R v Joske; Ex parte Australian Building Construction Employees & Builders' Labourers' Federation

[1974] HCA 8

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs, Stephen and Mason JJ.

REG. v. JOSKE; Ex parte AUSTRALIAN BUILDING CONSTRUCTION EMPLOYEES &BUILDERS' LABOURERS' FEDERATION.

(1974) 130 CLR 87

7 March 1974

Conciliation and Arbitration (Cth)—Constitutional Law (Cth)

Conciliation and Arbitration (Cth)—Commonwealth Industrial Court—Power to cancel registration of an organization—Whether judicial or non-judicial power- The Constitution (63 &64 Vict., c. 12), ss. 51 (xxxv.), (xxxix.), 77 (i)—Conciliation and Arbitration Act 1904-1973 (Cth), s. 143.* Constitutional Law (Cth)—Judicial power of the Commonwealth—Power invested in Commonwealth Industrial Court to cancel registration of an organization—Whether judicial function—Grounds for exercise—The Constitution (63 &64 Vict., c. 12), s. 77 (i). * (1974) 130 CLR 87, pp 91-93

Decisions

1974, March 7.
The following written judgments were delivered :-
BARWICK C.J. The Australian Building Construction Employees and Builders' Labourers' Federation (the applicant) is an organization registered as such under Pt VIII of the Conciliation and Arbitration Act 1904-1973 (Cth) (the Act). (at p89)

2. On 7th April 1972 the Commonwealth Industrial Court (the Industrial Court) made an order that the applicant show cause why an order should not be made under s. 143 (1) (h) of the Act directing that the registration of the applicant be cancelled. The order was made at the instance of the Master Builders' Association of New South Wales (the respondent organization), also an organization registered as such under the said Part. The order was duly served but the hearing of the matter was adjourned sine die. Ultimately, however, the matter was restored to the list for hearing on 27th November last. On 18th October the Industrial Court (Joske J.) made a further order that the applicant show cause why its registration should not be directed to be cancelled, the return date being 27th November. (at p89)

3. Upon being served with the latter order, the applicant applied to a Justice of this Court and obtained orders that the Industrial Court, Joske J. and the respondent organization show cause before a Full Court why a writ of prohibition should not issue out of this Court to restrain proceedings upon each of the said orders of the Industrial Court and to show cause why a writ of certiorari should not issue to remove the said orders for the purpose of being quashed upon the ground that s. 143 (1) (h) of the Act is invalid in that it purports to confer upon the Industrial Court jurisdictions and powers outside the judicial power of the Commonwealth. (at p89)

4. Last December, a Full Court heard the applicant's motions to make absolute the orders nisi and, after argument, announced its unanimous decision that those orders should be discharged, the Court indicating that reasons for doing so would be given in due course. (at p90)

5. The fundamental basis of the argument for the applicant is the decision in Reg. v. Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 ; (the Boilermakers' Case), in which it was held that a non-judicial function could not validly be given to a court exercising the judicial power of the Commonwealth. The applicant's minor premise is that the cancellation of the registration of an organization and a direction to cancel are but administrative functions - non-judicial in a relevant sense. (at p90)

6. The principal conclusion of the Boilermakers' Case (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 was unnecessary, in my opinion, for the effective working of the Australian Constitution or for the maintenance of the separation of the judicial power of the Commonwealth or for the protection of the independence of courts exercising that power. The decision leads to excessive subtlety and technicality in the operation of the Constitution without, in my opinion, any compensating benefit. But none the less and notwithstanding the unprofitable inconveniences it entails it may be proper that it should continue to be followed. On the other hand, it may be thought so unsuited to the working of the Constitution in the circumstances of the nation that there should now be a departure from some or all of its conclusions. Of course, it must be borne in mind that this Court's decision was approved by the Judicial Committee : but, in that connexion, two matters would no doubt arise for consideration : first, that there may be a question , having regard to the decision in Dennis Hotels Pty. Ltd. v. Victoria (1961) 104 CLR 621 , whether or not an inter se question was involved in the decision of the Boilermakers' Case (1957) 95 CLR 529 ; (1957) AC 288 and, second, that no longer is there an appeal to the Queen in Council from the decisions of this Court in matters of federal jurisdiction, though leave may still be granted in a matter involving an inter se question, if this Court gives the necessary certificate. Whether there is any real distinction to be maintained between inter se matters and other matters of federal jurisdiction in relation to the effect of the Privy Council (Limitation of Appeals) Act 1968 (Cth) would need consideration. However, the present motions can be disposed of without deciding whether the Boilermakers' Case (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 ought now to be followed. (at p90)

7. Accepting, however, for the purposes of this case the validity of the conclusions expressed in the Boilermakers' Case (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 , the orders nisi should, in my opinion, be discharged. The question whether s. 143 purports to give to the Industrial Court a non-judicial function should be answered in the negative. (at p91)

8. In my opinion, an examination of the provisions of s. 143 leads immediately to the conclusion that the Court's power to direct the cancellation of the registration of the organization as given by s. 143 is a judicial function. (at p91)

9. It is convenient to set out the relevant parts of s. 143 :

"143 - (1) Any organisation or person interested, or the Registrar, may apply to the Court for an order directing the cancellation of the registration of an organisation on the ground that - (a) the organisation has been registered erroneously or by mistake ;

(b) the rules of the organisation fail to comply with or are contrary to a provision of this Act, the regulations or an award or are otherwise contrary to law ;

(c) the rules of the organisation, in so far as they provide for a matter in accordance with the prescribed conditions, have not been observed ;

(d) the rules of the organisation have been administered in such a manner that conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organisations under this Act, are oppressive, unreasonable or unjust, have been imposed upon applicants for membership, or members, of the organisation ;

(e) the proper authority of the organisation has wilfully neglected to provide for the levying and collection of subscriptions, fees or penalties from members of the organisation ;

(f) the accounts of the organisation have not been duly audited or the accounts of the organisation or of the auditor do not disclose the true financial position of the organisation ;

(g) the organisation has wilfully neglected to obey an order of the Court ; or

(h) the conduct of the organisation (either in respect of its continued breach or non-observance of an award or its continued failure to ensure that its members comply with and observe an award or in any other respect), or the conduct of a substantial number of the members of the organisation (either in respect of their continued breach or non-observance of an award or in any other respect), has prevented or hindered the achievement of an object of this Act.

(2) The Court has jurisdiction to hear and determine an application under the last preceding sub-section and if, after adjourning the proceedings for such period, if any, as it thinks fit - (a) it finds that the ground of the application has been established ; and

(b) it does not consider that, having regard to the degree of gravity of the matters constituting that ground and the action, if any, that has been taken by or against the organisation in relation to those matters, to do so would be unjust,

it shall, subject to this section, by order direct the Registrar to cancel the registration of the organisation. (3) An organisation in respect of which an application is made under this section shall be given an opportunity of being heard by the Court. (3A) Where an application is made to the Court under sub-section (1) of this section on the ground that the rules of an organisation fail to comply with or are contrary to a provision of this Act, the regulations or an award or are otherwise contrary to law, the Court may, without prejudice to any other power of the Court to adjourn proceedings, adjourn the proceedings in relation to the application for such period and upon such terms and conditions as it thinks fit for the purpose of giving the organisation an opportunity to alter its rules. (3B) Where, upon the hearing of an application under this section in relation to an organisation, the Court is satisfied that a rule of the organisation contravenes sub-section (1) of section one hundred and forty of this Act, the Court may, in lieu of making an order directing the cancellation of the registration of the organisation, make an order declaring that the whole or a part of the rule contravenes that sub-section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void, from the date of the order. (3C) Where, upon the hearing of an application under this section in relation to an organisation, the Court is satisfied that the rules of the organisation have not been observed, the Court may in lieu of directing the cancellation of the registration of the organisation, make an order giving directions for the performance or observance of any of the rules of the organisation by any person who is under an obligation to perform or observe those rules and has been given an opportunity of being heard in the proceedings. (3D) A person shall not contravene or fail to comply with a direction given under the last preceding sub-section. Penalty : Four hundred dollars.

(3E) At any time at which there is in force a Proclamation declaring that the Commission may exercise powers under this sub-section, a Full Bench may, upon the application of an organisation or person interested or of the Registrar, direct the Registrar to cancel the registration of an organisation if it considers that for any reason the registration of the organisation ought to be cancelled, but the Commission shall not give such a direction upon a ground specified in the Proclamation as a ground upon which the powers of the Commission under this sub-section shall not be exercised. (3F) Where the Court or the Commission has made an order under this section directing the cancellation of the registration of an organisation, the Registrar shall cancel the registration of the organisation accordingly. (3G) The Registrar may, if he thinks it appropriate to do so in the circumstances, cancel the registration of an organisation where - (a) the number of the members of the organisation or of their employees, as the case may be, would not entitle them to registration under section one hundred and thirty-two of this Act ;

(b) the Registrar has satisfied himself, in accordance with the regulations, that the organisation is defunct ; or

(c) the organisation has, in accordance with, and in circumstances prescribed by, the regulations, requested that its registration be cancelled.

(4) . . . (5) Upon cancellation of the registration of an organisation, the organisation and its members shall cease to be entitled to the benefits of any award which applies to the organisation or its members and, upon the expiration of a period of twenty-one days after the cancellation of the registration of the organisation, such an award shall, subject to any order to the contrary made by the Commission upon the application of any organisation or person interested, cease in all other respects to have force or effect in relation to the organisation and its members. (5A). . . (6) Upon the cancellation of the registration of an organisation, the organisation shall cease to be an organisation and a corporation under this Act, but shall not by reason of the cancellation cease to be an association. The property of the organisation shall, subject to any order which the Court, upon application by a person interested, may make with respect to the satisfaction of the debts and obligations of the organisation out of that property, be the property of the association and shall be held and applied for the purposes of the association in accordance with the constitution and rules of the organisation insofar as they can be carried out or observed notwithstanding the deregistration of the organisation." (at p93)

10. The power given to the Court is to entertain an application for an order directing the Registrar to cancel the registration of an organization upon any one or more of specified grounds. The application must be made by an organization or a person interested in the cancellation of the registration. The Court cannot act on its own motion, though perhaps this circumstance has little importance in the present consideration of the section. (at p94)

11. The several grounds on which an order may be made, as set out in pars (a) to (h) of s. 143 (1), are each independent of each other and, in the application of the section, severable. The substantial attack here is made upon the ground described in par. (h). Thus it is only necessary for the resolution of this case to consider that paragraph in relation to the nature of the Court's power. But it is to my mind clear that each of the pars (a) to (h) describes an existing fact or situation whose existence is capable of and appropriate for judicial determination. To determine the existence of some of the grounds, matters of law as well fall for decision. (at p94)

12. Paragraph (d) calls for a consideration of the manner in which the rules of the organization have been administered and the determination whether as a result oppressive, unreasonable or unjust conditions, obligations or restrictions have been imposed upon members or applicants for membership of the organization. The determination whether some activity or its result is oppressive, unreasonable or unjust is not something which is foreign to the exercise of judicial power. Indeed, whilst it may not be exclusively judicial, it is eminently suitable to be given to or required of a court of law. (at p94)

13. In the case of par. (h), the question is whether conduct, whether of the organization or of a substantial number of its members, has prevented or hindered the achievement of an object of the Act. The objects of an Act are to be discovered by its examination and construction, an exercise familiarly judicial. (at p94)

14. Thus the section gives the Court power by order to direct the Registrar, upon an application duly made to it by a party having a sufficient interest, and upon the ascertainment of existing facts, to cancel the registration. Upon finding any one of those facts, the Court must make the order unless it considers that, having regard to the degree of gravity of the facts which it has found and to the action that has been taken by or against the organization in relation to those facts, it would be unjust to make the order. This discretion not to make the order does not, in my opinion, in any wise vitiate the grant of power given to the Court. The basis for the exercise of the discretion is specifically set out. It clearly partakes of judicial function : the weighing of the gravity of ascertained facts and decision upon the claims of justice. (at p94)

15. None of the powers given by sub-ss. (3A), (3B) and (3C) is other than a power appropriate to the exercise of judicial power. As to sub-ss. (3B) and (3C), see Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368. Subsection (3A) calls for no comment. (at p95)

16. But it was said in argument that the presence of sub-s. (3E) and the inclusion of a reference to the Commission in sub-s. (3F) indicated that the function given to the Court was non-judicial. Some care is necessary in the use of the expression "non-judicial", for whilst there are undoubtedly functions which are exclusively judicial, which may only be entrusted to a body exercising the judicial power of the Commonwealth, there are many other functions which may be properly committed to such a body though they may also be performed by other bodies which do not and cannot exercise that judicial power. The power or function presently under discussion is, in my opinion, an example. It is a power to direct the Registrar to cancel a registration. In the case of the Court, however, the exercise of the power depends on finding the existence of present facts or circumstances and the exercise of a discretion suitably limited as a judicial discretion. In the case of the Commission, there are no comparable limitations. It may exercise the power, "if it considers for any reason the registration of the organisation ought to be cancelled", though the proclamation which enables the exercise by the Commission of the power to direct cancellation may limit the width of that discretion. So far from indicating that a non-judicial function is being sought to be given to the Court, the presence and terms of sub-s. (3E) tend to highlight, by contrast, the judicial nature of the function as given to the Court. Of course, the end point of the exercise of each of the powers is the same. Consequently, there is no relevant significance in the inclusion of the Commission in sub-s. (3F) or in the absence of any discrimination as to the source of the direction to cancel in sub-ss. (5) and (6) . (at p95)

17. I have already referred to Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368. That case was concerned with the validity of s. 140. In my opinion, the considerations which led the Court in that case to uphold the validity of s. 140 are applicable in the present case and would themselves lead to the conclusion that s. 143 is valid. (at p95)

18. In my opinion, the orders nisi should be discharged. (at p95)

McTIERNAN J. This order nisi for a writ of prohibition or a writ of certiorari calls in question the jurisdiction of the Commonwealth Industrial Court to hear and determine an application instituted in that Court in accordance with s. 143 (1) of the Conciliation and Arbitration Act 1904-1973 (Cth). The jurisdiction which the Court intends to exercise is defined by s. 143 (2). The ground upon which the jurisdiction is called in question is that the cancellation of the registration of an organization is not part of the judicial power of the Commonwealth and the Court therefore has no power to hear and determine the application. The Parliament has the power to make a law providing for the cancellation of the registration under the Conciliation and Arbitration Act 1904-1973 (Cth) of an organization : The Constitution, s. 51 (xxxv.), (xxxix.). An application under s. 143 is a matter arising under this Act. The Parliament has the power to make a law with respect to any matter arising under any law made by Parliament, defining the jurisdiction of any federal court which the Parliament creates under s. 71 of the Confederal court which the Parliament creates under s. 71 of the Constitution : s. 76 (ii.), s. 77 (i.). In my opinion an application under s. 143 is a matter fit for the judicial process. The words of s. 143 (1) and (2) denote the purpose and nature of the power conferred upon the Court. It seems from the words of sub-s. (2) that the Parliament desired to obtain from the Court an authoritative finding whether the ground on which the application is brought falls within sub-s. (1) and, if so, whether it is established by relevant and admissible evidence and a judicial consideration of the issue involved in sub-s. (2) (b). To make such a finding and to apply par. (b), if it arises, is surely an exercise of part of the judicial power. The design of s. 143 (1), (2) and (3) is a separation of judicial and executive power. The function of the Court is to adjudicate upon an application for an order directing the cancellation of the registration of an organization, and if the Court determines that an order directing the Registrar should issue to cancel the registration, to issue such an order to that officer. The cancellation of the registration is an executive act and the section invests him with such power. The cancellation is a matter which falls within the legislative power under s. 51 (xxxv.), (xxxix.) of the Constitution - not the legislative power under s. 77 (i) thereof. The passages quoted from the judgments in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442 and Penton's Case (1947) 73 CLR 549 are hardly applicable to the present case because of the changes which the Parliament has made in the legislation since those cases were decided. (at p96)

2. The order nisi should be discharged. (at p96)

MENZIES J. In my opinion the reasoning of the court in Reg. v. Commonwealth Industrial Court ; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 in deciding that s. 140 of the Conciliation and Arbitration Act as amended after Reg. v. Spicer ; Ex parte Australian Builders' Labourers' Federation (1959) 100 CLR 277 is valid as conferring upon the Commonwealth Industrial Court part of the judicial power of the Commonwealth provides ample warrant for deciding that s. 143 of the Act as it now stands is a law of a similar character. The observations of Dixon C.J. in the earlier case (Reg. v. Spicer ; Ex parte Australian Builders' Labourers' Federation (1959) 100 CLR at p. 291. ) support the same conclusion. It seems to me that the section does provide standards of justice, fairness and propriety according to which as an exercise of judicial power it can be determined whether or not the registration of an organization should or should not be cancelled. (at p97)

2. I would therefore affirm the validity of s. 143 (1) pars (c), (d) and (h) and s. 143 (2) in association therewith and would discharge the orders nisi for prohibition and certiorari. (at p97)

GIBBS J. By two orders of the Commonwealth Industrial Court made on the application of the Master Builders' Association of New South Wales, the Australian Building Construction Employees and Builders' Labourers' Federation has been called on to appear before that Court to show cause why the registration of the Federation, an association of employees registered as an organization pursuant to the provisions of the Conciliation and Arbitration Act 1904-1972 ("the Act"), should not be cancelled. The grounds on which deregistration is sought are those stated in pars (c), (d) and (h) of s. 143 (1) of the Act. In support of an application for prohibition and certiorari, the Federation submitted that sub-ss. (1) and 2 of s. 143 attempt to confer on the Commonwealth Industrial Court the power to exercise functions that are not judicial and are for that reason invalid. (at p97)

2. Earlier statutory provisions giving power to cancel the registration of industrial organizations have been the subject of consideration in this Court. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442 , it was submitted that s. 60 of the Commonwealth Conciliation and Arbitration Act 1904-1921 purported to confer judicial power on the Commonwealth Court of Conciliation and Arbitration whose members, at that time, did not have life tenure and which therefore could not, under the Constitution, be invested with judicial power. It was held that the power to deregister given by s. 60 was not judicial power and that the section was valid. Although the correctness of the decision is not in doubt, the reasons given for it do not indicate very clearly the nature of judicial power. It was held that the Parliament has, under s. 51 (xxxv.) and (xxxix.) of the Constitution, power to permit the registration and incorporation of organizations and that such power necessarily extends to the control and regulation of those organizations, including the cancellation of their registration. (1925) 36 CLR, at pp 448, 453-454, 462-463. Starke J. went on to say that "Provisions to that end are in no sense an exercise of the judicial power of the Commonwealth (1925) 36 CLR at p 463. . . . " . In 1926, the year after that case was decided, the judges of the Commonwealth Court of Conciliation and Arbitration were given life tenure and it was thought that that Court could then exercise both judicial and arbitral functions. However, it was held that this change did not convert the arbitral functions of the Court into judicial functions and the decision that s. 60 did not confer judicial power was followed : Consolidated Press Ltd. v. Australian Journalists' Association (Penton's Case) (1947) 73 CLR 549 . (at p98)

3. When in consequence of the decision in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 , the functions of the Commonwealth Court of Conciliation and Arbitration were divided between two new tribunals, the power of deregistration was given to the Commonwealth Industrial Court, although the provisions of s. 143 of the Conciliation and Arbitration Act 1904-1956, which at that time conferred the power, were little different from those of the earlier s. 60. It should perhaps have been obvious that on the view taken in Reg. v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 a power of deregistration of a kind which had been held in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442 not to be judicial could not validly be conferred upon the Commonwealth Industrial Court. In Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277, where the Court held that the power, given by s. 140 of the Conciliation and Arbitration Act 1904-1956, to disallow the rules of an organization was not judicial in character, and could not be exercised by the Commonwealth Industrial Court, Dixon C.J. (1957) 100 CLR, at p 291 took the opportunity to point out the difficulties occasioned in respect to s. 143 by Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442 . In consequence of this decision the Parliament, by the Conciliation and Arbitration Act 1958, put s. 140 and s. 143 into what is in all material respects their present form. In Reg. v. Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368, it was held that the power conferred on the Commonwealth Industrial Court by s. 140 in its new form was judicial power. In my opinion, the same conclusion should be reached in relation to the present s. 143. (at p99)

4. It would be obviously wrong to regard Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia (1925) 36 CLR 442 as deciding that the deregistration of an industrial organization can never be a judicial function. The same result - deregistration - might validly be achieved either by the exercise of administrative power or by the exercise of judicial power. The present s. 143 is materially different from the earlier sections (ss. 60 and 143) considered in the cases mentioned. When the provisions of the present section are tested by reference to the criteria which in Reg. v. Spicer; Ex parte Australian Builders' Labourers' Federation (1957) 100 CLR 277 led Dixon C.J. to hold (1957) 100 CLR, at pp 289-290 that s. 140 conferred functions of a kind that were not judicial, it will, I think, be clear that the new s. 143 was framed with the intention of meeting the objections which that judgment suggested might have been raised to it in its old form. In the first place, the draftsman has purported to give "jurisdiction" to the Court to "hear and determine" an application. Secondly, the Court is not authorized to act of its own motion. It has jurisdiction only when an application is made to it by an organization or person interested or the registrar (who, it may be observed, is not merely an officer of the Court - s. 130 of the Act) and on any such application an organization in respect of which the application is made must have an opportunity to be heard (s. 143 (1), (3)). , (3) ). In other words, the jurisdiction is to decide a dispute inter partes. Thirdly, the Parliament has (apparently in deference to Sir Owen Dixon's observations (1957) 100 CLR, at p 289 ) carefully avoided the use of the word "may" - the Court "shall" make an order if it finds that the ground of the application has been established, unless it considers that, having regard to the degree of gravity of the matters constituting that ground and the action, if any, that has been taken by or against the organization in relation to those matters, to do so would be unjust (s. 143 ). Fourthly, the criteria set out in the lettered paragraphs of s. 143 (1) are not, in my opinion, merely "vague and general". They call for the application of legal standards rather than for the mere exercise of an industrial discretion. (at p100)

5. Of the paragraphs of s. 143 (1), I need particularly mention only those three to which reference is made in the orders nisi. They state, as grounds for deregistration, that -

"(c) the rules of the organization, in so far as they provide for a matter in accordance with the prescribed conditions, have not been observed ;

(d) the rules of the organization have been administered in such a manner that conditions, obligations or restrictions which, having regard to the objects of this Act and the purposes of the registration of organizations under this Act, are oppressive, unreasonable or unjust, have been imposed upon applicants for membership, or members, of the organization ; (or)

(h) the conduct of the organization (either in respect of its continued breach or non-observance of an award or its continued failure to ensure that its members comply with and observe an award or in any other respect), or the conduct of a substantial number of the members of the organization (either in respect of their continued breach or non-observance of an award or in any other respect), has prevented or hindered the achievement of an object of this Act."

In deciding whether the ground stated in par. (c) or that stated in par. (h) has been made out, the Court has to decide a mixed question of law and fact. In relation to the ground stated in par. (h) it was submitted that the second limb of the paragraph makes the conduct of members of the organization a ground for making an order which directly affects the organization itself rather than its members, but this seems to me irrelevant - the Court still has to determine a question of law and fact. Ground (d) does require the Court to make a judgment as to whether conditions, obligations or restrictions are "oppressive, unreasonable or unjust", but, as Kitto J. said in Reg. v. Commonwealth Industrial Court ; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 at p 383, these words, although they have "a degree of vagueness about them" are "not so indefinite as to be insusceptible of strictly judicial application". (at p100)

6. The Court in exercising its jurisdiction under s. 143 (2) is required to take two steps. First it must find whether or not a ground has been established - in doing so it determines a "matter in controversy, the issue depending on antecedently existing law and fact", to apply the words of Fullagar J. in Reg. v. Commonwealth Industrial Court ; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR, at p. 376 . Secondly - and here s. 143 differs from s. 140, the section under consideration in Reg. v. Commonwealth Industrial Court ; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR 368 - it is called upon to make a discretionary judgment. However, it is clearly established that the existence of a discretion does not necessarily mean that the function to be exercised is not judicial : Reg. v. Spicer ; Ex parte Waterside Workers' Federation of Australia (1957) 100 CLR, at p 317 ; Cominos v. Cominos (1972) 127 CLR 588 ; Mikasa (N.S.W.) Pty. Ltd. v. Festival Stores (1972) 127 CLR 617 . The discretion conferred by s. 143 (2) is not an arbitrary one. The Court is required to have regard to the matters specified in s. 143 (2) (b) and then to consider whether it would be unjust to make an order. The discretion so circumscribed is in sharp contrast with that conferred by s. 143 (3E) which empowers the Commonwealth Conciliation and Arbitration Commission to "direct the Registrar to cancel the registration of an organization if it considers that for any reason the registration of the organization ought to be cancelled". The Commission, under s. 143 (3E), may proceed to exercise its discretion "on purely . . . administrative considerations" (cf. Reg. v. Commonwealth Industrial Court ; Ex parte Amalgamated Engineering Union, Australian Section (1960) 103 CLR, at p 375 ) whereas the discretion conferred on the Commonwealth Industrial Court by s. 143 (2) is governed by ascertainable standards and is a judicial discretion. (at p101)

7. The exercise of the functions which I have endeavoured to describe, by a court, in a proceeding between contesting parties, is in my opinion an exercise of judicial power. It is accordingly unnecessary to proceed to discuss the doctrine laid down in Reg. v. Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288 . For the reasons I have given, the challenge to s. 143 (1) and s. 143 fails. (at p101)

STEPHEN J. I have had the advantage of reading the reasons for judgment of the Chief Justice and agree that for the reasons stated by his Honour s. 143 of the Commonwealth Conciliation and Arbitration Act 1904-1972 does not confer upon the Commonwealth Industrial Court functions of a non-judicial character. Accordingly, in my opinion, the orders nisi should be discharged. (at p101)

MASON J. I am in agreement with the reasons assigned by the Chief Justice for discharging the order nisi. (at p102)

2. I agree also that a serious question arises as to the course which this Court should adopt in relation to the principle conclusion reached in Reg. v. Kirby ; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 ; (1957) 95 CLR 529 ; (1957) AC 288. However, it is not a question which needs to be considered in order to resolve this case. (at p101)

Orders

Order nisi discharged. Prosecutor to pay
respondent organization's costs.