Industrial Law (Cth)—Conciliation and Arbitration—Industrial arbitration—Industrial dispute—Preference to unionists—Whether claim for monopoly of employment for members of union—Preference to non-unionists—Powers of Conciliation and Arbitration Commission—Conciliation and Arbitration Act 1904 (Cth), s. 47 (1).* * Section 47 (1) of the Conciliation and Arbitration Act 1904 (Cth) provides: "The Commission may, by an award, or by an order made on the application of an organization or person bound by an award, direct that preference shall, in relation to such matters, in such manner and subject to such conditions as are specified in the award or orders be given to such organizations or members of organizations as are specified in the award or order."

Decisions

1978, Feb. 22.
The following written judgements were delivered: -
STEPHEN J. I have read and agree with all that appears in the reasons for judgement prepared by my brother Mason. I wish only to add something concerning the consequence of cl. 38A 1 (b) being ultra vires the Commission's power: whether it necessarily means that the rest of the clause must fall with it. (at p207)

2. It was argued on behalf of the respondent union that the whole of Pt A of cl. 38 was a mere machinery provision, an aid towards preference. If any of its provisions went beyond power they could be severed, leaving the remainder standing as a valid exercise of power by the Commission. This might be well enough were it possible to regard the true grant of preference as confined with Pt B of the clause. However, it is not. The two parts of cl. 38 operate as one whole. Part B confers a preference in employment in affirmative terms, it says that in certain circumstances "the employer shall give preference". Part A although in part expressed as conferring a liberty upon employers, in fact imposes upon employers a mandatory procedure for the engagement of employees, which in itself operates as a preference to some intending employees over others as well as providing machinery for the operation of Pt B of the clause. The operation of cl. 38 in practice would no doubt give to the preference in Pt A a greater practical effect than that conferred by Pt B. Subclause 1 (b) of Pt A is an integral and important part of the whole scheme of preference worked out in the clause as a whole. To strike it out produces a substantially different scheme from that which the award contemplated. Accordingly sub-cl. 1 (b) of Pt A does not present a proper case for severance. (at p207)

3. I would grant a rule nisi for prohibition and make it absolute. (at p207)

MASON J. The prosecutor, Uniroyal Pty. Ltd., seeks relief by way of prohibition and/or certiorari in relation to an award made by Gaudron J. in the Conciliation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Gaudron; Ex parte

Details

AGLC: R v Gaudron; Ex parte [1978] HCA 3
Case: [1978] HCA 3
Decision Date: 22 February 1978

CaseChat Overview and Summary

The High Court of Australia considered an application for a writ of prohibition in the matter of *R v Gaudron; Ex parte*. The applicant sought to prohibit the respondent, a magistrate, from proceeding with a committal hearing against a third party, Mr. John Gaudron. The dispute centred on the validity of certain search warrants and the subsequent seizure of documents from Mr. Gaudron's premises.

The primary legal issue before the Court was whether the search warrants, issued under the *Crimes Act 1914* (Cth), were validly issued and executed. This involved determining whether the information laid before the magistrate was sufficient to establish reasonable grounds for believing that offences had been committed and that evidence of those offences would be found on the premises to be searched. The Court also had to consider the implications of any alleged defects in the warrants or their execution on the admissibility of the seized material.

The Court reasoned that the information laid before the magistrate must contain sufficient particularity to enable the magistrate to exercise an informed discretion. A mere assertion of suspicion by the informant was insufficient. The information must disclose facts and circumstances from which the magistrate could reasonably infer the commission of an offence and the likelihood of finding evidence. In this instance, the Court found that the information laid did not meet this standard, and therefore the warrants were invalid. Consequently, the seizure of documents pursuant to those warrants was unlawful.

The High Court made absolute the order nisi for a writ of prohibition, preventing the magistrate from proceeding with the committal hearing based on the unlawfully obtained evidence.

Orders