does not preclude any party from leading further evidence. I agree with the more detailed reasons of the other members of the court.
[1] Acts Interpretation Act 1915(SA) – section 34
The appellant invited this court to determine the further question of whether in the circumstances the respondent was a registered association of employees. This course should not be followed. The answer to this question will not finally resolve the issue as there are no facts agreed or found. The parties rights will not be finally determined.
In Bass v Permanent Trustee Co Ltd[2] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said:
The purpose of a judicial determination has been described in varying ways. But central to those descriptions is the notion that such a determination includes a conclusive or final decision based on a concrete and established or agreed situation which aims to quell a controversy…
…If the ‘facts’ which are the basis of an answer to a legal question are identified, that answer will have utility for the parties provided that no other evidence could add to or qualify those ‘facts’. In such a case, the parties’ rights will be determined when the evidence finally determines the existence or non-existence of those ‘facts’…
It cannot be doubted that in many cases the formulation of specific questions to be tried separately from and in advance of other issues will assist in the more efficient resolution of the matters in issue. However, that will be so only if the questions are capable of final answer and are capable of being answered in accordance with the judicial process.
Preliminary questions may be questions of law, questions of mixed law and fact or questions of fact. Some questions of law can be decided without any reference to the facts. Others may proceed by reference to assumed facts, as on demurrer or some other challenge to the pleadings. In those cases, the judicial process is brought to bear to give a final answer on the question of law involved. Findings of fact are made later, if that is necessary. Where a preliminary question is a pure question of fact that, too, can be answered finally in accordance with the judicial process if the parties are given an opportunity to present their evidence and, also, to challenge the evidence led against them.
…
Judicial power involves the application of the relevant law to facts as found in proceedings conducted in accordance with the judicial process. And that requires that the parties be given an opportunity to present their evidence and to challenge the evidence led against them. It is contrary to the judicial process and no part of judicial power to effect a determination of rights by applying the law to facts which are neither agreed nor determined by reference to the evidence in the case.
[2] (1999) 198 CLR 334 at [45], [50] and [51] – see also Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168-170]
In the present case the parties have not had the opportunity to present all evidence relevant to the question of whether the respondent is a registered association of employees. Two issues may arise. Is there a registered association of employees in existence? Is the respondent that registered association? In the absence of evidence or factual findings, this court should not embark on the determination of these issues. To do so would be to engage in a task that would lack utility and would amount to the expression of a hypothetical opinion.
I would allow the appeal and I agree with Mullighan J as to the manner of answering the questions.
JUDGMENT CITATIONS LISTED IN ORDER OF APPEARANCE IN JUDGMENT OF JUSTICE GRAY
1 Acts Interpretation Act 1915(SA) – section 34
2(1999) 198 CLR 334 at [45], [50] and [51] – see also Tepko Pty Ltd v Water Board (2001) 206 CLR 1 at [168-170]
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