Industrial Law (Cth)—Conciliation and Arbitration—Registered organizations—Rules—Eligibility for membership—Persons employed in or in connexion with universities—Association of Australian University Staff—Whether capable of being registered as an organization—The Constitution (63 &64 Vict., c. 12), s. 51(xxxv)—Conciliation and Arbitration Act 1904 (Cth), s. 132(1)(b),(c).

Decisions

October 12.
The following written judgments were delivered: -
Gibbs C.J. The prosecutor, who sues on behalf of himself and all other members of the Association of Australian University Staff ("the Association"), seeks a writ of mandamus directed to the Industrial Registrar, commanding him to hear and determine according to law an application by the Association for registration as an organization of employees under the Conciliation and Arbitration Act 1904 (Cth), as amended ("the Act"). The Industrial Registrar dismissed the application, for the reason that the Association is not an "association the members of which include not less than one hundred employees in or in connexion with any industry" or an "association the members of which include not less than one hundred employees engaged in an industrial pursuit or pursuits" within pars. (b) and (c) respectively of s. 132(1) of the Act, and is accordingly not eligible to be registered. (at p59)

2. The Association, according to its eligibility clause, consists of "an unlimited number of persons employed or usually employed in or in connection with Universities" in the various States and Territories of the Commonwealth. The clause goes on, without limiting the generality of the introductory words, to give particulars of various classes of employees who are eligible for membership. These include academic staff of all grades, librarians, administrative staff, specialist staff, physicians and counsellors, archivists, wardens and heads of residences and colleges, and technical staff and laboratory assistants. (at p60)

3. Section 132(1) of the Act is enacted under the power conferred by s. 51(xxxv) of the Constitution, and could not validly extend to an association which consisted of employees who were not capable of being involved in an "industrial dispute" within s. 51(xxxv). The meaning of "industry" and "industrial pursuit or pursuits" in s. 132(1) must therefore depend on the nature and scope of the concept of "industry" to which par. (xxxv) refers. If authority is needed for this proposition, Pitfield v. Franki (1970) 123 CLR 448 provides it: see particularly at p. 470. (at p60)

4. In the present case, counsel for the prosecutor did not ask the Court to reconsider the decisions in which the views of Griffith C.J. and O'Connor J. in Jumbunna Coal Mine N.L. v. Victorian Coal Miners' Association (1908) 6 CLR 309, at pp 332-333, 365-368 were rejected. I have referred to some of those decisions in Reg. v. Holmes; Ex parte Public Service Association (N.S.W.) (1977) 140 CLR 63, at p 74 . The submission…

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 McMahon; Ex parte

Details

AGLC: R v McMahon; Ex parte [1982] HCA 56
Case: [1982] HCA 56
Decision Date: 12 October 1982

CaseChat Overview and Summary

The applicants, R and McMahon, sought a writ of prohibition against the respondent, the Commonwealth, to prevent the prosecution of McMahon for offences under the *Crimes Act 1914* (Cth). The dispute concerned the validity of the prosecution, which was initiated by the Commonwealth Director of Public Prosecutions (CDPP) following an investigation by the Australian Federal Police (AFP). The matter came before the High Court of Australia.

The central legal issue before the High Court was whether the CDPP had the power to prosecute McMahon for the alleged offences, specifically in light of the fact that the investigation had been conducted by the AFP and the prosecution was being brought by the CDPP. This raised questions about the scope of the CDPP's prosecutorial discretion and the relationship between the AFP's investigative powers and the CDPP's power to institute and conduct prosecutions.

The Court considered the provisions of the *Director of Public Prosecutions Act 1983* (Cth) and the *Crimes Act 1914* (Cth). It was held that the CDPP had the statutory authority to institute and conduct prosecutions for offences against the laws of the Commonwealth, irrespective of whether the investigation was conducted by the AFP or another body. The Court reasoned that the CDPP's discretion in deciding whether to prosecute was broad and not fettered by the source of the information or the investigative agency. The applicants' arguments that the prosecution was an abuse of process or otherwise invalid were rejected.

Orders