Re Association of Architects of Australia; ex parte Municipal Officers Association of Australia

[1989] HCA 13

HIGH COURT OF AUSTRALIA

Brennan, Dawson and Gaudron JJ.

RE JOHN DAVID SALE AND ALAN WAYNE ANDREWS (on behalf of THE ASSOCIATION OF ARCHITECTS OF AUSTRALIA) EX PARTE THE MUNICIPAL OFFICERS ASSOCIATION OF AUSTRALIA, THE STATE PUBLIC SERVICES FEDERATION, THE PROFESSIONAL OFFICERS (STATE PUBLIC SERVICES AND INSTRUMENTALITIES) ASSOCIATION AND THE ASSOCIATION OF RAILWAY PROFESSIONAL OFFICERS OF AUSTRALIA

21 February 1989

Decisions

BRENNAN J. Pursuant to a direction by a Justice of this Court, the prosecutors (as I shall call the applicants) move on notice for writs of mandamus and certiorari directed to members of the Conciliation and Arbitration Commission who, constituting a Full Bench, allowed in part an appeal against a decision by the Industrial Registrar dismissing objections to the registration of the Association of Architects of Australia ("AAA") as an organization of employees under s.132 of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"). A number of registered organizations including the prosecutors objected that they were organizations to which the members of the AAA might conveniently belong and that the Registrar ought to refuse registration pursuant to s.142 of the Act. Section 142 provides:
" The Registrar shall, unless in all the
circumstances he thinks it undesirable so to do, refuse to register any association as an organization if an organization, to which the members of the association might conveniently belong, has already been registered."

2. The section postulates two issues to be addressed by the Registrar: first, whether the members of the association applying for registration might "conveniently belong" to an association already registered; and, second, if the members of the applicant association can "conveniently belong" to the other association, whether it is nevertheless undesirable to refuse registration (the so-called "residual discretion"). The Registrar understood the "conveniently belong" test as answerable by reference not to particular members or groups of members of the AAA but to the general body of members of the AAA. Holding that the general body of members could not conveniently belong to a registered organization, the Registrar did not have to consider the second issue. He granted registration.

3. The organizations which had objected to registration of the AAA appealed to a Full Bench of the Commission. The appellant organizations' membership embraced architects employed by several public sector employers. Mr Kenzie, Q.C., senior counsel for the prosecutors, contended for a construction of the "conveniently belong" test different from that adopted by the Registrar. He submitted that the question whether members of an applicant association might conveniently belong to an organization already registered should be answered by reference to particular members or groups of members. The primary submission made by Dr Jessup, QC, senior counsel for the AAA, was that the Registrar's construction was correct. However, he submitted that, in the event that Mr Kenzie's contention was upheld, the Full Bench should not simply allow the appeal but should make one or other of two orders which he sought. Dr Jessup submitted that the Commission should either give the AAA leave to amend its rules to exclude the groups who might conveniently belong to the appellant registered organizations (so that, pursuant to s.134, registration could be granted to the AAA upon its rules being amended to exclude those groups who could conveniently belong to the appellant organizations) or uphold the grant of registration on the ground that it was undesirable to refuse registration - the "residual discretion". Mr Kenzie concurred in the former course saying:

"We ask the Commission to grant leave to appeal, to uphold the appeal and to vary the decision of the Registrar by upholding the conveniently belong arguments of the appellant organizations in relation to the public sector area. The variation that would be sought on that basis would be confined to the areas of interest of my client organizations."

However, Mr Kenzie opposed the exercise of the "residual discretion" in favour of the AAA. The position was clarified in an exchange with Coldham J. who presided in the Full Bench hearing:

"COLDHAM J: You go right along to that point and then you shut the gate. MR KENZIE: Yes. Dr Jessup submits that the Registrar's decision should stand but if his primary submission is not upheld, he accepts that, subject to the residual discretion of the Commission, which is (reposed) in the Commission as presently constituted, an application under section 134 would be appropriate to remove the ground of conveniently belong. We agree with all of that. When I say 'all of that', all of that on the basis that our primary (contention) is upheld. But we say that his final position, (namely) as to the residual discretion of the Commission, should not be accepted ..." (I have edited the transcript.)

4. Thus the first issue presented to the Full Bench for decision was the true meaning of the conveniently belong test. Only two contentions were advanced: Dr Jessup's contention that the test related to the general body of members of an applicant association and Mr Kenzie's contention that the test related to particular members or groups of members of an applicant association. Mr Kenzie agreed with Dr Jessup that, if Dr Jessup's contention were not upheld, the AAA should be given leave to amend its rules to exclude members who might conveniently belong to the appellant registered organizations. However, Mr Kenzie opposed Dr Jessup's alternative submission that, if Dr Jessup's contention on the conveniently belong test were not upheld, the Full Bench should nevertheless hold that it was undesirable to refuse registration to the AAA. Submissions were made by both counsel to the Full Bench on these alternative issues which would fall for decision if Dr Jessup's contention on the conveniently belong test were not accepted and Mr Kenzie's contention were accepted.

5. Before leave could be given to amend the rules of the AAA to exclude members who might conveniently belong to the appellant registered organizations, the Full Bench needed to have evidence showing what members or groups of members of the AAA could conveniently belong to those organizations. This was the subject of a concession by Dr Jessup. He said:

"if the substantive arguments raised by the appellants here are successful then we would accept that that issue may be forthwith disposed of in their favour by this bench. Now, that does not mean to say that I concede the conveniently belong argument. What I concede, if the Commission pleases, is that any individual architect looked at purely alone and without taking into account the general membership of the applicant who is employed in one of those areas, can conveniently belong to the appropriate association, so long as it is registered. The University General Staffs Association, of course, is in a different category altogether because it is not registered and section 142 is not available."

Later, he said:

"If you are against us on Mr Kenzie's point, then I would wish to be regarded as having made an application under section 134 to amend the rules to exclude Mr Kenzie's clients" (emphasis added).

The concession that individual architects could conveniently belong to one of the appellant registered organizations was consistent with the way in which the case for the AAA had been conducted before the Registrar, as Dr Jessup noted:

"I elected ... not to advance any material and certainly not to make any submissions that any individual architect considered as an individual working within one of the areas covered by one of his clients could not conveniently belong to that body."

To satisfy the Full Bench that there was evidence that individual members of the AAA could conveniently belong to one or other of the appellant registered organizations, Dr Jessup pointed both to his concession and to the material before the Registrar. During his submissions on the residual discretion, Dr Jessup agreed with a proposition put to him by Coldham J:

"You are postulating as I follow the situation where we have accepted Mr Kenzie's argument and indeed rejected yours on the primary submission and have thereby concluded that these public service, public sector organizations, are organizations to which members of your association can conveniently belong, but having regard to factors X, Y and Z or whatever, we think it is undesirable to refuse."

6. Then, during Mr Kenzie's address, Dr Jessup objected to the tender by Mr Kenzie of an index of the transcript of proceedings before the Registrar relating to the conveniently belong issue. Dr Jessup submitted that it was unnecessary for the Commission to look at that evidence when the facts material to the conveniently belong issue had been conceded. The prosecutors' understanding of the concession was clearly stated by Mr Kenzie:

"May we say that if that is the position and the Commission, as presently constituted, feels able, consistent with what Dr Jessup said, to determine in relation to the public sector the conveniently belong issue in these proceedings; and we do not think there is any real dispute about it; then we certainly do not propose to take the time of the Commission to go to or through this document. It was rather that we apprehended that the Commission might feel that there might be some nuts and bolts that had to be tightened to precisely identify areas of coverage more specifically, and we do not --- COLDHAM J: Well, supposing we said in our decision that in the event of such and such, and such and such, being decided in such and such a way, the parties are in agreement that we should determine the conveniently belong issue, and that is a consensual approach, nobody is going to have a crack at us in the hereafter on natural justice or anything like that, it is a conceded situation."

Accordingly, Mr Kenzie did not seek to refer to the evidence before the Registrar to support his argument that members or groups of members of the AAA employed in the public sector might conveniently belong to his client organizations. He said:

"we agree with Dr Jessup that the material is before the Commission, even if notionally in the sense that our friend referred to yesterday, the Commission is able to say that it is a matter of concession in relation to the public sector architects --- a finding that they could conveniently belong to the applicants can appropriately be made. One has the benefit of the material that my learned junior took the Commission to yesterday which relates to the particular areas of interest. So that the material is before the Commission and we do not - we certainly do not require to take the Commission through this material as long as the Commission does not feel itself in difficulties having regard to the situation that the matter has reached."

7. At the end of the hearing, Coldham J. sought a further elucidation of the concession made by Dr Jessup. He enquired whether it was conceded that there were no factors which might preclude members of the AAA who might belong to the appellant organizations from conveniently belonging to those organizations. Dr Jessup agreed that there were no such factors. Thus it was common ground that members or groups of members of the AAA (but not the general body of members) employed in the public sector could conveniently belong to the appellant registered organizations. It was common ground that, if Mr Kenzie's contention as to the construction of s.142 were accepted (and if Dr Jessup's were rejected), the Commission should give leave to amend the AAA rules to exclude architects employed in the public sector who could belong to the appellant registered organizations unless the Commission decided to exercise the residual discretion by granting registration without amendment of the AAA rules.

8. In the result, the Commission followed a different course, construing s.142 as referable neither to the general body of members of an applicant association nor to particular groups of members of an applicant association but as referable to members "considered generically". The Commission said:

" In our view the question of whether the members of an applicant association might conveniently belong to an existing registered organisation should be considered generically rather than by reference to those particular persons who happen to be members at the time of the application for registration or when the Registrar determines the objections or any other particular time. In the present instance 'the members' are architects and the rules of the applicant are wide enough to include all industry. The question to be considered would therefore appear to be: might architects conveniently belong to any and which of the objecting organisations? We use the subjunctive mood because it reflects the tense in which the section is cast and reinforces, in our view, the need for a generic approach to the question. Once architects in that sense are the subject for consideration the totality of flesh and blood members or the substantial totality thereof need not be considered. It would seem that the question of whether architects might conveniently belong to any and which of the objecting unions can be considered in the separate context of architects employed in the public services of the State and the Commonwealth and of architects employed in or by universities as well as of architects employed elsewhere."

Neither Dr Jessup nor Mr Kenzie had contended for a "generic" construction of s.142. It had not been canvassed during the hearing. Of course, if the true construction of s.142 differed from either of the constructions contended for, the Commission was not thereby precluded from adopting the true construction. And, if the "generic" construction had not required the conveniently belong test to be answered by reference to groups of "flesh and blood members", there would have been no occasion to act on the concession made by Dr Jessup: the concession would have been irrelevant to the application of s.142.

9. Having placed a "generic" construction on s.142, the Full Bench decided "to proceed to a determination of whether any of the (appellant) registered organisations are organisations to which architects included in the rules of the AAA might conveniently belong". In deciding that question, the Full Bench did not refer to an abstract genus of architects but looked to the evidence before the Registrar relating to the "flesh and blood members". The Full Bench said:

"It is sufficient to state that in our view there was nothing before the Registrar which militated against the convenience of members of AAA belonging to the (appellant) organisations insofar as their eligibility for membership extends to the Public Service of the States and of the Commonwealth. It is a consideration germane to the issue that the actual membership of AAA is conspicuously poor in the public sector and non-existent in the universities. Nothing in the material before the Registrar indicated that the industrial interests of architects were better represented and protected by extending the rule of the AAA into those sectors of industry."

10. The Full Bench allowed the appeal in part, giving leave to amend the rules of the AAA to exclude persons employed by Commonwealth, State and Territory governments and engaged on the academic staff of universities and colleges of advanced education. Those excluded were covered by some only of the appellant registered organizations. Although the Full Bench did not expressly find that architects included in the rules of the AAA might not conveniently belong to the other appellant registered organizations (the prosecutors), that is the answer which the Full Bench must have given to the question which they were proceeding to determine, namely, "whether any of the (appellant) registered organisations are organisations to which architects included in the rules of the AAA might conveniently belong". Dr Jessup's concession had extended to all of Mr Kenzie's clients, not only to those which covered architects employed in the public services and academic staffs of universities and colleges of advanced education, but the Commission failed to act on the concession so far as it related to members of the AAA employed in areas of the public sector covered by the prosecutor organizations.

11. The reason why the Full Bench failed to act upon the concession in its totality appears to lie in a notion which the Full Bench described as "the broader bases of convenience". The Full Bench accepted that members of AAA might belong to the registered appellant organizations but said that "(t)he question whether such members might conveniently do so raises issues which have been adumbrated in past cases". The Full Bench then referred to earlier cases, some of which gave a narrow interpretation to the conveniently belong test, others of which referred to "broader bases of convenience". The meaning of this phrase was not spelt out but the Full Bench cited an observation by Gaudron J. when a member of the Commission in which her Honour spoke of "the preservation of group identity and independence (which) is essential for the proper representation of the industrial interests of the membership of the Association". Considerations of that kind are no doubt relevant to the exercise of the residual discretion and the Full Bench was entitled to take such considerations into account if it chose to exercise that discretion. But the Full Bench found it -

"unnecessary however to discuss whether the broader bases are relevant to the convenience of belonging or whether they pertain rather to the ultimate discretion imposed by section 142."

12. The prosecutors' application for writs of mandamus and certiorari is founded on the Commission's alleged failure to accord them natural justice. Whether that ground is established depends on the circumstances. In the present circumstances, which I have rehearsed at some length, the question can be stated in this way: was it fair for the Full Bench without inviting further submissions from the prosecutors to find that members of the AAA might not conveniently belong to the prosecutor organizations after it had been conceded by the AAA that some members of the AAA could conveniently belong to the prosecutor organizations and after counsel for the prosecutor organizations had been diverted, by the making of the concession, from tendering an index of the evidence relating to the conveniently belong issue? In my opinion, that question admits of only one answer: it was procedurally unfair.

13. True it is that the concession was made with reference to "flesh and blood members" while the Full Bench addressed the question whether the members of the AAA considered "generically" might conveniently belong to any and which of the appellant registered organizations. I confess to some difficulty in appreciating how the generic approach may require an answer to the question of conveniently belong different from the answer dictated by the flesh and blood approach but, however that may be, it is clear that the Full Bench had regard to the material before the Registrar about the flesh and blood membership of the AAA. If the material before the Registrar, the effect of which was conceded, induced the Full Bench to find that some AAA members might conveniently belong to some of the appellant registered organizations, it was not procedurally fair for the Full Bench to find, without giving the parties a further opportunity to be heard, that some other AAA members might not conveniently belong to the prosecutor organizations when it had been common ground that the material before the Registrar showed that they could so belong. The concession had been made to settle the conveniently belong question if it should arise. It did arise, and it was a denial of natural justice by the Full Bench to refuse to act on the concession without inviting further submissions: see Stead v. State Government Insurance Commission (1986) 161 CLR 141, at p 145.

14. It is also true that the Full Bench may have taken the "broader bases of convenience" into account in exercising the residual discretion. But that was not the issue addressed by the Full Bench. An exercise of the discretion would have been required only if the conveniently belong issue had been decided adversely to the AAA, and then in the light of that finding. Although the Full Bench had sought and obtained an assurance that it was conceded that there were no factors which might preclude AAA members from conveniently belonging to the appellant organizations, the Full Bench refused to act on the concession because of the "broader bases of convenience". The capacity of the "broader bases of convenience" to destroy the concession had not been raised at the hearing and no opportunity was given to the prosecutors to address any submission as to the relevance of this notion to the test of conveniently belong. The unfairness inherent in that course is not eliminated merely because the "broader bases of convenience" might have led the Full Bench to exercise the residual discretion in favour of granting registration to the AAA without requiring amendments of its rules to exclude members who might conveniently belong to the prosecutor organizations. The Full Bench did not purport to exercise the residual discretion.

15. The Full Bench was not absolutely bound either to accept one or other of the parties' contentions as to the construction of s.142 if a third construction were correct or to act on the concession made by the AAA. But, when the concession was made in order to conclude the issue of conveniently belong if that issue should arise, it was procedurally unfair for the Full Bench to adopt a third construction and to resolve the conveniently belong issue by reference to material the effect of which was governed by the concession without giving the parties an opportunity to deal with the reasons which led the Full Bench to refrain from acting on the concession.

16. In my opinion, the prosecutors were denied natural justice and therefore the Commission did not exercise its appellate jurisdiction according to law. I would grant certiorari to bring up and quash the decision of the Full Bench of the Commission and mandamus to compel the Commission to exercise its appellate jurisdiction according to law.

DAWSON J. I agree with Gaudron J. that the Association of Architects of Australia ("AAA") went no further than to concede that, if the Registrar's construction of s.142 was correct, then, for the purpose of that construction, it could be assumed that the members of the AAA, considered individually, might conveniently belong to one or other of the prosecutor organizations.

2. In the event, the Commission did not adopt the Registrar's construction of s.142 and the concession ceased to be of relevance. The conditional nature of the concession should have been apparent to the prosecutors from the outset and it cannot be said that they were denied natural justice because the Commission proceeded to determine for itself, upon a different basis, whether members of the AAA could conveniently belong to the prosecutor organizations. That course was always open to the Commission if it rejected, as it did, the construction of s.142 adopted by the Registrar. The prosecutors were not precluded from placing material before the Commission or putting argument to it by reason of the course taken by it.

3. I would dismiss the application.

GAUDRON J. This is an application for writs of mandamus and certiorari directed to members of the Australian Conciliation and Arbitration Commission ("the Commission") who constituted a Full Bench of the Commission for the hearing and determination of applications for leave to appeal, pursuant to s.88F of the Conciliation and Arbitration Act 1904 (Cth) ("the Act"), from a decision of the Registrar of the Commission. The prosecutors contend that they were denied natural justice in the hearing and determination of their applications for leave to appeal.

2. It is necessary to recount the relevant facts in some detail. An association, known as the Association of Architects of Australia ("AAA"), applied for registration as an organization of employees under s.132 of the Act. Under its rules membership of AAA was open to, inter alia, persons registered or qualified to be examined to become registered as architects and employed or usually employed in the occupation of architect or upon work of a kind normally performed by an architect.

3. AAA's application for registration was met by a number of objections pursuant to reg. 119 of the Conciliation and Arbitration Regulations, including by objections by the prosecutors. The prosecutors are organizations of employees registered under the Act. Their objections were based on s.142 of the Act which provides:

"The Registrar shall, unless in all the

circumstances he thinks it undesirable so to do, refuse to register any association as an organization if an organization, to which the members of the association might conveniently belong, has already been registered."

4. In general terms, the prosecutors constitute a group of registered organizations whose membership comprises and is confined to persons employed in the public sector and in universities and colleges of advanced education. Membership of each prosecutor organization is open to architects employed in the particular field of employment in which that organization operates.

5. Each prosecutor organization claimed to be a registered organization to which members of AAA might conveniently belong. The Registrar rejected that contention, saying:

"The members referred to in section 142 are all,

or at least substantially all, of the members. The proper application of the section requires that a decision be made concerning the general body of membership and not a single section of it".

In the result the Registrar allowed the registration of AAA.

6. The prosecutors applied for leave to appeal from the Registrar's decision. The applications were heard as appeals. The substantial issue was the correctness or otherwise of the Registrar's construction of s.142 of the Act. It was contended on behalf of the prosecutors that s.142 required the question of convenience to be determined solely by reference to those members eligible for membership of existing registered organizations. If those members could conveniently belong to those organizations, it was argued, registration must be refused unless either the membership rules were amended to exclude those persons or in all the circumstances it was undesirable to refuse registration. On the other hand, it was argued on behalf of AAA that s.142 of the Act required a consideration of the convenience of all or substantially all of the members with the consequence that registration could not be refused unless there was a registered organization, membership of which was available to all or substantially all of the members of the applicant association. The middle ground between these contentions appears not to have been explored. In particular, no real consideration appears to have been given to the possibility that s.142 might not preclude a holding that a particular group of members might conveniently belong to a registered organization, but not requiring the issue of convenience to be determined solely by reference to matters pertaining to the relevant group.

7. During the course of argument on behalf of AAA the question arose as to the course to be taken in the event that the Commission concluded that the Registrar had erred in his construction of s.142. The question had two aspects: should the Commission exercise the powers conferred by s.88F(4) of the Act to "make such order as it (thought) fit", and was the material which had been before the Registrar sufficient for this purpose? It may here be noted that s.88F(3) confers a power upon the Commission to take further evidence for the purposes of an appeal from the Registrar.

8. Counsel for AAA urged that the Commission should itself determine, by reference to evidence presented before the Registrar, whether any group or groups of architects eligible for membership of AAA might conveniently belong to one or other of the prosecutor organizations, and if so, whether, nonetheless, it was undesirable in all the circumstances to refuse registration of the Association. For this purpose counsel for AAA made a concession to which it will later be necessary to refer in some detail. That concession having been made, counsel for the prosecutor organizations agreed to the course proposed by counsel for AAA.

9. The Commission rejected the construction placed upon s.142 by the Registrar, and itself proceeded to determine, by reference to the questions raised by s.142, whether and, if so, in what form registration should be granted. It held that architects employed in the departments of state of the Commonwealth, the States and Territories and in universities and colleges of advanced education could conveniently belong to the prosecutor organizations and that leave should be granted to AAA to amend its membership rule to exclude those architects. By so holding, it effectively decided that architects otherwise employed in the public sector (notably, by local government authorities, statutory corporations and instrumentalities) could not conveniently belong to the prosecutor organizations. Finally, the Commission held that, upon amendment of its rules in accordance with the decision, AAA should be registered as an organization of employees under the Act.

10. The prosecutors complain that, in so far as the Commission refused to require the exclusion from AAA's membership rule of architects employed by local government authorities and statutory corporations and instrumentalities, it failed to act on the concession made by counsel for AAA. That failure, it is contended, amounts to a denial of natural justice. That is so, it is said, because, the concession having been made and the prosecutors having agreed to the Commission determining the questions raised by s.142 on the basis of that concession, the Commission should have afforded the prosecutors an opportunity to put further material and argument in the event of its deciding not to act upon the concession.

11. The concession was as follows:
"... any individual architect looked at purely
alone and without taking into account the general membership of the applicant ... can conveniently belong to the appropriate (prosecutor organization) ..."

12. The concession was expressly conditioned on the premise that "(the) issue (of the construction of s.142) must necessarily have been decided in ... favour (of the prosecutor organizations)", it being made clear by counsel for AAA that he did not "concede the conveniently belong argument". Counsel then described the concession he had made as a "contingent concession" and elaborated as follows:
"...if the commission rules that section 142 has
an operation which would require the Registrar to notionally divide up the membership of the applicant ... and say: Well, can this group of them belong to these people; can this group of them belong to these people? If the commission rules that that is the way section 142 operates, then we would be prepared to accept a ruling by the commission that this group of them can conveniently belong to that association and this group can conveniently belong to that association ..."

13. To this point the operation of the concession was clearly conditional upon the Commission's total acceptance of the prosecutors' arguments as to the construction and operation of s.142 of the Act. There was however a later exchange to which it is necessary to make reference.

14. In the course of reply counsel for the prosecutors sought to tender an index of the evidence which had been placed before the Registrar. Counsel for AAA objected to the tender. His primary objection was that it did not arise in reply to anything put on behalf of AAA. He also objected on the ground that "there (was) no contest on the matters to which my learned friend alluded". That was explained in this way:
"... as I said in my main submission ... there was
convenience, looked at individually for architects in those areas to belong to my learned friend's clients." There then followed an exchange between the Commission and Counsel for AAA as follows:

"Coldham J: ... you were saying that - really that if we are against you on your primary submission, we ought to do the conveniently belong act ourselves, but you go further than --- Dr Jessup: No, not conveniently belong. The secondary discretion, your Honour. Coldham J: ... but the secondary discretion does not come into being until we have considered the conveniently belong matter, does it? Dr Jessup: Your Honour, I thought I had conceded that. Coldham J: (You) concede - the conveniently belong? Dr Jessup: Yes."

15. The latter part of the exchange involved no repetition of the qualification originally placed on the concession. Rather, it suggested that the question whether the various groups of architects might conveniently belong to the prosecutor organizations would be answered by construction of s.142 without necessity for the Commission to resort to the evidence. That suggestion was confirmed by the further exchange as follows:
"Coldham J: ... on your case the requirement to
have a look at the evidence is unnecessary. Dr Jessup: Yes. Yes, your Honour. Coldham J: It is an exercise which we might undertake if we were slightly eccentrically enthusiastic, but otherwise there is no need for us to do so. Dr Jessup: That is so, your Honour."

16. The exchange must be understood in the context of the arguments put as to the construction of s.142 of the Act. If either of the competing arguments were accepted there would be no necessity for the Commission to have regard to the evidence, other than for the purpose of deciding whether it would be undesirable to refuse registration of AAA. On the construction favoured by AAA the Registrar's decision would stand. On the construction favoured by the prosecutors the issue of convenience would be determined by the concession. At that stage of the exchange the possibility of another construction, possibly in contemplation when the concession was originally made, appears to have escaped attention. However, that is no basis for regarding the concession as having been transformed into another concession to the effect that the various groups of architects eligible for membership of the prosecutor organizations could conveniently belong to those organizations if any construction, other than that favoured by AAA, was placed on s.142.

17. In the result the Commission placed upon s.142 a construction which differed from those advanced before it. The construction adopted by the Commission allowed that discrete groups of architects might conveniently belong to existing registered organizations. However, it allowed that on this issue it was permissible to have regard to the effect of the exclusion of those members eligible for membership of registered organizations on the industrial interests and representation of the members who would remain eligible for membership of an applicant association. Although not expressly so stating, the Commission in effect held that although s.142 does not preclude a consideration of whether a discrete group of members might conveniently belong to an existing registered organization, it does not require that the question of convenience be determined solely by reference to matters pertaining to the group.

18. The construction placed upon s.142 by the Commission resulted in the situation that the condition placed on the concession made on behalf of AAA was not satisfied. The concession was thus irrelevant to the function that counsel for AAA and for the prosecutors had requested the Commission to perform. The Commission did not fail to act upon the concession; there was simply no occasion for it so to do. The claim that there was a denial of natural justice by reason of the failure of the Commission to act upon the concession must fail.

19. There is a further question: was the Commission required, as a matter of procedural fairness, to afford the parties an opportunity to be heard upon the issues directed by s.142 in the light of the construction adopted by it? Ordinarily, when a decision on a question of law will affect the nature and range of the factual matters by reference to which the matter in issue may be decided, considerations of fairness require that the parties be given an opportunity to lead evidence and make submissions by reference to the principles of law to be applied. This must be so even if the existence of the question is not apparent until the hearing has concluded. Although, of course, the fact that a hearing has taken place may have particular significance in determining whether or not the opportunity was given. As was pointed out by Deane J. in Sullivan v. Department of Transport (1978) 20 ALR 323, at p 343, procedural fairness requires only that a party be given "a reasonable opportunity to present his case" and not that the tribunal ensure "that a party takes the best advantage of the opportunity to which he is entitled". And it is always relevant to enquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union of Australia; Ex parte Gallagher (1988) 62 ALJR 81, at p 84; 76 ALR 353, at p 358.

20. The matter which the Commission was asked to decide in exercise of the powers conferred by s.88F(4) of the Act was whether, having regard to the issues directed by s.142 of the Act, AAA should be registered as an organization of employees. Section 142 requires a consideration of whether it is industrially undesirable to refuse registration of an association notwithstanding that its members might conveniently belong to an existing registered organization. That issue was unaffected by the issue of construction with which the appeal was primarily concerned; it was also unaffected by the concession. It was common ground before the Commission that it allowed a consideration of a wide range of factual matters, including the impact of the exclusion of any group of architects from the membership rule of AAA upon the industrial interests of those who would remain as members of AAA. AAA and the prosecutors were agreed that this precise issue should be determined by the Commission on the material put before the Registrar. The construction placed by the Commission upon s.142 had the effect of rendering that consideration relevant to the question whether the various groups of architects could conveniently belong to the prosecutor organizations. Although there was an interchange of relevance from one issue directed by s.142 to another, the nature and range of factual considerations to be taken into account in deciding whether AAA should be registered as an organization under the Act remained unchanged. The parties were not denied an opportunity to be heard on the relevant factual considerations.

21. The application should be dismissed.

Orders

Application for writs of mandamus and certiorari dismissed.