R v Commonwealth Industrial Court; Ex parte

[1971] HCA 62

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

THE QUEEN v. COMMONWEALTH INDUSTRIAL COURT; Ex parte FEDERATED MISCELLANEOUS WORKERS' UNION OF AUSTRALIA

(1971) 125 CLR 502

30 November 1971

Industrial Law (Cth)

Industrial Law (Cth)—Commonwealth Industrial Court—Powers—To direct performance or observance of rules of registered organization—Election of office bearers conducted by Commonwealth electoral officer—Direction against certain persons holding themselves out to be elected officers—Whether power to make directions limited to persons under obligation to perform or observe rules—Effect of irregularity upon conduct of election—Conciliation and Arbitration Act 1904-1970 (Cth), ss. 141 (1), 170.

Decisions

November 30.
The following judgments were delivered: -
BARWICK C.J. The adjournment has afforded the Court an opportunity to confer about this matter. (at p504)

2. The applicants seek an order for prohibition directed to the Chief Judge and Judges of the Commonwealth Industrial Court and to the respondent Lloyd McCartney Grove to restrain them and each of them from acting upon a decision of the Commonwealth Industrial Court of 4th August 1971 whereby the prosecutor William Matthew Rigby and others were ordered to cease to hold themselves out:

"To be officers of the New South Wales Branch of the Federated Miscellaneous Workers' Union of Australia holding office as a result of the ballot declared on the 17th day of March 1971 by the Commonwealth Electoral Officer for New South Wales, Mr. R. F. Mallon, appointed under the provisions of the Conciliation and Arbitration Act 1904-1970."

and to refrain:

"From exercising any powers, functions, rights or privileges of any office or delegateship in the New South Wales Branch of the Federated Miscellaneous Workers' Union of Australia to which they were declared to be elected on the 17th day of March 1971 by the Commonwealth Electoral Officer for New South Wales, Mr. R. F. Mallon, appointed to act as returning officer under the provisions of the Conciliation and Arbitration Act 1904-1970." (at p504)

3. The principal argument in support of the application is that the Commonwealth Industrial Court lacked jurisdiction to make an order under s. 141 of the Conciliation and Arbitration Act 1904- 1970 (the Act), in relation to an election conducted by a Commonwealth electoral officer - in this case the electoral officer for New South Wales - pursuant to s. 170 of the Act, the result of which election had been duly declared by that officer. (at p505)

4. I will refer later to an alternative form in which the substance of this proposition was expressed. (at p505)

5. In R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett; Barrett v. Opitz (1945) 70 CLR 141 it was decided that orders of the kind made in this case against the applicants, other than the applicant, William Matthew Rigby, if the election had been an election conducted by the organization itself, could validly be made under s. 141. (at p505)

6. In Reg. v. Spicer; Ex parte Foster (1958) 100 CLR 163 it was decided in terms that:

". . . when the new provisions now standing as Pt IX were introduced they were intended to be cumulative upon and in no degree substitutional for the provision now contained in s. 141. The decision in Barrett v. Opitz (1) had given a meaning to s. 81, as it then stood, and there is no ground for regarding the new provisions as intending to change the operation or meaning of what is now s. 141" (1958) 100 CLR, at p 168 (at p505)

7. The applicant's counsel has submitted that this decision was in truth, though not in terms, limited to portion only of Pt IX of the Act, namely ss. 159 to 169 inclusive, which deal with what counsel called "the inquiry method" of dealing with elections in organizations. However, I can find no reason for differentiating between the continued operation of s. 141 as interpreted by this Court in relation to those provisions of Pt IX, that is to say, ss. 159 to 169, and its continued operation in relation to ss. 170, 170A and to matters occurring pursuant thereto. In my opinion, the Court's decision in Reg. v. Spicer; Ex parte Foster (1958) 100 CLR 163 ought not to be read as qualified in the manner submitted by counsel. Further, in my opinion, that decision fully answers the principal submission made by the applicants. (at p505)

8. The second submission is that the Commonwealth Industrial Court lacked jurisdiction to make the second of the orders it made because in the case of the office of branch delegate to the federal council from the Federated Miscellaneous Workers' Union, Australian Leather and Allied Industries, New South Wales branch, no conceivable ground existed in the evidence before the Industrial Court for holding that the applicant, George Henry Harmer was not duly elected as declared by the returning officer. The Industrial Court took the view that the election for branch delegates was not duly held because the total number of delegates to the federal council for which nominations had been called was less than the number required to be elected under the relevant rules of the union and of the federal council. In fact, the number for which such nominations were called was in accordance with the particulars of the offices to be filled at the triennial elections of the branch according to the request made by the organization under s. 170 of the Act. (at p506)

9. Counsel for the applicants submitted that this error in the request was no more than an irregularity. It was further submitted that because of s. 170A (3) such an irregularity did not invalidate the supervening election. The conclusion proposed was that therefore the Industrial Court had no jurisdiction to treat the election as invalid and consequent on doing so, to make an order under s. 141. (at p506)

10. In my opinion the misstatement in the request of the nature of the election to be held was not a mere irregularity; it went to the substance of the matter. Further, an error if there was one on the part of the Industrial Court - as to the applicability of the terms of s. 170A (3) in the circumstances - would not, in my opinion, deprive that court of jurisdiction. The Court seems to have thought that the failure to hold an election for eight places rendered what had been done invalid. Even if the Industrial Court was wrong in this respect, its error did not, in my opinion, deprive it of jurisdiction to make the order it did. Accordingly, I would reject this submission. (at p506)

11. Another submission made as an alternative expression of the principal submission was that the finality which in the intendment of the legislature in enacting s. 170 ought to be accorded the formal declaration of the poll by the Commonwealth electoral officer in an election held pursuant to s. 170, left no scope for the operation of s. 141 in relation to that election or its result. Perhaps this is an unduly elliptical expression of the totality of that submission. The argument in support of it begins by calling attention to the difference between the method of dealing with possible irregularities in an election of an organization for which ss. 159 to 169 inclusive provide and that for which s. 170 provides. The first is called by counsel "the inquiry method" and the second "the preventive method". It is then said that to prevent irregularities, the person called by counsel a "statutory officer" is appointed to conduct the election. There is said to be such incongruity in treating the result of such an election as invalid that the Parliament cannot have intended, when enacting s. 170, to have left the result of that election subject to the possibility of an order being made under s. 141 based on a finding that the election and the declaration of its result were invalid and ineffective. (at p507)

12. But, as I have said, I can find no ground for differentiating the two groups of sections within Pt IX in their relationship to s. 141. Further, the provisions of s. 170 (11) and the limited nature of the terms of s. 170A (3) tend strongly, in my opinion, against the view that there is no room for a finding of invalidity of an election conducted under s. 170. (at p507)

13. Lastly, s. 141 received its construction from this Court in Barrett v. Opitz (1945) 70 CLR 141 in July 1945. Provisions such as are now found in Pt IX were first inserted into the Act in July 1949 by No. 28 of 1949. If the Parliament had intended what counsel now imputes to it, I have difficulty in imagining that the draftsman would not have inserted some express provisions to prevent the use of s. 141 in relation to the result of an election conducted under s. 170. (at p507)

14. In my opinion, this alternative form of the principal submission is unacceptable. (at p507)

15. There is one further submission with which I should deal. Counsel for the applicant pointed out that, except to the extent that the person conducting the election should depart therefrom in order to prevent irregularities, it was necessary that the whole and not merely some of the rules be observed and be operative. In this connexion he called attention to the terms of sub-r. 16 of r. 30, which requires that where a member has been declared elected to an office - every member of the union shall be bound to recognize the member as validly holding that office. In my opinion this rule is not applicable to an election which has been held pursuant to s. 170, and where the declaration of the result of the election is by the returning officer appointed under s. 170, and not by a returning officer appointed under the rules. (at p507)

16. In the result, in my opinion, it has not been shown that the Commonwealth Industrial Court lacked jurisdiction to make the order against the applicants other than the applicant, Rigby, which the Industrial Court did make and of which we have been furnished with a sealed copy. (at p507)

17. The order made against the applicant, William Matthew Rigby, stands on a different footing. The Commonwealth Industrial Court formed the view that this applicant was not a member or officer of the union. There does not seem to have been any other basis upon which it was suggested that he was a person who was under an obligation to perform or observe the rules of the organization. However, the order made against him was that he should cease to hold himself out to be an officer of the New South Wales branch of the organization holding office as the result of a ballot declared by the Commonwealth electoral officer. (at p508)

18. The submission on behalf of this applicant is that there was no jurisdiction in the Industrial Court to make an order under s. 141 against a person who in its opinion was not a person who was under an obligation to perform or observe the rules of the organization. (at p508)

19. It was decided in Barrett v. Opitz (1945) 70 CLR 141 that an order under s. 141 need not be confined to a direction for the performance or observance in the terms of the rules themselves. It was held in substance that the order could be framed in terms calculated to bring about a compliance with the rules. I think it is implicit in the reasons for judgment of some of the Justices who participated in the decision of that case that, on its true construction, s. 141 only gives power to the Court to make an order against a person who is under an obligation to perform or observe the rules of the organization. Some Justices were at pains to indicate that the federal executive against whom orders were made in that case was bound by the rules of the branch. However, it might be said that there was no concluded view on this point by the Court as a whole. (at p508)

20. There is room perhaps, in my opinion, for the view that upon its true construction s. 141 would authorize the making of an order against a person not under an obligation to perform or observe the rules of the organization if the nature of the order, including the identity of the person against whom it was made, could be seen to be relevant to securing the performance or observance of the rules of an organization by those persons who were bound to perform or observe them. (at p508)

21. However, having given the matter my consideration I have come to the conclusion that the preferable and correct construction of the section is that the orders the making of which s. 141 authorizes are limited to orders against persons who are under an obligation to perform or observe the rules of an organization and in particular the rules for the performance or observance of which the orders and directions are being given. (at p508)

22. It is a possible view that this Court ought not to grant prohibition in respect of an order such as that made against this applicant unless it is satisfied that in truth that applicant is not a person who was under an obligation to perform or observe the rules of the union. (at p509)

23. Whether the applicant is such a person is a question of fact to be decided by this Court upon material properly placed before it. The determination of the Commonwealth Industrial Court does not furnish evidence and in particular conclusive evidence of the fact. (at p509)

24. However, in my opinion, this view ought not to be taken in relation to the present proceedings. It seems to me to be requisite to the exercise by the Industrial Court of the jurisdiction given it under s. 141 that that Court should be of opinion that the person against whom the order is made is a person under an obligation to perform or observe the rules of the organization. (at p509)

25. It may be that such a positive finding would not be binding on this Court in proceedings for a prerogative writ, but the absence of such a finding by the Industrial Court and indeed, the presence of a negative finding as in this case is, in my opinion, a ground for holding that the basis for the exercise of the jurisdiction under s. 141 is not present. (at p509)

26. I have reached the conclusion, therefore, that the order made against the applicant, William Matthew Rigby, was made without jurisdiction and that an order for prohibition ought to go in respect of the first order made by the Commonwealth Industrial Court on 4th August 1971. (at p509)

McTIERNAN J. I agree with the conclusions reached by the Chief Justice. (at p509)

2. I would only add this: I do not see anything in s. 170 which makes an election conducted under s. 165A unimpeachable. I think therefore there is room left for the operation of s. 141. I believe there is nothing inconsistent with these views in the cases cited by the Chief Justice to which I was a party. (at p509)

MENZIES J. I agree with the judgment of the Chief Justice. (at p509)

WINDEYER J. I agree with the judgment of the Chief Justice. (at p509)

OWEN J. I agree with the judgment of the Chief Justice. (at p509)

Orders

Grant an order for prohibition in respect of the first of the two orders made on 4th August 1971, namely - "The Respondents and each of them cease to hold themselves out to be officers of the New South Wales Branch of the Federated Miscellaneous Workers' Union of Australia holding office as a result of the ballot declared on the 17th day of March 1971 by the Commonwealth Electoral Officer for New South Wales, Mr. R. F. Mallon, appointed under the provisions of the Conciliation and Arbitration Act 1904-1970".

Otherwise application dismissed.