R v Coldham; Ex parte Australian Workers' Union

HIGH COURT OF AUSTRALIA

Mason A.C.J., Murphy, Brennan, Deane and Dawson JJ.

THE QUEEN v. COLDHAM; Ex parte AUSTRALIAN WORKERS' UNION

(1983) 153 CLR 415

11 October 1983

Industrial Law (Cth)

Industrial Law (Cth)—Conciliation and Arbitration—Conciliation and Arbitration Commission—Jurisdiction—Power to order that organization have exclusive right to represent class of employees eligible for membership—Orders not to be challenged by prohibition or mandamus—Whether erroneous decision that class of employees not eligible for membership of organization reviewable by High Court—Whether Commission empowered conclusively to determine eligibility to membership of organization—Conciliation and Arbitration Act 1904 (Cth), ss. 60(1), 142A, 144. Industrial Law (Cth)—Conciliation and Arbitration—Registered organization—Eligibility for membership—Workers involved in labour in or in connexion with metalliferous mining—Workers involved in construction of works on bauxite extraction and refining project—Whether engaged in activities in connexion with metalliferous mining—Conciliation and Arbitration Act 1904 (Cth), s. 142A.

Decisions

1983, October 11.
The following written judgments were delivered: -
MASON A.C.J. AND BRENNAN J. We agree with the reasons for judgment of Deane and Dawson JJ. and with the orders which they propose. However, we prefer to express our own reasons for concluding that s. 60 of the Conciliation and Arbitration Act 1904 (Cth), as amended, is no bar to the relief which is sought by the prosecutor. (at p417)

2. The jurisdiction of the Court conferred by s. 75(v) of the Constitution to grant mandamus and prohibition directed to an officer of the Commonwealth cannot be ousted by a privative clause. However, it has been established by a long course of judicial decisions in this Court that a privative clause in the form to be found in s. 60 of the Act will validate an award or order of the Commission, so far as it can do so constitutionally, provided that three conditions are fulfilled " . . . namely that the purported exercise is a bona fide attempt to exercise the power, it relates to the subject matter of the legislation, and it is reasonably capable of being referred to the power (i.e. does not on its face go beyond the power) . . . " to use the words of Kitto J. in Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Amalgamated Engineering Union (Australian Section) (1967) 118 CLR 219, at pp 252-253 . See also R. v. Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, at pp 614-615 ; R. v. Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section (1951) 82 CLR 208, at p 249 ; Reg. v. Members of the Central Sugar Cane Prices Board; Ex parte Maryborough Sugar Factory Ltd. (1959) 101 CLR 246, at p 255 ; R. v. Murray; Ex parte Proctor (1949) 77 CLR 387, at pp 398-399 ; Coal Miners' Industrial Union of Workers of Western Australia v. Amalgamated Collieries of Western Australia Ltd. (1960) 104 CLR 437, at pp 442-443 . (at p418)

3. As Dixon J. explained in Murray (1949)…