Re Keely; Ex parte Kingham

INDUSTRIAL LAW - Election inquiry - Application for enforcement of rules - Alleged rule invalidity - Rules excluded persons who joined the union as a result of amalgamation with another union from participating in an election in progress on amalgamation day - Whether the rules failed to provide for election of office-bearers by a "direct voting system" - Whether the rules imposed conditions on members that were "oppressive, unreasonable or unjust" - Whether rules applied at all to the relevant elections - Effect of any rule invalidity - Application to actions of Secretary pursuant to the rules of s.253ZD of Industrial Relations Act - Effect of primary Judge's failure to consider s.253ZD.

JURISDICTION - Application for prerogative relief against member of the Court - Application remitted from High Court of Australia - Whether primary Judge's error was a jurisdictional error - Power of Court to issue writ of certiorari.

Industrial Relations Act 1988, ss.196, 197, 208 and 253ZD.

IN THE MATTER of an Application for Writs of Prohibition, Mandamus and Certiorari against THE HONOURABLE JOHN AUGUSTINE KEELY, a Judge of the Industrial Relations Court of Australia & NEIL RAYMOND MORRIS; EX PARTE: MARTIN KINGHAM and THE CONSTRUCTION, FORESTRY, MINING & ENERGY UNION
No. VI.5032 of 1994
AND
MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, WAYNE TORPY, DIRK VAN DAM, VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY, ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN, PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR, JOHN CANNING and ZELKO PRAZAK v. NEIL RAYMOND MORRIS, DEREK CAFFERTY, PETER GRUNDY, MALCOLM NEWHAM, K HUGHES, M GARCIA, P BOYLE and M EVANS
No. VI.5025 of 1994

CORAM: WILCOX CJ, SPENDER & RYAN JJ
PLACE: MELBOURNE
DATE: 3 MARCH 1995

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )    No VI 5032 of 1994
  )
VICTORIA DISTRICT REGISTRY       )

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION, MANDAMUS AND CERTIORARI AGAINST THE HONOURABLE JOHN AUGUSTINE KEELY, A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

(First Respondent)

AND:

NEIL RAYMOND MORRIS

(Second Respondent)

EX PARTE:

MARTIN KINGHAM AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

(Prosecutors)

CORAM:        WILCOX CJ, SPENDER & RYAN JJ
PLACE:        MELBOURNE
DATE:     28 FEBRUARY 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The following writs be issued directed to the Honourable John Augustine Keely, a Judge of this Court, and Neil Raymond Morris:

a.a writ of prohibition forbidding further proceedings on the orders made by the said Judge on 14 November and 1 December 1994 in connection with an inquiry into elections to offices in the Construction, Forestry, Mining and Energy Union;

b.a writ of certiorari requiring the record of the proceedings in the election inquiry to be brought in and the said orders quashed; and

c.a writ of mandamus, requiring the said Judge to hear and determine according to law the remaining issues arising at the said inquiry.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )    No VI 5025 of 1994
  )
VICTORIA DISTRICT REGISTRY        )

ON APPEAL FROM A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

BETWEEN:MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, WAYNE TORPY, DIRK VAN DAM, VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY, ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN, PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR, JOHN CANNING and ZELKO PRAZAK

(Appellants)

AND:NEIL RAYMOND MORRIS, DEREK CAFFERTY, PETER GRUNDY, MALCOLM NEWHAM, K HUGHES, M GARCIA, P BOYLE and M EVANS

(Respondents)

CORAM: WILCOX CJ, SPENDER & RYAN JJ
PLACE: MELBOURNE
DATE: 28 FEBRUARY 1995

MINUTE OF ORDERS

THE COURT ORDERS THAT:

The appeal be allowed.
The orders made by Keely J on 14 November 1994 be set aside and, in lieu thereof, it be ordered that the application be dismissed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Industrial Relations Court Rules.

IN THE INDUSTRIAL RELATIONS COURT )
OF AUSTRALIA ) No. VI.5032 of 1994
VICTORIA DISTRICT REGISTRY )

IN THE MATTER of an Application for Writs of Prohibition, Mandamus and Certiorari against THE HONOURABLE JOHN AUGUSTINE KEELY, a Judge of the Industrial Relations Court of Australia

First Respondent

AND:NEIL RAYMOND MORRIS

Second Respondent

Ex parte:

MARTIN KINGHAM and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Prosecutors

ON APPEAL FROM A SINGLE JUDGE
OF THE
INDUSTRIAL RELATIONS COURT OF AUSTRALIA

NO.VI.5025 of 1994

BETWEEN:MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, WAYNE TORPY, DIRK VAN DAM, VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY, ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN, PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR, JOHN CANNING and ZELKO PRAZAK

Appellants

AND:NEIL RAYMOND MORRIS, DEREK CAFFERTY, PETER GRUNDY, MALCOLM NEWHAM, K HUGHES, M GARCIA , P BOYLE and M EVANS

Respondents

CORAM:    WILCOX CJ, SPENDER & RYAN JJ
PLACE:    MELBOURNE
DATE:     3 MARCH 1995

REASONS FOR JUDGMENT

WILCOX CJ: Two proceedings are before the Court. They are related in substance, although they came to the Court in different ways.

The Proceedings

The first proceeding is an application by Martin Kingham, a member of the Construction, Forestry, Mining and Energy Union ("CFMEU"), and the CFMEU itself for writs of prohibition, mandamus and certiorari directed to the Honourable John Augustine Keely, a Judge of this Court. The second respondent to that proceeding is Neil Raymond Morris, a CFMEU member who made two applications to this Court (VI.1030 of 1994 and VI.1038 of 1994) seeking an inquiry into irregularities alleged to have occurred in connection with elections for offices within the Victorian Divisional Branch of the Building Unions Division of CFMEU.

Mr Morris' applications came before Keely J. Four CFMEU members, Mr M Kingham, Mr S Sharkey, Mr W Groome and Mr A Nbulsi, and the organisation itself appeared by counsel to oppose the applications. I will refer to those five parties as "the opponents". After discussion with counsel, Keely J directed a hearing on two preliminary questions. On 14 November 1994 he answered both of them favourably to Mr Morris and made orders. Keely J made a declaration that in elections for the offices referred to in Mr Morris's applications, other than the offices of organisers, "irregularities have happened, being the exclusion from nominating and from voting of those members who had formerly been members of the Operative Painters and Decorators Union". He declared void the elections for those offices and made orders for the conduct of new elections. He reserved liberty to apply. His Honour terminated the inquiry to the extent that it related to the elections for the offices of organisers, his reason being that the office of an organiser was not an "office" within the meaning of s.218 of the Industrial Relations Act 1988; so the inquiry provisions did not apply to it.

Section 421 of the Industrial Relations Act excludes an appeal to a Full Court of this Court from a judgment given in connection with an election inquiry. No doubt for this reason Mr Kingham and CFMEU ("the prosecutors") adopted a different method of challenging Keely J's decision. On 25 November 1994 they filed in the High Court of Australia an application for writs of prohibition, mandamus and certiorari. On 13 December 1994 Dawson J remitted that application to this Court.

This is the first occasion on which the High Court has remitted to this Court an application for prerogative writs against a member of the Court. The remittal makes the case a legal curiosity. As Drummond J recently pointed out, in Bird v Free (1994) 126 ALR 475, members of a court ordinarily have no power to issue a prerogative order against another member of the same court. When a single Judge exercises the jurisdiction of a court he or she exercises the authority vested in all the members of that court, considered as a group. As his Honour said at 479:

"Authority conferred only on the entire group cannot be exercised by one member, or by some of the members, of that group against another member of the group. To so exclude one member from the exercise of the authority in question by making that member the object of the exercise of that authority would be to do something quite different from exercising the collective authority."

However, conventional theory cannot avail against a statute. The jurisdiction invoked by the prosecutors, in filing their process in the High Court, was the jurisdiction of that Court under s.75 (v) of the Constitution. It is clear that the High Court has jurisdiction to issue prohibition and mandamus, at least, against a member of a superior court of limited jurisdiction: see The Queen v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (1979) 143 CLR 190. There is a question about certiorari, to which I will return, but there is no doubt that the High Court could entertain te prosecutors' application. And s.412 of the Industrial Relations Act contains provisions enabling the remittal of such an application to this Court. Section 412(2) is stated in general terms:

"For the purposes of section 44 of the Judiciary Act 1903, the Court is taken to have jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth holding office under this Act or the Coal Industry Act 1946."

A Judge of this Court exercising jurisdiction in respect of an election inquiry is an "officer ... of the Commonwealth holding office under this Act".

Section 412(3) goes on to make plain that the Court has jurisdiction to deal with such a matter, legal incongruity or not. The subsection provides:

"The Court has jurisdiction with respect to matters remitted to it under section 44 of the Judiciary Act 1903."

There is a question whether it i desirable that this Court be asked to deal with an application for prerogative relief directed to one of its own members. But it seems clear that the Court has jurisdiction to do so; being the jurisdiction that would otherwise be exercised by the High Court. And in the circumstances of the remittal order having been made, it is obviously our duty to exercise that jurisdiction.

Prior to the remittal, on 1 December 1994, Keely J made further orders in this Court pursuant to his grant of liberty to apply. They included orders as to the people who were to act in the relevant offices until the declaration of the results of the election. Immediately after the remittal of the matter to this Court, the prosecutor sought an order staying the operation of those orders. The stay application was argued before Northrop J, Moore J and myself at a videolink hearing held on 20 December. Moore J and I, with counsel for the prosecutors, were in Sydney. Northrop J and counsel for Mr Morris were in Melbourne. The application was refused.

The second matter before the Court is an appeal by Mr Kingham and 17 other persons. They were respondents to a rule made by Keely J on 25 October, on the application of Mr Morris (VI.5001 of 1994), requiring them to show cause why orders should not be made for them to perform and observe the rules of CFMEU by treating as null and void the election between 1 March 1993 and 10 June of eleven organisers within the Victorian Divisional Branch of the Building Unions Division of the organisation and by taking steps to conduct a fresh election for those positions. Keely J made orders to that effect on 14 November 1994.

The facts

There is no dispute about the relevant facts. They may be stated fairly briefly.

On 23 September 1991 an amalgamation took place between two employee organisations registered under the Industrial Relations Act, the Building Workers' Industrial Union ("BWIU") and the Australian Timber and Allied Industry Union ("ATAIU").

The amalgamated union was called "The ATAIU and BWIU Amalgamated Union". On 10 February 1992 the amalgamated union joined with the United Mineworkers Union ("UMW") to form an organisation called the Construction, Forestry and Mining Employees Union. Further amalgamations took place on 23 September 1992, this time with the Federated Engine Drivers and Firemans Association of Australasia ("FEDFA") and the Operative Plasterers and Plaster Workers Federation of Australia ("OPPWF"). At that time the organisation's name was changed to its present title, the Construction, Forestry, Mining and Energy Union.

Following the 23 September 1992 amalgamations, the CFMEU contained four Divisions: the BWIU/Plasterers Division, the ATAIU Division, the UMW Division and the FEDFA Division. Each Division comprised a number of Branches. It seems that there was a Divisional Branch of the BWIU/Plasterers Division in the Australian Capital Territory and in each State. The Divisions were governed by Divisional rules. These rules included rule 40, dealing with Divisional Branch elections. The scheme of this rule was for elected officers to have a four year term of office commencing on 2 January in the year following an election. The rule contained a timetable for elections that terminated with a declaration of the poll following a closing of the ballot on 16 November in the relevant year. The first regular election was to commence with the calling of nominations in August 1996. However, the effect of previous amalgamations was that it was necessary, pursuant to s.243 of the Industrial Relations Act, for earlier Divisional Branch elections to be held. Accordingly, para. (ee) was inserted:

"Provided that in 1993 there shall occur a Divisional Branch election in relation to all offices except offices and/or elections subject to the proviso in paragraph (dd) herein which election shall be held in accordance with this rule except that the office shall commence on 1 July, 1993 and execpting [sic] this date all other references in these Divisional Rules and Divisional Branch Rules to the months of July, August, September and November shall be read as January, February, March and May respectively."

Paragraph (dd) related to the Western Australian Divisional Branch. For present purposes it may be ignored. The effect of para. (ee), when applied to the timetable set out earlier in the rule, was that nominations had to be called for Divisional Branch elections before the end of February 1993. Nominations were to close on the last Friday in March 1993 (26 March), the ballots would close on 16 May and the persons elected would commence a 3½ year term of office on 1 July 1993.

At some stage, the evidence does not reveal the date, there were negotiations for the further amalgamation of CFMEU with three other registered organisations, the Federated Furnishing Trades Society of Australia ("FFTS"), the Operative Painters and Decorators Union of Australia ("OPDU") and the Victorian State Building Trades Union ("VSBTU"). A Scheme of Amalgamation was agreed. It contained a clause dealing with elections, the relevant part of which read:

"The new CFMEU, Building Unions Division, ATAIU Division and UMW Division (including Divisional Branches) will have elections which shall take place as originally scheduled in the old CFMEU rules which will not be affected by the creation of the new CFMEU."

Pursuant to directions made by Deputy President Hall in the Australian Industrial Relations Commission, the Scheme of Amalgamation was submitted to ballots of members in each of FFTS, OPDU and VSBTU. In the case of VSBTU the amalgamation proposal failed, but it was approved by substantial majorities of the members participating in each of the other ballots. The three ballots were declared on 21 December 1992. The amalgamation of CFMEU with FFTS and OPDU took effect on 26 March 1993: see s.253Q of the Industrial Relations Act.

In the meantime, the elections required by rule 40(ee) of the CFMEU Divisional rules had commenced. Nominations had been called on 1 March 1993, at least in the Victorian Divisional Branch. Coincidentally, amalgamation day (26 March) was the day when nominations closed. It seems that all those who nominated - they included Mr Morris ‑ were members of the "old CFMEU"; that is, the organisation that existed before amalgamation day.

On amalgamation day extensive rule amendments took effect. The structure of the rules remained as before but there were alterations to both the National rules and Divisional rules. The old BWIU/Plasterers Division became the "Building Unions Division". The transitional provisions of the National rules appointed specified people to offices in the enlarged body. They were to hold office until the completion of the general elections at the end of 1996. In this way the former Victorian Branch President of OPDU became a Vice‑President of the Victorian Branch of the Building Unions Division, the former Branch Secretary became an Assistant Secretary of the Divisional Branch, six former OPDU members were appointed to the Divisional Branch executive and eight to the Divisional Branch Council. This representation roughly reflected the proportion of former OPDU members in the Divisional Branch.

After the 26 March amendments, the rule dealing with Divisional Branch elections became rule 38. It was in much the same form as before but an additional sentence was added to para. (ee), making it read:

"Provided that in 1993 there shall occur a Divisional Branch election in relation to all offices except offices and/or elections subject to the proviso in paragraph (dd) herein which election shall be held in accordance with this rule except that the office shall commence on 1 July, 1993 and excepting this date all other references in these Divisional Rules and Divisional Branch Rules to the months of July, August, September and November shall be read as January, February, March and May respectively. Provided that the election herein mentioned for 1993 shall be an election of officers not covered by the provisos in paragraph (dd) and by (gg) nor officers designated to be filled by former officers of the Operative Painters and Decorators Union of Australia and the election in 1993 shall be by and from all of the members of the Divisional Branch except those members rendered eligible for membership of the Divisional Branch by virtue of sub‑rules 2(A)(b) and (c) of the National Rules of the Union."

I have emphasised the words critical to Keely J's decision. The members rendered eligible by virtue of sub‑rule 2(A)(b) of the National rules were members engaged in callings previously covered by OPDU.

The 1993 elections were conducted by a returning officer attached to the Australian Electoral Office. It appears that the Divisional Branch Secretary gave him a roll of members and he forwarded ballot papers to the persons included on that roll. They did not include the former OPDU members. Consistently with the last sentence of rule 38(ee), the Secretary did not include the names of members rendered eligible by sub-rule 2(A)(b) of the National rules. Those members did not vote in the elections. Mr Morris was unsuccessful.

The proceedings before Keely J

On 10 December 1993 Mr Morris made two applications for an inquiry into alleged irregularities in connection with the elections. His applications related to all contested positions, including the eleven organisers. As already mentioned, Keely J directed argument on two questions, stated as follows:

"(a)whether or not by reason of the exclusion of persons who became members of the Secondnamed Respondent on 26 March 1993 who had formerly been members of the Operative Painters and Decorators Union of Australia ('the OPDU') from eligibility to vote for any of the offices in the elections called on 1 March 1993 ('the elections') in the Victorian Divisional Branch of the Building Unions Division of the Secondnamed Respondent ('the Divisional Branch') any of those elections was not conducted by a direct voting system.

(b)whether or not the qualification for nomination and voting at any of the elections, which qualification excluded the former OPDU members from eligibility to nominate and vote, was a qualification which imposed upon the members of the Divisional Branch conditions, obligations or restrictions that having regard to the objects of the Industrial Relations Act 1988, and the purposes of the registration of organisations under the Act, are oppressive, unreasonable or unjust."

Counsel for Mr Morris submitted to Keely J that the rules that came into force on 26 March 1993, and under which the ballots were conducted and the results of the elections declared, contravened the Industrial Relations Act in two respects. They said they failed to comply with s.197(1)(a) of the Act and they contravened s.196(c). Section 197(1) reads as follows:

The rules of an organisation:

(a)shall provide for the election of the holder of each office in the organisation by:

(i)a direct voting system; or

(ii)a collegiate electoral system that, in the case of a full‑time office, is a one‑tier collegiate electoral system."

The term "direct voting system" is defined by s.4 in this way:

"'direct voting system', in relation to an election for an office in an organisation, means a method of election at which:

(a)all financial members; or

(b)all financial members included in the branch, section, class or other division of the members of the organisation that is appropriate having regard to the nature of the office;

are, subject to reasonable provisions in relation to enrolment, eligible to vote;"

Section 196 reads:

"196.The rules of an organisation:

(a)shall not be contrary to, or fail to make a provision required by, this Act or an award, or otherwise be contrary to law;

(b)shall not be such as to prevent or hinder members of the organisation from:

(i)observing the law or the provisions of an award or an order of the Commission; or

(ii)entering into written agreements under an award or an order of the Commission; and

(c)shall not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to the objects of this Act and the purpose of the registration of organisations under this Act, are oppressive, unreasonable or unjust."

In answering question (a), Keely J observed that, after 26 March 1993, the "2,605 former OPDU members were all members in [the Building Unions Division] and, if financial, were entitled to vote for all positions within the meaning of Divisional sub‑rule 38(o), but for the exception provision in sub‑rule (ee)". He went on:

"In my opinion those former OPDU members did not constitute under the rules a separate 'branch, section, class or other division of the members of the organisation that [was] appropriate having regard to the nature of the [respective offices]' within the meaning of the definition of 'direct voting system' in s.4 of the Act. As the rules, and in particular Divisional sub‑rule 38(ee), deprived them of their eligibility to vote, the rules were 'contrary to, or [failed] to make a provision' [s.196(a)] which was required by s.197(1)(a)(i) in that they failed to 'provide for the election of the holder of each office in the [division] by a direct voting system."

Keely J held that, in conducting an election inquiry, the Court can uphold a submission that the rules of an organisation are contrary to the Act without "making a declaration" to that effect. His Honour was obviously referring to a declaration under s.208(5) of the Act. That subsection must be read with subs.(1), (2), (3) and (6):

"208(1) A member of an organisation may apply to the Court for an order under this section in relation to the organisation.

(2)An order under this section may declare that the whole or a part of a rule of an organisation contravenes section 196 or that the rules of an organisation contravene section 196 in a particular respect.

(3)An organisation in relation to which an application is made under this section shall be given an opportunity of being heard by the Court.

(4)...

(5)Where an order under this section declares that the whole or a part of a rule contravenes section 196, the rule or that part of the rule, as the case may be, shall be taken to be void from the date of the order.

(6)Where:

(a)the Court makes an order declaring as mentioned in subsection (2) in relation to the rules of an organisation; and

(b)at the expiration of 3 months from the making of the order, the rules of the organisation have not been altered in a manner that, in the opinion of the appropriate authority, brings them into conformity with section 196 in relation to the matters that gave rise to the order;

the appropriate authority shall, after giving the organisation an opportunity, as prescribed, to be heard on the matter, determine, by instrument, such alterations of the rules as will, in the appropriate authority's opinion, bring them into conformity with that section in relation to those matters."

It will be noted that, where a declaration is made under s.208(5), the relevant rule or part of the rule is to be taken as void only from the date of the order. Such a declaration would have been insufficient for Mr Morris. As the elections were already completed, he needed to establish retrospective invalidity. He needed a decision that the words in the last sentence of rule 38(ee), excluding former OPDU members from the ballot, were invalid at the time of the elections.

Keely J did not expressly deal with the question whether a finding of invalidity, without a formal declaration under s.208(5), had retrospective effect. But he obviously thought it did. I say this not only because of the result he finally reached, but also because he cited the judgment of Fullagar J in The Queen v Commonwealth Industrial Court; Ex parte Amalgamated Engineering Union (1960) 103 CLR 368 ("Shearer's case") at 377‑378. I will return to that passage.
In relation to question (b), Keely J said:

"In my opinion the exception provision in subrule 38 (ee) was also contrary to s.196(c) of the Act in that it imposed on members conditions and restrictions that were unreasonable and unjust, by excluding the former OPDU members from the right to vote and to nominate; ... I am unable to uphold the respondents' argument, based upon the contention that the former OPDU members were 'represented in the management of the Divisional Branch'. I accept the submission by the applicant's counsel that the excluding of former OPDU members from nominating and voting hindered the democratic control of the organisation and prevented some members from participating in its affairs.

In my opinion the answer to question (b) is that in the elections the rules, in excluding the former OPDU members from eligibility to nominate and to vote, imposed upon the members of the union who were former members of the OPDU conditions, obligations and restrictions that were unreasonable and unjust. In addition s.4 of the Act provided that:

'Irregularity' in relation to an election or ballot, includes:

(a)a breach of the rules of an organisation ...; and

(b)an act or omission by means of which:

(i)the full and free recording of votes by all persons entitled to record votes ...;

is, or is attempted to be, prevented or hindered.

The 'act of the secretary in providing [to the returning officer] a list of voters which excluded the OPDU members' . . . was in my opinion 'an act ... by means of which ... the full and free recording of votes by all persons entitled to record votes ... [was] prevented or hindered'."

Keely J held that it followed that:

"irregularities occurred in relation to the election for each office other than the offices of the eleven organisers. The method of conducting the election for the offices of the eleven organisers did not constitute an irregularity because those offices were not offices within the meaning of s.218 of the Act and cannot be the subject of an inquiry."

He said that, having regard to the voting figures and the "fact ... that the former OPDU members constituted 17.5% of the Victorian Divisional Branch, the result of the elections may have been affected by irregularities (s.223(4) of the Act)". Keely J dealt with, and rejected, an argument put by counsel for the opponents based on s.253ZG of the Act. He did not deal with a further argument put by those counsel, that any invalidity was cured by s.253ZD of the Act.

In the other proceeding (VI.5001 of 1994), relating to the election of organisers, Keely J expressed his reasons succinctly. He noted that the applicant relied on s.196(c) and that his counsel adopted the arguments put in matters VI.1030 and 1038 of 1994. He said that -

"(f)or the reasons given in that decision, I find that, in excluding the former OPDU members from nominating and from voting in the elections for the positions of the eleven organisers, sub‑rule 38(ee) imposed 'on ... members ... conditions, obligations or restrictions that ... are unreasonable or unjust' and so is contrary to s.196(c) of the Act."

The present issues

It is convenient to commence an identification of the present issues by mentioning some matters not now in dispute. First, counsel for the prosecutors, Mr Kingham and CFMEU, concede that, if the amended rules applied to the 1993 Divisional Branch elections, they failed to comply with s.197 of the Act. There was never any question of them providing a "collegiate electoral system", as envisaged by s.197(1)(a)(ii); and the effect of the last sentence of rule 38(ee) of the Divisional rules, excluding former OPDU members from participation in the ballots, if it applied, was that the rules failed to provide a "direct voting system": see s.197(1)(a)(i). Secondly, counsel agree that, if the exclusion of the former OPDU members from the 1993 Divisional Branch ballot constituted an irregularity, the result of the elections may have been affected. Consequently, s.223(4) would not require the withholding of relief. Thirdly, counsel do not now put an argument based on s.253ZG of the Act. They accept Keely J's decision on that point and are content that we ignore the section. Finally, on the other side of the record and in the other proceeding, counsel for Mr Morris do not suggest that Keely J was wrong in holding that the office of an organiser is not an "office" within the meaning of s.218 of the Act, so there cannot be an inquiry into an alleged irregularity in an election of organisers.

I also mention that counsel for the prosecutors argued, in connection with the application for prerogative relief, that there was no evidence before Keely J to support a conclusion that, if the amended rules did apply, the former OPDU members were entitled to vote. Their reason was that rule 38(p) of the amended Divisional rules provided that only members shown in the records at the office of the Divisional Branch as having paid all contributions, levies and fines prior to [30 March] should be entitled to vote; and there was no evidence that the OPDU records had reached the Divisional Branch office by 30 March 1993. Whatever the merit of this point at the inquiry, it is not a matter that can go to jurisdiction. I need not consider it further.

With this clearing of the decks, the issues that need to be addressed in the application for prerogative relief are four‑fold:

(a)Whether Keely J was empowered to determine the validity of rule 38(ee) in conducting his election inquiry;
(b)If Keely J was correct to hold part of the rule invalid (as he did), whether the holding of elections in accordance with that provision in itself constituted an "irregularity" within the meaning of s.218 of the Act, as counsel for Mr Morris contend, or whether the "irregularity" was constituted by the act of the Secretary in excluding former OPDU members from the roll of electors, as Keely J held;
(c)If the latter alternative is correct, whether Keely J should have held that the irregularity was cured by s.253ZD of the Act; and
(d)If Keely J should have so held, whether his omission to do so entitles the prosecutors to prerogative relief.

In relation to the second case, the appeal, issues (a), (b) and (c) recur. Issue (d) does not arise. However, in addition, counsel for the appellants raise questions about the width of the matters considered by Keely J in holding that rule 38(ee) imposed unreasonable or unjust conditions or restrictions on those members who were formerly OPDU members. They also argue that his Honour had no power to order new elections of organisers.

Determination of the validity of rule 38(ee)

This issue has two aspects. The first question is whether the Court has power to determine the validity of a rule in a collateral proceeding; that is, a proceeding for relief other than a declaration under s.208(5). The second question arises only if the first is determined affirmatively: whether a determination of invalidity affects actions already completed.

The starting point for consideration of both matters is Shearer's case, mentioned above. That case concerned the constitutional validity of s.140 of the Conciliation and Arbitration Act 1904, the predecessor of s.208 of the Industrial Relations Act. Section 140, as it stood at that time, commenced with a subsection substantially similar to s.196 of the Industrial Relations Act. It then provided, by subs.(2), a right for a "member of an organization" to apply to the Court "for an order declaring that the whole or a part of a rule of the organization contravenes the last preceding subsection". Unlike s.208(2) of the Industrial Relations Act, the subsection made no reference to a declaration that the rules contravene [s.196] in a particular respect. Subsection (3) of the old s.140 conferred jurisdiction on "the Court"; at the time of Shearer's case, the Commonwealth Industrial Court. Subsection (4) required that the organization be given an opportunity of being heard by the Court; compare s.208(3). Subsection (5) provided:

"An order under this section may declare that the whole or a part of a rule contravenes sub‑section (1) of this section and, where such an order is made, the rule, or that part of the rule, as the case may be, shall be deemed to be void from the date of the order."

In Shearer's case seven members of the High Court held that s.140 was constitutionally valid. But they expressed divergent views about its operation. On the one extreme Kitto J (with whom Dixon CJ agreed) derived from the form of subs.(5) an implication that, until an order was made under that subsection, the relevant rule (or part rule) "is not intended to be void for contravention of subs.(1)". He said at 380‑381:

"That is not to say that it may not be void for some other cause, such as conflict with another provision of a federal statute. But as I read the section an essential feature of its plan is that contravention of sub‑s.(l) is not per se a cause of invalidity. No doubt if that subsection were to be considered by itself, it might well be understood as intending to make void for illegality rules contravening its provisions. But the section considered as a whole appears to me to embody a coherent plan for which the whole function of sub‑s.(l) is to take an essential preliminary step. The step is to lay down propositions in relation to which the rest of the section is to operate, propositions in the form of prohibitions to be observed by every rule on pain of a liability to invalidation by the operation of sub‑s.(5) upon the non‑observance being judicially declared in proceedings brought for the purpose by a member, rather than to enact absolute prohibitions intended to have a separate and independent invalidating effect. If the contrary had been intended, the culmination of a proceeding under the section would surely have been a declaration of the pre‑existing invalidity of the inconsistent rule, instead of being an order which says nothing at all about invalidity but fulfils a condition which the section prescribes for the statutory avoidance of the rule for the future. The view I have expressed seems to me to find support in the nature of some of the prohibitions themselves. I need refer only to the provision of par.(b), that a rule shall not be such as to prevent or hinder members from observing the provisions of an award. Whether a particular rule contravenes this paragraph is a question which may require different answers at different times, having regard to the terms of the awards in force for the time being and the industrial situations to which they relate. The intention can hardly be that invalidity shall attach to a rule as soon as a situation arises in which the rule fills the description, shall endure while the situation lasts, and shall cease when the situation comes to an end. It is a much more likely intention that when the Court finds a contravention of subs.(l) existing at a particular time, and the organization, if given an opportunity to alter the contravening rule, has not altered it, the rule shall thereupon become void."

On the other extreme, three members of the Court, Fullagar, Taylor and Menzies JJ, held that, notwithstanding subs.(5), subs.(1) invalidates any rule that contravenes its terms. The fullest exposition of this viewpoint ("the predominant viewpoint") was given by Fullagar J at 378‑379:

"It is a mistake, in my opinion, to treat subs.(5) as limiting by reference to time the effect of a declaratory order. On the contrary its purpose is, I think, to enlarge the effect which, in the absence of sub‑s(5), such an order would have. What I conceive to be the general effect of the new s.140 is this. Sub‑section (1) forbids an organization to have any rule which possesses one or more of certain specified characteristics. ... Rules which fall within the forbidden classes are void. This, as it seems to me, must be so: I cannot accept the view that such rules are treated by the section as valid until they are pronounced invalid. If they contravene sub‑s(l), they are invalid and void. The question of the validity of such a rule may arise in a variety of ways before a variety of tribunals, including the Commonwealth Industrial Court itself. If it does so arise, it is for the tribunal before which it arises to determine whether it falls within the forbidden classes, and the decision can affect only the parties to the proceeding. This would be the position, if sub‑s.(l) stood alone. But sub‑s.(l) does not stand alone. It is followed by sub‑ss.(2) and (3), which give to the Commonwealth Industrial Court a special jurisdiction to determine, on the application of a member of an organization and after hearing the organization, the question whether a particular rule is among those prohibited and invalidated by sub‑s.(l). But, in the absence of any further provision, an order declaring that a rule contravenes sub‑s.(l) would still have binding effect only as between the applicant and the organization. Then sub‑s.(5) comes in and gives a wider effect to the order by saying in effect that for all purposes and in all proceedings the rule is to be deemed to be void. But the order is to have that final and conclusive effect only as from the date of its making. It is not to affect anything done in the past, or any decision given by any tribunal in the past." [Original emphasis]

McTiernan J accepted that a rule's contravention of s.140(1) prior to the making of a declaration under subs.(5) might have legal consequences, but he seems to have thought that invalidity would merely afford a shield against a claim founded on the rule; not that it would provide a sword with which to challenge some other person's actions: see 373.

The remaining member of the Court, Windeyer J, concentrated his comments on the time at which the rule should be considered: see 389. These comments were specifically disapproved in The Queen v Dunphy; Ex parte Maynes (1978) 139 CLR 482 ("Maynes").

The leading judgment in Maynes was written by Mason J. Barwick CJ, Stephen and Aickin JJ agreed with him. Murphy J dissented. The proceeding challenged a decision of the Australian Industrial Court (as it had become) declaring that certain rules of the Federated Clerks' Union of Australia contravened s.140(1)(a) of the Conciliation and Arbitration Act and that certain elections were null and void. It is not necessary to enter what Mason J called "the jungle" of relevant rules and statutory provisions. It is sufficient to note that Mason J made the point that s.140(5) applied only to an order declaring that the whole or a part of a rule contravened subs.(1); it had no application to an order declaring that the rules of an organization contravene subs.(1) in a specified respect. He said that, when an order is made containing a declaration in this form, "the rules continue to have a valid operation, subject to action being taken in accordance with subs.(7)": see 489‑490. [Subsection (7) of s.140, as it then stood, provided a mechanism like that in the present s.208(6) for bringing the rules into conformity with subs.(1)]. At 491‑492 Mason J emphasised that, although "s.140(5) operates so as to render a rule or part of a rule void as from the date of the order, it does not authorise an order avoiding what is done pursuant to a rule, let alone what has been done pursuant to a rule before the order declaring that the rule or a part of it contravenes s.140(1)".

From the combination of Mason J's two observations, it might be thought that he was saying that an order under s.140(2) never has retrospective effect. Counsel for the prosecutors so submit. They emphasise the care taken by his Honour to determine the time at which invalidity occurs. They suggest this would have been unnecessary, and indeed misconceived, if he had shared the predominant view in Shearer's case.

I appreciate the strength of these comments but I do not think that Mason J intended to say that s.140(2) never has retrospective effect. His Honour made no reference to the Shearer controversy about the Court's entitlement to find invalidity in a collateral proceeding. He was obviously aware of this; he made specific reference to Windeyer J's judgment in Shearer's case. If he had thought the predominant Shearer view to be incorrect, it is unlikely that he would have refrained from saying so. I think the true explanation is that Mason J was not talking about invalidity raised in a collateral proceeding. He did not need to do so; in the case he was considering, the applicants before the Australian Industrial Court had obtained a declaration under s.140(5).

Counsel for Mr Morris emphasised the distinction made by Fullagar J in Shearer between invalidity between the parties and invalidity against the world. In written submissions they put the argument this way:

"...it has been suggested that it would be absurd if orders under Section 208 were limited to in futuro operation whilst, in other proceedings, the validity of the rules could be challenged in respect of circumstances existing antecedently to the date of the Court's order. There is no such absurdity once it is recognised, as it was by the majority in Shearer, that orders under Section 208(5) have an additional effect, they are not simply inter parties. To the contrary, the only absurdity which arises, arises from an acceptance of the Prosecutors' contention. The consequence of their contention is that a member who was expelled from membership of a union in reliance upon a rule which contravened the Act would have no remedy. On the view advanced by the Prosecutors, such person would not be able to obtain orders under Section 209 of the Act because the expulsion was an event antecedent to the date of any court order and would not be able to obtain relief under Section 208 of the Act because a declaration that the offending rule was void, operating in futuro only would have no effect on decisions already made. This would indeed be an absurd, harsh and unjust result."

Counsel pointed out that this issue had been considered in several decisions of the Australian Industrial Court and the Federal Court. In Leveridge v Shop Distributive and Allied Employees' Association (1976) 31 FLR 385, a Full Court of the Australian Industrial Court held that a court conducting an election inquiry may consider the validity of a rule, as at a date relevant to the election, notwithstanding the absence of an application for a declaration under s.140(5). Smithers J, with whom J B Sweeney J agreed, said at 392:

"if the correct view is that sub‑s.(l) does operate of its own force to render void any rule which contravenes that subsection, it would seem to follow that whenever in any proceeding before any court an issue arises in the determination of which the validity or otherwise of a union rule, according to the standards prescribed in subs.(l) is relevant, it is the duty of that court where no relevant order has been made under s.140 to determine for itself whether, with respect to any particular date, sub‑s.(l) has operated to invalidate the rule."

Turning to the question whether this was the correct view, Smithers J noted that the predominant Shearer view might be considered obiter dicta. He commented at 393‑394:

"But it has stood now from 1960, as the majority view of the ultimate Court of Appeal formally expressed in a proceeding in which all the members of the High Court specifically directed their attention to the question. Since that time it has been applied in this Court. ... Since that time also the Act has been dealt with by Parliament on a number of occasions in various respects. Sections 140 and 141 have been under review but nothing has been done to change any words in any way which would indicate that Parliament is not satisfied with the majority view that s.140(1) does operate of its own force to invalidate rules which contravene its provision or with the interpretation of the majority as to the effect of sub‑s.(5). In addition the view of the majority contributes so materially and it would seem, so necessarily, to the protection and relief of members of organizations from the operation against them of oppressive rules that there is good reason to think that it accurately reflects the intention of Parliament."

At 425 Evatt J held that, during an election inquiry:

"an applicant may contend, if it be relevant, that a rule of an organization contravened s.140(1) of the Act at a particular date. If, prior to the hearing of such inquiry, a court has declared pursuant to s.140(5) of the Act that the particular rule contravened s.140(1) and the date of the making of such declaration is earlier than the date relied upon by the applicant in his application under s.159, then he relies upon such declaration and the court conducting the inquiry is bound by it. But where such declaration was made on a date later than the date relied on by such applicant then the court conducting the inquiry has to determine the issue after considering the facts, conditions and circumstances as proved as at that earlier date in the same way as it would where there has been no declaration under s.140(5) relative to the particular rule."

The subject came before the Full Federal Court in Egan v Maher (1978) 35 FLR 197. That case was argued before the High Court's decision in Maynes but judgment was given after that decision. The members of the Court had apparently prepared draft judgments before the High Court deliveed judgment in Maynes. After the Maynes judgment was delivered, they revised their drafts, adding comments on its effect. Importantly, all three judges thought that Maynes did not affect the continued authority of the predominant view in Shearer's case, as exemplified in Leveridge: see Smithers J at 218, Evatt J at 228 and Northrop J at 247‑248.

It is not necessary to catalogue the numerous cases since Egan v Maher in which Federal Court judges have followed the predominant Shearer view. No doubt counsel for the prosecutors are correct to say that this view was obiter and that the Federal Court decisions applying it do not bind this Court. However, the view has held the field, now, for some 35 years. It was apparent that this was so in 1988, when Parliament enacted the Industrial Relations Act; yet it chose to frame the new s.208 in language that substantially reproduced the old s.140. Parliament evidently expected the courts to interpret and apply the new provision in the same way as the old.

Cogent arguments may be put against the predominant Shearer view. They are set out in the judgment of Kitto J in that case. A number of other points are made by Mr Richard Tracey QC in a comment about s.196 of the Industrial RelationsAct in Butterworths' "Federal Industrial Law" (ed Trew, Shaw and McCarry) at 3462‑3463. But these arguments do not persuade me that the view, particularly as expressed by Fullagar J, is so clearly incorrect that it ought be discarded by this Court. I think this Court should follow decisions such as Leveridge and Egan v Maher and hold that it is open to a party in a collateral proceeding to impugn the validity of a rule on the ground that it does not comply with s.196 or s.197, and to have the Court apply any finding of invalidity as at the date of past events. Accordingly, going back to the first of the issues I identified earlier, I hold that, in conducting his election inquiry, it was open to Keely J to determine the validity of rule 38(ee). Whether the paragraph applied to the elections that were under way when it took effect on 26 March and, if so, whether the paragraph itself could constitute an "irregularity" in the conduct of the elections are other questions. However, given the terms of s.197(1) and counsel's concession that the rule did not provide for elections by "a direct voting system", it follows that the rule itself was invalid.

Whether the amendments applied

It is apparent from his reasons for judgment that Keely J regarded his finding of rule invalidity as concluding the question whether there was an irregularity in connection with the 1993 elections. Counsel for the prosecutors challenge this view. They say it was necessary for Keely J to consider other matters before reaching the conclusion he did. These include the timing of the rule changes, in relation to an election already commenced, and the necessity to identify precisely the particular act that constituted the irregularity.

I agree with counsel that it is necessary to give attention to these matters. In respect of the first matter, the timing of the rule change, it is questionable whether the amendments to the rules entitling OPDU members to automatic membership of CFMEU conferred on them an entitlement to vote at the elections then under way. In Beeson v Blayney (1966) 8 FLR 292 a question arose as to whether rule amendments providing that a Branch secretary‑treasurer should hold office for six years, rather than three, applied to the candidate who was elected at an election then in progress. Joske J, with whom Spicer CJ and Eggleston J agreed, referred at 294 to a -

"prima facie principle of construction that unless it appears expressly or by implication in rules as amended that they are intended in their amended form to apply to past matters or events, including matters commenced before but not completed at the time of the amendment, the amendments do not apply to the past or uncompleted matters."

The same point was made by Evatt J in Egan v Maher at 229‑230.

There is nothing in the present rules to suggest that the entitlement amendments were intended to affect the elections then in progress; on the contrary, the impugned words of rule 38(ee) show they were not intended to do so. Accordingly, the application to this case of the principle referred to by Joske J would mean that the amendments would not entitle the former OPDU members to vote at the elections then in progress. It would follow that they were not persons "eligible to vote" at that election, within the meaning of the definition of "direct voting system"; so their exclusion from voting would not be something that contravened s.197(1)(a) of the Act or impose on them restrictions that were oppressive, unreasonable or unjust, within the meaning of s.196(c). It would further follow that Keely J was wrong in holding that the exclusion of the OPDU members from the ballot constituted an irregularity.

Although I think this argument is probably correct, I prefer not to uphold the prosecutors' case on that basis. The point was mentioned only fleetingly; the argument was not developed and we did not have the benefit of submissions in reply. Most of the argument, from both sets of counsel, proceeded on the basis that, if the Court could take cognisance of a rule invalidity in a collateral proceeding and relate it to past events, there was indeed an irregularity. There was an issue as to the identity of the irregularity. This is an important question; without precise identification it is impossible to evaluate the prosecutors' s.253ZD argument.

Identification of the irregularity

As appears from a passage from his reasons quoted above, Keely J identified the relevant irregularity as the "act of the secretary in providing [to the returning officer] a list of voters which excluded the OPDU members". His Honour obviously approached the matter on the basis that the new rules applied to the elections, so the former OPDU members had a statutory entitlement to vote that was frustrated by the act of the Divisional Branch Secretary. To use the language of the definition of "irregularity", his Honour thought this was an "act or omission by means of which ... the full and free recording of votes by all persons entitled to record votes" was prevented or hindered. Of course, on the assumption that the former OPDU members were entitled to vote, it also meant that the method of election at those elections was not a "direct voting system".

On the assumptions he made, I think that Keely J's identification of the relevant irregularity was correct. It was suggested during argument that, if there was an irregularity, it was constituted by the existence of a rule (rule 38(ee)) that contravened the Act. But that is not so. An invalid rule has the potential to give rise to an irregularity, if and when it is applied, but it cannot itself constitute an irregularity. The rule may not be observed.

That this is the correct analysis of the situation is, I think, evident from the judgment of Smithers J in Re Inquiry into Elections in the Vehicle Builders Employees' Federation of Australia: Ex parte Allen (1978) 34 FLR 294. In that case the rules of the relevant organisation provided that, to be eligible for nomination as federal secretary or assistant federal secretary, a person must have been a member continuously for at least five years. Nominations for elections to those offices were called in 1975. After ballots, candidates were declared elected. Two years later, in Allen v Townsend (1977) 31 FLR 431, the Full Federal Court made orders under s.140(5) of the Conciliation and Arbitration Act declaring that the Federation's eligibility rules contravened the Act. Two members of the organisation then applied to the Court for inquiries into the two 1975 elections. They said the elections were irregular because the invalid eligibility rules may have deterred other potential candidates, people with less than five years' continuous membership, from nominating for the two positions. As the applications for the inquiries had been filed more than six months after the completion of the elections, the applicants needed a finding that they had not acquired, and could not by reasonable diligence have acquired, knowledge of the irregularity within that period. Smithers J was not able to make that finding, so he had to dismiss the applications. Nonetheless he made some comments about the substance of the applications. He referred to Krantz v Maynes (1967) 10 FLR 134 in which the Commonwealth Industrial Court held certification of rules by the Industrial Registrar not to be conclusive of validity, so that "(n)o valid contention can rest ... on the notion that the filed rules are or ought to be regarded as being necessarily the valid rules of an organization". He went on, at 303:

"this returning officer announced that nominations must be in accordance with the rules of the organization, he was to be understood as referring to the rules of the organization whatever they might be and to the valid rules of the organization. No doubt he would have his own views as to what rules were valid and how those rules which he considered valid should be interpreted. But the ultimate question of the validity of any particular rule would not depend on his views. It was for members who wished to nominate to decide for themselves whether in accordance with the valid rules they were entitled to do so and if they so decided to lodge their nominations accordingly. At that stage the returning would have to accept or reject the nominations. He would have to do this according to his view as to the content of the valid rules. Members might form their own opinion as to what rules the returning officer would regard as valid but they could not reasonably act on the basis that his view was conclusive. Most of them no doubt would consider that the rules were in the rule book. In this they may in any case be in error and in this case would have been in error. In this case the returning officer may himself have been in error. If the returning officer enforced a rule which was invalid and thereby rejected a nomination, there would be an irregularity which could be put right by the court as was done in Leveridge's case."

Smithers J then analysed the reasons why members with less than five years standing might have refrained from nominating. He said at 304:

"An irregularity could not result from the circumstance that members formed opinions as to the view that the returning officer might take as to the validity of any particular rule. Only if and when he acted by reference to the terms of what appeared in the rule book, and the certified rules, to be a rule and that 'rule' happened to be invalid could it be contended that an irregularity of the kind alleged had occurred."

In the same way, in the present case, an irregularity could not result from the circumstance that rule 38(ee) excluded ex‑OPDU members from the 1993 elections, or that those people expected to be excluded. The Secretary might not have acted by reference to the last sentence in rule 38(ee). It was only when he did so that an irregularity arose. Consequently, and importantly for the application to this case of s.253ZD of the Act, the irregularity that occurred (on the assumption that the amended rules applied at the subject elections) was an action of the Divisional Branch Secretary, not a defect in the rules.

Section 253ZD

Section 253ZD appears in Subdivision G ("Validation") of Division 7 ("Amalgamation of organisations") of Part IX ("Registered Organisations") of the Industrial Relations Act. As this placement suggests, the section is concerned to ensure the validity of amalgamations. It relevantly reads:

"253ZD(l)Subject to this section and to section 253ZF, an act done in good faith for the purposes of a proposed or completed amalgamation by:

(a)an organisation or association concerned in the amalgamation; or

(b)the committee of management of such an organisation or association; or

(c)an officer of such an organisation or association;

is valid despite any invalidity that may later be discovered in or in connection with the act.

253ZD(2) For the purposes of this section:

(a)an act is treated as done in good faith until the contrary is proved; and

(b)a person who has purported to be a member of the committee of management, or an officer, is to be treated as having done so in good faith until the contrary is proved; and

(c)an invalidity in the making or altering of the scheme for the amalgamation is not to be treated as discovered before the earliest time proved to be a time when the existence of the invalidity was known to a majority of members of the committee of management or to a majority of the persons purporting to act as the committee of management; and

(d)knowledge of facts from which an invalidity arises is not of itself treated as knowledge that the invalidity exists. "

Counsel for the opponents submitted to Keely J that "the rule and the elections are each steps and done in accordance with the scheme agreed upon and are done for the purposes of the completed election and are valid pursuant to section 253ZD". The argument was not developed and the point was rather buried in lengthy written submissions. So it is understandable that Keely J omitted to deal with it. Before us, the point was put at the forefront of the prosecutors' case and argued at length.

It seems to me that the point is good. Section 253ZD(1) refers to "an act done in good faith for the purposes of a proposed or completed amalgamation". If the relevant irregularity were a defect in the rules, the subsection would not apply. Although the subsection may cover a procedural deficiency in connection with the adoption of rules, a defect in the substance of rules is not "an act". As counsel for Mr Morris submit: "The fact that a rule is validly made does not lead to the conclusion that it has a valid operation". It follows that s.253ZD(1) cannot cure any invalidity in rule 38(ee). However, once it is appreciated that the relevant irregularity was not the invalidity of the rule itself but the act of the Secretary, in reliance on that rule, in delivering a roll of electors that excluded the former OPDU members, s.253ZD(1) is capable of application to this case. The action of the Secretary was an "act".

Good faith has not been put in issue. Accordingly, the critical question is whether the Secretary's act was something done "for the purposes of a proposed or completed amalgamation". Although counsel for Mr Morris submit otherwise, I have no doubt that it was. It is true that an election was due in any event. It cannot be said that the election itself, or the actions taken by the Secretary in connection therewith, were actions taken for the purpose of the amalgamation with OPDU and FFTS. But none of those actions, in themselves, constituted an irregularity. On the assumption that the amended rules applied to the elections then in progress, so as to entitle the former OPDU members to vote in them, the Secretary's irregular act was his delivery to the returning officer of a roll that excluded those people. This was something done pursuant to the approved Scheme of Amalgamation, which had provided that those elections "will not be affected by the creation of the new CFMEU". It is crystal clear that the agreement reached between those who negotiated the amalgamation was that, until the end of 1996, the members of the "new CFMEU" who came from the OPDU would be represented in the Divisional Branch by a number of named people, they being people holding equivalent OPDU positions at the date of amalgamation. In return, and in order to avoid duplication of representation, the former OPDU members would be excluded from participation (whether as candidates or electors) in the elections for the non appointed positions in the Divisional Branch.

In written submissions in reply counsel for the prosecutors put the matter in this way:

"Prior to 26 March 1993 the rules of the CFMEU provided that an election should be held. See Divisional Rule 40 (ee). Assuming that rule 33(ee) was contrary to section 196, the only way that the arrangement to mesh the officers together and identify them for the period 1993 to 1996 and give effect to the agreement between the OPDU and CFMEU was to have delayed the amalgamation taking effect until sometime after July 1 1993. The purpose of rule 38(ee) was not simply to ensure that the election continued, it was to enable the amalgamation to occur prior to 1 July 1993 and still implement the arrangement between the parties as to how the officers of the amalgamated organisation should be determined."

I agree. In my opinion s.253ZD applies to this case. If there was an irregularity in the conduct of the elections caused by the exclusion of the former OPDU members' names from the roll of electors, it was cured by s.253ZD. Consequently, it was not available to Mr Morris as a basis for orders at an election inquiry. This means, with respect, that Keely J ought not have answered the two preliminary questions favourably to Mr Morris. As those answers were the only basis of the orders made by his Honour on 14 November and 1 December 199, the orders ought not have been made.

The appeal

It follows from what I have said that the appeal in relation to matter VI.5025 of 1994 (the organisers' case) must be allowed and the orders made by Keely J on 14 November 1994 set aside. It is not necessary to consider counsel's other criticisms of his Honour's decision or those orders. The basis of that case was Mr Morris' contention that the election of the eleven organisers contravened the rules of the organisation because former OPDU members were excluded from participating in the election. In the view I take, there is no substance in that ground. I would allow the appeal, set aside the orders made by Keely J and, in lieu thereof, order that the Application be dismissed.

The claim for Prerogative relief

The situation in relation to the other matter before the Court, the application for prerogative relief, is not so clear cut. It is not enough for a prosecutor to show that a court has fallen into legal error. The error must be of a jurisdictional nature. I agree with counsel for Mr Morris that "in order to succeed in this case, the prosecutors must show an excess of jurisdiction or a failure to exercise jurisdiction"; no remedy is available "for a mere error of law on the face of the record".

The question whether a particular error of law constitutes an excess of jurisdiction or a failure to exercise jurisdiction is often difficult to determine. Perhaps the starting point, for present purposes, is the decision of the House of Lords in Anisminic v Foreign Compensation Commission [1969] 2 AC 147. That case concerned a decision of the Commission rejecting Anisminic's claim for compensation for expropriation of its property by the Egyptian government. The relevant statute provided that a determination by the Commission "shall not be called in question in any court of law". Taking the view that the members of the Commission had wrongly construed the relevant Order in Council, as requiring them to consider something which on its true construction the Order did not require them to consider, Browne J declared the Commission's determination a nullity. He held that the Commission had acted "without jurisdiction or in excess of jurisdiction", so the statutory privative provision did not apply. By majority (Lords Reid, Pearce and Wilberforce, Lords Morris of Borth‑y‑Gest and Pearson dissenting), the House of Lords agreed. After pointing out at 169‑170 that a privative provision only protects "a determination which is not a nullity", Lord Reid explained at 171 what he meant by a nullity:

"It has sometimes been said that it is only where a tribunal acts without jurisdiction that its decision is a nullity. But in such cases the word 'jurisdiction' has been used in a very wide sense, and I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith . It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly."

Lord Pearce at 195 gave several examples of lack of jurisdiction. They included departure from the rules of natural justice, the tribunal asking itself the wrong questions and the tribunal taking into account matters that it was not directed to take into account. His examples even included the case where a tribunal, "though keeping within its mandated area of jurisdiction, comes to an erroneous decision through an error of law". Lord Wilberforce at 210 spoke to similar effect:

"A tribunal may quite properly validly enter upon its task and in the course of carrying it out may make a decision which is invalid ‑ not merely erroneous. This may be described as 'asking the wrong question' or 'applying the wrong test' - expressions not wholly satisfactory since they do not, in themselves, distinguish between doing something which is not in the tribunal's area and doing something wrong within that area ‑ a crucial distinction which the court has to make."

Anisminic has been applied in numerous Australian cases. It is sufficient to refer to three High Court decisions. The earliest of them is Maynes, where the High Court was asked to grant certiorari to quash the order of the Australian Industrial Court and to prohibit further proceedings thereon. As already stated, a majority of the High Court: thought the Australian Industrial Court had erred. Mason J pointed out at 495 that:

"... it does not follow that the prosecutors are entitled to relief by way of prohibition or certiorari, for the existence of error in the judgment or order of an inferior court or tribunal is not a sufficient title to relief by way of prohibition or certiorari."

The second High Court case is The Oueen v Gray: Ex parte Marsh (1985) 157 CLR 351 - ("Marsh"). This was an application for prohibition and certiorari in respect of a union election inquiry. The prosecutors contended that none of the matters alleged in the application for an inquiry constituted an irregularity in or in connection with the election. The six member Court divided equally on the question whether relief should be granted, so the Chief Justice's view prevailed. At 371 Gibbs CJ referred to the "well recognized distinction between an error made by a tribunal in the course of deciding a matter, on the one hand, and an absence or excess of jurisdiction on the other". He commented that "the question on which side of the line a particular case should fall may be a very difficult one". After referring to Anisminic, Gibbs CJ said at 372:

"It is impossible to suppose that the Parliament intended that the Federal Court, acting under s.165(3) of the Act, could declare an election void if no irregularity had occurred. However, if that Court gives a wrong meaning and effect to the 'irregularity' in Pt IX ‑ if it applies the wrong test in deciding what is an irregularity - and so holds that something is an irregularity which is not in law capable of being so described, it is assuming to exercise the powers conferred on it by statute although the condition of their exercise is not satisfied. In deciding whether the Parliament intended to give the Federal Court jurisdiction to decide for itself, free from challenge, the matters upon which its jurisdiction depends, it is, of course, important to remember that the Court is a superior court, although one of limited jurisdiction. However, it must also be remembered that the powers given by Pt IX of the Act were originally conferred on the Australian Industrial Court (see s.4(1)('the Court') and Pt V of the Act) and were in 1976, by s.118A, transferred to the Federal Court. The special and restricted nature of the jurisdiction conferred by Pt IX, and the nature of the jurisdiction of the court on which it was originally conferred, suggest that it was not intended that the Australian Industrial Court or the Federal Court should have power to determine conclusively the question on which the jurisdiction under Pt IX depends".

Mason J, who was a member of the statutory minority, held at 376 that the Federal Court's jurisdiction did not depend upon the question whether an irregularity had in fact occurred. He said that the exclusion of a right of appeal indicated that "Parliament's intention was that the primary judge's determination was to be conclusive on the issue he was called upon to decide, that is, whether the alleged irregularity had occurred". He held at 377 that, in the light of this conclusion, there was no room for the application of the Anisminic principle; the primary judge, Gray J, had not addressed himself to a matter outside his jurisdiction.

Wilson J agreed with Mason J that the Federal Court's jurisdiction did not depend on the question whether an irregularity had in fact occurred but he disagreed with Mason J's next step. At 378‑379 he said:

"It seems to me that Parliament could not have intended the Court to have jurisdiction to embark on an inquiry with all the potential for expense, delay and disruption to the affairs of an organization if the claimed 'irregularity' is not capable of constituting an irregularity within the meaning of the Act. The Court derives its jurisdiction in the case of an election conducted under s.170 from a combination of sub‑ss.(l) and (4) of s.159, namely, the making of an application which the Registrar is obliged to refer to the court. Thereupon an inquiry shall be deemed to have been instituted. The application must be based on a claim that there has been an irregularity in or in connexion with the election. Such a requirement is fundamental. One must read the statutory definition of 'irregularity' in s.4 of the Act into s.159(1). A claim based on facts which even if accepted as true would not establish an irregularity within the meaning of the Act is insufficient in my opinion to support an application which attracts the jurisdiction of the court to conduct an inquiry under Pt IX of the Act. For an inquiry to continue in such circumstances beyond the stage necessary to determine whether jurisdiction exists would constitute an erroneous assumption of jurisdiction, not merely error in the manner of its exercise."

Brennan J referred to the twofold jurisdiction of the Federal Court in an inquiry under Part IX of the Conciliation andArbitration Act; the first being jurisdiction to conduct an inquiry and to determine whether an irregularity has occurred, and the second being jurisdiction to make orders, once an irregularity has been established. He said at 383 that, if the jurisdiction to inquire:

"depended on a finding by (the) Court as to the existence of facts amounting to an irregularity, I would agree with Mason J that prohibition would not lie. But as the question whether an 'essential preliminary' to jurisdiction is to be answered by reference to the application and its annexures, and as those documents reveal an absence of jurisdiction to inquire, I would grant prohibition".

The judgment of Deane J is notable for a discussion at 384‑390 about the circumstances under which a prerogative writ may be granted against a superior court of record or a member of such a court. His Honour accepted that a judge of a court constituted under Chapter III of the Constitution ‑ such as the Federal Court or this Court ‑ is an "officer of the Commonwealth" within the meaning of s.75(v) of the Constitution and so amenable to a writ of prohibition. He pointed out at 385 that the amenability of such a judge "depends not upon the court of which he is a member being an 'inferior' court but upon the jurisdiction conferred upon the court being limited"; as is the jurisdiction of both the Federal Court and this Court. At 387 Deane J suggested that a writ of certiorari would not lie against a superior court of record, this writ not being mentioned in s.75(v) of the Constitution. But he noted authority to the contrary. I will return to his comments.

Turning to the case before him, Deane J held at 390 that Gray J:

"clearly had jurisdiction to entertain the proceedings before him. He had jurisdiction to conduct an inquiry under Pt IX of the Act and to receive evidence establishing the factual context within which the question whether an irregularity or irregularities had been established against Mr. Bali fell to be determined. He had jurisdiction to decide the questions of fact and law involved in that inquiry. Indeed, it was the plain intention of the Parliament, evidenced by the provisions excluding ordinary rights of appeal, that the determination of such questions of fact and questions of law should be peculiarly for the judge conducting the inquiry. His jurisdiction to decide those questions includes jurisdiction to decide them wrongly. That being so, the mere fact that there is an actual or threatened mistaken decision by the learned trial judge of questions of fact or law arising in the course of the inquiry neither involves an actual or threatened excess of jurisdiction nor provides any warrant for this Court to assume jurisdiction to intervene midway in the course of the proceedings before the Federal Court."

The remaining member of Court, Dawson J, expressed views to similar effect at 394:

"If, however, the facts upon which a federal court's jurisdiction depends do not mark the limits of the power of Parliament to confer jurisdiction upon it, Parliament may entrust the finding of those facts to the federal court itself. In that event the court will not be acting outside jurisdiction in finding those facts and, even if i t finds them wrongly, prohibition will not lie because prohibition is a remedy against a wrongful assumption of jurisdiction and not a remedy against an erroneous decision made by a court in the exercise of a jurisdiction which it possesses."

The final case in the trilogy, Public Service Association of South Australia v Federated Clerks' Union of Australia, South Australian Branch (1991) 173 CLR 132 ("PSA"), arose under State legislation. The appellant applied to the Registrar of the Industrial Commission of South Australia for registration of a change in its eligibility rule so as to enable it to cover employees of two named charities. Two other unions, the respondents before the High Court, objected. But the application was granted. The objectors then applied to the Full Industrial Commission for leave to appeal from the Registrar's decision. The Full Commission refused leave on the basis that the applicants were seeking to appeal from a discretionary decision and had not demonstrated error of the type necessary to interfere with such a decision. The Full Court of the Supreme Court of South Australia granted an application for judicial review of the Full Commission's decision and quashed that order. The Supreme Court held that the Commission had erroneously characterised the Registrar's decision as a discretionary one and ordered it to hear and determine the application again. By majority (Brennan, Dawson and Gaudron JJ, Deane and McHugh JJ dissenting) the High Court affirmed the decision of the Supreme Court.

Brennan J commenced his judgment by referring to the terms of the legislation relating to applications to the Registrar. He noted that it empowered the Registrar to "refuse an application" if any of three conditions applied. He commented at 136 that "(w)hen a statute confers a power which the repository may refuse to exercise if any of certain prescribed conditions apply, the implication is that there is a duty to exercise the power unless a prescribed condition applies." He said that, although two of the three conditions involved a degree of discretion, none conferred an untrammelled discretion to register or refuse to register. Brennan J held t:hat the Full Industrial Commission had wrongly assumed that the Registrar had a general discretion and, misunderstanding the nature of the Registrar's decision, had misunderstood the issues that would arise if leave to appeal were granted.

When he turned to the correctness of the Supreme Court's decision, Brennan J referred to a privative provision in relevant legislation. This provision generally excluded review by a court of a Commission decision, but it excepted review "on the ground of excess or want of jurisdiction". He held that these exceptions did not cover cases of the Commission failing or refusing to exercise jurisdiction, cases in which mandamus would usually lie; and the respondents' case before the Supreme Court was that the Industrial Commission had wrongly refused to exercise its jurisdiction to grant leave to appeal. Brennan J went on at 143‑144:

"The essential relief which the F.C.U. and the A.S.W.U. sought and obtained by way of judicial review was an order requiring the Full Commission to hear and determine according to law the application for leave to appeal which, it was submitted, the Full Commission had constructively failed to determine. The foundation for relief of this kind is stated by Jordan C.J. in Ex parte Hebburn Ltd.; Re Kearsley Shire Council (1947) 47 S.R. (NSW) 416, at p.420, in a passage cited by Aickin J. in Reg. v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170 at p.268:

'I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction: R. v. Minister of Health [1939] 1 K.B. 232, at pp.245‑246. But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and ... inadmissible test': Estate and Trust Agencies (1927) Ltd v. Singapore Improvement Trust [1937] A.C. 898, at p.917; or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': R. v. War Pensions Entitlement Appeal Tribunal (1933) 50 C.L.R. 228, at pp.242‑243; or 'to misunderstand the nature of the opinion which it is to form: R. v. Connell (1944) 69 C.L.R. 407, at p.432 in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law: R. v. Board of Education [1910] 2 K.B. 165.'

In this case the Full Commission's error lay in regarding the proposed appeal as involving no more than an appellate review of an unstructured discretion whereas, as we have seen, the proposed appeal required a rehearing on the merits of the issues arising under each of pars (a), (b) and (c) of s.121(5) in the light of whatever evidence was placed before and received by the Full Commission. A consideration of leave to appeal to review an unstructured discretion is a different exercise from a consideration of leave to appeal to rehear the issues arising under each of pars (a), (b) and (c). The Full Commission misconceived its jurisdiction and failed to consider the true question which they had to decide, namely, whether leave to appeal should be granted to permit a rehearing of the application on the merits. This was a jurisdictional error."

Brennan J held that the Supreme Court's order in the nature of certiorari was founded on excess or want of jurisdiction and validly made. The order in the nature of mandamus, requiring the application to be heard and determined again, "commands the exercise of a jurisdiction which the Full Commission undoubtedly possesses though it has constructively failed to exercise it". He said that, because of the privative provision, this order should not have been made; but the error was inconsequential because the matter would have to be redetermined in any event.

The other members of the majority, Dawson and Gaudron JJ, delivered a joint judgment that followed somewhat similar reasoning to that of Brennan J. I need not summarise it. It is enough to note that, importantly in relation to the present case, they said at 160:

"The issues raised when it is complained that necessary issues have not been decided, and when it is asserted that, had they been decided, the result might have been different, are different from the issue that arises when it is contended that a discretionary decision is wrong. The Commission considered only whether leave to appeal should be granted to raise the latter question and, thus, failed to deal with the question whether leave should be granted to raise the different issues presented by the applications. To that extent, the Commission failed to exercise the jurisdiction conferred upon it by s.104 of the Act."

Deane J, who dissented, said at 149 that the exception to the privative provision applied only if the Commission purported "to make an award or order or to entertain a proceeding which is of a nature which it had no authority to make or entertain in the circumstances of the case". He said that it was only in cases where the word "jurisdiction" is used "in its ordinary sense to refer to the authority of a tribunal to entertain the proceedings, to determine the issues involved in them and to make orders disposing of them" that it was "meaningful to speak of error being 'within' and not in 'want or excess of' the 'jurisdiction' of a tribunal such as the Commission". He held at 152 that a proceeding or award or order is vitiated by an excess or want of jurisdiction "only if the effect of the error is that the Commission purports to entertain a proceeding or make an award or order which is of a nature which the Commission has no jurisdiction, in the circumstances, to entertain or make." His Honour said it was not enough that, in the exercise of the jurisdiction conferred on it, "the Commission falls into error about the identification or context of relevant questions or about the order in which it should deal with questions".

McHugh J expressed similar views at 164.

As the sharp division of the court in each of Anisminic, Marsh and PSA demonstrates, minds may differ upon the question whether or not a particular error of law is one of a jurisdictional nature. In the present case I have not found this an easy question. At the commencement of the argument, I was inclined to a view much like that expressed by Deane J in PSA. It was clear that Keely J had jurisdiction to determine whether or not an irregularity had occurred in connection with the subject elections, as he well understood. It seemed to me that if, because he overlooked s.253ZD, he erred in finding that the act of the Secretary constituted an irregularity in relation to the elections, within the meaning of s.218, this was an error within jurisdiction and not amenable to prerogative relief.

However, I have reached the conclusion that this is too narrow a view. I have done so principally because of passages in the judgments in Maynes and PSA; I do not think that Marsh helps on this question, one way or the other. The significant point about MaYnes is that all members of the High Court, except Murphy J, thought that the Australian Industrial Court had fallen into jurisdictional error by failing to satisfy itself that the identified rule contraventions subsisted at the date of the order and by applying s.140(1)(a) to rules that failed to conform to the requirements of the Act but were "permitted by the Act to remain in their existing form for a prescribed period of time". Very similar language may be used about the omission of Keely J, in the present case, to address the effect of s.253ZD of the Act. By failing to consider the possible application of that section to the irregularity identified by him, he failed to satisfy himself that the irregularity subsisted at the relevant date (the date when the Secretary delivered the roll of electors to the returning officer). Perhaps more importantly, he failed to appreciate that the "irregularity" was not merely one that was permitted to continue for a prescribed period of time, as in Maynes, but that it was permanently cured. If Keely J had considered s.253ZD, but held it did not apply to the case, it would be easier to argue that he committed an error within jurisdiction. But his Honour's omission to consider the section at all means that he failed to address a matter, raised in the inquiry, that went to the question whether there was an irregularity at all; and thus to the heart of the Court's jurisdiction.

There is nothing in the majority PSA judgments to contradict or limit what Mason J said in Maynes. On the contrary, the passage from Jordan CJ applied by Brennan J includes a reference to "a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction" leading it to apply "a wrong ... and inadmissible test" or "not to apply itself to the question which the law prescribes". And the situation in the present case falls squarely within that described by Dawson and Gaudron JJ, where "necessary issues have not been decided, and when it is asserted that, had they been decided, the result might have been different".

In my opinion the error made by Keely J, in failing to apply s.253ZD, was a jurisdictional error entitling the prosecutors to prerogative relief.

The appropriate form of relief

It is clear that this Court may make orders for the issue of writs of prohibition (prohibiting Keely J from continuing proceedings based on the orders made by him; as, for example, pursuant to the liberty to apply) and mandamus. But there is a question whether the Court may grant certiorari to remove the proceedings into this Full Court and quash Keely J's orders.

In Maynes orders nisi for both certiorari and prohibition were made by Aickin J. During argument on the application for orders absolute, Barwick CJ expressed doubt about the power of the High Court to grant a writ of certiorari, pointing out that this writ was not mentioned in s.75(v) of the Constitution, and counsel for the respondent submitted that the Court did not have the power. So far as the case report reveals, the question was not further discussed but, in the event, only the order nisi for prohibition was made absolute.

The doubt expressed by Barwick CJ in Maynes echoed observations he had made in The Oueen v The District Court of the Northern District of the State of Oueensland (1968) 118 CLR at 491, although in Pitfield v Franki (1970) 123 CLR 448 he had joined in an order granting certiorari against members of the Commonwealth Conciliation and Arbitration Commission, the predecessor of today's Industrial Relations Commission. In that case he held that the Commission had no authority to register a particular association as an "organization" for the purposes of the Conciliation andArbitration Act. Barwick CJ said at 459‑460 that the Commission's lack of authority to effect the registration "would ground equally prohibition or certiorari dependent upon the state of affairs when the prerogative writ was sought". In that case he thought it appropriate to issue a writ of certiorari "to bring up the registration for the purpose of it being quashed for want of authority to have made it". McTiernan, Menzies and Owen JJ all agreed that certiorari should issue.

None of the members of the Court who heard Pitfield v Franki identified the source of the Court's power to grant certiorari in that case. Subsequently, in The Oueen v Marshall; Ex parte Federated Clerks Union of Australia (1975) 132 CLR 595, Mason J at 609 suggested that the Court might have relied on the fact that the authority to register the organisation was confined by limitations deriving from s.51(xxxv) of the Constitution "possibly taken in conjunction with a bona fide claim for prohibition". This thought was adopted by Gibbs J in The Oueen v Cook; Ex parte Twigg (1980) 147 CLR 15 ("Twigg") at 26. In that case prohibition and certiorari were sought against a Judge of the Family Court of Australia. Barwick CJ, Stephen, Mason, Murphy, Aickin and Wilson JJ all agreed with Gibbs J that the order nisi for certiorari should be made absolute but prohibition should be refused. Only Aickin J added to Gibbs J's comments on the power to grant certiorari. He said at 33 that it is "inherent in the power to grant a writ of prohibition that the Court may make its power to grant a prohibition effective in the circumstances". At 34 he returned to this theme, saying that "the Court has jurisdiction to grant certiorari in a case in which prohibition would be available and in which certiorari is necessary in order to make more effective or complete the remedy which prohibition would provide."

Certiorari was mentioned briefly in The Oueen v Bowen; Ex parte Federated Clerks Unions of Australia (1984) 154 CLR 207. At 211 the Full High Court described as "untenable" a submission "that s.75(v) of the Constitution, though it makes no reference to certiorari, impliedly confers original jurisdiction on this Court to grant certiorari in a case in which the Court does not otherwise possess original jurisdiction". In The Queen v Ross‑Jones; Ex parte Green (1984) 156 CLR 185 ("Green") the High Court granted writs of prohibition and certiorari against a Family Court Judge. There was little discussion about the power to grant certiorari. Gibbs CJ, with whom Mason J agreed, at 203 treated certiorari as a necessary corollary to prohibition, under the circumstances. Wilson and Dawson JJ at 215 spoke of certiorari as "an ancillary remedy" to quash an improperly granted interlocutory injunction. Deane J dissented on the merits of the case.

This brings me to Marsh. As previously mentioned, Deane J there discussed at length the question whether the High Court could grant certiorari. He said at 389 that he found it unnecessary to determine whether he was constrained by Twigg and Green "to hold that the Court possesses jurisdiction to direct certiorari to the Federal Court". He went on that, "if so constrained, I would be of the view that those cases should be understood as going no further than ascertaining the availability of the writ of certiorari to control excess of jurisdiction", as distinct from rectification of an error of law on the face of the record.

It is not easy to reconcile all the decisions in the High Court about certiorari. But it seems clear that the Court has no power to issue a writ of certiorari where this is the only prerogative relief sought; particularly if the error of the inferior tribunal is of a non‑jurisdictional nature. On the other extreme, the better view seems to be that, where there is jurisdictional error, there is power to issue certiorari in conjunction with prohibition or mandamus. That is the present case. Prohibition and mandamus are sought and are appropriate to be granted. But, without certiorari, jurisdictionally incompetent orders will remain on the record and be required to be obeyed. I conclude therefore that this Court, exercising the powers of the High Court, may issue certiorari in this case. I think we should do so, in order to bring before us the record of the proceedings before Keely J and to quash the orders made by him on 14 November and 1 December 1994.

The desirability of review of the statute

As will be apparent from the foregoing, the task of the Court in this case has been greatly complicated by the fact that the only way in which the prosecutors could challenge the orders of Keely J in connection with the election inquiry was by an application for prerogative relief. Because of the terms of s.421 of the Act they could not bring an appeal to a Full Court.

The policy of excluding appeals in respect of election inquiries is one of long‑standing. It applied under the Conciliation and Arbitration Act: see s.118B(l)(a). No doubt the policy reflects a view that challenges to the results of elections should be resolved as expeditiously as possible, in the interests of organisational stability. Election inquiries sometimes involve lengthy hearings during which the Court is required to examine detailed evidence. It is understandable that Parliament might have been concerned about the possibility of that process being repeated before a Full Court.

On the other hand, as this case illustrates, election inquiries sometimes turn on questions of law that can be resolved relatively expeditiously and inexpensively. Where the question is an important one, from the point of view of the parties, the affected organisation or the public generally, exclusion of all opportunity for review might be thought undesirable. But, whatever opinion particular individuals may hold on that question, it is constitutionally impossible totally to preclude review.

Like it or not, s.75(v) of the Constitution confers on the High Court jurisdiction to issue writs of prohibition and mandamus, and to grant injunctions, against officers of the Commonwealth, including Judges of this Court conducting election inquiries. Parliament may amend the Industrial Relations Act so as to exclude the remittal of such cases to this Court; or the members of the High Court may decide not to remit them. But Parliament cannot prevent dissatisfied parties to election inquiries seeking orders rectifying what are claimed to be jurisdictional errors committed in the course of election inquiries. And when such orders are sought, the court hearing the application, whether the High Court or this Court, is likely to find itself confronted with the question, often complex and contentious, whether a particular error or alleged error was one of a jurisdictional nature. The parties are likely to find that question puzzling, perhaps incomprehensible, having nothing to do with the issue they wish to resolve and serving only to prolong their litigation and increase their costs. In an area of law that, more than most, cries out for simplicity, this is a complication the parties and the courts can well do without. Accepting that applications for prerogative relief cannot be totally excluded, because of the existence of s.75(v), it may be desirable to reduce their frequency by providing an alternative method of challenging decisions in election inquiry cases; as, for example, by allowing a limited right of appeal. If a right of appeal had been available to the present prosecutors, in respect of offices other than those of organisers, an enormous expenditure of time and effort (and, so, expense to the parties) would have been saved.

I certify that this and the preceding sixty (60) pages are a true copy of the Reasons for Judgment of the Honourable Chief Justice Wilcox.

Associate:

Dated: 3 March 1995

APPEARANCES

Counsel for the Prosecutors/Appellants: R C Kenzie QC and S C Rothman

Solicitors for the Prosecutors/Appellants: Holding Redlich

Counsel for the Second Respondent: R Hinkley and A Watson

Solicitors for the Second Respondent: Gill Kane and Brophy

Dates of hearing: 7 & 8 February 1995

IN THE INDUSTRIAL RELATIONS COURT         )
OF AUSTRALIA  ) No. VI 5032 of 1994
VICTORIA DISTRICT REGISTRY          )

IN THE MATTER of an Application for Writs of Prohibition, Mandamus and Certiorari against THE HONOURABLE JOHN AUGUSTINE KEELY, a Judge of the Industrial Relations Court of Australia

First Respondent

AND: NEIL RAYMOND MORRIS

Second Respondent

Ex parte:

MARTIN KINGHAM and THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

Prosecutors

ON APPEAL FROM A SINGLE JUDGE
  OF THE
             INDUSTRIAL RELATIONS COURT OF AUSTRALIA

No. VI 5025 of 1994
BETWEEN:MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, WAYNE TORPY, DIRK VAN DAM, VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY, ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN, PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR, JOHN CANNING and ZELKO PRAZAK

Appellants

AND:NEIL RAYMOND MORRIS, DEREK CAFFERTY, PETER GRUNDY, MALCOLM NEWHAM, K HUGHES, M GARCIA, P BOYLE and M EVANS

Respondents

CORAM: WILCOX CJ, SPENDER & RYAN JJ
PLACE: MELBOURNE
DATE: 3 MARCH 1995

REASONS FOR JUDGMENT

SPENDER J: I have had the benefit of reading the Reasons for Judgment of Wilcox CJ in draft form in these two proceedings.

I agree with his Honour's reasons and with the orders he proposes in each proceeding.

I wish to make observations only in respect of one matter.

The learned primary judge concluded not only that rule 38(ee) failed to comply with s. 197(1)(a) of the Industrial Relations Act 1988 because it did not provide for election by a direct voting system, but he also concluded that in excluding the former Operative Painters and Decorators Union of Australia ('OPDU') members from nominating and from voting, rule 38(ee) "imposed upon members...conditions, obligations or restrictions...that are oppressive unreasonable or unjust", and as a consequence the rules contravened s. 196(c). In my respectful opinion, as a question quite independent from any possible contravention of s. 197(1), in the circumstances of this case rule 38(ee) is not unreasonable or unjust, and is not a contravention of s. 196(c).

Failure in the rules to provide for a direct voting system does not necessarily produce an electoral regime that is unreasonable or unjust. In this case, as an ingredient of the amalgamation proposal, the former OPDU members were given a representation in the affairs of the division arising consequent upon the amalgamation which was, both in terms of numbers and position of appointment, proportionate to their relative numbers. The interim measures for representation were to be succeeded by a full franchise election.

The proposal was an important transitional provision of the amalgamation proposal and received the overwhelming support of the OPDU members. In my respectful opinion, independently of any question of a failure to comply with the requirements of the Act, rule 38(ee) did not, in all the circumstances, constitute a rule which imposed on members an obligation or restriction that was oppressive, unreasonable or unjust.

I certify that this and the preceding two (2) pages are a true copy of the reasons for judgment herein of the Honourable Justice Spender.

Associate

Date: 3 March 1995

IN THE INDUSTRIAL RELATIONS COURT )
  )
OF AUSTRALIA  )    VI 5032 of 1994
  )
VICTORIA DISTRICT REGISTRY       )

IN THE MATTER OF AN APPLICATION FOR WRITS OF PROHIBITION, MANDAMUS AND CERTIORARI AGAINST THE HONOURABLE JOHN AUGUSTINE KEELY, A JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

(First Respondent)

AND:

NEIL RAYMOND MORRIS

(Second Respondent)

EX PARTE:

MARTIN KINGHAM AND THE CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

(Prosecutors)

ON APPEAL FROM A SINGLE JUDGE OF THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA

VI 5025 of 1994
BETWEEN:MARTIN KINGHAM, VINCE RAFFA, BILL OLIVER, WAYNE TORPY, DIRK VAN DAM, VICTOR NICOLI, BERNARD GIAGNACOVA, GERARD LAVERY, ROY WILLIAMS, FRANK O'GRADY, MALCOLM RATEL, JOHN McPARTLIN, PATRICK LENNON, DAVID NOONAN, JOHN LOH, DAVID PILLAR, JOHN CANNING and ZELKO PRAZAK
(Appellants)
AND:NEIL RAYMOND MORRIS, DEREK CAFFERTY, PETER GRUNDY, MALCOLM NEWHAM, K HUGHES, M GARCIA, P BOYLE and M EVANS

(Respondents)

CORAM:                WILCOX CJ, SPENDER & RYAN JJ
PLACE:                MELBOURNE
DATE:                 3 MARCH 1995

REASONS FOR JUDGMENT

RYAN J: I have had the advantage of reading in draft the reasons for judgment of Wilcox CJ. For these reasons I agree with the orders which he proposed in each proceeding and which I pronounced on behalf of the Court on 28 February 1995.

I certify that this and the preceding page are a true copy of the reasons for judgment of his Honour Justice Ryan

Associate:
Date:

[1995] IRCA 69

03 March 1995