Re Coldham & Ors; Ex parte Brideson

[1988] HCATrans 226

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M26 of 1988
In the matter of -

An application for writs of

certiorari and mandamus against

the Australian Conciliation and

Arbitration Connnission constituted

by THE HONOURABLE MR JUSTICE PETER

ABERNETHY COLDHAM, MR DEPUTY

PRESIDENT KEITH JACKSON HANCOCK

AND MR COMMISSIONER GREGORY SMITH

and a Writ of Mandamus against

JOHN DENIS MCMAHON, Industrial

Registrar

Respondents

Ex parte -

ANDREW RONALD BRIDESON

Applicant/Prrsecutor

WILSON J

DEANE J

GAUDRON J.

Brideson

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 7 OCTOBER 1988, ATl0.15 AM

Copyright in the High Court of Australia

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MR N.J.D. GREEN: If the Court pleases, I appear for the

prosecutor. (instructed by Fernon & Ludescher)

MR R.C. KENZIE, QC: May it please the Court, I appear with

my learned friend, MR S.C. ROTHMAN, for

Patrick John Lee and the Northern Territory

--Independent Schools Staff Association and

the Independent Schools Staff Association of
the ACT both registered organizations of employees,
all of those persons being objectors to the

registration of the Teachers Association of Australia

and appellants in the proceedings before the Commission,

they being persons served wi-th _ the proceedings and,

as we would put it, entitled to be heard.

(instructed by Geoffrey Edwards & Co)

I appear with my learned friend, MR R.W. HINKLEY,

for a number of individuals: Robert Bluer,

Edith May Backhouse, Janice Lee, Vic Baueris,
Ann-Marie Heine, John Kevin Rockett, Jan Dillow,
Peter Lord and Brian Henderson as well as the

Australian Capital Territory Teachers Federation, _ a registered organization. All of those individuals and that organization being appellants in the

proceedings before the Full Bench and served with

the papers and entitled to be heard, as we would

submit, on a similar basis. (instructed by

Holding Redlich)

WILSON J: Mr Kenzie, the interest which you represent,

where does it stand? Is it opposed to the prosecutor?

MR KENZIE:  I am sorry, Your Honour. We seek to be heard

in opposition to the application.

MR M.E.J. BLACK, QC:  May it please the Court, I appear

with my learned friend, MR G.M. GIUDICE, to oppose

the application made by the prosecutor and we

wish to appear on behalf of various parties who

were appellants in the proceedings before the

Full Bench who were objectors before the Industrial
Registrar.	The parties are numerous and I have

taken the liberty of having the list of them typed

out and the interests, which are employer interests,

that they represented. (instructed by Freehill

Hollingdale & Page and.Messrs Minter Ellison)

The first party is Elizabeth Margaret Butt,

and would the Court permit me to hand a list of

the other parties to the Court.

WILSON J:  Yes, certainly. I have got you down here as

representing the Association of Independent Schools

of Victoria and others but that is in - - -

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MR BLACK:	Yes.	Your Honour, that is in substance so but

technically I submit it is more correct that I

represent named individuals who, in fact, were

parties representing interests such as the

Association of Independent Schools.	May it please
the Court.

MR T.J. GINNANE:  May it please the Court I appear for

Messrs Brooker and Dyer who were objectors and

appellants in the proceedings below and I appear
to oppose the application. (instructed by

Mallesons Stephen Jaques)

WILSON J:  Mr Kenzie, can I just clarify your appearance.

Do you appear for the Australian Teachers Union - the ATU? Is the ATU represented?

MR KENZIE:  The Australian Teachers Union - I am sorry,

Your Honour, the complexity is that bodies were

getting registered during the proceedings. The

Australian Teachers Union was not originally

registered and became registered after the

proceedings before the Industrial Registrar but
before the proceedings before the Full Bench.
Our appearance is confined to those that I have
indicated but that includes persons who appeared

in the interests of the Australian Teachers Union.

WILSON J:	Of the ATU?
MR KENZIE: Yes.	On a basis similar to that mentioned by

Mr Black.

WILSON J: With a galaxy of counsel we expect that, as far

as possible, repetitive argument will be avoided.

Yes, Mr Green.

(Continued on page 4)

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MR GREEN:  May it please the Court. May I make available

to the Court copies of the outline of submissions

to be advanced on behalf of the prosecutor and a

chronology of relevant facts.

WILSON J:  Yes, thank you. Just before you continue,

--Mr Green, I should state that the Fegistrar has

been advised by the Australian Government Solicitor,

who acts on behalf of the members of the Australian

Conciliation and Arbitration Commission, as well

as the Industrial Registrar, that those respondents

do not propose to be represented and will abide by

any order of the High Court.

MR GREEN:  I am grateful for that intimation, Your Honour.

If the Court please, this is the return of an order

nisi made by His Honour Justice Dawson on 20 May last

for writs of certiorari and mandamus. The order nisi

is directed to members of the Full Bench of the

Conciliation and Arbitration Commission in respect

of a decision which it handed down on 25 March last

and the order is also directed to the Industrial

Registrar. That decision of the Full Bench allowed

an appeal from and quashed a decision made by the

Registrar on 17 December 1986 to register the

Teachers Association of Australia as an organization of employees under the CONCILIATION AND ARBITRATION

ACT. A summary of the relevant history of this

matter is given in the chronology which has been

provided. May I take the Court to that chronology.

On 3 November 1983 the Teachers Association

of Australia, TAA, made an application under

section 132 of the Act for registration as an

organization of employees. TAA's rules enabled

it to enrol as members persons employed in Australia
in or in connection with the industry of school
teaching, that is in government and non-government

schools.

(Continued on page 5)

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MR GREEN (continuing):  On 7 February 1984 the Independent

Teachers Federation made an application for

registration as an organisation of employees. Generally

speaking the rules of the ITF:

enable it to enrole as members persons

employed in Australia in non-government

schools and educational institutions.

On 13 February 1984 an application was lodged on

behalf of the Australian Teachers' Union:

for registration as an organisation

of employees.

Its rules:

enable it to enrole as members teachers

who are employed in government schools
or educational institutions operated

by government or governmental agencies.

On 2 July 1984 a hearing began before the

Industrial Registrar:

to determine whether TAA's rules

specify an industry in or in connection

with which TAA could obtain registration.

On 13 July of that year the:

Registrar hands down decision -

declaring in effect that -

TAA's rules do so specify.

On 5 February 1985 a:

Full Bench of the Australian Conciliation

and Arbitration Commission begins to

hear appeals against decision of Registrar.

On 19 February of the same year the Commission

began:

to hear references under section 88E

of the Act in relation to the -

applications of -

the ITF and ATU.

On 3 April 1985 the:

Commission dismisses the appeals against

the Registrar's decision ..... and answers

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the questions the subject of the
reference under section 88E in

favour of the ITF and the ATU,

namely, that both those bodies were

associations of employees in or

in connection with an industry or

were associations of employees

engaged in an industrial pursuit

or pursuits within the Act.

On 20 May 1985, Your Honour Justice Deane:

(in chambers) grants orders nisi

for writs of prohibition and

certiorari in respect of the

Registrar and the Commission's

decision.

The return of those orders nisi came on for hearing

before a Full Court on 10 July ~985 following upon

which there was a decision handed down on 10 June 1986

which discharged those orders nisi.	On 27 August,
if the Court pleases, the:

Hearing of TAA's registration application

before Registrar resumes.

On 2 October 1986:

After 20 hearing days, TAA registration hearing concludes.

At the close of that hearing the:

Registrar announces that on the
basis of grounds of objection put

to him so far, he would not refuse

registration to TAA. On being asked

by counsel for ATU whether the Registrar

would be granting registration nationally,

the Registrar answers that he has not

would register TAA. yet determined the extent to which he

On 22 October 1986 the:

Registrar announces at the conclusion

of the hearing of ITF's registration

application that he would not refuse

to register the ITF.

On 5 November 1986 the:

Registrar announces that registration
of the ATU would be granted, all objections
to its registration having been withdrawn,

resolved or not pursued.

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Then on 17 December 1986 the:

Registrar hands down his decisions

in respect of each of the TAA, ITF and

ATU applications for registration.

-As my learned friend Mr Kenzie has said, the

Registrar subseqeuntly issued a certificate of

registration to the ATU and that took place on

4 February 1987. On 10 August 1987 the Conciliation

and Arbitration Commission began to appear appeals

against the decision of the Registrar to register

TAA. At the outset of those proceedings TAA put

its preliminary submission that once it was

established that TAA was an association that

answered the description in section 132 of the Act

and that it had complied with the prescribed

conditions and that there was no registered

organization to which its members might conveniently

belong, that the TAA was entitled to be registered.

WILSON J: Just before you go on, Mr Green, the reason the

certificate to registration was not issued to

the TAA and ITF was because appeals had been lodged?

(Continued on page 7)

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MR.GREEN:	Principally because there were appeals that had
been lodged. There were also - - -

WILSON J: And there was no appeal in respect of the

registration of the ATU?

MR GREEN:  No, there was none, Your Honour, no.

WILSON J: Is there a second reason for the disparity?

MR GREEN:	There may be a subsidiary reason, Your Honour, and it may have been, at that stage, that there were in the pipeline, so to speak, some applications
under section 134 of the Act in order to amend rules.

WILSON J: Amendment of rules.

MR GREEN:  Yes, for the purpose of facilitating registration.

WILSON J: Yes.

MR GREEN:  As I speak, I cannot say definitively whether that

was so but it may have been the case.

WILSON J: Yes.

MR GREEN:  Following on the hearing of argument by the Full

Bench as to this preliminary submission, the

Commission announced its decision that TAA's

preliminary submisAion must be rejected. The next

day, His Honour Justice Dawson in chambers heard an

application on behalf of TAA for an order nisi
for writs of prohibition and certiorari in relation
to the Commission's decision to reject TAA's
preliminary submission.

His Honour made orders, among others, that that application be made before the Full Court of

this Court by notice of motion. On 16 September

1987, the Commission began to hear appeals against
the Registrar's decision to register ITF.	On

22 December 1987, after 18 hearing days, the hearing of

appeals against the decision of the Registrar to

regiater TAA concluded. Then, on 25 March 1988,

the Commission handed down its decision in respect

of each of the three applications for registration.

So far as it is relevant for these purposes, the

Commission allowed the appeals relating to TAA and

quashed the decision of the Registrar to register

TAA. The only dates that remain deal with the

application for the order niSi made by His Honour

Justice Dawson and today's return date.

If the Court pleases, that being the factual

framework within which these matters are presented

for consideration, may I take the Court to some

provisions of the Act and the regulations in order

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to give a thumb nail sketch of the legislation and subordinate legislation within which these matters also fall for consideration.

WILSON J:  Is it convenient if we use a form of the Act

which is up to date to 1 October 1987?

MR GREEN:	Yes, it would be, Your Honour.
WILSON J:	Thank you.
MR GREEN:	May I take Your Honours, first of all, to

section 2(e) of the Act which provides:

The chief objects of this Act are -

(e) to encourage the organization of

representative bodies of employers

and employees and their registration

under this Act.

Part VIII of the Act, if the Court pleases, is

headed Registered organizations. The primary

provision of that part of the Act is section 132.

Section 132 provides:

Any of the following associations or

persons may, on compliance with the

prescribed conditions, be registered in

the manner prescribed as an organization.

Now, two types of association for employees are

provided, the first of which is in subparagraph (b)

which states:

Any association the members of which include

not less than one hundred employees in or in

connection with any industry and the other

members, if any, of which are -

(i) officers of the association; or

(ii) persons who are employees who are

qualified to be employed in or in

connection with that industry.

but does not include an association that has

members referred to in subparagraph (ii)

unless the association is effectively

representative of the members who are
employees in or in connection with that

industry.

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MR GREEN (continuing):  The second type of association for

these purposes is to be found in paragraph (c)

which is in terms identical with that in
paragraph (b), except that rather than dealing

with an industry in or in connection with which

the association would be registered, it deals

with employees engaged in an industrial pursuit

or pursuits. Section 132(2) provides:

The conditions to be complied with by

associations so applying for registration

and by organizations shall be as

prescribed.

Now, if the Court pleases, in addition to the

conditions referred to in section 132(2) the

conditions to be complied with by associations

applying for registration are specified in

section 133(1) which deals with the provision

for secret ballots and voting. Section 133A(l)

provides for there being separate rules in the

event that an association has branches and

separate branch funds, as distinct from a federal
fund, for which provision is made in that subsection,
and section 133B(l), the subject-matter of which
is that there be rules to provide conditions for

loans, grants and donations.

Perhaps somewhat anomalously, the principal

repository of the prescribed conditions is to be

found in ~egulation 115(1). That appears as the

first rule of Part V of the Conciliation and

Arbitration Regulations.	Regulation 115(1)
commences with the words:

The following conditions are prescribed

conditions to be complied with by an

association applying for registration.

There follows a very detailed list of such conditions to which I will not take the Court. Regulation 115(3)

is also relevant, in my submission, because it

specifies an additional prescribed condition

relating to a resolution in favour of registration.

WILSON J:	Which regulation was that?
MR GREEN:	That was regulation 115(3), Your Honour. One

will see that in regard to each of those provisions,

be it in the Act or regulations to which I hav

taken Your Honours, in terms there is a reference to

the compliance with the prescription as to

conditions, and so it is that one can find by

specific reference the conditions that one has to

meet in order to comply with the ~~@scription of

the Act and the :regulations. May I take Your

Honours back to the Act? Section 134 is a

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provision I mentioned in answer to a question

from Your Honour Justice Wilson. Section 134(1) is:

The Registrar may, upon the application

of an association applying to be registered
as an organization, grant leave to the

association, on such terms and conditions as the Registrar thinks fit, to alter its

rules to enable it to comply with the

prescribed conditions or to remove

a ground of objection taken by an

objector in accordance with the regulations

or by the Registrar and, notwithstanding

the fact that the application for

registration is pending, the association

may alter its rules accordingly.

(Continued on page 11)

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MR GREEN (continuing): Section 135 is of significance too,

in my submission. Its terms are as follows:

The Registrar shall issue to each organization

registered under this Act a certificate of
registration in the prescribed form, which

certificate shall until proof of cancellation

be conclusive evidence of the registration

of the organization therein mentioned and

that it has complied with the prescribed

conditions to entitle it to be registered.

And it is not without interest that one observes

that the wording of section 135, even since the

CONCILIATION AND ARBITRATION ACT was first

enacted has remained in tact. Section 139(1)

is a provision that first found expression as

a result of an amendment in 1956 following upon

the decision of this Court in the BOILERMAKERS'

case. Section 139(1) provides:

A change of the name of an organization or

an alteration of its rules in so far as they

relate to conditions of eligibility for
membership or the description of the industry

in connection with which the organization is

registered shall not have effect unless the

Registrar consents to the change or

alteration upon an application made as

prescribed.

Subsection (2) is:

The Registrar may consent to the change or

alteration in whole or in part but shall not

so consent unless he is satisfied that the

change or alteration has been made in

accordance with the relevant procedures

laid down by the rules of the organization.

The next provision of relevance, in my submission - - -

WILSON J:	How is section 139 relevant?
MR GREEN:	It is relevant in this sense, Your Honour: where

it is of no consequence for the purposes of a

registration hearing, it will be developed in

due course that it provides a contrast with the
position pertaining to whether there is a discretion

in the Registrar. It will submitted that whereas

section 139 clearly contemplates there being a

general discretion in the Pegistrar, there is no

such contemplation in relation to section 132.

It will also become relevant too, sir, when I take the Court to regulation 119 which deals with the

grounds of objection that can be relied upon by

objectors.

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WILSON J:  Yes, thank you.

MR GREEN:  If the Court pleases. The next provision of

relevance, although not on the facts of this case,

is section 142. 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.

The final provision in the Act to which I would

take the Court is section 198(1) which provides

that:

The Governor-General may make regulations,

not inconsistent with this Act, prescribing

all matters which -

are given particular attention in the body of that

subregulation.

(Continued on page 12)

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MR GREEN (continuing):  May I take the Court then back to the

regulations. The first of which is Regulation 117.

Regulation 117 is in these terms:

Applications for registration

shall be dealt with, as far as

practicable, in the order in which

they are received.

Regulation 119(1) provides:

An organization or person may,

within thirty-five days after the
advertisement of a notice referred to
in the last preceding regulation,
lodge with the Registrar a notice of
objection, in accordance with Form 31,

to the registration of the association.

I should perhaps have said that Regulation 118

deals with either an application for registration or

an application under section 134 to amend an

association's rules. Now, Regulation 119(2) is:

The grounds of objection shall

be set out in the notice and may,

without limiting the grounds upon
which an objection may be made,

include one or more of the following

grounds:

(a) that the association is not an

association capable of registration

under the Act;

(b) that a prescribed condition for

registration has not been complied with

by the association; or

(c) that an organization to which the

members of the association might

conveniently belong has already been

registered.

Regulation 119(3) requires an objector to give

particulars of each ground of objection.

Regulation 119(4) is:

The objector shall be restricted to

the grounds specified in the notice of
objection unless the Registrar, on
application in that behalf and for

reasons shown by the objector, otherwise

permits.

Regulation 123 provides:

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(1) The application and the objection

shall be heard by the Industrial

Registrar or, in such cases as he

directs, by a Deputy Industrial Registrar.

(2) On the hearing, the Registrar

shall hear the parties if they are

present and desire to be heard, and

subject to the Act and these Regulations

shall decide the matter.

Regulation 127, the Court	will see later, is of
importance in this case.	It is a rule that deals
with the processing of an	application under
section 139(1) of the Act	to which I have taken the
Court. Regulation 127(1)	states:

An application for the consent

of the Registrar under sub-section (1)

of section 139 of the Act shall be

in accordance with Form 34, 35 or 36,

as the case requires.

Regulation 127(5) provides:

Any organization or person

interested may, within thirty-five days

after the advertisement of the notice

of the receipt of the application, lodge with the Registrar a notice of objection

in accordance with Form 37, 38 or 39

as the case requires, to the application.

The final subregulation to which I wish to draw

the Court's attention was subregulation (6)

where one sees the repitition of the words that
were inserted in 1982:

Without limiting the grounds upon which an objection may be made, the

grounds of objection may include one

or more of the following grounds, namely,

the grounds specified in regulation 119

of these Regulations or the ground that
the alteration has not been made in
accordance with the rules of the

organization.

If the Court pleases, having given that brief

outline of the provisions of the Act and regulations

which, it will be submitted, are relevant here, may

I say of section 132(1), that it describes which

associations may be registered and identifies the

conditions that such an association has to satisfy

in order to be registered. This provision or its

forerunner, originally section 55 of the

CONCILIATION AND ARBITRATION ACT have done ever

since 1904.

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MR GREEN (continuing): Section 142 of the Act aside, the

only thing, it is submitted, standing between any

association described in section 132(1)(a), (b) or

(c) and its being registered is compliance with the

prescribed conditions. That this is the proper

construction to be placed on section 132(1) is

reflected in section 135 which equates compliance

--with the prescribed conditions with an entitlement to registration.

Section 142 of the Act which was originally

section 59 of the Act in slightly different form

when the Act was first enacted qualifies what would

otherwise be an absolute original right of an

applicant association to be registered on compliance

with the prescribed conditions and, in our submission,

the presence of the definite article is of

significance here.

However, the provisions of section 142 show

that the extent of that qualification is limited.

That section 142 enables the Registrar in an appropriate case to make exceptions to the general

rule against duplication of registration for

organizations, in my submiss,ion, recognizes the

importance that Parliament has ascribed to

facilitating registration.

As I have said, section 142 was of no application

in these circumstances. The absence in section 132

of any reference to the Registrar suggests that no

discretion has been given to them under that

provision and one notes the use of the passive voice

in ~ectiort 132(1). As was said by two members of

this Court in the COAL case, 24 CLR 85, at page 96,

the word "may" in section 132 (1) , and there the

Court was dealing with section 55, is predicated

of the associations and persons,not of the

Industrial Registrar.

So that it follows, in my submission, that the

word "may" where it exists in section 132 (1), imports no discretion in the Registrar to grant or	refuse registration. Accordingly, if there is any
such discretion, it has to be found elsewhere. In
contrast, section 139 and 142 mention the Registrar
by name, they make it clear that the respective
provisions give a discretion to him and state the conditions under which that discretion is or is not to be exercised.

So, too, does section 132(1) invite any association

described in paragraphs (a), (b) or (c) to apply to

be registered as an organization. In my submission,

the extension of that invitation is made in a

legislative setting where one of the chief objects

of the Act is to encourage the organization of

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representative bodies of employers and	employees
and their registration under the Act.	The 1904
Act had, as one of its chief objects -	this was
object No 6 - to facilitate:

and encourage the organization of

representative bodies of employers and of

employees -

et cetera.

(Continued on page 17)

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MR GREEN (continuing):  Now, a few years after 1904,

the legislature withdrew the words "to

facilitate" but it is submitted that in the

overall scheme of things, that is of no great

significance for these purposes and so the

prosecutor's submission is that the Parliament

contemplated that the invitation to so apply

would be as widely accepted as possible and

that subject only to the requirements of

section 142 being met, compliance with the

Drescribed conditions was sufficient to

attract registration.

The scheme of Parliament has always been

clear, that compliance with the prescribed

conditions should confer an original right on

the specified associations or persons to be

registered. 11The word 'may\ accompanied by

the words 'on comDliance with the prescribed

conditionslf'conferred and confers a right calling

upon the Registrar"to register the applicant

as an association." For that proposition, I rely

upon the COAL case, at page 97.

In this context, one is reminded of a passage

that appears in an oft cited case, JULIUS V LORD

BISHOP OF OXFORD, (1880) 5 AC. May I take

Your Honours to page 222 of that decision. In

the final paragraph, five lines into that paragraph,

the Lord Chancellor, Earl Cairns, said of the words

"it shall be lawful", they:

Are not equivocal.	They are plain and
unambiguous.	They are words merely making

that legal and possible which there would

otherwise be no right or authority to do.

They confer a faculty or power, and they do

not of themselves do more than confer a faculty
or power. But there may be something in the

nature of the thing empowered to be done,

something in the object for which it is to be

done, something in the conditions under which

it is to be done, something in the title of the person or persons for whose benefit the

power is to be exercised, which may couple

the power with a duty, and make it the duty
of the person in whom the power is reposed, to

exercise that power when called upon to do so.

Now, in my submission, that last expression or

observation of the Lord Chancellor is apposite

when one comes to examining section 132(1).

There is an echo of that sentiment in a

decision of this Court to which I will not take

Your Honours but it is to be found in FINANCE

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FACILITES PTY LTD V FEDERAL COMMISSIONER OF
TAXATION, 127 CLR 106 at pages 134 to 135.

The Registrar is a statutory officer whose

primary duty, in my submission, is to register

and keep the register of all the registered

-- organizations under the Act.	I refer to
sections 131 and 132.	May I take the Court

to the COAL case, 24 CLR at page 102. Having

referred to JULIUS V LORD BISHOP OF OXFORD,

His Honour Mr Justice Higgins stated at about

a third of the way into the page that:

(Continued on page 19)

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MR GREEN (continuing):

The Registrar is a statutory officer whose

primary duty is to register and keep the

Register (secs. 54, 55); he has no discretionary

or judicial functions except such as are

given him by or under the Act; and he is not

given the function of granting or refusing

registration at his discretion. The only

exception is in the case mentioned in
section 59 -

which was the forerunner of section 142 -

when there is another organization already
registered to which the members might

conveniently belong. The fact that he is

expressly given a discretion in such a case

implies that, without it, he would!,have to

register, and that he has no other discretion.

Tolring His Honour's reference up to date one might

fairly say in 1988 the Registrar has no discretionary

functions except such as are given him by or under
the Act, namely, sections 134, 139 and 142. It

also implies, according to Mr Justice Higgins

in SULPHIDE:/ (1918) 25 CLR pages 25 to 26. At

the foot of page 25:

Indeed, the fact that the Registrar is expressly

given power to refuse to register an

association ..... implies that other questions

of policy are not for him to entertain:

Expressio unius exclusio alterius.

Now, in this regard one recalls a cormnent that was
made by a member of the Full Bench of the

Arbitration Cormnission, Mr Deputy President Hancock,

at page 80 of the application book where he said,

in the first full paragraph, in the context of

whether the rules of the ITF should:

allow it to enrol principals and

deputy-principals.

This is about two-thirds of the way into the page.

The Act affords a mechanism which would

facilitate that process -

referring to the amendment of rules -

but the Registrar is not an authority established to plan and prescribe the

structure of trade unionism in an industry.

C2Tl0/l/MB	19	7/10/88
Brideson

The duty of the Registrar to refuse registration

under section 142 is exercised by reference to the

convenience of the members of an applicant

association. Accordingly, in my submission,

section 142 discloses a willingness by the

-legislature to accorrrrnodate the wishes of those

who wish to associate in order to participate in the system of conciliation and arbitration created by the Act. That is the position, it is

submitted, whether it be to grant such an

association registration or to inform it that
there is a suitable organization already registered

to which its members might belong.

Now, the Parliament, in the provisions to which

I have taken Your Honours, and the Governor-General

as such with which an

in the regulations to which I have also taken prescribed conditions

applicant association must comply. The corrrrnand

of section 132(2) that such conditions shall

be as prescribed is given, in my submission, in

order to apprise an applicant in advance of what

it has to do in order to be registered.

(Continued on page 21)

C2T10/2/MB	20	7/10/88
Brideson

MR GREEN (continuing):  As well, it enables a prospective

objector to know with a degree of certainty whether

an application is deficient in relation to

non-compliance such that registration can be

resisted and not least it assists the Registrar

to decide whether to grant or refuse registration.

Now, the Registrar in his decision of

17 December 1986 seems to have been conscious of

these considerations. May I refer the Court to

page 94 of the application book, at the final full
paragraph, under the heading of the Onus of proof

that obtained in relation to an application for

registration, the Registrar said:

The applicant has complied with the

requirements of the Act and Regulations

so far as it is able to do so. It has

done all that is required for a valid

application so far as that can be

identified by reference to the legislation.

If its application for registration were

to fail, it would do so because of grounds

of objection brought pursuant to

regulation 119 of which it was not aware

it might have to meet until brought to notice

by an objector. The applicant does not

have to defend its right to registration

until an objector has made out a prima facie

case against registration.	No such case has
been made out.

WILSON J:  Mr Green, just remind me, what was that prov1s1on

that says applications for registration should be

dealt with in the order in which they were received?

It has a qualifying phrase, I think -

MR GREEN:	Yes, "shall as far as practicable".
WILSON J:	- - - "as far as practicable".
MR GREEN:	That is regulation 117, Your Honour.
WILSON J:	I see.
MR GREEN:	Under section 198(1) of the Act, as the Court

has seen, the Governor-General has power to make

regulations not inconsistent with the Act. Now,
in so far as subregulation 119 of the Regulations
purports to enable an objector to registration to

rely on grounds other than those specified in

(a) to (c), in my submission, it is inconsistent

with andultra vires the Act. Now, the alternative

submission I wish to advance on this is that,

in accordance with section 46(b) of the ACTS

INTERPRETATION ACT 1901 the Court should read and

construe regulation 119(2) subject to the Act and

so as not to exceed the power under subsection 198(1)

C2Tll/l/HS	21	7/10/88
Brideson

to make regulations not inconsistent with the Act.

To so read regulation 119(2) would require

the Court not to give effect to the words

"without limiting the grounds upon which an

objection may be made".

In my submission, the grounds specified in

(a) to (c) are a careful and complete reflection of the scheme of the Act in so far as it relates

to registration. Ground (a) is a reference to the

types of association described in section 132(1),

ground (b) is a reference to section 132(2) and

ground (c) reproduces the relevant words that find

expression in section 142 of the Act.

Now, in order to appreciate, it is submitted,

how the words "without limiting the grounds

upon which an objection may be made" were inserted

into regulation 119 it is necessary for me to

refer Your Honours to a decision of the then

President of the Conciliation and Arbitration

Commission, Sir John Moore, in the FEDERATED

IRONWORKERS case, 261 CAR 824.

(Continued on page 23)

C2Tll/2/HS	22	7/10/88
Brideson

MR GREEN (continuing): Sir John was dealing, in that case,

with an appeal that had to do with an

application by the Federated Ironworkers'

Association in order to amend its rules of eligibility

so as to make it clear whether they covered employees

employed in certain areas of uranium mining. There

was argument advanced by the Federated Ironworkers

---in support of that application that under an

objection - where an objection was made under

section 139 of the Act, one was confined to, in

advancing an objection or grounds of objection,

grounds (a) to (c) as set out in regulation 119.

And there was a decision of Mr Justice Coldham

of the Arbitration Commission on which the Ironworkers

relied in putting that argument. In opposition to

that argument, the objectors, who were employers and

two unions already established in the field, said,

"It can't be so that an objector to an application

under section 139 would be confined to the grounds

specified in (a) to (c) because that would be

inconsistent with the discretion that is given to

the Registrar by section 139".

It is, perhaps instructive for the Court to see,

at page 828, the state in which the regulation appeared at the time that the case came before Sir John. Half-way down the page, at 828,

His Honour said:

The regulations which are relevant are

regulation 127 and 119. Regulation 127 deals

with applications under Section 139 and
includes the following provision:

"(6) The grounds of objection may include one or more of the following grounds, namely, the grounds specified in regulation 119 of these

Regulations or the ground that the alteration has

not been made in accordance with the rules of

the organization."

Regulation 119 in so far as it is relevant

says:

"(2) The grounds of objection shall be set out

in the notice and may include one or more of the

following grounds:

Perhaps I can interpose there and say that from

1905 until 1960 the language of the rules was that

an objector was confined to the grounds set out
and then, in 1960, the statutory rules were amended so that the grounds were prefaced by the words, "an

objector may rely on grounds that may include", and

the decision of Mr Justice Coldham to which I have

briefly referred was to the effec~ that the 1960

C2Tl2/l/ND	23	7/10/88
Brideson

amendment did not really make any difference to

the grounds that an objector could take.

And so it is that at the bottom of page 828

of this IRONWORKERS' case His Honour referred to

the argument that was advanced by the Ironworkers

__ and then, over the page at 829, he summarizes the

arguments that were put in support of there being

no limitation of grounds that one can take in

lodging an objection under section 139. At half

to two-thirds into the page of 829, His Honour

said:

From these decisions -

referring to a decision including the SULPHIDE

CORPORATION case -

it seems to me that the Regulations cannot lawfully circumscribe the discretion which reposes in the Registrar under Section 139.

The Act is a creature of the legislation whereas

the Regulations are not. They are subordinate

instruments the making of which must not be

"inconsistent with this Act". (S. 198) It is

proper therefore to construe them in a way which

will make them consistent with the Act rather

than inconsistent. If the word "may" is given

its ordinary meaning the regulation is permissive

and not limiting and in my view this is how it

should be construed.

At the top of page 830, His Honour said:

(Continued on page 25)

C2Tl2/2/ND	24	7/10/88
Brideson

MR GREEN (continuing): His Honour said:

The proper conclusion to be

drawn in my view is the Registrar's

discretion to give consent is not

limited to the objections referred

to in Regulation 127 and that it is

limited only by the consideration that

he should not act on grounds "extraneous

to the power" conferred on him. It
is not extraneous to that power for him

to take into account considerations

going to the industrial desirability

of an alteration sought.

And His Honour concuded at page 832, in the

final paragraph:

Having come to the conclusion that

the Registrar was not confined to

the grounds of objection recited in

Regulation 127 I am confronted with

a situation wherein a union which has

not at present constitutional coverage

over certain work seems to enlarge its

coverage.

WILSON J: That should be "seeks" I presume is it, seeks to

enlarge its coverage?

MR GREEN:	I beg your pardon, Your Honour?
WILSON J:	The word "seems" does not seem quite right, is

it seeks?

MR GREEN:  No, it does not, Your Honour.

WILSON J: Is it meant to be '.'seeks"?

MR GREEN:  I should think so, Your Honour, yes.

DEANE J:  Mr Green, I am missing something. How could the

grounds specified in regulation 119 be relevant

for objecting to an alteration to the rules of

the registered organization? I mean if they

are right it should not be registered?

MR GREEN:  certainly the provision that deals with

whether an association is capable of being

registered is odd, I have to concede, in the

context of a - - -

DEANE J:  They all are, are not they? I mean - - -

MR GREEN:  Yes, you cannot be registered in order to make

an application under section 139. Ground (b)

may be relevant, because I think in the deregistration

provisions

C2Tl3/l/SR	25	7/10/88
Brideson

DEANE J: But if a prescribed condition for registration

was not complied with that would mean the

registration was erroneous?

.MR GREEN:  I think that sort of contingency, Your Honour,

seems to be contemplated in the provisions

-that relate to applications for cancellation of

registration. There is reference -

DEANE J:	Do not let me divert you, I thought I must have
just been missing something.
MR GREEN:	No, I do not think Your Honour is missing something.

At some stage the Governor-General has fastened on to the grounds of objection in relation to

registration in order to engraft them upon

applications dealing with matters under section 139.

And it may well be that it was entirely inappropriate

for the Governor-General to have done so and I

acknowledge the anomaly, if I can put it so,

Your Honour, of what Your Honour has raised about

the grounds for the purpose of section 139. One

can well understand the grounds in relation to a

registration case because there is this

prospective element, but of course, one is dealing with the position after registration has occurred, section 139.

Now, the insertion in 1982 of the words:

without limiting the grounds upon which

an objection may be made-

.while perhaps understandable in the light of

Sir John's observations in that 1981 case as

regards regulation 127 ( 6 ), are completely indef ensibie,

in my submission, in relation to the insertion of

the words in regulation 119 for the purpose of

a registration case. And that is so because for

applications under section 139 to be granted, such

a grant depends on thei obtaining of the Registrar's

consent, the granting of which is founded on

a discretion being exercised, whereas the insertion

of the same words in regulation 119(2), by a

side wind as it were, seems to be completely at

odds and contrary to the scheme of the Act - - -

(Continued on page 27)

C2Tl3/2/SR	26	7/10/88
Brideson

DEANE J:  But why? I mean, the words do not to anything.

MR GREEN: Well, what they do, Your Honour -

DEANE J:	They simply prevent the regulation from doing
something.

MR GREEN: Well, what they do, Your Honour, in my submission,

is to enable an objector to take what grounds or

advance what grounds he or she will for the

purpose of resisting.

DEANE J:  No, they do not. They enable an objector to take

such grounds as are open to him under the provisions

of the Act and regulations.

MR GREEN:	Yes.
DEANE J:	It does not say anything about him being able to
take grounds. All it says is it does not limit
grounds that he is entitled to take. There may
be some. There may be none.
MR GREEN:	Yes. Well, in my submission, one is under very

much greater limitations in objecting to a registration

application than - - -

DEANE J:	But you are reading words that say "this regulation
will not limit grounds which would otherwise be
available" as saying 'this regulation confers a
power to take whatever grounds you like".

MR GREEN: Well, no, with respect, Your Honour, what I am

advancing is that, by the insertion of those words

he did beforehand to take grounds. in 1982,an objector had much greater liberty than

DEANE J: But, assume under one of the sections of this

extraordinary Act, there was a ground other than

( a) , ( b ) and ( c ) .

MR GREEN:  Yes.

DEANE J: You do not suggest, do you, that regulation 119(2)

could deprive an objector of that ground?

MR GREEN:  No, of course not.

DEANE J: Well, then, what more do the words "without limiting

the grounds" do than that?

MR GREEN: Well, in my submission, what they do is purport

to - - -

DEANE J:  I think what I am putting to you might help you, actually.

WILSON J: Yes. Justice Deane is helping or trying to help.

C2T14/l/SH	27	7/10/88
Brideson

MR GREEN:	Yes.
DEANE J:	I am not trying to help you.
MR GREEN:	Yes, well I am grateful for any help Your Honour

might care to -

DEANE J:  I am just trying to work out where it goes.

MR GREEN:  Yes. In the hypothesis Your Honour has given,

in my submission, it would be completely

unnecessary to say that there are other grounds

that you might want to avail yourself of.

DEANE J: But it does not say that. It says "without

limiting the grounds upon which an objection

may be made".

MR GREEN:	Yes.
WILSON J:	The right to take the objection must be found

elsewhere.

MR GREEN:	Yes, indeed.
DEANE J:	Now, if your primary argument be right and the
objection raised against you is not an objection that is allowable under the provisions of the Act properly construed, there is no way those words are going to say that we confer a right to take
that objection. They simply say "the regulation
does not r,urport to limit the right to take objection '.
MR GREEN:	Yes. Yes, with respect, I have to agree with

that, Your Honour.

In the light of what Your Honour Justice Deane

has just said - - -

DEANE J:	I would not take too much notice of what I said.
I am only one of three here.
MR GREEN:	Yes, Your Honour. What would be submitted on

behalf of the prosecutor here is the notion that

an objector could take any grounds is tantamount

to each new ground being another condition with

which'., a-n applicant association would have to

comply before being registered and I do not think

that that is at odds wi_th what

Your Honour has just put. If that were the case,

such a notion, in my submission, would be contrary

to the stipulation in section 132(2) that:·

The conditions to be complied with .....

shall be as prescribed.

and would tend to ignore the significance of the

word "prescribed".

C2Tl4/2/SH 28 7/10/88

Brideson (Continued on page 28A)

Now, if the Court pleases, they are matters

that go to the primary grounds being advanced

here by the prosecutor. May I then turn to the

grounds that deal with matters that assume

wrongly, in my submission, that there is some

sort of general discretion in the Registrar.

(Continued on page 29)

C2Tl4/3/SH	28A	7/10/88
Brideson

DEANE J:  Mr Green, do you not have to direct some attention

to the matter that was at the back of the COAL case,

and that is how does your argument fit in with the

cancellation provisions?

MR GREEN:-- It would fit in in this way, Your Honour. The

Court took the view in the COAL case, as I

apprehend· it, that if one complied wfth the prescribed

conditions in circumstances where an association

had been deregistered, there was not any absolute

right to obtain registration. Now, in order to

analyse that proposition the court had to make

an analysis of the forerunner of section 132,

section 55. Speaking of that provisio.c, I think
it is fair to say that almost every member of the

Court, with the possible exception of Mr Justice Barton, took the view that in terms of an original application

for registration once you had complied with the

prescribed conditions you were entitled to be

registered, but that in the context of a
reregistration case there was no such absoluteness

of right and one had to look at the initial

registration provisions in the light of, and

subject to, the deregistration and re~egistration

provisions, from which the Court concluded, as

I apprehend it, there was a discretion in the

Registrar to ·refuse registration where that was

other than an original registration following upon

deregistration.

DEANE J:	Well, now, has that been clarified in the sense that
if an organization's registration was cancelled

under section 143, is it open to the Registrar to

reregister it?

MR GREEN:  Upon the reasoning of the COAL case it must be.

DEANE J: There is no new provision covering that problem?

MR GREEN:  None that I am aware of, Your Honour.

DEANE J:  Well, now, if your argument be right and an

organization was deregistered under section 143,

but complied with (a), (b) and (c), what would

empower the Registrar to refuse reregistration

or registration?

MR GREEN:	Yes, I see what Your Honour is putting.
DEANE J:	There may be a simple answer but it is a problem

that has been exercising my mind.

MR GREEN:  There may be a simple answer to which I cannot

point, Your Honours, but if there is not a simple

answer provided by the Act, by parity of reasoning

I suppose, one would have to follow the COAL case

and say that in the light of that interpretation

there is a discretion.

C2Tl5/l/MB	29	7/10/88
Brideson

DEANE J:  Are there express provisions dealing with the

reregistration of an organization whose registration

has been cancelled?

MR GREEN:	Yes, there are, Your Honour, yes.
DEANE J:	And what, conferring authority on whom or what?
MR GREEN:	I am sorry, I may have indicated to Your Honour

that there is a special provision under which one

applies if deregistration has occurred. I am not

aware that there is such a provision and that may

be just my ignorance, Your Honour, but it is the

difficulty there. If that does reflect the

position that exists in the Act - of course, one

has to have regard to whether there has been compliance

with the prescribed conditions and these other matters - that

can impede an applicant being registered. If

that is the position one, I suppose, is left with

the COAL case as standing for the proposition that

somehow or another - and this would be contrary

to the dissenting view of Mr Justice Higgins - that
there is this discretion in the Registrar.

It may be that in 1988, if that is the correct position, that the view of Mr Justice Higgins

expressed in the COAL case is to be preferred,

namely, that whether it is original registration

or deregistration, once you comply with the
prescribed conditions there is an entitlement

to registration.

(Continued on page 31)

C2Tl5/2/MB	30	7/10/88
Brideson
DEANE J:	I just do not know.	It may be that if an order

for cancellation is made by the Court the Registrar

would not have power to reregister, but that is

something I have no views on. I do not know.

MR GREEN:  It may, too, depend on the - for example, one

recalls legislation relating to the Builders

Labourers Federation where Acts of Parliament in

the past providing a machineryby which deregistration

was to take place and there was some stipulation,

I think, in that legislation as to the length of the

cancellation. Now, if that is right, presumably

once that time expires in the absence of any other

provision in the Act, such an organization makes

application for registration under section 132 of

the Act.

WILSON J:  But that special circumstance of cancellation

seems to be dealt with specifically by section 143A,

does it not, where the cancellation is in accordance

with a direction from the Governor-General?

MR GREEN:	Yes, Your Honour, it would.
WILSON J:	But not -  that does not answer the general

question.

MR GREEN:  No, it does not, Your Honour. It has been pointed

out to me, if the Court pleases, that section 143A(4)

does provide conditions for reregistration.

WILSON J:  But only when cancellation is by

the Governor-General.

MR GREEN:  Yes, only in that event, Your Honour, and in that

circumstance there is a reference to the conditions

to be complied with, again under section 132.

DEANE J:  I was more concerned with cancellation by court

order.

MR GREEN:  Yes, I follow, Your Honour. I then go to the part of

the submission that has been relied upon by the

prosecutor that presuppose that there is a

general discretion in the Registrar to refuse

registration. By announcing on 2 October 1986

that he would register TAA in some form or

another, all that the Registrar was doing, in my

submission, was discharging the duty imposed on

him by ~egulation123(2) of the Regulations, which is:

On the hearing, the Registrar shall hear

the parties if they are present and desire
to be heard, and, subject to the Act and

these Regulations, shall decide the matter.

C2T16/1/HS	31	MR	GREEN	7 /10/88
Brideson

Now, despite that, the Commission considered the

Registrar to be confronted by a unique set of

circumstances such that he should not have decided

the TAA matter until he had heard all three

applications.

However, the Registrar's reasons for decision

show that he was alive to the argument about a

so-called "unique set of circumstances''. May I take

the Court to the second paragraph of page 94 of

the application book. The Registrar's response

to that sort of argument was as follows:

It was put to me that, in the

circumstances of this case which resulted

from the fact that an area of employment

thought to be outside the constitutional

power has been declared to be within it,

the onus is on the applicant to show that

its registration under the Aet is justified.

Those circumstances were described as

unique and mention was made of the sudden

creation of an industry. In my view,

the decisions of the High Court in the CYSS

Case and RE LEE are but the latest in a

long line of cases contributing to the

identification of the parameters of the

conciliation and arbitration power in

the CONSTITUTION. They do not require

a departure from the approach that

ordinarily applies in the consideration

of applications for registration.

(Continued on page 33)

C2Tl6/2/HS	32	7/10/88
Brideson

MR GREEN (continuing): In my submission, the Registrar's

response was correct and is borne out by the

following references to the two cases that he

cited, and without taking Your Honours to those two

cases, regarding the CYSS case, I have referred to

pages 310 to 312 of volume 153 CLR, and as to

_fE LEE, 160 CLR 430, at pages 448, 454 to 455 and

467 to 468.

If there is a general discretion in the Registrar

to refuse registration, and if it is proper for the Commission on appeal to exercise the discretion, in

my submission, it should be exercised in favour of

registration. Laying down criteria by reference to

which one might determine whether a general discretion

to register is exercised is, of course, an inexact
process and this, of itself, tends to suggest or

support the proposition that no general discretion

exists.

However, presumably, one begins from the

presumption that once an applicant has complied with

the requirements of the Act and regulations, it falls

to an objector to make out a case against registration.

In that connection, may I refer Your Honours to

page 94, paragraph 4, of the application book

dealing with the Registrar's decision.	What the
Registrar said there was:

The applicant has complied with the

requirements of the Act and Regulations so far

as it is able to do so. i

I think I have taken the Court to the rest of that

paragraph in another context.

Whether an objector could do so, that is to

make out a case against registration, would depend

on, it is submitted, taking into consideration the

following matters: first, Part VIII of the Act is
designed to encourage associations which answer the

description in section 132(1) to apply for and

obtain registration in order to be able to

participate in the system of conciliation and

arbitration created by the Act; secondly, the wishes

of the persons who come together to form an applicant

association aspiring to registration should be given

effect to, if at all possible; thirdly, one might

ask the question, "Is there already in existence a
registered organization to which the members or

substantially all of the members might conveniently

belong?"; fourthly, one might ask further if there are

competing applicant associations, "Whose application

was first received?"; and, fifthly, the grounds of
objection to registration, taken in accordance with
regulations 119(2)(a) to (c) should be given primacy

over grounds other than those that are set out

C2T17/l/ND	33	7/10/88
Brideson

therein and, as I have said to the Court earlier,

from 1905 to 1960, those grounds were expressed

by the Governor-General to be the grounds to which

an objector was confined.

I make this qualification about that, if the

Court pleases: from 1928 until 1956 the forerunner

--of today's section 140, which deals with oppressive or tyrannical rules, was specified in the statutory

rules as ground (d) and after 1956 when there was

a reorganization of the legislation that went out

of those specific grounds.

In any event, in the case of the UNITED

FIREFIGHTERS' UNION, 129 CAR 43, at page 54,
His Honour Mr Justice Franki of the Federal
Commission said, at the fifth paragraph:

(Continued on page 35)

C2Tl7/2/ND	34	7/10/88
Brideson

J:1R GREEN (continuing):

The present regulation 119(2)

provides, inter alia, that the grounds
of objection shall be set out in the
notice and 'may include one or more
of the following grounds ..... 'I do not
regard this alteration made by

Statutory Rule No. 86 of 1960 as

making any difference to the legal

position as it stood at the time of the

COAL case.

Finally, if one is to try and lay down some

criteria by reference to which one might determine

whether registration should be granted or refused,

it is submitted, that to the extent that any objects

of the Act are envoked as grounds of objection, as

part of the registration process the Registrar

should treat those objects as subordinate to the

object with which he is most immediately concerned,

namely, the object that is set out in section 2(e),

to which I have taken the Court.

The final ground of the order nisi, if the

Court pleases, articulates that there was no power

in the Commission to - I beg Your Honours' pardon,

ground 6:

There was no power in the first, second

and third Respondents to themselves

determine the outcome of all three

applications for registration by an

exercise of their own discretion in

circumstances where a decision to

grant one of those applications, namely,

that of the Australian Teachers'

Union was never the subject of appeal.

Section 88F of the Act provides, if I may take the Court to that, subsection (1): The Commission may grant leave

to appeal to the Commission from an

act or decision of the Registrar in

relation to a matter and may hear and

determine an appeal in respect of

which leave is so granted.

If I can then ask the Court to go to subsection (4):

Upon the determination of an appeal

under this section by the Cormnission,
the Commission shall make such order as

it thinks fit and may confirm, quash or vary

a decision of the Registrar appealed from.

C2Tl8/l/SR	35	7/10/88
Brideson

Now, the Commission concluded that all three applications should have been heard before a

decision was made in any one of them. From this

conclusion it followed, according to the reasoning
of the Commission, that the Commission itself must

-~etermine the outcome of the three applications

by an exercise of its discretion. And I refer,

Your Honours, to pages 39 of the application book

and pages 78 to 79, where the joint judgment

and that of Deputy President Hancock agree with

the joint judgment on this particular matter.

Now, it is submitted, that that was a

remarkable position to adopt in circumstances where,

as Mr Justice Coldham and Mr Coninissioner Smith later

acknowledged, no application for leave to appeal

from the Registrar's decision to register ATU had

been lodged and it also. acknowledged that

it was not for the Commission to determine the

merits of that decision.	I refer in that regard to
page 43 of the application book.	The absence

of any appeal against the ATU decision is further

acknowledged at page 45.

In my submission, it is one thing to exercise

a discretion on appeal differently from the way

in which it was exercised at first instance, but it

is quite another to exercise a fresher discretion

in circumstances where its original exercise is

not being impugned or the subject of appeal or an

application for leave to appeal.

(Continued on page 37)

C2Tl8/2/SR	36	7/10/88
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MR GREEN (continuing):  In my submission, the Commission,

by doing the latter, purported to exercise a

power which it did not have since in no sense

was the Commission being called upon to determine

an appeal in respect of the ATU decision regarding

-~egistration.

WILSON J: 

Is it not open,and reading the Commission's decision, to conclude that they were not at any stage reviewing the discretion of the Registrar

with respect to the registration of the ATU?

MR GREEN: 

I am sorry, Your Honour?

WILSON J: 

At no time was the Commission reviewing the

exercise of the discretion of the Registrar with
respect to the ATU?

MR GREEN:  No, that is quite true, Your Honour. But what

the Commission did say was that in these
circumstances, which it characterized as unique,
it fell to them that they had to look at all three
applications and exercise the discretion in relation

to all three.

WILSON J:  Was. the error that they found the Commissioner

had fallen into that they, failing to view them

together, be put beyond consideration the condition

of section 142 about convenient belonging?

MR GREEN:	I do not think that was the precise basis on which they acted, Your Honour, because the
Commission acknowledged in its decision that
section 142 had little or no role to play here
and they say that quite explicitly.  So one could
not really draw comfort from section 142.
WILSON J:	Yet, ultimately, their decision to allow the

appeal with respect to your client was really

based on a finding that its members could

conveniently belong to one or other?

MR GREEN:  Not in terms, but in substance one has to conclude

that that is what they did.

WILSON J:	Yes.
DEANE J:	Well, it really reflected a wide philosophy, did it not, without being critical in any sense
of any union, that they did not want boutique unions
and they worked out what was the appropriate union
in their view. Well, now, if that is an open
approach it is rather hard to criticize here what
they did, is it not?
MR GREEN:	We would make some criticism of it, of course,

Your Honour.

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DEANE J:  I realize that but I am talking about the sort

of criticism you can make here?

MR GREEN:  Yes. What we would say about that, Your Honour,

is because of the specific context here, a

-~egistration process, that these broader sorts

of matters that Your Honour is adverting to, to
the extent that they are of relevance, are really

subordinate to one of the chief objects of the

Act, namely, to encourage registration, while if

the general discretion exists one can allow for

the fact that the matters Your Honour has mentioned

would be matters to which one would pay regard.

One would not pay as greater regard, in my

submission, to the chief and specific object

with which the registration process concerned

itself.

DEANE J:  But assume that the Registrar had an open slather

which the Connnission has if he has gone wrong,

if you are moving into a new area like this because

of a combination of situations, could you really

criticize the approach, "Well, he should have looked

at everything", and worked out what was appropriate
instead of simply saying, "If there are SO different

unions, each with 100 members, and each that

technically complies with things, I will register

SO unions all covering the same class of membership."

(Continued on page 39)

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MR GREEN:  Except for this, Your Honour: the Commission,

as the basis of its substitution of its own

discretion for that of the Registrar, was

critical of the Registrar by announcing his
decision to register at the close of play,
so to speak, of the TAA hearing. What it
did not seem to acknowledge was that all the

Registrar did, at this stage, was to make an

announcement that he was going to register

TAA. On being pressed about the extent to

which registration was going to be given, the

Registrar made it perfectly clear - and this is

on the material - that he had not made a decision

yet about the extent to which he would give TAA

registration and, by implication, he must have

had in mind that he wanted to hear the other

applications through to completion before he formulated his decision and published it and

the Commission has seized upon this announcement

of the Registrar but, in so doing, it has failed

to examine the true nature of the announcement,

namely, that on the grounds of objection he
had heardthitherto, he was not going to refuse

registration.

DEANE J:	I see that and I will stop interrupting you after
this, Mr Green, but the point I was trying to
direct your attention to is there may be great
force in what you say but, assume for the sake
of this argument that you have lost,because
it is only on that basis we come to this - - -
MR GREEN:	Yes.
DEANE J:	- - - and that the Registrar did have an open slather and that the Full Bench can review what
he does.  I still have trouble seeing the question
of law which justifies the,intervention of this
Court by way ofprerogative writ.
MR GREEN: Yes, I follow that, Your Honour. If there is

open slather, I acknowledge the difficulty.

However, one is still left with the difficulty

of whether, in having open slather, the Commission

can also exercise afresh a discretion in relation

to a particular decision to register that is not the subject of any challenge and that, if nothing

else, would be quite irregular, in my submission.

GAUDRON J: Is not the alternative to that, though, that

it is faced with the fact of that registration

and must, in exercising the discretion afresh,

give effect to that decision and the conse~uence

of that might well be the "conveniently belong issue

would be decided against you?

C2T20/1/SH	39	7/10/88
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MR GREEN: Well, certainly, Your Honour, at the time that the

Full Bench published its decision, the ATU had been registered so there is an air of artificiality to

look anew at the way in which the Registrar

approached the problem in so far as it related to

- - you.

GAUDRON J: It is more favourable to you, is it not, to do

it that way, in a sense?

MR GREEN: That has to be conceded, yes.

GAUDRON J: Yes.

WILSON J: And when is the registration effective? The

certificate of issue of registration is conclusive

evidence of it but is registration not effective

when the decision is handed down?

MR GREEN:	No, I do not think it is effective immediately on the decision being handed down, Your Honour,
unless - - -

WILSON J: Yes.

GAUDRON J: It is 21 days, is there not, in any event, to

allow -

WILSON J:	I see.
GAUDRON J:	No order takes effect for 21 days, that is - - -

MR GREEN: That is as I understand the position.

WILSON J:  But it would have taken effect before the hearing

of the appeal before the Full Bench.

MR GREEN:	Yes, indeed, Your Honour.
WILSON J: Yes.
MR GREEN:	Yes, keeping in mind that it was over a year

between the actual issue of the certificate of

registration and the publication of the decision

of the Full Bench.

(Continued on page 41)

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MR GREEN (continuing):  I think I have already flagged ,

that, in my submission, the Commission misapprehended

what it was the Registrar did on 2 October at the

close of the TAA hearing. Perhaps I have said enough

too as to why this is important because, a& the Court

will have already apprehended, the basis upon which

the Commission sought to substitute its discretion

--for that of the Registrar was that, in the light of

the fact that the Registrar knew of all the three
applications he should have waited until all the
material was in for all three before he considered the
matter.

One is met with some difficulty, an additional

difficulty,with sustaining that view, in my

submission, when one pays regard to regulation 117,

which deals with the order in which the applications

are to be dealt with, and I acknowledge the

qualification Your Honour Justice Wilson has pointed

out about that, and regulation 123, subregulation (2)
of which stipulates the procedure to be followed by
the Registrar on the hearing of the registration

case.

One has in mind, and ought to keep in mind, it

is submitted, too, that in his decision to register

the ITF, the Registrar said that the TAA application

and the ITF application were interrelated and the

grounds of objection in the ITF matter were put

forward under one guise or another in the TAA matter.

As to any prerogative writs going, if the Court

is with me as to the primary argument and

concludes that the Registrar is under a duty to

register TAA here, mandamus will go and I refer to

REG V ANDERSON, EX PARTE IPEC-AIR PTY LTD,

113 CLR 177, at page 188.

WILSON J:  We do not think we need trouble you on that question.

MR GREEN: If Your Honours please.

WILSON J: If the conclusion is as you have indicated, subject

to any submissions that may be put against you and

to which you can reply - - -

MR GREEN:  Does Your Honour wish to hear from me as to

certiorari?

WILSON J: Yes, the quashing of the Full Bench decisions, yes,

you had better address that.

MR GREEN: If Your Honour please. In my submission, it would

be open to the Court to grant certiorari. In

PITFIELD V FRANKI, 123 CLR 448 - - -

WILSON J: This is on your second argument?

C2T21/l/ND	41	7/10/88
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MR GREEN:	Yes, Your Honour, although it may arise, even on the first argument because if I am right in
the first argument and mandamus goes to the Registrar, unless certiorari is granted the decision of the Full Bench would remain unquashed.
It might be better to have it quashed, in my

__ submission, than to ignore it. So, in either event,

one would need to address oneself to certiorari.

IN PITFIELD V FRANKI, the Court granted

certiorari and I refer, without taking the Court

to it, to pages 459 to 460, 463 and 467. There,

prohibition and certiorari were claimed as

alternative remedies. The subject-matter of PITFIELD

V FRANKI was the granting of registration by the

Registrar in relation to the United Firefightets'

Union.

In REG V COOK;·. EX PARTE TWIGG, 14 7 CLR 15,

His Honour Mr Justice Gibbs, as he then was - - -

DEANE J:  But why, once the Full Bench has displaced the

Registrar's decision, are we any longer concerned with what the Registrar has done? I mean, why should not we be looking to what the Full Bench

has done?

(Continued on page 43)

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MR GREEN:  One looks to what the Full Bench has done

initially, in my submission, but one then

acknowledges that if the argument about compliance

with prescribed conditions is right, there is an

entitlement to be registered and - - -

DEANE J:- No, why would one not say to the Full Bench,

"You deal with the proceedings before you on the

basis that if (a), (b) and (c)", or, "If the

prescribed conditions in section 142 are

satisfied an applicant is entitled to be registered",

because it is not quite apparent to me that you

would necessarily succeed before the Full Bench

on that approach and that if the Full Bench

thought that all turned here on section 142 that

it may not approach the matter somewhat differently

to the way in which it did approach it.

MR GREEN:  With respect, Your Honour, one wonders whether

that would be desirable to do, because one is

dealing with circumstances in which the Full Bench

is assessing the matter and the position as it stood
as at the time of the hearing before the Registrar,

and, if that is the case, in my submission it would

be more appropriate for mandamus to go to the

Registrar, since it is in him - if I am right in my

primary submission - that the duty to register

reposes.

DEANE J:  I am in a field where I sort of grope all the

time, but let us assume the Full Bench had said,

"Point l, the Registrar misconstrued the Act.

He had no discretion if he was satisfied of these

things; point 2, he should not have been

satisfied about section 142. Therefore, we will

set aside his decision and we will do exactly

what we have done." Now, if you were to come

here seeking an order of mandamus directed to the

Registrar, I would have thought the simple answer would be to you, "We're not concerned with

the Registrar any more. We're concerned with the
Full Bench."	Now, why, simply because the

Full Bench did not embrace your argument on the

construction of the Act, is the position different?

MR GREEN:  I do not know that I am able to advance a

reason to Your Honour why it is different.

The view on which I was seeking to rely was that

although this Court is concerned most immediately
with the Full Bench, there would be consequences,
for example, if certiorari were to go, about

whether and to whom the writ of mandamus would

be directed.

WILSON J:  Why would it not then be directed to the

Full Bench to determine the appeal according to law?

C2T22/2/HS	43	7/10/88
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MR GREEN:  To dot at, Your Honour, would be more appropriate

in a cir umstances where one is working on he

assumpti that there is a general discret on,

but where one is dealing here with what we submit is a non-discretionary duty, in that circumstance it would be submitted that the

proper or appropriate way to go would be to grant

mandamus directed to the Registrar, since it is

with his duties that the Court is concerned, and
what we are contending is that if there is this

entitlement to registration there is a correlative

duty on the Registrar to issue, in due course,

a certificate of registration.

(Continued on page 45)

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DEANE J: But unless you can,before you reach that stag~

get rid of the Full Court's decision, even on

your first point, there is no way this Court

can talk to the Registrar, is there? I mean
assume as of now we adjourned this and you went

to the Registrar and said to him, "You have a

- duty to reconsider my application for registration",

would not his answer to you be, "Don't be silly,

you've gone to the Full Bench and its made the

order now". Now, unless you can say that to him,

how can you get from this Court an order directing
him to disregard what the Full Court has done

and go ahea~.or the Full Bench I mean?

MR GREEN:  I dare say the Registrar would take on its face

anything that came from this Court, but I

acknowledge what Your Honour is saying.

GAUDRON J: There actually is a more fundamental problem, is

not there and that is, even if the decision of the Full Bench were quashed, there would still

be in existence an appeal?

MR GREEN:  Yes, which would have to be determined in

accordance with law.

GAUDRON J: Yes.

MR GREEN:  Yes, I acknowledge that, Your Honour. Do

Your Honours wish to hear from me any further as

to certiorari? I was about to take Your Honours

to TWIGG's case and something that His Honour

Mr Justice Gibbs, as he then was, had said in that.

WILSON J: That does not carry it very much further, it

simply acknowledges the difficulty that one day

the Court will have to grapple with.

MR GREEN:  Yes, whether this is that day is another matter,

Your Honour.

WILSON J:  It is not in my book. I think the Court does

not wish to hear you further on that.

MR GREEN:  If the Court pleases, it is for all those reasons

that it is submitted that the order nisi should

be made absolute.

WILSON J: Thank you, Mr Green. Mr Kenzie?

MR KENZIE: If it please the Court, may I hand to the

Court copies of the outline of our submissions which we put in opposition to the application

and Your Honours will see, immediately, that

whilst we also do not see today as the day on which

the Court would come to grips with the matters

C2T23/l/SR	45	7/10/88
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perhaps left ultimately unresolved in REG V COOK;

EX PARTE TWIGG, nonetheless there are submissions

which we would seek to advance in relation to

certiorari and they really commence with the

proposition that mandamus is not actually, or

--~ven colourably, available.

WILSON J: Perhaps we should have had your outline before

I made that comment, Mr Kenzie, but in any event you proceed and Mr Green will have an opportunity

of replying.

MR KENZIE:  Thank you, Your Honour. Perhaps the proper

commencement point, in view of the debate that

has been had, is really capital Bon page 2

of our submissions where we deal very briefly

with mandamus. And we put the submission that

mandamus is not available against the Industrial

Registrar to compel him to register.

(Continued on page 47)

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MR KENZIE {continuing):  We point out that a~art from the

issue mentioned by Your Honour Justice Gaudron

that the appeal was still before the Full Bench
there were clearly, on the face of the record,

matters which would have to be resolved by the

_Full Bench before the matter could go any

further. In particular - I do not want to labour

this, Your Honours, in view of the debate that has

been had - on pages 70 and 71 of the application

book the Cormnission expressly directs attention
to some matters which have been left outstanding,
or if not outstanding, unresolved, because of the

way in which the matter had been processed.

DEANE J:  But, Mr Kenzie, if ultimately Mr Green succeeds

on his first point, the interpretation point,

mandamus would go to the Full Bench, would it not?

MR KENZIE:  Yes. Mandamus is not being sought, Your Honour.

DEANE J:  Well, I think you would soon remedy that, would

you not?

MR KENZIE:	Yes, Your Honour, and we really do not stand here to get in the way of any application for an
amendment if it is made.  However, the Court will
appreciate that we have prepared these submissions on the basis of the application before the Court and with a view to putting submissions as to what the Court's jurisdiction was on the basis of the
matter before it.  If the success of these
submissions, otherwise, would lead the applicant to seek to amend, our instructions are that we want the matter finally disposed of and not to go
off by way of a side wind.  But our submissions
would not be affected ultimately,as to certiorari,
by an amendn:Ent because as we apprehend it, in relation
to certiorari anyway, the issue would arise as to
whether - and if so on what basis certiorari was
available - if it was available as an ancillary
remedy, that is, ancillary to mandamus if claimed,
then none the less, for the reasons we will go on to very briefly advance, it would be available as
a statutory remedy and as a statutory remedy it
would be caught or it would attract section 60 of
the CONCILIATION AND ARBITRATION ACT, the privative provision with the result that the scope of what the Court' could examine in relation to the decision
of the Full Court would be much narrower, and we
directed attention to some of the decisions that
are clearly relevant there.
DEANE J:	Well, while I am interrupting you can I ask you
this: if contrary to your submissions it emerged
that the Full Bench had misconceived its whole
function by a wrong construction of the Act - I

am referring to the first point - it must follow,

C2T24/l/MB	47	7/10/88
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must it not, that mandamus would go to direct it to

deal with the matter before it on the basis of the

proper construction of the Act?

MR KENZIE:	Yes, Your Honour.
DEANE J:	It is only when we move outside that point because

of the writ being directed to the Registrar or

because of the second argument that one moves

into this territory?

MR KENZIE:  That is so, Your Honour. If one is dealing with

an application for a writ of mandamus and one

is faced with 75(v) - the proceedings as constituted,

however, are not in that category and as presently

constituted they lead inevitably to the application

of section 60, that is, section 60 of the CONCILIAT

AND ARBITRATION ACT. But I have said that if an

application were made to amend, to bring the mat

properly before the Court, we would not be wanting

to be heard in opposition.

(Continued on page 49)

48

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MR KENZIE (continuing):	But that having been said, may

we, perhaps, briefly, outline what we say about

certiorari. We do not want to waste the time of

the Court having regard to what has been said.

We point out in paragraph 1 that certiorari

has not been sought here as a remedy ancillary

to other remedies sought against the Conciliation

and Arbitration Commission. If it please the

Court, the Commission is constituted pursuant to

section 6 of the CONCILIATION AND ARBITRATION ACT

and section 6, providing for the constitution of
the Commission, says that:

There shall be an Australian Conciliation and Arbitration Commission, which shall

consist of the following members -

and then, they are:

(a) A President;

(b) ..... Deputy Presidents ..... ; and

(c) Such number of Commissioners as are

necessary from time to time.

The Industrial Registrar is dealt with separately

under section 127 of the Act. The Industrial

Registrar is not the Commission. The Industrial

Registrar is an administrative officer who exercises

powers under the CONCILIATION AND ARBITRATION ACT

but he is not the Commission and I do not read

section 127 which deals with the power to establish

registries and appoint registrars.

Now, we point out that as presently constituted,

in any event, the claim for mandamus, that is, the

claim for mandamus against the Industrial Registrar,

appears to be consequential upon the claim for

certiorari made in respect of the Full Bench and

we point out that certiorari, of course, is not

available under section 75(v), not expressly,

and, as a result of the CLERKS case, not impliedly

and we give the Court a reference to REG V BOWEN;

EX PARTE FEDERATED CLERKS UNION. That case disposed

of the matter that was left, perhaps, hanging by

His Honour Mr Justice Aickin in REG V COOK; EX

PAR'IETWIGG and puts to rest any suggestion that

certiorari is available impliedly under 75(v).

We say that if the Court is invested with

original jurisdiction to grant certiorari in this

case, the jurisdiction emanates from the JUDICIARY
ACT, section 31 or section 32,and we refer the

Court to COOK; EX PARTE TWIGG where the different

members of the Court, His Honour Mr Justice Gibbs

as he then was and other members of the Court refer

to - an:l I think Mr Justice Aicki.n - ref er to

C2T25/l/SH	49	7/10/88
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section 31 as being appropriate in circumstances

where certiorari was really being picked up as an

incidental or ancillary remedy. We point out in

paragraphs 4 and 5 that relief - certiorari would seem to

be available here, if at all, under section 31.

- - Your Honours, we are not absolutely confident

about that conclusion because TWIGG's case is,

perhaps, capable of supporting the construction

that it might be available under section 32 but

it is not necessary to resolve that matter now

and it may not be necessary to resolve any of

these matters now. However it comes, it comes

statutorily and leads to section 60 and we point

that out in paragraph 6 and we refer to the
authorities and the only authority that I think

I need to trouble Your Honours with now is the decision in,COCKS' case, (1968) 121 CLR 313 and

if we could refer Your Honours briefly to the

judgment of His Honour Mr Justice Kitto at 324

and 325.

This was a case where the Court was examining

the correctness of what the industrial court, as it

then was, had done in relation to an allegation that an award had been breached and the role of

section 60 in that context.

(Continued on page 51)

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MR KENZIE (continuing):  Hr Justice Kitto,

at the bottom of 324, has said this:

In this connexion it is necessary to

bear in minds. 60 of the Act, providing that
"subject to the Act" an award is final and
conclusive and shall not be called in question

in any court, and that a determination or

finding of the Commission upon a question as to the existence of an industrial dispute is conclusive in all courts. If this section were

to be interpreted with complete literalness

and without the qualifying expression which

introduces it, the Commonwealth Industrial

Court would be obliged, as in fact it thought

it was, to treats. 119 as giving it

jurisdiction .;. ,,

and then, two lines further down -

But it has long since been decided that s.60

has not so entensive an operation, for, as its
introductory words acknowledge and require,
the provisions it contains must be reconciled
with the rest of the Act and particularly with

the provisions which subject the powers of the

Commission to limitations some at least of which

areplainly intended to spell invalidity for

any action that transgresses them. The mode

of reconciliation which is established by

such cases as -

and the well-known authorities are set out -

is to interprets. 60 as validating, so far

as it can validate it constitutionally, any

award provision which is outside the power of

the Commission if on its face it appears to be

within powerand is in fact a bona fide attempt

to act in the course of the relevant authority.

And that is the more limited examination that I
referred to a short time ago.	Those words have been

echoed in the other authoritie~ most recently I

think in COLDHAM,which is one of the authorities

which we have put under paragraph 6, Your Honours.

I do not ask Your Honours to open the volumes.

There does not appear to be any debate about the

correctness of that analysis, assuming that one is

talking about section 60.

We go on, Your Honours, in paragraph 7 of our

outline to point out that the orders of the

Commission are set out on pages 72 and 73 and they

are orders in which the Commission simply dealt with

the applications for registration and they do not

refer to discretion. They simply deal on their face

C2T26/l/ND	51	7/10/88
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with the fate of the appeals relating to

registration and they are awards on the authority

of this Court, they are awards within the

CONCILIATION AND ARBITRATION ACT and they are

caught by section 60, in our respectful submission,

for reasons that were advanced in the CUSTOMS

__ OFFICERS' case, REG V LUDEKE. EXPARTE CUSTOMS

OFFICERS' ASSOCIATION, (1984) 155 CLR 513, and

we have given one of the references in that case

to the definition of "award" in the Act which I

think is the judgment of His Honour Mr Justice Mason

at 526. There were other passages in the case

which, of course, echoed that.

The conclusion that we draw, Your Honours,

is that they - and by "they" we mean the orders

of the Full Bench - are not upon their face orders made in excess of authority or made otherwise than in a bona fide attempt to exercise the power of the

Commission but they are related to the subject-matter of the Act and regulations and we say that those

submissions go to all of the grounds advanced by our

learned friend, assuming one is talking about

certiorari.

So we do not want, for a minute, to debate the

more complex issue that lies behind the -REG V COOK,

EX PARTE TWIGG but we say that the proceedings as presently constituted lead down that road,

Your Honours .

Could I then come to, perhaps, the substance of

the matter and that is in regulation 119(2)(c) of
the regualtions.

(Continued on page 53)

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MR KENZIE (continuing):  We really submit two things;

firstly, and primarily, Your Honours, we submit

that the satisfaction of the Industrial Registrar

under regulation 123 is one of the prescribed

conditions and on that basis it does not matter,

for the purposes of this proceeding, whether the

word "may", where appearing in section 132 means

"may" or "must"; secondly, we go on later to

submit that perhaps Their Honours, or some of the effect of the deregistration provisions in

a relevant respect in that case, and that there is

force. in the argument that "may" in section 132,

and fonnerly section 55, has always, properly

understood, meant "may". That is the second

submission we make.

Your Honours, in relation to the first submission,

we say that section 132 of the Act provides that

it is a precondition to registration that an

association comply with the prescribed conditions

and that those prescribed conditions are the
ones validly enacted by Parliament, or the subject

of regulation validly made - and we refer to the

ACTS INTERPRETATION ACT. Specifically, we

submit that they are not confined to those

conditions identified as prescribed, as they
are in regulation 115, which our learned friend

has read, or as conditions, and our friend, again,

has referred the Court to section 133(1) in his
opening today.

We say that they include the conditions necessary for the obtaining in the prescribed

manner the approval of the Industrial Registrar

under regulation 123. Your Honours, before taking

Your Honours, as I must in some little way at least,

into the COAL case and the SULPHIDE case in this

regard, we have prepared, Your Honours, a history

of the changes to the CONCILIATION AND ARBITRATION

ACT and Regulations, which appear to be relevant

to the present debate. Your Honours will not need

to go to much of the material, but we think

Your Honours will find some of it of assistance,

and we would perhaps start - we have handed copies

of these to the Court, and we would perhaps ask

that Your Honours have access to those at the time

that the Court is being taken to the COAL case.

It will assist in understandtng.

WILSON J:  Yes, thank you. We have them.

MR KENZIE:  Your Honours, the first of the cases is the COAL

case itself, 24 CLR 85. This, of course, was a case

that concerned an application for reregistration.

It did not concern the question of the identification

of the prescribed conditions. At the time of the

C2T27 /1 /HS	53	7/10/88
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COAL case the predecessor to section 132 was

section 55 and was relevantly indistinguishable

from section 132. As I say, the Court was not

concerned with the question of what was a

prescribed condition. At page 87 point 9 of

the judgment the questions before the Court

were set out and the relevant question was

question 6, and that was this:

(Continued on page 55)

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MR KENZIE (continuing):

If the registration of the

organization be cancelled and the Federation apply subsequently for

registration, complying with the

registration?

prescribed conditions, has the refuse

That was the question the Court was addressing.

Consequently, it was not, of course, necessary to

go into a debate as to what were the prescribed
conditions, but there is some limited assistance

in the decision in relation to this. There is

more assistance, of course, when one comes to the

SULPHIDE case. Such assistance as is to be

gained from the COAL case, one finds in the judgment

of His Honour Mr Justice Higgins at page 101, at

the bottom of the page and,Your Honour~ he says

there:

Now, section 55 provides that

"any of the following associations"

(described) may "on compliance with

the prescribed conditions" be

registered" and "the conditions to be

complied with by associations so

applying for registration shall, until
otherwise prescribed, be as set out

in Schedule B. There are no conditions

applicable other than those in Statutory

Rules 1913, No. 331 (see regulations 5,

9, 15) -

and, Your Honours, I will take Your Honours by

reference to the history of the legislation to

those regulations in just a moment. His Honour

goes on:

and this rule contains no condition

to the effect that the association

shall not be one that has previously been

de-registered. The grounds of objection

to registration are expressly "confined"
to the three grounds set out in rule 9.

Every organization has to be an

association before it is registered; and

when registration is cancelled it still

remains an association. Provided that

this association comply with the

description in section 55 and with the

Statutory Rules and provided that there

is no other organization ..... it comes

literally within the words of section 55,

and may be registered.

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Then, His Honour went on to deal with the

propositions arising out of a consideration of

JULIUS V BISHOP OF OXFORD.	Now if the Court
would briefly go to the history.	The statutory

rules in force at the time were those·in

paragraph numbered 7, in the index, Statutory

_ Rules 1913, No 331 and they are to be found

relevantly on pages 28 and 29 of the booklet.

Regulation 5, on page 28 at the bottom of the

left-hand colunm, says:

In lieu of Schedule B to the

Act, the following are the prescribed

conditions to be complied with by

associations applying for registration

as organizations.

That paragraph really picked up, in almost identical terms, what was schedule B, Your Honours. For

a long while the regulation and schedule B lived

side by side until schedule B was eventually taken

out of the Act in the 1950s. Then part of

regulation 5 was V.I at the bottom of the second

colunm which talked about:

An application in the prescribed form.

WILSON J: It is Roman I~ I think?

MR KENZIE:  I am sorry, it is IV, Your Honour is quite correc~

I am sorry.

DEANE J:	Mr Kenzie, where did the word "confined" that
Justice Higgins quotes come from?
MR KENZIE:	It came from regulation 9 and to which I am

just about to come, Your Honour. It is on the

top of page 29, colunm two, and the reference to

"confined" was in the regulations from the early

days of the Act and remained in the relevant

regulation until 1960 when it was taken out and

other words which the Court has been taken to,

'may be made on a number of grounds including the

following'were inserted.

(Continued on page 57)

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MR KENZIE (continuing):  The Court can see that there:

The grounds of objection shall be set out in

the notice and shall be confined to one or more

of the following:

And importantly, because this is also mirrored in

current regulation 119, you have regulation 9(1) which

says:

Any organization or person may, within thirty

days after the advertisement of the notice

of the receipt ..... lodge with the Registrar

a notice of objection in accordance with

Form 4 -

which does not itself limit the grounds, of course, but 9(1) and its successors have provided the basis for the lodging of objections which I think

Your Honour Mr Justice Wilson asked about in an

earlier stage of the debate today. So you have

gone historically to the 9(1) and later

regulation 119(1) to provide the basis for the

objections. That has been limited over the years

in various ways, relevantly in 1917 by 9(2) where

the grounds were confined.

Then, Your Honours - this is important because

of the SULPHIDE case as well - the hearing of an
objection limited in the way set out in 9(2) is

dealt with in regulation 12:

The Registrar shall fix a day for hearing the

objection, and shall give notice thereof to the objector and to the applicants. On the hearing the Registrar shall hear the parties

if they are present and desire to be heard,

and shall decide the matter.

Those words have, at all material times, been

mirrored in the regulations dealing with rule	changes and when we come to the SULPHIDE case,
Your Honours, the High Court gave those words
particular work to do. In particular the Court
recognized that the satisfaction of the Registrar
in such a hearing was part of the prescribed conditions. That was not a question which was required to be addressed in the COAL case.

Now, Your Honours, perhaps I should point

Your Honours to Mr Justice Powers' judgment, who

appeared to take a slightly different view about

this - again, it was not necessary for it to be

decided - but His Honour Mr Justice Powers appears

to have said that satisfying of objections was not

a prescribed condition. That is perhaps a little

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bit hard to reconcile with the SUI..PHIDE case
subsequently but, in any event, His Honour, at

page 104 point 7 of the judgment, in 24 CLR~ says:

Reg. 9 provides that -

and His Honour says -

in addition to the objection "that the

prescribed conditions for registration

have not been complied with" ..... persons

interested may object.

That is a suggestion, perhaps, that His Honour

saw a difference. At 106point 7 His Honour said

this - this is the last paragraph:

I agree that the Registrar can refuse

registration in certain circumstances

including (1) those set out in sec. 59 -

that was the section 142 ancestor -

(2) on any of the grounds set out in regs. 9

and 15 of Statutory Rules 1913, No. 331,

even if the conditions prescribed by reg. 5

in lieu of Schedule B have been complied

with.

Now, perhaps it is not certain but that paragraph

may tend to suggest that His Honour was drawing

a distinction between the regulations in lieu of

schedule Band prescribed conditions. It is, perhaps,

not as clear as it might be. Otherwise,

Your Honours, I think the Court gets little

assistance from the COAL case in terms of the

principal proposition we advance, namely, that

the satisfaction of the Registrar is part of the

prescribed conditions.

(Continued on page 59)

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t1R KENZIE (continuing): Could I then take Your Honours

to the SULPHIDE case and the SULPHIDE case is

found in 25 CLR 9. Now, Your Honours, this

case,as will be instantly seen, dealt with an

application to amend the rules, that is, under
the predecessor of the present section 139.

That section was section SBA which is set out in

the headnote and we submit that no relevant

distinction is to be drawn between section SBA

and the discretion that is given to the Registrar
and section 132 or formerly section 55, dealing
with applications to register organizations.

Section 58A provided that:

"An organization may, in the prescribed

manner and on compliance with the

prescribed conditions, change its name
or change the constitution of the
organization including the description

of the industry in connection with which

it is registered, and the Registrar shall

thereupon record the change in the

register and upon the certificate of
registration."

Now, true it is, it refers to the Registrar but that is not a point of distinction, in our

submission because, plainly, section 132 is

directed to action to be taken by the Registrar

as well.

Section SBA then and section 139 now deal

with the prescribed manner and on compliance with
the prescribed conditions, although the phraseology

is slightly different in section 132, in our

submission there is no relevant distinction to

be drawn and in the SULPHIDE case against that

background, the Court was dealing with the meaning

of and the scope of the Registrar's discretion in

dealing with an objection lodged under the regulations

made pursuant to 58A,one of which was regulation 17A,

and that provided that: 

'¼n application for the change ..... may be

in accordance with" a certain form.

And subregulation (5):

"Any organization or person interested may,

within twenty-one days after the advertisement
..... lodge with the Registrar a notice of

objection, in accordance with" a certain

form, "to the change of the constitution.

There are provisions about statutory declarations.

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(7) The Registrar shall fix a day for

hearing the application, and shall give
notice thereof to the applicants and the

objectors. Ch the hearing the Registrar

shall hear the parties or their officers

if they are present and desire to be heard,

and shall decide the matter."

And I directed attention to regulation 123 relating

to applications to register previously. Now, the

Court in the SULPHIDE case was, of course, concerned

with what that all meant in tenns of the discretion of

the Registrar. Objections had been lodged dealing

with a variety of matters including industrial

desirability and the like and it was suggested

that regulation 17A was ultra vires because it

went beyond the Act and related to or was an

attempt to confer judicial power and the like.

(Continued on page 61)

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MR KENZIE (continuing):  His Honour Mr Justice Barton came

to deal with it at page 16. His Honour sets out the Act and the regulation, and at page 20, at the top of the page, he says this:

The first ground must, I think, fail because

reg. 17 A is not confined to rules as to

the manner in which a constitution is to

be changed. It embodies conditions to be

complied with before the change can take

place. An application is to be made to

the Industrial Registrar or his deputy,

according to place, a fee must be paid -

et cetera -

and the approval of the Registrar must be

obtained as a result of his considering the

application. He is to hear the parties or

their officers if they so desire, and is to

decide "the matter", whether they are so

heard or do not wish to be heard.

"The matter" is obviously the matter of

the application, whether there be objections

or not. That, I think, is clearly another

and a most important condition to be complied

with before the constitution can be changed.

Your Honours, that is clear, in our respectful

submission, in relation to the rule changing

position which is indistinguishable, save that

in the context of rule changes at that time

the regulations here did not confine the objections

which could be made, but the Act providing the

basis for the Registrar's action was itself indistinguishable, or the section providing

the basis for that discretion was indistinguishable.

Your Honours, Justices Gavan Duffy and Powers

dealt with the matter on page 27, and they said

this, at about point 4:

It is said that the regulation does not

prescribe any condition within the meaning

of sec. 58A and that until conditions are

prescribed there can be no change of

constitution. In our opinion the

regulation does all that is neces$ary to

comply with the provisions of sec. 58A.

It does not purport to affect the
ministerial duty of recording the change
imposed on the Registrar, but it

prescribes the manner in which the change

shall be made, namely by means of an appl{~ation

to the Registrar, and the condition on which

it shall be made, namely, the obtaining in

the prescribed manner his approval of or

C2T31/l/HS	61	7 / 10/88
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assent to the proposed changed. The

regulation directs him to decide whether

the change shall be made or not, the

section compels him to record the change if,

and only if, he decides that it shall be

made.

Their Honours then go on to deal with really a scope of what could be put forward as an objection

and the scope of the Registrar's discretion under

regulation 17A. Some of what Their Honours

thereafter say may have to be qualified by virtue

of more recent authority to which we will come.

By that I mean, Your Honours, that we would not

suggest that the Registrar, in exercising his

discretion, under a regulation such as regulation 17A,

or a discretion given to him under section 132 and

regulation 119 would be at large. There would

obviously be limits on the discretion of the

Registrar which would be imposed by virtue of the

scope and purpose of the parameters of the

legislation.

It is not necessary in the present case to

examine what those parameters are, in our

respectful submission. Their Honours said at about

point 8:

In our op1n1on the objector is at

liberty to take any objection that he

thinks fit to take, and the Registrar

must consider every objection so taken.

Having considered all objections, his

duty is to determine whether in his
opinion it is desirable that the change

should be made or not. We do not think

that any fetter is imposed on his

discretion beyond this, that he should

honestly give to every objection the

weight to which he thinks it is entitled.

(Continued on page 63)

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MR KENZIE (continuing):  And, Your Honours, the talk about

the object of the regulation. That was picked up

expressly by His Honour Mr Justice Rich on the

following page. At the top of page 28, he said:

Implicit in sec. 58A is the condition

that the change is to be made after a decision
has been arrived at by the Registrar.

We say the same implication arises in relation to registration under section 132, of course.

He says:

Even if this be notso, reg. 17A duly carries

out what is enacted by the section and prescribes,
as it may properly do, as a condition precedent

that "the Registrar shall hear the parties

and decide the matter." No limit is placed

to the objections that may be taken, and
the 0uty of the Registrar is to consider

such objections before deciding whether

it is expedient that any change should be

made.

Your Honours, we, of course, rely upon that decision

arid, although it has been suggested that it is

in a different context, we repeat our submission

that it is relevantly indistinguishable.

It has been referred to subsequently with

approval. It has been referred to in the context,
not only of applications to alter rules but also

in the context of applications to register

initially. One such example is found in the

judgment of His Honour Mr Justice Dixon, in RV

TAYLOR~	EX PARTE PROFESSIONAL OFFICERS' ASSOCIATION,
(1951) 82 CLR 177	an~ Your Honours, at page 185

of-that volume Your Honours will find

Mr Justice Dixnn saying this, at about half-way

down the page: 

Regulation 118 of the regulations and

reg 119 provide for applications of that

description. They are, as I have said,

necessarily regulations for the alteration

of the rules. The case of -

the SUDPHIDE case -

shows that regs 118 and 119 are validly

made and that among other things they

operate to prescribe conditions within the

meaning of s. 76. The conditions are

consequently contained in rules.

C2T32/l/ND	63	7/10/88
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And His Honour was plainly acknowledging the

relevance of the SULPHIDE case to applications

made under regulation 119 and, in our respectful

submission, correctly so.

Your Honours, the capacity of the Registrar

--to look beyond matters suggested by our friends

has been recognized by the Court in subsequent
cases in the context of applications to register
and,jumping ahead for a momen~ we have referred

on page 4 of our outline to two authorities which I think were mentioned by the Full Bench. They

are in paragraph 3. The first of them is

REG V WATSON, EX PARTE AWU, (1972) 128 CLR 77,

At page 79, the Chief Justice was dealing with

a difficulty that had found its way to this Court

arising out of the difference between the

eligibility provisions and the industry rules

of an organization, a not infrequently encountered

problem.

(Continued on page 65)

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MR KENZIE (continuing): At page 79, the Chief Justice

referred to section 132(l)(b) and, in particular,

an amendment of the eligibility clause.	He says
this:

As I apprehend the scheme of the Act in

relation to organizations, it is that

there may be on the one hand industrial
organizations which are representative
of workers in a particular industry

irrespective of the craft they follow,

and on the other hand, craft unions

which are limited in membership to those

who follow some particular craft or crafts.

Such a conflict as arose in REG V DUNLOP

RUBBER AUSTRALIA LIMITED -

which, of course, was the origin of the decisions in the High Court to the extent that the industry rules and the eligibility rules did not have to

coalesce -

ought not to occur if the Registrar fully

performs this duty.

And that was, of course, reference to matters which

were just as relevant to applications to register

as they are to applications to alter rules.

Your Honours, the next authority is - and I am not going to multiply the references to

authorities, Your Honours. This is the last that

I want to go to on this aspect but I do want to

take Your Honours to the MELBOURNE AND METROPOLITAN

TRAMWAYS BOARD V MUNICIPAL OFFICERS' ASSOCIATION OF

AUSTRALIA, (1944) 68 CLR 628. THis was a matter in

which the Court was discussing the developments in

the Act relating to the definition of industry and

its relationship to section 132 and its ancestor,

section 55, and at point 6, the Chief Justice says

this:  Section 55(1Xc) allows the registration

of an association of employees who may be

engaged in different industrial pursuits.

Thus under the law as it existed in October

1928, when the changes in question were made,

it was possible for an association to be

registered, though, as in the present case,

it consisted of employees in diverse callings
or occupations who are employed by employers

who are engaged in diverse industries.

It is true that such provisions may lead

to embarrassing cross-divisions of employees,
with consequent overlapping of awards and

possible confusion, but these matters are

C2T33/l/SH	65	7/10/88
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considerations to be borne in mind by the

Registrar when he registers an organization

under s. 55 or allows an alteration in rules

under ss.58A or 58C -

reference to SULPHIDE.

GAUDRON J:  But why does that not simply refer to the "conveniently belong" consideration?

MR KENZIE: It may, Your Honour. That has to be conceded.

There is nothing in the passage which really

indicates that His Honour was referring to the

capacity to look beyond registered organizations to the position in the industry in general. All

that we have to say about it is that none of the

observations that have been made in the various

authorities have, really, been specifically so

confined and, Your Honour, the reliance on the

SULPHIDE case is consistent with the observation

not being so confined, in our respectful submission,

because the SULPHIDE case is authority for the
proposition that the objections, really, were
large and the function of the Registrar was to look
at the objections filed and to do the best he could

within the scope and purpose of the Act in relation

to them.

So that, I know that that is not a full and

complete answer to Your Honour's question. It

cannot be because the judgment is, really, silent

as to that. Such indications as exist within the
judgment, we suggest, tend to support the submissions

we make, in particular, the reference to the SULPHIDE

case.

Your Honours, there is a similar reference in

the judgment of His Honour Mr Justice Starke, at

page 640.

(Continued on page 67)

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MR KENZIE (continuing):  His Honour said this at about

point 2:

Perhaps I may say that the changes in the

conditions of eligibility for membership

registered in this case are "grotesque," .....

and made "without proper care," and are

calculated to bring powerful unions into

conflict with one another. The Registrar

"has some discretion as to allowing an

organization to make a change - or, at all events,

to have the change recorded -

a reference to SULPHIDE.

It is a pity that this discretion is not

more freely used, especially in view of the

provisions of s.59, which authorize the

Registrar to refuse to register any association

as an organization if its members might
conveniently belong to another registered

organization. And why not use a similar

discretion in applications under s.58A?

In our respectful submission, Your Honours, those

observations are not confined to conveniently
belong but section 142 or its predecessor are used

to exemplify the way in which the Registrar might

proceed. The suggestion in Mr Justice Starke's

judgment is, in fact, that the discretion exists

at large.

GAUDRON J:	What was section 58A, I have forgotten?
MR KENZIE:	Section 58A was the section considered by the

Court in SULPHIDE.	It was the predecessor of
section 139.

GAUDRON J:	Yes, thank you.
MR KENZIE:	Alteration of rules, Your Honour.
WILSON J:	Have you finished with that case now?
MR KENZIE:	I have, Your Honour, yes.
WILSON J:	Justice Gaudron suggests you might care to hand

your outline in now, Mr Black. Is that convenient?

MR BLACK:	Yes, it is.
MR GINNANE:	May I offer to do the same?
WILSON J:	Yes, it would be convenient.
MR BLACK:	Might I indicate to the Court as I do so that

we do take a point about mandamus and certiorari,

C2T34/l/MB	67	7/10/88
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but only in respect of, what one might term, the

ancillary grounds. As far as the primary ground

is concerned we have rather assumed that if it is

a good ground it can be fixed up somehow.

WILSON J: Thank you, Mr Black.

MR BLACK:	Although there is an -intellectual basis for saying that.
WILSON J:	The Court will adjourn until 2.15 pm.

AT 12.50 PM LUNCHEON ADJOURNMENT

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UPON RESUMING AT 2.19 PM:
WILSON J: Yes, Mr Kenzie.

MR KENZI~- I had directed attention before the adjournment

to section 58A and to section 55 and our submission

was that for present purposes no distinction could

be drawn between them. Could I perhaps take

the time to take the Court to the text of those

provisions to illustrate what we mean. The

text of section 58A can be found on the opening

page of the SULPHIDE case at 25 CLR 9. Of course

recall that it deals with what an organization may

the Court has already been referred to it and

do in the prescribed manner and on compliance

with the prescribed conditions. And there is

thereafter a reference to what the Registrar can

record.

Section 55, the ancestor of section 132, and indeed section 132 in its present form, so

far as presently relevant, reads:

Any of the following associations may, on compliance with the prescribed

conditions, be registered in the manner

prescribed as an organization.

So that the way in which it is phras_ed is different but the

effect, in our respectful submission, is in fact

the same. Now reference was made to

section 198 of the Act pursuant to which the

regulations are made and we should, in support

of our submissions, remind the Court of what was

said by His Honour Mr Justice Barton in the

SULPHIDE case at page 20 in relation to the

predecessor of section 198, then section 29.	And
at page 20, towards the bottom of the page,
His Honour says this - this is in relation to	regulation 17A with the open-ended discretion
discussed by the Court:

The regulation is made under the

authority of section 92. A regulation,

then, must not be inconsistent with
the Act. If it can stand with the

Act it may prescribe not only anything

the Act requires or permits to be
prescribed (and the word "permitted"

may be read as ''expressly or impliedly allowed") but also anything "necessary

or convenient" to be prescribed for

giving effect to the Act. The

C2T35/l/SR	69	7/10/88
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authorization is very large, and
includes regulations such as

section 58A requires or permits, the

only restriction being consistency

with the Act.

And we simply adopt that in relation to

section 132, the regulations being now
indistinguishable from those which existed at the

time of the SULPHIDE case because the former

restrictions found in old regulation 9 were

removed in 1960 so that one has a complete analogy,

if one likes, with the situation that existed

at the time of SULPHIDE.

Now, Your Honours, we go on in our submissions, paragraph 3 on the top of page l,to say that the

fact that the Industrial Registrar is required

to exercise discretion in determining an objection

pursuant to regulation 123, is consistent with

the dismissal of an objection being a prescribed

condition and we submit, and this submission is

supported by authority of this Court, that

subordinate legislation may properly require the giving of approval pursuant to an administrative

discretion, whether the approval is that of

a subordinate legislator or some other person.

That is intended to indicate that discretion may be

given either to the subordinate legislator or

someone else. There are a number of illustrations

of that which will be, I am sure, familiar to the

Court and I am not going ro go at length into

the authorities that we cite in support thereof
but I would desire to take the Court briefly to the

RADIO CORPORATION case, which the Court will find

in 59 CLR 170. This is in the context of the

customs legislation and at issue was the validity

of a regulation purportedly made under the

CUSTOMS ACT which prohibited the importation of

specified goods unless the consent of the

Minister was first obtained.

that regulation read, as the headnote, reveals: The Act said to support

(Continued on page 71)

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MR KENZIE (continuing):

"The following are prohibited imports ...

(g) All goods the importation of which

may be prohibited by regulation," and, by sec. 56: "The power of prohibiting

importation of goods shall authorize prohibition subject to any specified condition or restriction and goods

imported contrary to any such condition

or restriction shall be prohibited

imports."

It was in those circumstances that the regulation

was passed which really required the consent of the

minister which was a consent that was not

restricted in terms of the matters that the

minister could look to. The majority of the Court

held that the requirement of the consent of the

minister to the importation of goods was a

condition orrestriction within the meaning of

section 56 which could be validly imposed and
the discussion, Your Honours, is found at page 183

where the Court picks up the authorities which

have recently been discussed in this Court in

FOLEY V PADLEY, another one of the cases on our

list, and at page 183 the Court discusses the

COUNTRY ROADS BOARD V NEALE ADS PTY LTD and at the

bottom of the page the Chief Justice picked up

the majority judgment there:

"Once it is realized that the power

authorizes prohibition, complete or

partial, conditional or unconditional,

what reason is there for denying that
the condition may be the consent,

or licence, or approval of a person or

body? The answer that there is none was

given by the Divisional Court ..... in

WILLIAMS.	We respectfully agree.
That judgment was supported by Mr Justice Rich
and Mr Justice Starke.	It is consistent with a
long line of authority,	the principal cases we have

attempted to extract, Your Honours, and I do not

otherwise go to them. In paragraph 4 - I do not

think I need to repeat or go to it in terms - we

make the observation that the regulations have, of

course, changed in relation to applications for

registration since the time of the COAL case, and

we direct the Court's attention to the amendments

which are relevant. I will not refer to them unless

the Court would feel assisted, but the Court will

find the relevant changes on application book

page 114, which is the 1982 amendment, which has

excited our friend's attention, and the earlier

amendment was the one made in 1960, and the Court

C2T36/1 /HS	71	7/10/88
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will find that on the preceding page of the

application book, page 113. It is on that

occasion that the confinement of the grounds of

objection went out of the Act and was replaced by

other words which indicated that the objections

may include.

We go on to point out that the SULPHIDE case the exercise of discretion was said by the Court

to be at large. The only way, we submit, in

which perhaps what Their Honours had to say in

SULPHIDE needs qualificational elucidation is by

reference to the decisions of the Court in the

2HD case and the PEKO WALLSEND case in which really

familiar principles were enunciated. Could we

briefly refer the Court to the passages in the

2HD case in the judgment of the Court,

144 CLR 45, at page 49.	The Court said this
half-way down the page:

(Continued on page 73)

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MR KENZIE (continuing):

Here the problem lies in ascertaining

what are the proper limits of the discretion.

And the discretion was, apparently, an unfettered

discretion on the face of the regulation.

In the absence of some positive indication
of the considerations on which a grant or

refusal of consent is to depend, the discretion

is "unconfined except in so far as the subject

matter and the scope and purpose of the

statutory enactments may enable the Court

to pronounce given reasons to be definitely

extraneous to any objects the legislature

could have had in view" -

and there is a reference to Mr Justice Dixon's

judgment in BROWNING.

In that case His Honour went on to remark

..... "on the impossibility, when an

administrative discretion is undefined,

of a court's doing more than saying that

this or that consideration is extraneous

to the power".

And, it is for that reason that we say that, in this

case, the Court is not troubled by an examination

of just to what extent the Full Bench could have gone

beyond or gone into questions of industrial

desirability or the like. The only question, in

a particular case, is at the end of the day it was

something within the scope or purpose of the statutory enactment. The case put here is a narrower case, of course. It is that there is
no discretion, a contention with which we draw

issue.

Your Honours, the more recent pronouncement

is found - I do not read it now - in the PEKO

WALLSEND case, 162 CLR 24 at 39 and 40 and I do

not think Your Honours need to open the volume.

Now, Your Honours, in those circumstances,

it is our submission that, regardless of whether

"may" in section 132 means "may" or "must" and,

for present purposes, it can be taken to mean

"must", the Registrar, on an application for

registration, has a discretion. It is a discretion that is limited only by considerations discussed in

the 2HD case. Nice questions may arise in a

particular case as to whether an objection is

truly an objection. They are not relevant here

neither is it relevant to consider whether, in

this case, the extent to which the Full Bench

proceeded was within the scope and purpose of

the legislation.

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Your Honours, we do put an alternative

submission, as the Court can see, in paragraph 6

and this, really, is on the basis that the Court

was against our first submission and found that

the approval of the Registrar was not a prescribed

- - condition. In that event, we would submit that

compliance with the prescribed conditions does

not entitle an applicant to registration and,

in so far as some of the members of the Court

in the COAL case apparently formed the view that

there was an entitlement to registration upon

compliance with the prescribed conditions, but

that is not a proposition which should now be accepted. Your Honours, we point out - and

this is pertinent to something that Your Honour

Mr Justice Deane was asking about this morning -

that, at the time of the COAL case, section 60

of the Act which the Court can find conveniently

at page 3 of the booklet that we have provided and

which is referred to in some of the judgments in

COAL and SULPHIDE, read - this is half-way down

the page:

If it appears to the Registrar -

(a) that for any reasons the registration

of an organization ought to be cancelled - and then there are other grounds which are more

narrow. So that, at the time - and this was

picked up by Mr Justice Higgins in his dissenting

judgment in SULPHIDE later - the COAL case was

apparently authority so far as the judgment of some

members of the Court would suggest, for the

proposition that there was an entitlement to

registration notwithstanding the fact that the

Registrar had complete power to deregister,for

any reason,upon registration.

Now, the Court in the COAL case was looking

at it, perhaps understandably, Your Honours, from	the perspective of an organization which had been
registered, had become deregistered and was, then,
applying again for registration. (Continued on page 75)

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MR KENZIE (continuing):  But if the question is asked, "What

of an association that is applying the first time
for registration?", one asks that question, at
least in 1917, against a background in which

section 60 says, "Well, if you get registered

-YOU can be deregistered tomorrow for any reason

that the Registrar feels appropriate." In those

circumstances we respectfully submit that it is

clearly difficult to suggest that there is an
entitlement to registration. It really involves

ignoring that part of section 60 which would

potentially spring into operation the day after
registration.

The court was anxious, of course, to read

section 55 together with section 60 in the context
of an applicant for reregistration and said,

"Well, quite sensibly they should be read together

because it would be silly if you could get

deregistered one day and you could turn around

and apply to immediately get reregistered, they

have got to be looked at together." Well, similarly,

if you look at it from the other side of the ledger

it is very difficult to suggest that there was

something which could be described as an entitlement

to -registration.

Now, Your Honours, there has otherwise been debate about this question. We would like to

remind Your Honours of Mr Justice Higgins' dissenting

judgment in the SULPHIDE case, -(1918).25 CLR.26 -

and I am sorry to have to keep goin~ bac~_

to it. The Court will recall that at this stage

His Honour was dissenting on the question of what

should be the approach to regulation 17A which

gave the Registrar a discretion. His Honour said

this at the top of page 26:

In short, in my opinion, most of the so-called

"grounds" stated in the application are not

proper grounds to be entertained ..... under
sec. 58A or reg. 17A.	Under the existing law,

there seems to be no rememdy for an unwise

association, or for an unwise amalgamation

of unions, except by application under

sec. 60(l)(a) - an application for

deregistration of an organization on the

ground that "for any reason" the registration

ought to be cancelled. It seems to me that

there ought to be some remedy before

registration as well as after - that the Court

should be given a power - carefully guarded -

to forbid registration when registration

would be against the public interest. When

the Act and its amendments were framed, the

question as to the policy of having big

unions had not arisen - ·

et cetera, et cetera. His Honour says, "Well, that

is a matter for Parliament." But, of course,

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His Honour, in saying that, was in dissent and

although he was talking about applications for

registration he was talking also about regulation 17A.

The suggestion that the Registrar had no discretion was not a view that was shared by the majority of

-ehe court. Now, in those circumstances we venture

to submit that the conclusion is well open that

there is no entitlement to registration. The

alternative would be, Your Honour, that if an

organization had been deregistered 10 days ago
or two days ago and, firstly, it applied for

reregistration - well, as I think was virtually conceded in debate today, subject to section 14

there would be an entitlement to registration.

Similarly, even if it was not the same

organization but perhaps a section of it, 100 or

more employees who were members of the old

organization who turned around and said, "Well,

now we would like to apply for registration",

the result of our friend's submission would be

that the Registrar upon compliance with the

prescribed conditions would have to register.

That is not a conclusion which necessarily flows

from the Act and certainly does not necessarily

flow from anything that is found in the SULPHIDE

case.

(Continued on page 77)

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MR KENZIE (continuing):  In our respectful submission,

if we are not talking about prescribed conditions

here none the less there is no entitlement to

registration. Your Honours, I do not otherwise

desire to say anything in relation to the principal

ground of attack.

Grounds 4 to 6 of the rule n1s1 - - -

WILSON J:  We do not need to trouble you on grounds 4 to 6,

Mr Kenzie.

MR-KENZIE:  If it please the Court. They are then, subject

to any questions the Court has, our submissions.

WILSON J:  Thank you, Mr Kenzie. Mr Black.

MR BLACK: If the Court pleases, we, in substance, adopt

the argument of my learned friend, Mr Kenzie,

in that there is virtually nothing that we would

wish to add. There are a few general submissions

I would like to make. The corner-stone of the

prosecutor's argument is that the grounds of

objection in the Act are narrowly confined and

we say that corner-stone is simply displaced

by the regulations which show that those grounds

are no longer to be confined. The only confinement,

and it is at once both broad and properly limited,

is the scope and purpose of the Act.and, in our
submission, there is nothing surprising about

any of that since the Parliament deliberately

left it to the executive to prescribe such conditions

consistent with the scope and purpose of the

Act as it might choose to prescribe for registration.

And the width of the power that the Parliament

entrusted to the executive was, in our submission,

illustrated by the judgments in.the SULPHIDE

case and, particularly, by a passage in the judgment
of Mr Justice Barton at page 21 of 25 CLR where,

in dealing with the quesiton as to whether, indeed,

judicial authority had been given to the Registrar,

His Honour said at the bottom of the page:

I canriot see that such a construction renders

the regulation ultra vires. It would have

been consistent with the remainder of the

Act if the Legislature had in sec. 58A

required expressly a judicial inquiry as

a condition precedent to the change of

constitution. It did not do so, but it

had power to give, and it gave, so wide

a regulative authority to the Governor-

General in Council as not to preclude him

from prescribing an application to the

Registrar and a judicial inquiry by him

as a condition to be observed before an

organization can change its constitution -

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In our submission, if one concentrates on the

fact that the legislature has said it is for

the executive to decide what the conditions are,

and it has appreciated that those conditions

are necessarily themselves, in terms of objections,

__ constrained by the scope and purpose of the Act,

a workable and sensible scheme, in our submission,

emerges. And it is a scheme that is consistent,

of course, with the objects of the Act because
it is confined by the objects of the Act, of

its very nature. And, in our submission, it

really would be extraordinary if one could not

regulate .the initial registration of associations

in a new industry to prevent what Your Honour

Justice Deane referred to as boutique unions

or a multiplicity of unions or factions.

The policy of the Act is against that. Industrial peace considerations are against that.

They were considerations, in our submission,

powerfully pointed to by the majority of the

Full Bench in its decision at page 49 of the

appeal book, reading from the middle of the page

where it was said:

(Continued on page 79)

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MR BLACK (continuing):

It is one of the objects of the Act

that the organisation of representative

bodies of employees and their registration
are to be encouraged; but that is not to

say that discretion should be eased nor

that a disciplined approach should not be

adopted in the matter of the registration

of groups in association. The overriding
object of the Act is the prevention and

settlement of industrial disputes and

such disputes may be, and have become,

increasingly prevalent between registered

organisations of employees on issues of

demarcation. Section 142A has been

introduced to cope with conflict -

et cetera. So that, in our submission, the

approach for which we would contend makes sense.
That is not to say it is right, but any other view,
in our submission, does not serve the nature,

the purpose and scope of the Act, which is an

indication that the words and the concepts have

the content for which we would contend.

Finally, we would say that the facts in this

case again amply demonstrate the good sense of the

construction that the Full Bench put on section 132

and on regulation 119. The facts are that well

established unions federated, they had large

membership and experience and they were in

competition and, as the Full Bench said, equal

competition with a new organization with what might

be called a tiny membership, that is to say a

membership of round about 1000 persons and it

was an organization that, on the findings of the

Full Bench, had its origins in faction fighting in

one State.

Now, in our submission a view may be properly

taken consistently with the objects and purposes

of the Act that the larger organizations should be

preferred and that there should not be a

proliferation. If three unions apply, then why

not six? They would all come in at the same day
when the new industry emerges. Is it to be supposed

that those organizations should each be entitled,
as of right, to registration provided that they

crossed the ','i "s and cross the "t"s.

GAUDR0N J:	I wonder if that is the only proviso when one has regard to the prescribed conditions in
regulation 115. There are a number of matters there that would appear to cover the considerations
you have now adverted to.

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MR BLACK:  Some, Your Honour, but not all, and in this

case - - -

GAUDR0N J:  What would not be considered? What would not,

for example, fall within the requirement in subparagraph (a) that it need be bona fide and subparagraph (c) that it:

not be wholly or partially formed,

organized, supported, maintained

or conducted, directly or indirectly,

for the purpose, or with the view,

of opposing, injuring or prejudicing

the interests of employers or employees,

..... whose interests it purports to

represent, further or protect.

MR BLACK:	Your Honour, you could have a perfectly sincere,
proper, peaceable, peace-loving group of persons
who loved everyone but just had a different point
of view.  They would not fall foul of that, and one
could have many such organizations all clammering
to be registered because of their own sincerely
held desire to form a small association. Now,
however much one might take the view that they
were good sort of people, industrially they
could be very destructive in terms of industrial
peace.  So, Your Honour, I answer Your Honour's
question, yes, but not in every case, and I have
sought to illustrate cases where they would not be
covered.  They would be bona fide, everything
correct and proper about them, but still the
registration would be contrary to the broader
objects of the Act. If the Court pleases.

There is one further argument - it is a

separate argument and it is very short - and it turns

on the provisions of section 134 of the Act, the

section indeed relied upon by my learned friend

on behalf of the prosecutor. We say, in fact,

it supports our contentions. Section 134(1)

registration, to permit an organization to alter enables the Registrar, on an application for its rules. Now, it does so, it gives that

permission·to enable the organization to comply

with the prescribed conditions or to remove a

ground of objection taken by an objector, and in

our submission that rather suggests that the

legislature contemplated that there would be

objections of substance, and possibly fatal, that

did not fall within the listed prescribed

conditions in regulation 115, but nevertheless

could be fatal and thus it gave a power to

accommodate a modification of the rules to avoid the

failure of the application.

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MR BLACK (continuing): So, it is some indication, in our

submission, that the legislature had in mind

something much broader than the very narrow

prescription argued for by the prosecutor but

we put that very much as a subsidiary argument

- - and our primary argument is as set out in the

outline and we would adopt, with respect, what

my learned friend, Mr Kenzie, has said in support

of it, if the Court pleases.

WILSON J: Thank you, Mr Black. Yes, Mr Ginnane.

MR GINNANE:  If the Court pleases, I have handed to the

Court the outline of submission which I rely on.

learned friend, Mr Black, it then becomes unnecessary to repeat a number of matters.

If I, too, could adopt my learned friend,

It is my submission that the grounds 1 to

each of the matters raised bv the three

3 in the order nisi are to be determined against with

the prosecutor on the basis of the SULPHIDE case.

grounds and determines them in a manner contrary

to the submissions of the prosecutor.

The reasons why the Full Bench ultimately

determined to allow the appeal against TAA's

registration is sununarized in a paragraph on

page 54 of the application book and it is not

necessary for me to read all of that to the Court,

that the Full Bench was clearly influenced by

considerations such as the possibility of

competition and disagreement between teachers

in the government and non-government sectors

and the possibility of industrial disruption

that might occur as a result of that.

fall four square within the range of matter that It is my submission that those sort of matters

the majority in SULPHIDE considered to be relevant
objections.

GAUDRON J:  Mr Ginnane, can I ask you this: I seem to

recollect there was a provision in the Act whicn

enables the Conunission to restrict the industrial

representation of a registered organization not

withstanding its eligibility rules or its

constitutional coverage. Does not that provision,

in itself, indicate that there is a remedy there

to deal with all the matters that are adverted

to as a basis for the necessity for this discretion,

as it were?

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MR GINNANE: 

Your Honour is referring, I think, to section

section 142A of the Act which allows what might
be called demarcation orders to be made in

appropriate circumstances. It is my submission

that steps well prior to that to prevent a fact

situation requiring such an order occurring are

- - grounds for relevant objections under regulation 119.

There is an importance, in my submission, to be

placed on the preventing of disputes as well as

their settlement after they have been prevented.

There is a celebrated passage in the judgment of

Mr Justice Higgins, sitting as President of the

Court of Conciliation and Arbitration in the

JUMBUNNA case, (1908) 6 CLR 309, at page 321 where

His Honour stresses the importance to be given to the prevention of industrial disputes and the

role that the registration of appropriate

organizations may have, both in the prevention

of industrial disputes as well as the settlement

of such disputes after they occur. I will not

read all that passage to the Court but it

commences on page 321 at about point 3 and

His Honour was of the view that prevention was as good as cure.

(Continued on page 83)

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MR GINNANE (continuing): His Honour there was sitting as

President of the Court of Conciliation and

Arbitration. But the point I made in answer to

Your Honour's question is that certainly section 142A

does have a role to play, but the Full Bench, in

my submission, was concerned to prevent a

-situation arising which might call for the

exercise of power under section 142A. It is

submitted, finally, that when one reads the

judgments in the SULPHIDE case, it is quite clear

that the majority of the Court was of the view that
objections of the type that the Full Bench upheld
against TAA's registration were the type of

objections that the Act and the regulations

contemplated, if the Court pleases.

WILSON J: Thank you, Mr Ginnane. Yes, Mr Green?

MR GREEN:  If the Court please. My learned friend,

Mr Kenzie, on whose arguments those resisting the

application here principally rely, focused upon

the SULPHIDE case and my learned friend, Mr Kenzie

made reference to it as being, for all relevant

purposes, indistinguishable from the instant

case. But may I say as to the SULPHIDE case, that

one needs to keep in mind, in my submission, that

that decision presented itself to the Court
against a background where the Court was dealing
with objections taken by employers to a registered

organization extending its conditions of

eligibility. The basis on which the employers

took that objection was that there was no scheme,

in the regulations, dealing with the grounds of objection. Now, one can readily understand the

High Court in that decision reaching the result

it did where it had to resolve the difficulty of
there being any absence in the statutory rules

of a mechanism or grounds upon which objection

could be taken.

My learned friend, Mr Kenzie, has also sought

to rely upon the lineage, as he would have it,

between section 58A, as it stood at the time of

the SULPHIDE case and the current section 139.

Now, properly understood, in my submission, there

is not really the sort of affinity, for which my

learned friend contends, as between those two

provisions. If there is any doubt about that one

can resolve the doubt and remove the doubt by

having a look at the 1956 amendment following upon

the overworking, if I can call it that, of the Act

after the BOILERMAKERS' case and one sees that

C2T42/l/SR	83	GINNANE	7/10/88
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what emerged in the 1956 amendments were a

completely new sort of provision dealing with

amendments relating to the constitution of a

registered organisation. And, indeed, what

was inserted in 1956, is for all intents and

_purposes the same provision that finds its
expression and form in the current section 139.

(Continued on page 85)

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MR GREEN (continuing):  Now, if I can make some further

observations about the SULPHIDE case by referring

Your Honours to the decision of Mr Justice Franki

in the UNITED FIREFIGHTERS UNION case, to which

I have briefly taken Your Honours and which,

-of course, eventually manifested itself as

PITFIELD V FRANKI in this Court. That is reported at 129 CAR. There was before His Honour

Mr Justice Franki very extensive debate in that

case about whether one should adopt the approach

adumbrated in the COAL case or that that was

followed in the SULPHIDE case. May I refer the

Court to page 55 of that decision where

Mr Justice Franki deals with distinctions that would

put paid to the contention that my learned

friend, Mr Kenzie, has sought to advance in

propping up his argument that there is no

difference between section 58A as it stood at

the SULPHIDE case and the current section 139.

What His Honour said in that paragraph a third

of the way down the page was this:

Two distinctions emerge between the

SULPHIDE case and the COAL case, and they are firstly -

WILSON J:	Which page are you reading?
MR GREEN:	I beg Your Honour's pardon, page 55.
WILSON J:-	Yes.
MR GREEN:	Two distinctions emerge between the
SULPHIDE case and the COAL case, and
they are firstly that the COAL case
dealt with re-registration and original
registration, whereas the SULPHIDE case
dealt with a change of name or constitution,
but I think more importantly any objection
could be raised to a change in name or
constitution, and therefore the discretion
of the Registrar in the SULPHIDE case extended to considering any objection
raised, whereas so far as initial registration
was concerned, apart from section 59, only
those limited objections referred to in sub-regulation (2) of regulation 9 could be raised.

The applicants submitted that a general

discretion to refuse registration arose from

the words 'on compliance with the prescribed conditions' in section 132 together with the requirement in regulation 123 that the

Registrar 'subject to the Act and these

Regulations, shall decide the matter'.

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Since, as I have pointed out, the regulations

under which the COAL case was decided provided

that the Registrar 'shall decide the matter'

it seems clear that the existence of the words

'shall decide the matter' in the present
regulation 123 cannot cut down the effect
of the decision in the COAL case. In
addition regulation 123 contains the words
'subject to the Act and these Regulations'
which did not occur in the corresponding

regulation 12 as it was at the time of the

COAL case.

As I have said the COAL case and the SULPHIDE

case raise different issues, and it is the

COAL case which is relevant in the subject

case rather than the SULPHIDE case. I note

that the SULPHIDE case was determined within

a few months of the COAL case and that four

of the five Judges constituting each Bench sat

on both cases.

Now, it is in the light of those observations of

Mr Justice Franki, it is submitted, that manyof the issues that my learned friend, Mr Kenzie, nas raised

can be properly dispelled. Reverting briefly

to the 1956 insertion of what is currently

section 139 it is clear, in my submission, that

once the section 139 was enacted the need for

a decision such as that to be found in the

SULPHIDE case was done away with.

DEANE J:  Mr Green, at pages 55 to 56 Mr Justice Franki

goes through a series of decisions which at least

at first sight seem to support your construction.

MR GREEN:	Yes, indeed, Your Honour.
DEANE J:	Is this case the first to depart from those or does

this case follow previous decision in the Commission

or elsewhere? (Continued on page 87)

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MR GREEN:  As I understand it, it would involve a departure

from this case.

DEANE J: This is the first that has, as it were, alighted

on the alteration to the regulations and reached

--the different - - -

MR GREEN:  As I understand it, that is the position,

Your Honour.

DEANE J:	Thank you.
MR GREEN:	And, of course, as Your Honour has said, the

alteration to the regulation in 1982 brings the

difficulty into that much sharper focus.

My learned friend, Mr Kenzie, also sought

to suggest that there is an entitlement to registration.

to advance to Your Honours that it was difficult in the light of section 135 of the current Act

which, as I have already mentioned to Your Honours,
he quotes, an entitlement to registration with

compliance with the prescribed conditions.

When one keeps that in mind it is submitted

that there is no difficulty whatever in an acceptance

of the entitlement to registration which I have

sought to urge upon Your ·Honours. My learned

friend, Mr Black - and I understand that he put

this very much as a subsidiary proposition -

drew attention to section 134(1). In so doing,

tacitly, my learned friend sought to demonstrate

that there was some dichotomy between prescribed

conditions on the one hand and removal of ground

of objections on the other.

In my submission, that is not the position

and, in any event, one is left with the proposition

that a removal of ground of objection may be

very well taken by an objector in reliance upon

section 142 of the Act, dealing with organizations

that have already come into existence and to

which the applicant association might conveniently

belong.

(Continued on page 88)

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MR GREEN (continuing): In the light of that, therefore,

it is submitted that there is nothing in what

my learned friend has advanced and that does

not really advance his propositions or mine,

one way or the other.

There was some mention following upon Your Honour Justice Deane's observations

concerning whether mandamus would go to the

Industrial Registrar about whether leave might

be appropriate to amend the order nisi. I seek

the leave of the Court to bring about an alteration

to the order nisi and I have taken the liberty, if

Your Honours please, of putting in long hand a

proposed amendment which may deal with the deficiency

that has been pointed out by my learned friend,

Mr Kenzie, in response to Your Honour's observations.

WILSON J:	Thank you.
MR GREEN:	Indeed, the deficiency to which I have adverted

arises out of what is expressed in the body of

the order nisi. One can see from the heading

that there was some intention on the part of the

prosecutor to, in fact, seek prerogative relief

as to certiorari and mandamus in respect of the

Arbitration Commission and that was an omission

on the part of the prosecutor to insert a mandamus

order or relief directed to the Arbitration

Commission in respect of its appeal decision. And so it is, if Your Honours please, I ask that the

order nis~ by the Court's leave, be amended in

the terms set out in that document which I have

handed up.

WILSON J: Does counsel representing the respondents wish to

say anything about this?

MR KENZIE:  No, Your Honour.

MR BLACK:  No, Your Honour.

WILSON J:  Mr Green, we wonder if it would be appropriate,

rather than fiddle with the order nisi which has

a sort of integrity of its own, I suppose, if you

were simply to ask the Court to fashion appropriate

relief in the event that you should succeed on the

construction point, to address the writ of mandamus

to the Full Bench and that, as an ancillary measure

of relief, consider the issue of a writ of certiorari.

MR GREEN:  Yes, Your Honour.

WILSON J:  Simply 1 the certiorari should be subordinate

to mandamus JUSt to make s~re that the

jurisdictional problems do not assume an acute character.

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MR GREEN:	With respect, I agree and I would be content
to abide by that, Your Honour.  If Your Honour
pleases, they are the matter for reply.

WILSON J:  Tharik you. The Court will retire for a moment.

--Yes, Mr Kenzie.

MR KENZIE:  Before the Court does adjourn, a question was

asked about whether a decision of the Full Bench

was the first occasion on which there was a

departure. My friend answered that question

but did not refer again to the decision of

His Honour the President of the Connnission in

261 CAR 824. That, I think, is before the Court

and it was the case that was really the lead-in

to the amendment to the regulation.

WILSON J:  Thank you, Mr Kenzie. The Court will retire

for a moment to consider the course it will take.

AT 3.09 PM SHORT ADJOURNMENT

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UPON RESUMING AT 3.11 PM:

WILSON J:  The Court is in a position to dispose of the

-~ncillary questions raised by grounds 4, 5 and

6 of the order nisi. It is convenient to deal

with them at once, leaving for subsequent

determination the primary question of

construction raised by grounds 1, 2 and 3.

Grounds 4, 5 and 6 are advanced as alternatives

to the applicant:' s argument on that question

of construction and need only be considered on

the basis that that argument fails. On that

basis ground 4 of the order nisi fails for the
reason that the Court considers that is the
Registrar and Full Bench were not confined in
the manner suggested by the applicant's primary
argument, it was permissible for the Full Bench,
in determining the appeal under section 88F of
the Act, to place particular emphasis upon the

object of avoiding the potential for

industrial disputes.

Ground 5 fails, again on the basis that

the applicant's argument on construction fails,
that the weight to be given to particular matters,
including that suggested in ground 5 of the
order nisi, was a matter for the Full Bench and
the Court is not persuaded that the Full Bench

failed to pay regard to that particular matter.

The factual basis of ground 6 of the order nisi

has not been made good. The Full Bench did not

purport itself to determine the outcome of the

application for registration of the Australian

Teachers' Union. All it did was to take the

registration of the Australian Teachers Union

by the Registrar into account in determining

whether other organisations should be registered.

The Court will reserve the question of construction for consideration. That concludes

the business of the Court.

AT 3.14 PM THE COURT WAS ADJOURNED SINE DIE

90

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