R v Marshall; Ex parte Federated Clerks Union of Australia

The applicants, the Federated Clerks Union of Australia and its federal secretary, sought a writ of prohibition against the respondent, R. Marshall, a Deputy Industrial Registrar, to prevent him from proceeding with a hearing concerning an application to register a proposed alteration to the rules of the union. The dispute centred on whether the Deputy Industrial Registrar had the power to inquire into the merits of the proposed alteration, specifically whether it was "expedient" in the public interest, before registering it. The matter came before the High Court of Australia.

The primary legal issue before the High Court was the scope of the Deputy Industrial Registrar's power under the *Conciliation and Arbitration Act 1904* (Cth) to refuse the registration of an alteration to the rules of an organisation. Specifically, the court had to determine whether the Registrar was empowered to refuse registration on the ground that the proposed alteration was not expedient in the public interest, or whether his power was limited to ensuring the rules complied with the Act and were not contrary to law.

The High Court held that the Registrar's power to refuse registration was confined to ensuring that the proposed rules were not contrary to law and that the organisation had complied with the prescribed procedures for their alteration. The court reasoned that the phrase "expedient in the public interest" in section 96(1)(b) of the Act referred to the desirability of the rules themselves, not the desirability of the *alteration* to the rules. Therefore, the Registrar was not authorised to embark on an inquiry into the merits or expediency of the proposed rule change in the broader public interest. The court found that the Deputy Industrial Registrar had acted in excess of his jurisdiction by proposing to conduct such an inquiry.

The High Court made absolute the order nisi for a writ of prohibition, directing that the Deputy Industrial Registrar be prohibited from proceeding with the hearing of the application for registration on the basis that the proposed alteration was not expedient in the public interest.