Re Coldham & Ors; Ex parte Lee

[1988] HCATrans 79

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S47 of 1988
In the matter of -

An application for writs of

prohibition, certiorari and

mandamus directed to PETER

ABERNATHY COLDHAM, a Deputy

President of the Australian

Conciliation and Arbitration

Commission

First Respondent

KEITH JACKSON HANCOCK, a Deputy

President of the Australian

Conciliation and Arbitration

Commission

Second Respondent

GREGORY ROBERT SMITH, a Commissioner

of the Australian Conciliation

and Arbitration Commissioner

Third Respondent

BROTHER JOHN TAYLOR, PETER JULIAN

MOORE, TERRENCE WILLIAM CHAPMAN,

CHRISTOPHER VIVIEN ELLIS, ROBERT
RAYMOND LEANE, ELIZABETH M. BUTT,

FIONA ALEXANDRA OGILVY-O'DONNELL,

THOMAS MICHAEL DOYLE, KEITH MICHAEL
FOX, JOHN ANTHONY McDONALD, JOHN

MICHAEL WILLIAMS, PAUL ANTHONY GAIR,

Lee

GAUDRON J

(In Chambers)

ALAN EDGAR DRUERY, ROBERT HANNON-BURT

DAPHNE RUTH SHATFORD, DONALD LATIMER

BROOKER, ARTHUR DAVID PEASON DYER

and NIGEL A.H. CREESE

Fourth Respondents

Ex parte -

PATRICK JOHN LEE and

MICHAEL WILLIAM RAPER

Prosecutors

SlTl/1/RB 1 28/4/88

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 28 APRIL 1988, AT 10.15 AM

Copyright in the High Court of Australia

MR R. KENZIE, QC: If it please the Court, in this matter I

appear with my learned friend, MRS. ROTHMAN, for

the applicants for the issue of a rule nisi for

prerogative writs.

HER HONOUR:	Thank you, Mr Kenzie.
MR KENZIE:	If it please the Court, the matter in which the applicants seek prerogative relief directed to the
federal Commission concerns, in broad, the question
of whether the right of an association of employees,
being an association which coveres employees engaged
in certain industries or areas not covered by the
rules of any existing registered organization, to
be registered as an organisation of employees pursuant to the Act can be conditioned by the Registrar or the
Commission on appeal on a narrowing of its rules,
specifically its conditions of eligibility, to remove from eligibility to industrially represent that
section of its membership. And I will have to take
Your Honour in terms to just what the Commission, by
majority, did in relation to this.
If I might explain very briefly something of the history and what brings us here, and I will try
to keep it as brief as possible, Your Honour. The
applicants in the proceedings before the Commission - before the Registrar and before the Commission on
appeal were seeking to have registered as an
organization a body known as the Independent Teachers the application were proceedings before a full bench
of the Conciliation and Arbitration Commission which was sitting on appeal from decisions of the Industrial
Registrar exercising power under section 88F of the
CONCILIATION AND ARBITRATION ACT, and I think for the

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purposes of the present application I do not need

to take Your Honour to section 88F itself, although

I will take Your Honour in due course to certain

other sections of the Act and regulations.

Your Honour, in his decision or decisions to

which we will come, the Industrial Registrar had

dismissed various objections to the registration of

certain associations of teaching employees seeking registration in what federally speaking amounts to

virgin territory. I think the Court will be certainly

aware of the impact of the CYSS litigation and what

followed from the CYSS litigation, amongst other

things, was a move to register federally organizations

which had previously felt constrained because of the

earlier interpretations of the scope of section Sl(xxxv)

and the definition of "industry" in the CONCILIATION

AND ARBITRATION ACT. The present applications or the

applications before the Registrar were examples of that.

The decision of the Conciliation and Arbitration

Commission to which I will come in terms - it is annexed to the affidavit - involved appeals brought in

respect of two associations of teachers, two of the

three which had been concerned before the Industrial
Registrar, they being ITF and another association, the

Teachers Association of Australia, the TAA. The TAA had conditions of eligibility which encompassed both teachers in government schools and non-government

schools. The conditions of eligibility of the ITF

related to the non-government schools area and embraced

teachers including principals and other classifications.

Before the Industrial Registrar but not before the Commission on appeal, there were objections to a

third association's registration, the Australian

Teaching Union, which was an association which sought

registration in respect of government schools alone.

The Industrial Registrar also dismissed objections

to the registration of that association as an

organization and there was no appeal lodged in respect

of that- or at least there was no appeal that was
heard. Any outstanding objections had been settled
by the time the Commission came to deal with the

matter on appeal.

What the Commission was dealing with then

substantially on appeal were appeals under section 88F

in respect of the TAA and the ITF. Now, if it please

Your Honour - and I will come shortly to our general submissions about it - may I take Your Honour to,

firstly, the decisions of the Industrial Registrar.

They are three in number and are exhibited as PJLl,

2 antl 3 to the affidavit of the first applicant.

HER HONOUR:  I am in general terms familiar with the decisions,

Mr Kenzie.

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MR KENZIE:	Thank Your Honour.	That will enable me to be

quite brief. If I might, bearing what Your Honour has
said clearly in mind, take Your Honour in general

terms to the decisions of the Registrar. The recent decision of the Registrar was in relation to the TAA

matter.	The reasoning was then applied by the Registrar
in relation to the ITF matter.	On pages 1 and 2 of the

decision in relation to TAA the Registrar dealt with
and disposed of an argument put forward not by ITF but

by TAA relating to the scope of the Registrar's

discretion. It is similar to, but by no means

identical to, the argument to which I wish to direct

attention today. The Registrar there rejected the

contention that there was no discretion in the

Registrar in respect of an applicant which had

satisfied what was described as the prescribed

conditions under section 132.

At pages 5 to 7 of the decision the Registrar dealt on the merits with the question of the scope

of the conditions of eligibility of the TAA and effectively dismissed objections based upon the contention that that association should not be

registered in so far as it included principals. I

do not think I need otherwise to trouble Your Honour

in relation to the decision relating to TAA.

In PJL2 the decision of the Industrial Registrar

is given in relation to the ITF and in that matter

the Registrar said that the application relRted to the

TAA application -

and the grounds of objection in this were

put forward under one guise or another in

that. I have dealt with them there and

that is sufficient. The applicant is

entitled to registration because it has

complied with the requirements of the Act

and regulations for registration, there is

no organization under the Act to which all

or substantially all the applicant's

members can conveniently belong and nothing

has been put that would justify refusal on

any other ground.·

From that decision, amongst other decisions or the

decisions relating to the TAA, the appeals were

prosecuted. Now, what the full bench of the federal

Connnission did, in the decisions separately published,

PJL5 and 6 were,firstly, to uphold the appeals against

the TAA and the Connnission was unanimous in relation

to that. I will not take Your Honour to it just at

the moment but on page 55 of the decision of the

majority, where the orders are set out, the Court

can see that the appeals relating to the Teachers'

Association of Australia were allowed. The net

result of that was this, that the Australian Teachers

SlTl/4/RB	4	28/4/88
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Union,registered in relation to government schools,

was registered pursuant to the decision of the

Industrial Registrar; not the subject of a successful appeal or indeed a prosecuted appeal. The Commission found, on appeal, that the appeal should be upheld in relation to TAA and there were no other outstandine

objections from any organization which claimed

coverage or had coverage in the non-government school

area, which is the subject of the ITF application.

Having upheld the appeal against TAA the

Commission then, by majority, upheld the appeal in

part against the ITF to the extent that it covered
principals and deputy principals and that appears

in the orders on page 55, little (d) and (e):

the appeals relating to the Independent

Teachers Federation be allowed in part;

(e) the applicant for registration in

R No 20 of 1984, of the Independent

Teachers Federation, be given leave to apply

to the Registrar to alter its rules so as

to exclude therefrom the right of the

Independent Teachers Federation to

represent the industrial interests under

the Act of Principals and Deputy

Principals by whatever name called;

and the decision of the Industrial Registrar was

varied to that extent. And the Court will immediately

notice - - -

HER HONOUR:  The decision of the Industrial Registrar was not

varied in terms, was it?

MR KENZIE:  Yes, I see what Your Honour means. The effect of

what the Registrar did was to reject objections

brought against the ITF registration.	The Commission
on appeal - - -

HER HONOUR:  Had registration in fact taken place?

MR KENZIE:  No. It was not then registered and indeed it is

not yet registered. What the Commission on appeal

did, by majority, Deputy President Hancock dissenting

on this point, was to say that the appeal should be

upheld to the extent at least that the Registrar had

not chosen to interfere, as it were, with the

constitutional capacity of the ITF to enrol and

represent principals and deputy principals, and that

was the extent of the difference. Now, in little (f)

on page 56, the full bench decision does say that:

the decision of the Registrar ..... be varied -

to the extent indicated in little (e), but I think

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I understand what Your Honour was putting; it may

not be quite as simple as that. In any event, the

thrust of what the full bench was doing was making

an order which had the effect of entitling the ITF

to be registered upon making application under

section 134 of the Act to amend its rules in the

manner indicated in (e). Now, it will not have

escaped Your Honour's attention that in (e) the

liberty to apply to alter rules was in terms to

exclude from the right of the Independent Teachers

Federation to represent the industrial interests

under the Act of principals and deputy principals. In other words, it was not in terms of eligibility

for membership but rather in terms of eligibility to

industrially represent certain people.

Now, the form of that order may have followed

the way in which the objections came forward and I

will be brief in relation to this. I appreciate

Your Honour will not want me traversing back and

forth through the lengthy materials but I think I

have to take Your Honour at least to a few pages of

the decision of the majority to make our ultimate

submissions more sensible than they certainly would

be at the moment. On page 39 of the decision of the

majority under the heading of "Principals", and having

immediately beforehand quashing the decision of the

Registrar in relation to TAA, the majority said this

at page 39 point 4:

All appellants -

they being the objectors -

presented the same case, namely that ITF,

having regard, essentially, to its coverage of

teachers generally, cannot adequately represent
the industrial interests of principals who are
in all matters as between teachers and
themselves, including matters of discipline,

supervision and the right to hire and fire,

beholden to, and represent the interests of,

the employer.

And at the bottom of page 40, the majority then went on in relation to that submission and said this:

The overriding issue to be decided is

whether ITF, organised as it is for school

teachers generally, can properly represent
the industrial interests of principals to
an entent that the identity of such persons

as a group and their independence in the

industrial context will be recognised and

preserved.

And that was the way in which the majority framed the

question before them. They dealt with that question

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on pages 49 through to 53 and on page 49 - I will

not read this, but there were the submissions put

by my learned junior in relation to freedom of

association which were ultimately rejected. The Corrnri.ssion	said that freedom of association was a qualified
right and the like and the decisions were dealt with
on page 50. In terms the Commission said that the Commission does have a role to play on an application
for registration in relation to the conditions of eligibility of an applicant, notwithstanding the fact
that there may not be an already registered
organization which has coverage in relation to the
relevant areas. On page 51, in the material part of
the decision of the majority, the majority said this:

In our view the evidence and material adduced

before the registrar, the more significant parts of which we have discussed, together

with our own considerations, all indicate

that ITF is not an appropriate organisation

to represent satisfactorily the industrial

interests of principals. It has not been shown

that ITF is capable of servicing and representing

the industrial interests of principals and their

disputes in such a way as to preserve the

identity and independence of those who occupy

those offices -

and the like, and then in the next paragraph the
Commission by majority refers to the fact that

there really was not another organization which was

registered and had an interest but there were others

in the field who might have and said that there was

an association out there which represented principals

which might one day, perhaps, and perhaps not, get

registered and the Commission said you cannot really

solve all the problems at once and disposed of the

submissiorsof Mr Rothman in that way.

I do not need to trouble Your Honour with

Mr Deputy President Hancock's dissenting judgment on

that ground. His Honour found that the Registrar had

not been incorrect as a matter of discretion in

dealing with the conditions of eligibility as a whole

in the way that he had done and saying that it was

none of the Registrar's concern as to who the
applicant for registration covered, or alternatively,
that as a matter of discretion the Commission on

appeal should not interfere with the decision of

the Registrar even if they would have formed a

different view.

Against that background, if it please the Court,

it is our submission that there was no jurisdiction

in the Commission to take the steps that it did and

if we may indicate globally what we have to put about

the matter, it is this, that we submit that in an

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application for initial registration under section 132

HER HONOUR: What do you mean by initial registration?

MR KENZIE:  By that, Your Honour, I mean an application for

registration made by an association which has not

previously been registered and deregistered and,

Your Honour, the word "initial" does have some

importance because of one of the authorities to which

I will have to take Your Honour . It involves a

qualification on section 132. This Court, in an

earlier decision, has held that section 132 has to

be read subject to other provisions of the Act

relating to registration including, as it has been

held, section 143 of the present Act relating to

deregistration. Accordingly it was held in 1917
that an applicant for registration,innnediately after

deregistration, does not have an automatic right to

registration upon having satisfied the prescribed

conditions because section 132 has to be read subject

to deregistration.

(Continued on page 9)

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MR KENZIE (continuing): So, we submit that in an application

for initial registration under section 132, neither the
Act nor the regulations authorize the making or
entertainment of an objection extraneous to the objects
of the Act or the prevention and settlement of industrial

disputes including an objection based on the proposition

that pursuant to the conditions of eligibility for

membership of the applicant association, certain

classifications of employees who are engaged in industry

and are not eligible for membership of any other registered

organization are eligible for membership thereof and

cannot be satisfactorily represented by the applicant.

So, our first submission is that it is simply not an

objection that can be made under the Act or regulations

or entertained.

Alternatively, we say that if there is such power

to make such an objection, there is no jurisdiction in

the Registrar to refuse to register an association on

the ground referred to in our first submission, that is,

on the ground that the conditions of eligibility of the
applicant are simply wider than the Industrial Registrar

thinks appropriate for one reason or another. Inherent

in that submission is that the concept of public interest

is not at large but that there are limits on what can be

properly taken into account in dealing with an application

for registration.

Thirdly, Your Honour, we say - and this is an

alternative submission - regardless of the correctness

of the earlier submissions, there is no jurisdiction in

the Registrar to refuse to register an association as an

organization of employees until such time as it has

amended its rules to preclude it from representing

industrially some part of its membership. Your Honour,

in that respect, we go back to the order of the

Commission by a majority which went, to eligibility - - -

HER HONOUR: Yes, I understand that.

MR KENZIE: - - - not to eligibility but to representation. In that

regard - we put it this high: that even if you could

discern from the legislation or the regulations validly

made thereunder the right to make an objection that was
an objection that was entertained in these proceedings

and even if there were a right to exclude from eligibility

for membership a certain class of employees, there is no

jurisdiction to exclude the right to industrially

represent people in the categories we have described.

Your Honour may recall section 142A of the

CONCILIATION AND ARBITRATION ACT, and I will take

Your Honour to this very briefly in due course. That

is a section introduced in the late 1970s which is

designed to demark the industrial interests of registered organizations and it proceeds on the basis that there are

two or more existing registered organizations and it

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invests the federal Commission with power to make
orders effectively demarking the right to industrially
represent the interests of employees who fall, as they
must for the application of the section, within the
conditions of eligibility of both those organizations.

That, we have no quarrel with, of course, and we say

that that is plainly supportable by the constitutional

power but it is different in concept to a situation

in which there is no one else who can represent the
industrial interests of a segment of employees and who

are excluded by such an order.

HER HONOUR:  But you put that argument, I presume, purely on

the basis of interpretation of the Act?

MR KENZIE:  Yes. We do submit that there is nothing in the

Act or the regulations which authorizes any of the steps

that have been taken. Even if the order of the

Commission by a majority can be taken to be an order concerned with eligibility and not industrial

representation, we say that there is no right under the

Act to make an objection based upon the incapacity to

properly represent. And there is no right under the

Act to make an order that you should not industrially

represent people who are not otherwise industrially
represented.

In relation to the last submission, we would be in

a position to go a little bit further and to advance

the submission that it would not be constitutionally

competent for the Parliament to make such a provision.

We say it has not been made. We are going to take

Your Honour to a regulation in a moment which gives,

apparently, wide powers and say that it would at least

have to be read down to remove that sort of possibility

because that would be antithetical to the conciliation

and arbitration power, and that is the way in which we

put it. But we say that there is no legislative

mandate for any of the steps that were taken on any

construction, but in relation to the last construction,

which we say is the preferred construction of what the

Commission has done, not only is there no legislative

mandate but there could not be.

In relation to that last point, if I may be forgiven

for taking Your Honour briefly to one of the authorities

on our list. It is the decision of Mr Justice Mason in

THE QUEEN V SWEENEY; EX PARTE NORTHWEST EXPORTS,

(1981) 147 CLR 259 and in a passage which has been

examined and applied without criticism subsequently

in at least two cases. Mr Justice Mason was there

examining the validity of the provision of the

CONCILIATION AND ARBITRATION ACT in which the right was

given to people to conscientiously object to membership

of registered organizations. That provision was ultimately

upheld by a majority of this Court on the ground that it

was a provision in aid of registered organizations.

On page 273 Mr Justice Mason, having referred to earlier

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decisions which emphasized the width of Commonwealth

powers in relation to organizations - and we have no

quarrel with any of these decisions or anything said

within them, of course - having referred to the earlier

decision of Mr Justice Gibbs as he then was in REG V

SPICER in the middle of the page, said:

Parliament cannot impose prohibitions or

limitations on a registered organization

which are inconsistent with the object of
the legislative power, that is, the

prevention and settlement of interstate

industrial disputes -

Your Honour, unless Your Honour is otherwise troubled,

I was not going to take Your Honour to the subsequent cases - - -

HER HONOUR:  No, I just wanted to clarify the extent to which

the argument went in relation to that third point?

MR KENZIE:  Yes, indeed, Your Honour. Your Honour will know

that that passage has been examined subsequently and

so far as we can see has not been criticized in any way.

There was the subsequent BUILDERS LABOURERS case in

which submissions were made in relation to that and

otherwise dealt with.

Now, Your Honour, could I perhaps remind Your Honour

of some of the provisions of the Act and the regulations

to make a bit more sensible what we have already said?

HER HONOUR:	Where is the regulation-making power in the Act.
MR KENZIE:	It is section 198 and it has been, it is fair to say, widely interpreted, it is widely framed:

The Governor-General may make regulations,

not inconsistent with this Act, prescribing
all matters which by this Act are required

or permitted to be prescribed or which are

necessary or convenient to be prescribed for

carrying out or giving effect to this Act,

and in particular -

and subject to correction, I do not think any of the

particulars are relevant to what we have to say but

we have no difficulty with the extent of the regulation-

making power in the Act. It has been widely construed.

Mr Rothman suggests perhaps (c) which refers, in terms, to:

the duties of the Industrial Registrar, the

Deputy Industrial Registrars and any other

officers of the Court.

Your Honour, I do not propose to take a great deal of time in doing this but if I might remind Your Honour

SlT2/3/PLC 11 MR.KENZIE, QC 28/4/88

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of the provisions of the Act which, so far as we can

see, bear upon the debate that we would wish to have.
Section 2, the chief objects of the Act, in addition
to (a) and (h) which relate to the promotion of goodwill in

industry and the encouragement in providing:

means for, conciliation with a view to amicable

agreement -

and -

(e) to encourage the organization of representative

bodies of employers and employees and their

registriation under this Act.

Then, Your Honour, section 132 which is central and

provides, so far as relevant, in subsection (1) that:

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

conditions, be registered in the manner prescribed

as an organization -

and then:

(b) any association the members of which

include not less than one hundred employees

..... employed in -

an industry, and:

(c) any association the members of which include

not less than one hundred employees engaged in

an industrial pursuit -

and I think it is not necessary for present purposes to

engage in debate about which of those is relevant;

probably they both are.

Section 132(2) says that:

The conditions to be complied with by associations

so applying for registration and by organizations

shall be as prescribed.

And I will take Your Honour to regulation 115 which I am

sure Your Honour is familiar with. Then, in addition to

section 132 and the regulations, there are certain other

provisions in the Act which go to what must be contained
in rules to comply with the prescription, and without
reading them in any way they include, for example,
section 133 of the Act, Section 133(1):

In addition to the conditions referred to in sub-section 132(2), the conditions to be complied with by associtions applying for registration .... include a condition that the

rules -

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and there are certain additional requirements in relation

to the rules. It may be said - I do not think it is

material for the present case that they are therefore

included in the prescribed conditions. There are various

other similar sections or some other similar

sections. For example, section 133A and 133B of the

Act relate to requirements that the rules of an applicant

for registration - of an organization, or an applicant
for registration contain certain provisions as to

loans and branch funds and federal funds and the like,

and I do not read those in any way.

I will come back to regulation 115, appreciating that some of this is out of order, Your Honour. But while

we are dealing with the Act, there is then section 142, the 1~onveniently belong'' provision:

The Registrar shall, unless in all the

circumstances he thinks it undesirable 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.

So, that imposes a duty on the Registrar to refuse to

register another organization unless, in the exercise

of a general discretion he is satisfied that he should

but it depends upon the existence of a previously

registered organization.

Section 142A I have rferred Your Honour to

and that relates to a situation where you have two or

more registered organizations. And section 143 is the

provision of the Act which relates to the grounds upon

which registration can be cancelled, and there are a number

of grounds there which do not need to be traversed for

present purposes but they are numerous and obviously
supportable by one means or another, having regard to the
width of the power of the Parliament in relation to

organizations.

Now, if I may then briefly come to the regulations.

They commence in Part V of the regulations, regulation 115:

(1) The following conditions are prescribed

conditions to be complied with by an

association applying for registration,namely -

and there are certain requirements including the

requirement that:

(a) the association shall be a. voluntary and

bona fide association of a kind referred to

in section 132 of the Act;

is to -

be an association for furthering or protecting

the interests of its members -

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and various other requirements which I do not think I

need to trouble Your Honour with.

Regulation 116 is the regulation dealing with the

application for registration. The application has

to be in accordance with form 29 or 30 and there are

provisions in relation to the form of the application.

Regulation 117 deals with the order of application;

118, for the advertisement of the application, and 119,

which is important, of course, for present purposes

currently, and since 1982, has read that:

(2) 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 -

and then Your Honour will see that there are grounds

which go to regulation 115 and the prescribed conditions as

well as section 142 - that is (c) - but it is clear, or as clear as
it can be, that that regulation has been cast

so that the objections are not to be confined to

section 142 or regulation 115 in so far as it is

reflected in (a) and (b) at least. Now, for example, we

would have no difficulty with the proposition that an

objection could be picked up by regulation 119 if

it was based upon the proposition that there had been a

deregistration on grounds which were still outstanding
or the like. Plainly there is work for it to do.

Prior to 1982, regulation 119 was in a slightly

different form and I wonder if I could hand Your Honour,

simply for the purposes of accuracy, the form of

regulation 119 as it existed before 1982. Subregulation (2)

then provided as follows:

The grounds of objection shall be set out in the

notice and may include one or more of the

following grounds.-

There was some debate within the Commission in the 1970s

as to what that meant; whether it really was confining

or whether it was at large and the like and there were
different decisions or there were at least two decisions

in relation to that. There followed the 1982 amendments.

Now, in our submission, whatever the current form

of regulation 119 does, it does not authorize an objection

made in the terms that were entertained in this case and

certainly does not entertain a limitation of the

sort made on the basis of the third argument based on the
construction of the order. Your Honour, it is

necessary - - -

HER HONOUR:  Does it not really come down at the end to the

meaning of "may" be registered in section 132?

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MR KENZIE:  The first two submissions that we make may do that

and probably do come down to that, Your Honour.

HER HONOUR:  And I am wondering if the regulation argument

does not, in the end, come to that too.

MR KENZIE: Well, Your Honour, all of the arguments may come to

that with the exception of our last argument because we

say that if "may" does mean "may" in section 132 and

not "must" upon compliance with the prescribed conditions,
none the less the regulation would have to be read so as

to preserve validity and would not be read as authorizing

an objection that was based upon something which was

harmful to or antithetical to the constitutional power.

So that argument survives, we would submit.

HER HONOUR:	Yes.
MR KENZIE:	Subject to that, I think what Your Honour puts to

me is correct. We are fortified in relation to that

argument because there is at least one decision of this

Court which tends to suggest that section 132 is not to be read as though "may" means "may". But, Your Honour, I

take what Your Honour puts.	I think we have no difficulty
with that.

Your Honour, because of the legislative or, rather,

the history of the regulations, because this is an ex parte

application, I feel I should direct Your Honour's

attention to certain decisions of the Court which bear upon

the matter and, again, I will be as brief as I can. The

first of them is what has been described in the proceedings

as the COAL case:  METROPOLITAN COAL COMPANY OF SYDNEY

LTD V THE AUSTRALIAN COAL AND SHALE EMPLOYEES FEDERATION,

24 CLR 85. Your Honour, this case concerned the question

of an application for registration immediately upon

deregistration and the Court found by a majority, at least, that section 132 or its predecessor which was not, I think, materially distinct had to be read subject to the other

provisions of the Act which bore upon registration,

including sectiora 142 and 143; and, again, if I can

deal with it briefly. In the judgment of Mr Justice Barton,

at page 93 point 9, His Honour, in dealing with one of the

questions in the case stated which concerned the right

to reregistration said this - it is item (6) about point 8:

I cannot accept the construction that

under sec. 55(1) -

that is the predecessor of 132 -

the Registrar has no power under any circumstances

to refuse to restore to the Register an

association which, on its removal from the

Register by the Court, has ceased to be an organization, provided only that on its

application it shows compliance with what are

called in the section "the prescribed conditions."

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It is true that on the original application

an association may perhaps be entitled to be

constituted an organization by that compliance.

I am not called upon to say that it is so in

all cases. But, assuming that, it cannot be

equally true that if the organization has been
removed from the Register under circumstances

which show its unfitness to continue its place

upon it, the Registrar is bound to replace it

automatically. Such a result would lead to

the position that if the unfitness for registration

which had caused the cancellation continued, not

only would the Registrar be helpless, but the

Court must submit to the virtual overriding

of its decision - - -

HER HONOUR:  Were the 'conveniently belong" provisions in

the Act at that time?

MR KENZIE:  Yes, they were and are specifically referred to

in this decision. The effect of this decision is that,

in our submission, on an application for registration -

and we mean "initial" and well as "reregistration", but

initial registration - section 132 or its predecessor

had to be read subject to provisions of the Act which

themselves bore upon registration and they included

section 142 and its predecessor which was then present

and specifically referred to.

(Continued on page 17)

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MR KENZIE (continuing): At page 95, having said that Parliament

could not have intended that if you had just been

deregistered you could automatically go and get

registered again, at the top of the page

Mr Justice Barton says:

These are merely illustrations which show

the necessity of reading the sections
together. In that case sec.55 must be read,

to the extent necessary, as subject to sec.60.

Section 60 was the forerunner of section 143 - not

142, 143. Section 59 was the predecessor of

section 142. He was saying that it has got to be

read subject to section 143 or its predecessor

because that bears upon registration. Then he goes

on:

Seeing that there is no provision in the

Act that de-registration should be permanent, this becomes more necessary. I agree with my

brothers Isaacs and Rich that the Registrar's
powers under sec.55 are necessarily subject

to any order made by the Court -

that means under deregistration provisions -

and may in any given case be controlled by
any other existing legislative provision

affecting registration.

And he contented himself with that. Mr Justice Isaacs

and Mr Justice Rich dealt with it between pages 96

and 100 and at pages 97 and 98 - page 97 in the middle

of the page they dealt with the relationship between

55 and 60 and said, at about point 7:

The scheme of Parliament as originally framed was clear that compliance with

prescribed conditions should confer an

original right upon the specified associations or persons to be registered.	In such cases the word "may", accompanied
by the words "on compliance with the
prescribed conditions" so far conferred a right
calling upon the proper officer - Principal Registrar ..... - to register the applicant
as an organization. But that right was
defeasible by the operation of sec.60; and sec.55 must be read as subject to sec.60
(inter alia). Sec.60 conferred the most
ample power in the Court to cancel the
registration -

and the like. At the bottom of page 98, about

point 7:

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Now, if sec.55 did not, as the Act originally stood, give an absolute right to re-registration

after an order ma.de under sec.60, it still

has to be read subject to an order made under

the amended sec.60, the discretionary order

when made now standing in the same place as

formerly a compulsory order would have stood.

If sec.55 is read in this way as conferring an absolute right of original registration,

qualified only (so far as this Act is

concerned) by sec.59 -

section 142, in other words -

and qualified also by what may afterwards

be in fact done under sec.60, two extreme

absurdities are avoided, and the scheme of

the Act as a sensible consistent scheme is

preserved. On the one hand, the absurdity

already indicated cannot arise. On the other, the equal absurdity of excluding the association for ever because of some

temporary reason is excluded.

That was the other provision affecting registration to which Mr Justict Barton was no doubt referring.

Mr Justice Higgins, who dissented, dissented in

relation to the impact of section 143. I do not

think I need otherwise to take Your Honour into the
decision. But that was, of course, a case dealing
with an application for reregistration, but what

Their Honours had to say clearly applied to registration.

That case has to be looked at, together with what

has been described in the proceedings as the SULPHIDE

case which was decided quite shortly thereafter. Most

of the members of the bench sitting on the earlier
decision were again present, in 25 CLR 9. This was

not an application for registration but was an

application for a change of rule, change of name and

change of conditions of eligibility, and in the

headnote the Court concede that there were certain

regulations which applied in relation to a change of

name.

An application for the change of the constitution of an organization ... may

be in accordance with "a certain form",

"and shall be made to the Industrial Registrar

... and shall be signed by two or more

officers of the association.

(2) Every application shall be in duplicate,

and shall be accompanied by the prescribed

fee ..... (5) Any organization or person

interested may, within twenty-one days after

the advertisement of the notice of the

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receipt of the application, lodge with

the Registrar a notice of objection, in

accordance with" a certain form, "to the

change of the constitution ..... (7) The

Registrar shall fix a day for hearing the application, and shall give notice thereof

to the applicants and the objectors. On 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."

Now, Your Honour, immediately above that in the

headnote there is set out section 58A which was the

section dealing with changes of name and

constitution and it has certain language which is

similar to section 132, not identical:

"An organization may, in the prescribed

manner, and on compliance with the

prescribed conditions, change its name or

change the constitution of the organization -

et cetera. And it was held in the SULPHIDE case

by majority that any objection could be made to a

change of name or a change of constitution and any

objection made had to be considered by the Registrar

and, Your Honour, without reading the passages in

terms, Mr Justice Higgins dissented and I do not go

to his judgment. Mr Justice Gavan Duffy and

Mr Justice Powers, at page 27, in the context of an

argument as to whether there were any prescribed
conditions, Their Honours identified the objections

and the satisfaction of them as prescribed conditions

under section 58A and, at about point 6 or point 7

on page 27 said this:

Much argument was addressed to us as to the nature of the objections which might be taken

to the change of constitution, and many

ingenious limitations were suggested. In

our opinion 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. The object of the regulation is to

interpose the discretion of the Registrar

between the desire of the organization to

change its constitution and the ministerial

act of recording the desired change.

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Mr Justice Rich agreed. He said, at the top of page 98:

Implicit in sec.SSA is the condition that the

change is to be made after a decision has been

arrived at by the Registrar. Even if this be not

so, reg.17A duly carries out what is enacted .....

No limit is placed to the objections that may

be taken, and the duty of the Registrar is to

consider such objections before deciding whether

it is expedient that any change should be made.

If, and only if, in his discretion he thinks

fit, is he obliged to record it.

Now, Your Honour, certainly there was some language

in section 58A which was similar to section 132,

the reference to prescribed conditions and the like.

It is fair to say that if the effect of that is that that

reasoning could be transported to section 132, then

one has to come to grips with the decision of the

Court that you can have any objection that you like

and it has got to be dealt with, subject to our last

argument, of course.

We would respectfully seek to take issue with any

suggestion that the propositions in the SULPHIDE

case can be applied to section 132, having regard

amongst other things to the decision of the Court in

the COAL case which does not sit, as we would sumbit,

happily with that. We, however, direct Your Honour's

attention to that for obvious reasons.

Now, Your Honour, I do not want to multiply references to authority. Mr Justice Franki, in 1969,

had the difficult task of trying to reconcile those
two cases in a case concerning the United

Firefighters Union and in circumstances where regulation 119 was in its pre-1982 form, His Honour

clearly applied the COAL case in the case of an

application to registration and there is - I do not

think I need to take Your Honour in terms to it, but

there is an examination of the history of the

authorities within the Commission, the COAL case and

the SULPHIDE case and His Honour, in an important

judgment, in our respectful submission, did two

things: firstly, he applied the COAL case in

relation to regulation 119 and said, in terms, that

it was simply no business of the Registrar to determine

who should be in, in the absence of any objection from

a registered organization; and secondly, he said that

even if that were wrong, there was no policy in the

Act that allowed the Commision to go into questions

like that in the absence of a registered organization

and that, of course, goes to the other question we

wish to debate. Now, I will not trouble Your Honour

with further references to that case.

Your Honour, on those grounds, broadly

speaking, we submit that there simply was not

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jurisdiction, certainly to reach a decision based

upon the sort of consideration that was reached.

HER HONOUR: Perhaps you really mean "power" but for practical

purposes, in terms of the relief claimed, that is

the same, is it?

MR KENZIE:  I do mean "power", I am sorry. It is, and we

say that without attempting to traverse it, for the

reasons that we have advanced, the Court would not

be troubled by the privity provisions in section 60

because we say that the Commission has clearly

mistaken its jurisdiction. It has introduced an

aspect into section 132 and into the Act and the

regulations which is not there and if our last

submission be right, which could not be there.	So
that we say that section 60 is not a bar to the

RB proceedings in the present case.

HER HONOUR:  I can understand why you might seek certiorari

directed to the Full Bench and mandamus directed to

the Registrar but I have some difficulty in

understanding your application for prohibition.

MR KENZIE:  Yes, Your Honour. Perhaps to be clear, we seek a

writ of mandamus not directed to the Registrar but directed to the Commission - to the members of the

Commission who are named, that is, the Full Bench

of the Commission who are the only members of the

Commission named as respondents to the proceeding.

We seek the writ of prohibition on the basis that there is an outstanding decision of the

Commission which impacts adversely upon and which,

as we see it, is binding upon the applicants for

registration which continues to have that impact on

them and notwithstanding the fact that it may have

been correct to describe the Commission as functus

officio in a sense once they had made the order,

we had rather proceeded on the basis that prohibition
was open to us in those circumstances with certiorari

as a subsidiary remedy. If we are wrong, we would

seek the issue of a writ of mandamus directed to the members of the Commission again, with certiorari as the subsidiary remedy but our remedy at the moment

is really confined to the Full Bench.

HER HONOUR:  To the Full Bench. And what would an order nisi

achieve in those circumstances?

MR KENZIE: Well, Your Honour, an order nisi would - we do not

seek a stay.

HER HONOUR:	No, that would not achieve anything either, would it?
MR KENZIE:	No, it would not. That is the reason that no relief

of that nature is sought. The effect of what has

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happened is that the applicants for prerogative

relief are seeking to be registered. The Registrar

has said they can be registered and the only barrier
to registration in relation to all of the people
within the conditions of eligibility is the decision

of the Connnission. The next step is really,within

the Connnission, up to the applicants. The applicants

could go along at some stage under section 134

and say, "Yes, we want to be registered and we

accept the limitation on our conditions of eligibility

which is consistent with the decision of the

Connnission". So, no affirmative relief is sought

in the interim, as it were, and the issue of a rule nisi will really be the vehicle for the ventilation

of the argument that we seek to have in relation to

principals and deputy principals; that being the

thrust of the complaint that the applicants have.

But it will not have any substantial impact upon

the interests of any other party to the proceedings

or intervenor that we can see, Your Honour.	I think
the position is as I have put it to the Court.	I do

not think I can otherwise assist Your Honour in relation

to the matter.

HER HONOUR:  Yes. Mr Kenzie, are you familiar - I dare say you

are - with Order 55 rule 2 of the Rules?

MR KENZIE:  I can confidently say I have been, Your Honour, but

whether I - - -

HER HONOUR:  It just seems to me that in a case such as this

where the further proceedings are in your hands, as

it were, wherever they be, the decisions have

been given and finalized in every relevant respect,

that nothing really is served by the issue of an order

nisi that would not be achieved by a direction pursuant

to Order 55 rule 2.

MR KENZIE:  I think Your Honour is quite correct in relation to

that.

HER HONOUR:  And it seems, probably, to be a more efficient and

economical procedure.

MR KENZIE:  Yes, Your Honour. It seems to us that there are

three possible fates that can befall an applicant

for prerogative relief in a situation such as this:

the Court might reject an application for a rule nisi

and decline to make an order under Order 55 rule 2; it might make an order under Order 55 rule 2; or it

might grant a rule nisi. In the present case,

practically speaking, I do not think there is anything

I can put to Your Honour in terms of the difference

to the applicants between those two steps.

HER HONOUR:  And it would not alter the position of any other

persons who might need to be served.

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MR KENZIE:	I think Your Honour is quite correct.	I do not think

there is any practical difference that comes to mind.

HER HONOUR:  Yes. Well, given the discretionary nature of

the writs I think I, in the circumstances of this

case unless you have got something to say, would see

Order 55 rule 2 is the preferable course.

MR KENZIE:  Yes. Would Your Honour just give me a moment?

HER HONOUR:	Yes.
MR KENZIE:	Your Honour, on that point, I do not think there

is anything I can substantially advance in relation

to the difference between getting a rule nisi and

having the matter referred into Court. We would,

of course, be most concerned that we ultimately have

the right to ventilate these arguments before the

Full Court. Your Honour, it is suggested that there

is a relevant consideration and it is this: the

Full Bench by a majority referred to the fact that

in the background there is an association which

represents principals and deputy pricipals - just

principals I am told - which may well seek

registration as an organization and, indeed, I am

instructed that an application has, in fact, been

made. It would be, obviously, the desire of the

applicants for prerogative relief to oppose that
application; to make application, if it were
relevant, to the Industrial Registrar to defer that
application until such time as the merits of the

present proceeding were determined.

Now, we would suggest that there could well be

a distinction between the position that prevails if
a rule nisi issues and one in which the Court simply

refers the matter into Court. I appreciate that is

a matter of perception, Your Honour, and not a matter

of substance, but that is a matter which we say is

relevant to that question.

HER HONOUR: Well, I think the same effect would be achieved

if the notice of motion were filed and all relevant

persons served, would it not?

MR KENZIE: Well, Your Honour, I accept the force of what

Your Honour says. We say that there is a difference.

It is not a substantial difference, but it is a

difference.

HER HONOUR:  Who should be served, Mr Kenzie? This is a somewhat

interesting question in the context of this case.

Clearly, you have sought prerogative relief only against the members of the Full Bench of the

Commission.

MR KENZIE:  Yes, but we have joined, as respondents, the outstanding

objectors to the ITF case for registration on appeal,

they being the parties who pressed the appeals against

Lee S1T3/7/PLC 23 28/4/88

the ITF before the Full Bench, and whilst they -

we have done that because, frankly, in earlier

proceedings before the Court it has been suggested

that persons not themselves the subject of prerogative

relief but plainly interested in the proceedings

should be so named and we have no problems in

relation to the service of all those persons being

the entirety of the persons who we would say would

be interested.

HER HONOUR: Well, they were the appellants, were they, in the

proceedings before the Full Bench?

"MR. KENZIE:  Yes, they were. They all, plainly, have an

interest.

HER HONOUR:  Now, perhaps you could assist me to this extent:

was there more than one proceeding affecting the

ITF raising this relevant issue, this issue of principals?

"MR. KENZIE: Well, that is a difficult question to answer,

Your Honour. The issue of principals and possibly

deputy principals was raised in a number of

separate appeals brought in respect of ITF. I am

not presently in a position to identify which ones.

But, Your Honour, if it was not all of the appeals, it was certainly most of the appeals and we would

not want to suggest to the Court that the

respondents are in a - - -

HER HONOUR:  Was the question of principals the only matter

agitated on appeal in the ITF case?

"MR. KENZIE:  No. What was submitted was that the ITF should

not be registered at all but that if it was to be registered it should be registered with a limited constitution and the constitution, it was sought to

be argued,should be limited in a number of ways:

principals and deputy principals in one or some of

the proceedings and other limitations were suggested

and rejected in others but in relation to the

capacity of the present proceedings to impact upon

the appellants, we would sugg·est that it would be

very difficult to really differentiate between

the differences of the -

HER HONOUR:  So, if I indicate that service should be effected

on all appellants in the proceedings before the Full

Bench being objectors before the Registar, that is

sufficient, is it?

"MR. KENZIE:	In the Independent Teachers Federation application.
HER HONOUR:	In the Indpendent Teachers Federation application,

yes.

"MR. KENZIE:  Yes, Your Honour, that would certainly be so and we

would confidently suggest that that would cover all

S1T3/8/PLC 24 28/4/88

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of the people who have an interest in the proceedings.

It may be over-generous, if Your Honour understands

what I mean.

HER HONOUR:	Yes.
MR KENZIE:	It will cover people who do not necessarily want

or would not have wanted to agitate all of the issues

in question.

HER HONOUR:	Yes. I am concerned about that but then you have no way of being more precise about that issue?
MR KENZIE:	I am sorry, Your Honour, it is a little bit too

difficult. The proceedings were lengthy.

HER HONOUR: Well, I suppose you may run some risk as to costs

if it is over-generous?

MR KENZIE:  No, Your Honour, we do not run that risk because of

section 197A.

HER HONOUR:  Because of the Act, yes.

MR KENZIE: Perhaps I am too confident in saying that, Your Honour.

I am not aware of any case such as this in which

costs have been ordered and - - -

HER HONOUR: Well then, perhaps one ought to enable clarification.

MR KENZIE:  Your Honour, all that we can say is this, that

if parties are served with the proceedings they can

make an election as to whether they wish to come to

the Court or not. It is an opportunity to be

heard; it is not a command to attend or anything like

it so that we would respectfully suggest that it is

safe to proceed on this basis. If Your Honour would

desire us to be more specific, I would think that we

could but I doubt very much that we would cull

any one material from the list of respondents if we

did.

HER HONOUR:	Yes, thank you.
MR KENZIE:	Your Honour, perhaps the only other thing I should

mention is that in our application, in the draft rule
nisi, we refer to three grounds. The first of them

I have really canvassed and the second, I think,

also. In ground 3 we say that the:

Commission lacked jurisdiction to require

either the exclusion of areas of coverage

from the conditions of eligibility or the

inclusion of limitations on the rights of

industrial representation of areas of

membership of the Independent Teachers

Federation in respect of which said areas

there remained no objection, namely persons

employed as principals and deputy principals

Lee S1T3/9/PLC 25 28/4/88

by educational institutions other than

schools.

This is an argument which is distinct although it is

not going to take very much time to advance.

There were no objections made to the registration

of the ITF in relation to those people but they were

excluded and we would seek to advance

submissions based upon that as well.

HER HONOUR:  I wonder about that. If you are wrong on your

major premises would not section 60 prevent the

granting of relief in that matter?

MR KENZIE: Well, I think not, Your Honour. I hesitate to -

I withdraw that. Ground 3 is based upon the

proposition that there were no objections; no one
was ever effectively therefore heard in relation

to these classifications. If, effectively, a denial

of natural justice was established in relation to

ground 3 because the matter was simply not before

the Commission on appeal and had never been addressed

then that would not, in our respectful submission, be

cured by section 60 because such denials have been

said to be beyond the jurisdiction of the - involve

an excess of jurisdiction. So, we would not have

thought that section 60 was an answer; neither would

we accept, with respect, the suggestion that an

unfavourable result in relation to grounds 1 and 2

would lead to an unfavourable result in relation

to ground 3 which is independent.

HER HONOUR:  No, what I am suggesting is you would only reach

that argument if you lost on all three major

arguments?

MR KENZIE:	Yes, Your Honour, that is so.
HER HONOUR:	And the premise would then be that there is

discretion in the Registrar?

MR KENZIE:  Yes, that is so, but the point is none the less distinct.

HER HONOUR: 

Well, you would say only if there was an objection?

but I accept what Your Honour says, that we only get
to it, in a sense, if our major premise is shown to

MR KENZIE:  Yes, Your Honour. So, it is an independent argument

be incorrect.

HER HONOUR:	Yes.
MR KENZIE:	Your Honour, I think that is the only additional matter.

HER HONOUR: Well, look, I think that is not a matter that need

be considered further at this stage.

MR KENZIE:  We would have submitted not.

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HER HONOUR: I think it is appropriate then if I order that the matter proceed by way of notice on motion to the Full Court pursuant to Order 55 rule 2 of

the Rules and that notice of motion be served on

the members of the Commission named in the

application, together with all appellants in the

proceedings relating to the ITF before the Full Bench

of the Commission, being objectors in the ITF's

application for registration.

Perhaps I should reserve liberty to apply,

should I?

MR KENZIE:  Your Honour, yes. In the draft rule nisi we

go to the question of service on page 4, and if I

might direct Your Honour's attention to that. It

relates to the details of service upon the members

of the Commission.

HER HONOUR: Certainly, yes.

MR KENZIE:  We would seek an order in terms of 1, 2 and 3,

in any event. Order 3 is incorrect in the sense

that the words "to apply" are extraneous after the

words "That liberty", but otherwise we would seek

further orders in terms of 1, 2 and 3.

HER HONOUR:  Yes, certainly. I will make additional orders

in terms of 1 and 2 of the draft order nisi filed
by the applicant with the papers and leave the

order for liberty to apply in general terms without

any restriction as to time.

MR KENZIE: If it please the Court.

HER HONOUR: Is there anything else?

MR KENZIE:	I think not, Your Honour.
HER HONOUR:	We will adjourn.
AT 11.30 AM THE MATTER WAS ADJOURNED SINE DIE

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