Re Laing, Ex parte Communications, Electrical, Electronic Etc Union of Aus

.D.

TRANSCRIPT
OF PROCEEDINGS

AUSCRIPT

Western AustraliaLevel 216 St Georges TcePerth WA 6000Phone (09) 325 6029Fax (09) 325 7096

HIGH COURT OF AUSTRALIA
TOOHEY J
P No 19 of 1997
APPLICATION FOR ORDER NISI
RE: LAING
EX PARTE: COMMUNICATIONS, ELECTRICAL,
ELECTRONIC, ENERGY, INFORMATION,
POSTAL, PLUMBING AND ALLIED SERVICES
UNION OF AUSTRALIA
PERTH
10.04 AM WEDNESDAY, 14 MAY 1997
HIS HONOUR:   Now, Mr Courtis?
MR J. COURTIS:   If your Honour please, I appear for the applicant prosecutor.
HIS HONOUR:   Now before I take any other appearances I had better find out what the position is with the section 78B notice.
MR COURTIS:   Yes, thank you, your Honour. I can mention that I understand that the Commonwealth will seek leave to intervene.
HIS HONOUR:   Well, before you get to who is going to do anything by way of intervention has the notice been given to ‑ ‑ ‑
MR COURTIS:   Yes, I am sorry, yes.
HIS HONOUR:   Is there any affidavit before the Court. How was service effected?
MR COURTIS:   By fax, your Honour, on Friday.
HIS HONOUR:   To all attorneys?
MR COURTIS:   That is right. And I apologise, I have no affidavit but I am in a position to indicate their responses.
HIS HONOUR:   All right, what are they?
MR COURTIS:   The Commonwealth, I understand, seeks leave to intervene. New South Wales will not, Tasmania will not, the Northern Territory will not, Queensland will not, Victoria will not, South Australia will not, I have heard nothing from Western Australia or the ACT.
HIS HONOUR:   Right. I would ask you to at some stage and as soon as possible, Mr Courtis, to let me have an affidavit.
MR COURTIS:   Yes, I will certainly do that, thank you.
HIS HONOUR:   As to how service was effected but I will accept your assurance that service was effected by fax last Friday.
MR COURTIS:   Thank you.
HIS HONOUR:   All right. Well, now in the light of that what is the position of other counsel? Yes, Mr Johnston?
MR P. JOHNSTON:   Sir, with my learned friend, MR DRAKE-BROCKMAN, we are seeking leave to intervene to make limited submissions in support of the application brought by the applicant prosecutor and to that end we would make submissions on two levels; one is as to why we have basis to intervene and then largely I think to leave it by way of written submission we would seek to indicate the importance of the constitutional issue and why, on our view, it would be readily disposed of by putting the matter to the Full Court of this Court rather than - we say it is appropriate to go to the Full Court rather than be remitted to the Industrial Relations.
HIS HONOUR:   Yes. I perhaps should have heard first, Mr Johnston, from Western Power because they may well seek to be a party as opposed to being an intervener, so if I could just put your application on hold for the moment.
MR JOHNSTON:   If it please your Honour.
HIS HONOUR:   Mr Le Mière?
MR R. LE MI RE:   Yes, your Honour, I appear with MR ELLIS. We were informed that the applicant proposes to apply to the Court that Western Power be added as a party to the proceedings and we see that as appropriate.
HIS HONOUR:   Yes, well, I had not been so informed but it seems logical that that be done. Is that your application, Mr Courtis?
MR COURTIS:   Yes, it is, sir. I have a short minute as to that and a couple of other matters but perhaps I will hand it up when the appearances are taken. Or should I hand it up now?
HIS HONOUR:   I think it might help if I had it in front of me.
MR COURTIS:   Thank you, your Honour, I will hand up the minute of proposed directions.
HIS HONOUR:   Thank you. All right. Well, I note that as the directions which you are seeking, Mr Courtis, and I will make an order in terms of paragraph 1 of that minute.
MR COURTIS:   Thank you, your Honour.
HIS HONOUR:   Namely that Western Power Corporation be added as a party to the proceedings. Could I just ‑ ‑ ‑
MR LE MI RE:     Sorry, your Honour, might I raise to say the correct name of the party in fact is Electricity Corporation.
HIS HONOUR:   Right. Is Western Power Corporation the trade name in effect.
MR LE MI RE:   It trades as Western - yes, it is.
HIS HONOUR:   So it should be Electricity ‑ ‑ ‑
MR LE MI RE:   Corporation.
HIS HONOUR:   Electricity Corporation, thank you. Very well. There will be an order that Electricity Corporation be added as a respondent to the proceedings, and then there could be an order in terms of paragraph 2 citing Commissioner Laing as first respondent and Electricity Corporation as second respondent. Now the question of paragraphs 3 and 4 of the minute of course remains to be seen. Is there anyone else who seeks to be added as a party as opposed to seeking leave to intervene? No, very well. Well, now is there anyone seeking leave to intervene, apart from you, Mr Johnston. I do not want this to get too out of hand but perhaps I should first ask, Mr Le Mière, what is your client's attitude towards the application to intervene?
MR LE MI RE:   We have no submissions to make about the intervention application.
HIS HONOUR:   That is of Mr Johnston's client.
MR LE MI RE:   Yes.
HIS HONOUR:   Right. Well, I will just note that and go on for a moment. Now who else is seeking leave to intervene?
MR K.M. PETTIT:   If it please, your Honour, I appear for the Attorney‑General, Commonwealth, intervening pursuant to section 78A.
HIS HONOUR:   As of right.
MR PETTIT:   As of right.
HIS HONOUR:   Yes, Mr Pettit?
MR R.M. MITCHELL:   I appear on behalf of the Attorney-General of Western Australia in support of the second respondent pursuant to section 78A of the Judiciary Act.
HIS HONOUR:   Again as a right, thank you, Mr Mitchell. Mr Johnston, could I come back to you. Your client sought to intervene before Commissioner Laing unsuccessfully I think.
MR JOHNSTON:   Yes. In the end the application was rejected.
HIS HONOUR:   And on what footing?
MR JOHNSTON:   I think it was that it was thought that it was inappropriate insofar as the prosecutor applicant in this matter was the representative of the relevant industrial persons. I will verify that but I think that was the basis and that it was ‑ ‑ ‑
HIS HONOUR:   What does that mean?
MR JOHNSTON:   Well, there was an agency arrangement - or representative arrangement whereby the CEPU, as I understand it, the applicant in this matter and an order has been made that they are representative of the employees in relation to matters arising in dispute under the relevant workplace agreement, the Western Power agreement.
HIS HONOUR:   And by whom was that order made?
MR JOHNSTON:   It was made by Polites J - Senior Deputy President Polites. I think it was in February of this year.
HIS HONOUR:   Yes, I recall that in the papers.
MR JOHNSTON:   Yes. If I could just seek instructions on this. My instructions are that that was the basic reason why the Commissioner did not seek to make an order on a wider basis than the order that he did make which with some degree of ambiguity we encompass the personnel who are members of the CFMEU in the sense that there were two ways in which such members could be picked up. One is that they would be taken to be agent - or characterised as agents of the CEPU and therefore they would fall within that reach of the order. The second basis was that persons who are eligible to be members of the CEPU, sir, there was that number which would draw them in and apparently ‑ ‑ ‑
HIS HONOUR:   Do you mean that the members of your client organisation are also eligible for membership of the CEPU?
MR JOHNSTON:   Well, this is where some of the difficulties arise but some of them would arguably be eligible and therefore picked up in that way. It would be a matter of argument in particular instances but at least that is the basis apparently on which the order was sought to also bind or affect members of the CFMEU independently of their being referred to in the order.
HIS HONOUR:   There was a proceeding before Wilcox CJ, and I do not want to go into the detail of that at the moment because there are some questions I want to put to Mr Courtis about that, but I gather your client also sought to intervene in those proceedings, is that right?
MR JOHNSTON:   As I understand it there was an application for an injunction and the members of the CFMEU at the Muja Power Station and among them Mr Gary Wood were made respectively the second and third respondent to that. As I understand the ambit of the order made by his Honour Wilcox J it only sought to cover the members of the CEPU and excluded reference to members of the CFMEU and it itself, to that end, as we say, illustrates the ambiguity as to - I have no detailed ‑ ‑ ‑
HIS HONOUR:   Well, I do not want to go into that detail at the moment, Mr Johnston. I think what I will do in relation to your application is simply defer ruling on it until I know little more about the facts of the case because perusal of the papers indicates that there are several applications or orders on foot and I think that needs some sorting out, so I will just come back to you in due course, probably at the end of Mr Courtis's argument.
MR JOHNSTON:   Yes, if it please your Honour.
HIS HONOUR:   That does not cause you any inconvenience, does it?
MR JOHNSTON:   No.
HIS HONOUR:   Over to you, Mr Courtis.
MR COURTIS:   Thank you, your Honour. The proposal that we have today is that we are not seeking orders nisi, nor indeed do we press today the argument that there would be a stay of the interim order, but rather the issue we wish to pursue is whether the whole matter should go up to the Full Court of the High Court or whether it ought to be remitted to the Industrial Relations Court, soon to be the Federal Court. Now on that point we - well, perhaps I should hand up some short submissions.
HIS HONOUR:   Could I just interrupt you for a moment.   When you say that no interim orders are being sought at this stage, is there any significance in the words "at this stage?"
MR COURTIS:   I am sorry, just a phrase. No, we are not seeking interim orders. The order we seek is that the matter do go to the Full Court by way of notice of motion.
HIS HONOUR:   Right. Well, now whatever order might finally be made, whether it be by way of reference to the Full Court, or remitted to the Industrial Relations Court, or perhaps no order at all, well, in that event the question does not arise I suppose, but if either of those orders were made would it be on the footing that no application would be made for interim orders?
MR COURTIS:   Yes, that is right.
HIS HONOUR:   Right.
MR COURTIS:   The fundamental point we seek to raise is, in our submission, a constitutional argument which we believe is best raised and best determined by the Full Court of the High Court. Now perhaps if I can start by going through the submissions I have put before your Honour.
HIS HONOUR:   Well, those submissions are of a legal nature, are they not?
MR COURTIS:   Yes, that is right.
HIS HONOUR:   Not factual.
MR COURTIS:   No.
HIS HONOUR:   I want to sort out some factual matters, Mr Courtis ‑ ‑ ‑
MR COURTIS:   Thank you, your Honour.
HIS HONOUR:   ‑ ‑ ‑ because I am just not clear about the status and the position of some of the other proceedings that have been taken. Perhaps if I could just put some matters to you and you can tell me whether I have understood the situation correctly. The order made by Commissioner Laing was made on 1 May.
MR COURTIS:   Correct.
HIS HONOUR:   And it was made on the application of Western Power, or Electricity Corporation, as I am told its correct name is. I think some of those - were some of those proceedings made in the name of Western Power?
MR COURTIS:   They were, sir, the actual - the application - I will just get the correct exhibit in the affidavit of Mr Lovell. Exhibit E, sir, to the affidavit of Mr Lovell sworn 7 May 1997.
HIS HONOUR:   Yes. Any rate although the application appears to be made in the name of Western Power Corporation the order was made by Commissioner Laing against your client and its officials, agents, employees, members and persons eligible to be members.
MR COURTIS:   Yes.
HIS HONOUR:   That application was apparently brought against your client on the footing that it was also responsible as agent for the actions of CFMEU, is that right?
MR COURTIS:   Yes, that is right.
HIS HONOUR:   All right. Now there is a question of agency which appears in the affidavit of Mr Lovell as one of the grounds for challenging the order made by the Commissioner. That would not of itself appear to raise any constitutional question.
MR COURTIS:   Well, we would respectfully respond in this way, that it is apparent from the short reasons of the Commissioner, and that is exhibit H of the affidavit, that he took a clear view that there was - and indeed this was based on a political dispute. Perhaps if I can take your Honour through that decision, it is exhibit H.
HIS HONOUR:   Yes.
MR COURTIS:   Sir, at page 2 of the decision, the paragraph numbered 3, and it begins:
The matter in issue is based on a political dispute concerning legislative changes to Western Australian Industrial Relations laws.

And then it goes on to speak of the effect. And then at paragraph ‑ ‑ ‑
HIS HONOUR:   I beg your pardon, what paragraph did you say?
MR COURTIS:   Paragraph number 3 on page 2, his decision.
HIS HONOUR:   Yes, right.
MR COURTIS:   So he speaks of:
The matter in issue is based on a political dispute concerning legislative changes to Western Australian Industrial Relations laws.

And then he goes on at paragraph 4 and says:
The Commission is obliged under section 90 to take into account the public interest while the community can and should be tolerant where employees and the unions exercise their political rights.

And then he goes on to speak of:
That being part of the free society -

and so on -
and that carries with it a price of inconvenience and cost.

And then says:
The rights should not be abused.

And then further down, your Honour, under - the third paragraph from the bottom he says:
I go first to the argument that the Commission is without power to make the orders sought because it is inconsistent with the exercise of persons implied right to political expression as outlined by the High Court in the Theophenous and Stevens cases.

He then says:
It is a well-founded and substantial principle that this Commission is bound to accept that the legislation under which it operates is validly made. As a result the argument of the CEPU is not one which I can properly entertain and must be dealt with elsewhere.

I just pause there and submit that the learned Commissioner clearly understood and accepted that there was a political dispute in relation to this matter. He could not resolve the constitutional question that arose from it and in a clear way is telling us it has to be resolve elsewhere, and it is our submission that it ought to be the Full Bench of the High Court. Over the page, your Honour, at page 3 of the judgment, about the middle, it starts in the paragraph beginning:
It is apparent from the foregoing that there is little this Commission can do to resolve the political dispute. It can and must, however, deal with the industrial dispute which had resulted from the broader political dispute.

And then further down, your Honour:
The union and its members have every right to exercise the political rights, but they should do so without resort to any industrial action which imposes an intolerable burden on the community.

Now that is the background to my answer to your Honour's question about the agency. It is our submission that given the clear acceptance by the learned Commissioner that there was a political dispute, that there was a constitutional issue which he could not answer but which must go elsewhere. That is the basis on which to look at the agency. It is our submission the agency, if there was one, could never be an agency in relation to political matters, it could never be an agency in relation to political dispute.
The agency could only be an agency in relation to industrial matters within the ambit of the orders made by Deputy President Polites. So we would say that there is no actual question of fact that needs to be explored, needs to be determined and therefore needs to go down to the Industrial Relations Court for that purpose. The agency, if there is one, is readily ascertainable from the papers and it is, in our submission, a political issue, therefore the agency can never have any operation. In other words, there never was an agency in the circumstances. And that is a legal question, that is a matter of law.
HIS HONOUR:   Yes, I understand that, yes.
MR COURTIS:   So if I am right in my submission that there are no actual questions of fact that need to be explored then the thrust of my submission is questions of law and of a constitutional nature and of such importance which therefore irresistibly leads to the conclusion that the proper course is that the matter goes by notice of motion to the Full Court of the High Court.
HIS HONOUR:   Well, let us just pursue the events that took place for a moment, Mr Courtis. The order was made and that order appears, exhibit J.
MR COURTIS:   Exhibit J.
HIS HONOUR:   Yes. It is an order in terms that - no, that is the ‑ ‑ ‑
MR COURTIS:   I am sorry, yes, your Honour is right.
HIS HONOUR:   It is the application. I think it is ‑ ‑ ‑
MR COURTIS:   My apologies, your Honour, it is exhibit I.
HIS HONOUR:   Yes. So that is an order in terms made against the CEPU and those other persons who were identified in paragraph 2, then orders that industrial action, as identified in paragraph 3:
... shall not occur, or when such action has occurred, or does occur, shall stop.

Now that order was expressed to remain in force for one month unless otherwise ordered by the Commission.
MR COURTIS:   Correct.
HIS HONOUR:   And I take it there has been no further step before Commissioner Laing.
MR COURTIS:   No.
HIS HONOUR:   All right. Now there are a couple of other applications that are referred to, or indeed one of them is not referred to in your client's affidavit at all, but there was an application in the Federal Court, was there not?
MR COURTIS:   Your Honour, I ‑ ‑ ‑
HIS HONOUR:   I am not confusing it with the Industrial Relations Court.
MR COURTIS:   I understand. I have to say I was not involved in the hearing before Commissioner Laing or in any other hearing, so I need instructions on that.
HIS HONOUR:   Well, if you look at exhibit J to your own client's affidavit. There is reference to Western Power - this is in paragraph 36 of Mr Lovell's affidavit, Western Power issued an application out of the Federal Court. Now that appears as exhibit J.
MR COURTIS:   Sorry, I am instructed that is an error, it was meant to be the Industrial Relations Commission - Industrial Relations Court and the error is the error in the number.
HIS HONOUR:   Just a moment, because there is another application in the Industrial Relations Court that I will ask you about in a moment, and that is not mentioned in your client's affidavit.
MR LE MI RE:   Your Honour, might I try to assist. There was only one application, it was to the court, it was to the Industrial Relations Court, that exhibit J is a mistake.
HIS HONOUR:   Well, a mistake in what sense, that the document never existed or what?
MR LE MI RE:   The document bears the wrong heading, as in the Federal Court, but the only application made was to the Industrial Relations Court and the order was made by Wilcox CJ in the Industrial Relations Court.
HIS HONOUR:   That is the order made on 5 May.
MR LE MI RE:   Yes.
HIS HONOUR:   It is like someone might have anticipated the return of jurisdiction to the Federal Court a little prematurely.
MR LE MI RE:   Yes, a couple of weeks ‑ ‑ ‑
HIS HONOUR:   Well, are you content with that explanation, Mr Courtis?
MR COURTIS:   Yes, I am, sir, I am.

MR LE MI RE: I am sorry to correct you, I understand the order in fact was made on 2 May, not 5 May.
HIS HONOUR:   Was it?
MR LE MI RE:   Yes. The matter came again before his Honour on 5 May but the original - the injunction was granted on 2 May.
HIS HONOUR:   Yes, I beg your pardon, yes. Well, then when I spoke of an application to the Industrial Relations Court not mentioned in your client's affidavit, Mr Courtis, in a sense that was right because exhibit J does not - neither the affidavit nor the application refers to the Industrial Relations Court but Mr Le Mière says that is an application that was in fact made to the Industrial Relations Court.
MR COURTIS:   And I am instructed that is correct. The injunction ‑ ‑ ‑
HIS HONOUR:   Well, then that brings me on to my next question, that the order - there is an affidavit filed on behalf of Mr Johnston's client and although he has no standing at the moment but it might be useful to just look at Mr Gillie's affidavit, paragraph 13, which speaks of Friday, 2 May and Western Power instructing its solicitors to commence proceedings in the Industrial Relations Court. Now it also refers to an order made by Wilcox CJ on 2 May which is exhibited as GRG2 which while not in identical terms with Commissioner Laing's order seems to me to be to much the same effect. Now that order of 2 May includes in paragraph 5 a direction that the application be adjourned till Monday, 5 May. Now what happened on 5 May?
.D.
[10.35am]
MR COURTIS:   I was not there. Or perhaps my friend can assist?
MR LE MI RE:   Yes, your Honour, the matter was adjourned through to 9 May.
HIS HONOUR:   All right. What happened on 9 May?
MR COURTIS:   I was not there but I am told the order, the injunction was then discharged.
HIS HONOUR:   As the result of argument or by consent?
MR COURTIS:   There was some argument. The position ‑ ‑ ‑
HIS HONOUR:   I am asking these questions because if there was an extant order of the Industrial Relations Court, of course, it immediately prompts the question: well, how does that bear upon the order made by Commissioner Laing and why is it that the order of Commissioner Laing is being challenged and not the order of the Industrial Relations Court?
MR COURTIS:   Yes.
HIS HONOUR:   Well, if the order of the Industrial Relations Court no longer exists, I suppose that is the short answer to that question.
MR COURTIS:   Yes. It has been discharged.
HIS HONOUR:   Yes, all right. Thank you for that.
MR COURTIS:   That is correct and the reason my client has not deposed to that is because it happened on 9 May, not the 7th, and of course his affidavit is sworn on the 7th, so events were moving very rapidly at that stage.
HIS HONOUR:   Well, that is not quite right, is it? The order was made on 2 May, the original order of Wilcox CJ.
MR COURTIS:   Yes.
HIS HONOUR:   Indeed, at the time your client's affidavit was sworn, which is what date?
MR COURTIS:   7 May.
HIS HONOUR:   The order of the Industrial Relations Court was still in force, was it not?
MR COURTIS:   Industrial Relations - but we were never served properly or indeed, on my instructions, we were never served. Mr Le Mière perhaps can enlighten you on that, but our position is we were never served on 2 May with the order of Wilcox CJ. And that was one of the reasons, I am instructed, that it was discharged on 9 May after argument as to that and other matters.
HIS HONOUR:   All right. Well that, I think, resolves some of the questions that were in my mind, having read the papers.
MR LE MI RE:   I am sorry, your Honour, to introduce perhaps some factual conflict, but my instructions are that what his Honour Wilcox CJ found on the 9th was that the applicant organisation did not get effective service of the original application, but not that it did not receive or it was not served with the order that was made on 2 May.
HIS HONOUR:   Is there a transcript of the proceedings before Wilcox CJ, and if not in Court, can one be obtained?
MR LE MI RE:   We do not have one. I do not know. I do not know whether it was ‑ ‑ ‑
HIS HONOUR:   But your client would have been before the Industrial Relations Court on 9 May, would it not?
MR LE MI RE:   I am sorry. Nobody now here was there on the 9th. I do not know whether there was a monitor present. I assume there probably was.
HIS HONOUR:   Well, it is something I would like to satisfy myself, namely that there is no current proceeding in any shape or form before the Industrial Relations Court. So if you could take steps, Mr Le Mière, if you would, to see if you can get hold of a copy of the transcript of 9 May or at any rate, of any order made on 9 May.
MR LE MI RE:   Yes.
HIS HONOUR:   Yes, thank you. I am asking these questions, Mr Courtis, for the obvious reason. I suppose if there is already a matter on foot before the Industrial Relations Court, there is an immediate argument as to why the matter should not just remain there.
MR COURTIS:   I understand that, sir. I can only say on the instructions I have, I do not believe that there are any proceedings now on foot between my client ‑ ‑ ‑
HIS HONOUR:   From what I have been told, there were never any proceedings in the Federal Court.
MR COURTIS:   That is right.
HIS HONOUR:   So we have the order of Commissioner Laing, which will expire on 27 May.
MR COURTIS:   And that being an interim order, which of course means the proceedings, the substantive proceedings, are still on foot and therefore there is something to which prohibition in certiorari can attach if ‑ ‑ ‑
HIS HONOUR:   Well, that is no doubt true. Whether it should attach in those circumstances, namely attach to an order that is going to, unless renewed, run its course on 27 May is another question.
MR COURTIS:   Yes.
HIS HONOUR:   I mean, it might be said: well, why should we not wait until 27 May and see what happens?
MR COURTIS: Well, the answer I suppose is that the important nature of the legal issues is such that it is in the public interest that those issues be determined by the Full Bench because of the very nature, because what we are dealing with, I suppose, is the interface between political rights as found to be implied in the Constitution on the one hand and industrial action, properly so called, on the other, so that is a question which is bound to keep coming up again and again in the future. It is not going to go away. In fact ‑ ‑ ‑
HIS HONOUR:   Well, that may well be true, but on the other hand there is a real risk of an unsatisfactory situation. If a matter simply goes to the Court on some basis that is then hypothetical and there are no facts, in other words, upon which the Court can express a view. And after all, you cannot divorce the question of any implied freedom if there be one that is relevant to this application, from some questions as proportionality, balance, however it is described. I mean, it is accepted by - I should not say by your client, I do not know, but it is clear, I think, that any such freedom is not an absolute one and therefore on what footing is the Court to decide these questions? I mean, on what factual footing?
MR COURTIS:   Well, we submit there are sufficient facts emerging from Commissioner Laing's - well, firstly the transcript of that hearing, which is before the Court, and secondly his reasons for decision, thirdly the orders he made and then to be supplemented by affidavit material. And I note my learned friend Mr Le Mière has two affidavits, and I will also note that our affidavit is subject to challenge and no doubt his affidavits will also be subject to challenge, but leaving those questions aside, it is our submission that first there is a proceeding on foot in the Industrial Relations Commission.
Secondly, the facts relevant for a proper determination by the High Court as to the law that applies are sufficiently ventilated and exposed by reason of those proceedings, and thirdly the nature of the questions is of such tremendous public interest that the High Court has a vehicle, if that is the right expression, through which to declare what the law is and what the Constitution means and how far the Constitution goes in these kinds of situations.
HIS HONOUR:   And do those submissions hold good notwithstanding that, as you say, there are disputed questions of fact?
MR COURTIS:   Well, the affidavits are under challenge in the sense of the usual technician objections: oh, well, this paragraph X is irrelevant or paragraph Y is argumentative or paragraph Z is hearsay or indeed inadmissible hearsay and so on. Those are the kinds of challenges that are being put up. As I understand it, the facts that led to the proceedings in the Industrial Relations Commission are not themselves challenged. It is simply the affidavit of Mr Lovell as to various matters that he heard and did and said as part of the rally that he describes in his affidavit as I understand.
Unless I have misapprehended the thrust of my friend's objections, my understanding is, we have technical objections about admissibility rather than a head-on class as to: no, that is not true, this did not happen or this was not said. So that is the kind of challenge I am referring to. And further, your Honour, my learned friend Mr Johnston has filed submissions in relation as to the law, as to why the motions for prohibition and certiorari ought to be taken to be - to raise, I should say, raise matters of constitutional law and therefore as to why they should go to the Full Bench.
I respectfully adopt my learned friend's submissions on the law as to those matters and perhaps, by your Honour's leave, perhaps I should come back and just deal with the authorities that I have placed before you by way of our submissions, and could I make the comment that the authorities, generally speaking, are suggesting that where there are questions of fact, as we have canvassed, normally the proper course is that the matter go down to the Industrial Relations Court, in this case it would be, or the Federal Court, but of course my submission as to that you have already heard and I will not repeat myself.
It is my submission that, properly considered, the facts are not in dispute. It is questions of law that arise from the material before the Court. And the other matter raised by the authorities, one of the authorities, in fact, the CFMEU and ex parte Multiplex Constructions, does refer to the problem ‑ ‑ ‑
HIS HONOUR:   You are referring to one of the documents?
MR COURTIS:   Sorry, your Honour, I am referring to the submissions that I have just handed up, dated 14 May.
HIS HONOUR:   Right.
MR COURTIS:   These are authorities, your Honour, as to the question of whether the motions should go down or whether they should go up, and if I can point to paragraph 4 of our submissions:
Prohibition does not issue as a force and in the ordinary run of industrial cases, a single justice of the High Court should not grant an ...(reads)... that a question of law be referred to the Federal Court re CFMEU ex parte Multiplex.

Now, our submissions are as to that authority that it can be distinguished and we are distinguishable on our facts simply on the basis that the legal points and the constitutional issues that arise are of such a nature that this is a case where the discretion of the Court should be exercised in favour of not so much an order nisi at this stage, but of sending the entire matter to the Full Bench of the Full Court for determination.
HIS HONOUR:   And why not an order nisi? Not that I would encourage you to ask for one, but why not? That would be the usual course. The Court may refuse an order nisi or may, instead of granting an order nisi, simply refer the application without ruling on the order nisi, but ordinarily this applications come up by way of order nisi.
MR COURTIS:   Yes. Yes, I agree, that is quite right and normally they are ex parte, but we did in fact take the view that this was a proper case for serving everybody and we did and although - let me say it this way. For the record I will apply in the alternative either for orders nisi or that the matter be in fact sent to the High Court in the way in which we have indicated. That is our preference, simply because of the importance of the matter, simply because of the nature of it.
HIS HONOUR:   I understand that.
MR COURTIS:   Perhaps if I can just complete the point? Over the page, at paragraph 5, perhaps I am just repeating myself, but Commissioner Laing did identify the issue as political in his statement of decision and again that is part of the proposition as to why, although in the ordinary course this Court may send the matter down, as it were, to use that expression. However, this is a case where the Court ought to exercise its discretion to send the matter up, and I am simply repeating what I have said before, so I will not go further than that. But I place those authorities before you because they are generally the standard authorities for what happens in these cases, and therefore I am submitting that this is not the run of the mill kind of case.
It is not the ordinary industrial kind of case. If it were, then I suppose there would be a strong likelihood the matter would go down, but it is our submission that is not the case at all. It is not an industrial case. It is totally, in our submission, a matter that raises very deep fundamental constitutional issues of general importance to the Australian public.
HIS HONOUR: There seem to be two threads running through the argument which, until I received your submissions, really had to be garnered from Mr Lovell's affidavit, but as I understand what is said in the affidavit, it is really two things that are being said. One is that there is no industrial matter, or was no industrial matter before the Commission. There was no industrial action, to use the language of the Workplace Relations Act. In other words, there was nothing to ground the jurisdiction of the Industrial Commission. Now, that is not necessarily a freedom of communication argument.
I mean, it is an argument that may just stand on its own and appears so, so far as the affidavit is concerned, namely an argument that whatever took place was outside the ambit of the Workplace Relations Act. And then there seems to be a second argument which perhaps accepts, for the purpose of the argument, that the conduct fell within the operation of the Act but in some way was protected by the freedom of communication. Have I understood the way in which the argument is being put?
MR COURTIS:   Yes, but perhaps I would qualify it in this way, that to the extent that we would say the action was outside the jurisdiction of the Commission, it was because of the political nature of it, so we are emphasising the political nature of the conduct, the underlying conduct, so it is either a case there was no jurisdiction because it was entirely a political issue beyond the jurisdiction or alternatively, the Commissioner acted in excess of jurisdiction because if - which we do not necessarily concede - but if there was some industrial component of it, nevertheless the order as made, particularly given the findings of political nature by Commissioner Laing, he acted in excess of jurisdiction in making the particular order that he made, or the particular orders that he made.
We, frankly, rely on his own judgment, his own reasons where he emphasises the political nature of the matter and particularly where he says, in effect: look, it raises a constitutional matter that is beyond me, you must go elsewhere. And that elsewhere, in our submission, ought to be the Full Bench of the High Court. So he recognised, he recognised that there was a very live issue which we say raises these constitutional questions.
HIS HONOUR:   Now, I am not clear when you put it that way, whether you are saying that the first of the two possible arguments that I put to you is one that is relied upon?
MR COURTIS:   I think for safety we ought to rely on it and we do rely on it, so I suppose it has two variations. Either there is no jurisdiction for reasons that are not related to the main thrust of our argument that this is a political matter, or there is no jurisdiction because of the political nature of the argument that is the thrust of our application. I do not know whether that assists your Honour. I think out of caution we probably ought to pursue both strands of that. Your Honour, I do not know whether this assists. I have just been handed a copy of the order of Wilcox CJ, made on 9 May.
HIS HONOUR:   May I see it?
MR COURTIS:   Yes. I need to mention that this is typed up by my client. I should caution your Honour, saying this is how my client understands the order to have been, and his file is being brought up as we speak. Perhaps to assist my friends, first I will just read it into the transcript and then hand it up to your Honour:
Order of Wilcox CJ, made 9 May 1997. Operation of order 1, made on 2 May 1997 be terminated without prejudice to the applicant's right to make a fresh application if necessary in relation to the order made by Commissioner Laing on 1 May 1997. Dismiss application with no order as to costs. Reserve the right of the represented second respondents and the third respondent to apply for costs. Any such application is to be in the form of a notice of motion filed within 14 days and will be dealt with by any written submissions in reply.

So with a caution that that is how my client understood the orders.
HIS HONOUR: Well, I have just been given a document from the Industrial Relations Court describing the result sheet, which seems to tally fairly much with what you just showed me, Mr Courtis. It reads:
I. I order that the operation of order 1, made on 2 May '97 be terminated without prejudice to the applicant's right to make a fresh ...(reads)... in the form of a notice of motion filed within 14 days and will be dealt with by written submissions.

Mr Edelman, would you make that available to counsel? If there is no objection, we could perhaps have a copy run off and I will put it on our file.
MR COURTIS:   Thank you. Thank you, your Honour.
HIS HONOUR:   Yes, Mr Courtis?
MR COURTIS:   I do not know if I can assist further. If your Honour has any questions, I will endeavour to assist, but perhaps I can summarise and say that we do leave it to your Honour's discretion as to whether to grant orders nisi or whether to send the matter to the Full Court, but our preferred option is that the matter go to the Full Court in view of the importance of the matter and the public interest in the matter.
HIS HONOUR:   Now, is there a draft order in the ‑ ‑ ‑
MR COURTIS:   Yes. Yes, sir, there is. That is the affidavit of Mr Lovell sworn 8 May 1997 and exhibit A is a draft order.
HIS HONOUR:   That is the second affidavit of Mr Lovell's, is it?
MR COURTIS:   Yes, that is right.
HIS HONOUR:   You are not seeking relief in terms of paragraph 3?
MR COURTIS:   No, I am not, sir, no.
HIS HONOUR:   What about paragraph 2 of the ruling, Mr Courtis, which raises again this question of agency?
MR COURTIS:   Paragraph 2? Is your Honour referring to page 3 of the ‑ ‑ ‑
HIS HONOUR:   Yes, I am.
MR COURTIS:   Yes.
HIS HONOUR:   It is the second of the grounds.
MR COURTIS:   Yes, that is right. Yes, well, we are attempting there at (1) to articulate the point that:
The application, upon its face, pleads an agency agreement between the CFMEU as agent and the prosecutor as principal when there could not be an agency relationship between the CFMEU and the prosecutor because of the political nature of the resolution upon which it is based -

sorry -
because of the political nature of the resolution upon which it is based could not invoke the industrial agency agreement and therefore could not invoke the provisions of the Workplace Agreements Act 1996.

Perhaps that is not elegant but this is how we are attempting to formulate our proposition that the agency could never be an agency that extends as far as a political matter. The agency could only be in relation to industrial matters, but the motion of the members of the CFMEU, which was the motion that led to the CFMEU and its members taking the action which they took was a motion of a political nature and hence our submission that the agency could never have been, or should never have been invoked by Western Power for the proposition that orders ought to be made against our client.

So we always go back to the same fundamental proposition that what we have here is conduct of a political nature, not industrial nature, which in our submission is protected by the implied freedom to be discovered in the Constitution of Australia. And again, with respect, I respectfully adopt the submissions on the law of Mr Johnston as to these matters and he does address these matters.
HIS HONOUR:   And what is the argument against taking the ordinary course and admitting this matter to the Industrial Relations Court?
.D.
MR COURTIS: Because what is in issue is a constitutional matter. In our submission, there are no questions of fact that require to be found or determined and we are simply adding to delay and expense if we go down to the Industrial Relations Court and whoever loses will inevitably appeal and will get back to the High Court anyway. For that practical reason, we submit that delay and expense can be dispensed with by taking this course because this is a matter that inevitably will end up in the Full Bench of the High Court.
[11.00am]
HIS HONOUR:   Yes.
MR COURTIS: Just to finish, I think it was Lord Denning who said, or referred to the twin ogres of the law, one is called "delay" the other is called "expense". We would say two ogres here ought not to be allowed to rear their ugly heads. If your Honour pleases.
HIS HONOUR:   Yes, thank you, Mr Courtis. Mr Johnston, there will be leave to intervene for your client having regard to the matters that have been canvassed thus far.
MR JOHNSTON:   The purpose of our intervention is a confined one, your Honour. I understand that you have given to leave to intervene to both the CFMEU and Gary Wood, we put them separately as a person ‑ ‑ ‑
HIS HONOUR:   Well, no, I had not.
MR JOHNSTON:   Well, my learned friend, Mr Le Mière mentions to me that we should indicate that although they are virtually the same we have added a second intervener in the form of Mr Wood simply as an individual who is a member and who is bound on one view. There is no distinction between the way in which we seek to assist the Court, that turns upon Mr Wood being an intervener because I think the point we want to put to your Honour is a short one and could be sufficiently conveyed by the CFMEU if you wanted to limit the intervention today.
HIS HONOUR:   Yes, well I had not made that distinction clear and I am not sure when I asked Mr Le Mière earlier on whether he took the question to relate to both the CFMEU and Mr Wood ‑ ‑ ‑
MR LE MI RE:   The position is the same in any event, your Honour.
HIS HONOUR:   You have no objection to the joinder or at least to the leave to intervene. Very well, then the leave to intervene is granted both to the CFMEU and to Mr Wood.
MR JOHNSTON:   Sir, we have forwarded to the Court some faxed submission but if you would like us to tender a clean version I can do that now. I am only going to speak to them in very brief form.
HIS HONOUR:   Yes, well I do not want to hear detail argument but I need to be satisfied all other considerations aside, that there is a question of substance warranting reference to the Full Court.
MR JOHNSTON:   And we would seek to put it in terms of the question it is also in a form or can be defined in a form that is appropriate for such a reference. We reserve our position as to whether we would, if we were to continue to intervene or even to make an application to become a party as to whether we want to embrace arguments as wide as those that have been indicated by the applicant respondent. What we say is that in this instance there is a very brief, simple point of such particularity right at the core of it there is a fatal flaw and it is this. The order made by Commissioner Laing that is the subject of the application is one which is virtually un-confined in its reach, it is addressed inclusively to all industrial action, that is the first point.
Then relative to the position of the CFMEU and its members, such as Mr Wood, it is ambiguous in terms of whether it embraces them or in which way it may embrace them. They, having desisted from any industrial action on 29 April but may wish to pursue lesser forms and less disruptive forms to the community. But while it stands in such absolute terms we say it cannot, and any reading of the implied prohibition however we want to describe it, that in some sense guarantees freedom of political discourse. On whatever reading, we say this order must be viewed as disproportionate because of its unlimited quality. If that be accepted, we say that is a matter which can almost be dealt with on the face of the order itself, that simply it is over broad and cannot be compatible given that ‑ ‑ ‑
HIS HONOUR:   That may be an argument so far as your clients are concerned to going back to the Commission to have the order qualified.
MR JOHNSTON:   On that point, we would make this ‑ ‑ ‑
HIS HONOUR:   Or perhaps I should add, or once the order runs its course if it does without any earlier intervention by the Commission, that be a matter to be canvassed on the hearing of an application to extend the operation of the order.
MR JOHNSTON:   Well, there are those possibilities and we realise that there are discretionary considerations that we will be moving, your Honour, we had not proposed to address on those because as I say, the point we are making is that there is a simple constitutional point that is capable of resolution and therefore is appropriate. We are putting it no higher than that for disposition by the Full Bench.
HIS HONOUR:   Well, I took you to be saying - perhaps I took you wrongly to be saying that the order had a particular impact on your client?
MR JOHNSTON:   Well, we say that this is what in part generates its constitutional flaw, that because of its breadth or its over-breadth and its ambiguity and its potential effect, we would put it no higher that whether we are bound by it or not there are questions of construction and it would at least be a reasonable reading of the order that it is capable and perhaps intended to be addressed to the CFMEU and its members and because of that, as we say, its ambiguity and its over-breadth, it cannot in any way be compatible with the implied principle of freedom of political discussion. And it is the very brevity of that point which we say can make it capable of disposition if your Honour were to refer it to the Full Court.
HIS HONOUR:   The order itself of Commissioner Laing speaks in the language of industrial action. If you look at paragraph 3 of the Commission's order.
MR JOHNSTON:   And as amplified, sir, by paragraph 4 of the order which simply picks up the definition in section 4 of the Act which is very, very broad and would include all sorts of things such as picketing and the like. We are not saying that if necessarily our members as individuals wanted to engage in picketing which was non-disruptive, we are not saying that that is necessarily within the guarantee but whatever they want to do under this order, anything that they wanted to do by way of a protest which occurs in the relationship of employee to employer, it is totally forbidden. We say that is the characteristic of the order which makes it constitutionally flawed.
It must necessarily on its face, infringe on the issue, maybe put to the Court in no broader term than that as far as we are concerned that may not be the way the applicant would want to proceed with it but at least within that narrow compass we say the attraction of the protection, the guarantee is it must operate. I am putting that essentially in the context, sir, of why we say this is a matter which is at least appropriate to go to the Full Bench. These are the subject of the part B of our written submissions, sir, I have elaborated to some length, we have made the point that it is a Commonwealth law that is involved here so we do not have any questions of the reach of the guaranteed are state laws, it is a matter which we say directed to the West Australian parliament but is nevertheless of such a kind that the issue in-severably entangled with the matters pertaining to the Commonwealth, so we would say it is a classic case of falling within the ACTV case and Nationwide News to the extent that they have pronounced on the issue.
While I am talking of in-severability and I just make one or two points in regard to this, we would say that as to the terms of the order it is incapable of rescue by severance. The order is put inclusively in such wide terms that you cannot sort out a curate's egg of good from bad in the order. It must necessarily fall because of the restrictions which it must effect upon or must apply to any form of industrial action which is a sensible and reasonable form of political protest. I have referred at the end of my submissions, sir, to the concrete pipes case, Strickter and Rocla Concrete Pipes on in-severability that if a legislation or an order is made inclusively it runs that risk of in-severability. We say this matter would give rise to issues and that can find examination which are appropriate for disposition by the Full Bench of this Court.
HIS HONOUR:   Does your argument involve any challenge to the Act itself?
MR JOHNSTON: Not to the Act itself. We would say as a matter of construction that section 127 of the Act which authorises the order must be read down in the sense of empowering the Commissioner to make orders which are compatible with the implication of freedom of political communication. So that does not challenge the validity of the order in the sense that it was made but simply in its terms, that the order was made outside the authority conferred by section 127. If it please the Court.
MR LE MI RE:   Your Honour, our submission in the first instance, we say that your Honour should not accede to either or any of the courses suggested by my learned friend. In the alternative, we submit that the whole of the application ought to be remitted to the Industrial Relations Court. If I can first in a sense re-visit some of the factual matters that your Honour canvassed at the outset, just to clarify a couple of points. My learned friend, Mr Courtis, said as I understood it, in effect, that this application was brought to this Court rather than being taken to the Industrial Relations Court or the issues being raised in the course of the proceedings before the Industrial Relations Court, because as I understood it, the applicant union was not served with or did not receive effective service of the original application in the matter before the Industrial Relations Court.
Be that as it may, the situation is that the applicant union appeared before his Honour, Wilcox CJ, on Friday 9 May when his Honour then discharged the orders and so on. The applicant then was aware prior to appearing before Wilcox CJ, on the Friday of, of course, the proceedings in the Court, of the fact that the injunction had been granted by Wilcox CJ on 2 May. There is no evidence before your Honour of when and how the applicant became aware of that but clearly at least prior to 9 May the applicant was aware of that because the applicant appeared before his Honour and argued that the injunction should be discharged and that the application be dismissed. Whereas that was a matter in which the issue could have been raised.
HIS HONOUR:   On what footing did Wilcox CJ discharge the order that had been made?
MR LE MI RE:   I am instructed that at least two matters were - moved his Honour. I think, my learned friend, Mr Courtis, made reference to the fact that his Honour found that the applicant union had not been served with the original application one time and I do not know what part that played in the matter. I am instructed that his Honour found, and the evidence before his Honour, the material before his Honour, was that by the time the matter came before his Honour on 9 May, the employees had returned to work, there was no industrial action on foot, there was no evidence or suggestion that industrial action was to resume or proceed and hence it was a moot point before his Honour on the 9th. The fact that the matter had in practice, resolved itself was a reason why his Honour discharged the injunction and dismissed the application in the terms your Honour has indicated reserving liberty to the parties to resume if something should occur.
HIS HONOUR:   Why did your client move both before Commissioner Laing and in the Industrial Relations Court?
MR LE MI RE: Well, initially, your Honour, referring to - sought an order from Commissioner Laing - and obtained an order from Commissioner Laing on 1 May, that being - called it a stop order under subsection 1 of section 127 and your Honour will be aware the statutory scheme is that the order having been made by the Commission subsection 5 of section 127 then compels those to whom the order is directed to comply with it. And subsection 6 provides that, in effect, if they do not comply with it then the party may apply to the Industrial Relations Court for an injunction and that is the course that was taken. I think if your Honour is referring to a subsequent - was your Honour referring to a subsequent application to Commissioner Laing or was your Honour referring to the application?
HIS HONOUR:   I am not sure that I was aware of a subsequent application to Commissioner Laing.
MR LE MI RE:   Well, I understand that there were other conferences before Commissioner Laing but that there were no further orders.
HIS HONOUR:   You mean subsequent to his original order?
MR LE MI RE:   Yes. And for example, I am not sure that it should - sorry, there was a further order made but it did not affect, it was in relation to - it perhaps in a sense is extraneous. Your Honour, the employees who were members of or eligible to be members of the unions before your Honour had all returned to work but in the following week another union took industrial action and that resulted in a further application to Commissioner Laing but that does not directly impact upon the Court.
HIS HONOUR: No. You put to me that in terms of subsection 6 of section 127 it was necessary for your client to approach the Court, that is, the Industrial Relations Court. Subsection 6 is permissive?
MR LE MI RE:   Yes.
HIS HONOUR:   But I take it, it is on the foot that - what, that the order made by Commissioner Laing could most effectively be enforced by an order of the Industrial Relations Court?
MR LE MI RE:   Yes, your Honour. It was not being complied with and hence it was the enforcement that the application was made to the Court.
HIS HONOUR:   Yes, thank you.
MR LE MI RE:   I should add whilst I am adding further information to your Honour, I should further inform your Honour that Mr Wood, whom your Honour has granted intervener status to, has lodged an appeal to the Full Bench of the Australian Industrial Relations Commission against the order of Commissioner Laing and that raises in substance the matters which are sought to be raised in this application.
HIS HONOUR:   Well, that is on the footing that the order made by Commissioner Laing although not in term is directed to Mr Wood is thought to apply to him, is it? I mean, perhaps that is a question you cannot answer but on the face of it presumably that is the approach that was taken.   But Mr Johnston could perhaps tell us about that later.
MR LE MI RE:   Yes, indeed, your Honour.
HIS HONOUR:   Again, I do not want at the end of the day to be bereft of some material that might be necessary to fully assess this situation so if there has been an appeal - Mr Johnston, I am really directing this to you?
MR JOHNSTON:   Yes, your Honour.
HIS HONOUR:   If there has been an appeal by Mr Wood to the Full Bench of the Commission, could you let me have a copy of the notice of appeal?
MR JOHNSTON:   I can do that, sir. I have just been given a copy of it and I do so - I was rapidly seeking instructions on it. I do so and I understand that it is on the basis - I have a clean copy here I can hand up straight away. Thank you, sir. I think two points are raised by what your Honour put to my learned friend, Mr Le Mière. The first is, we would conceded that as a matter of caution because the order in its terms is capable of being read to apply to Mr Wood he has taken the appeal on that basis. It is not concession on his part that he accepts the order is binding on him so it is just a precautionary appeal. But more relevantly, the issue before this Court is not one which is being agitated in those proceedings, nor could it be. The essence of paragraph 3 simply goes to questions of statutory construction. They do not raise the constitutional issue and we say that the constitutional is, of course, a matter which is problematic as far as the Full Bench is concerned. It may mould its orders ‑ ‑ ‑
HIS HONOUR:   Well, I did not really want to interrupt the flow of Mr Le Mière's argument, Mr Johnston ‑ ‑ ‑
MR JOHNSTON:   Yes. No, but we are just making that observation that it is not as though the cup passes from us because it is going to be agitated in that appeal.
HIS HONOUR:   Mr Le Mière, if you continue, but can I again remind you that I think I would still like to have a copy of any transcript of the proceedings before Wilcox CJ.
MR LE MI RE:   I have asked that and steps will be taken but we would not be able to provide that to your Honour this morning because we do not have a copy we will have to obtain it from Sydney.
HIS HONOUR:   Yes, well as soon as you can. I am not clear what significance you are seeking to attach to the proceedings before the Industrial Relations Court, if indeed you are seeking to attach significance.
MR LE MI RE:   Well, it seemed to us that the matter is indeed to be agitated before the Full Bench of the Australian Industrial Relations Commission. As I understand ‑ ‑ ‑
HIS HONOUR:   No, my question was not related to the Commission, to the Court.
MR LE MI RE:   I am sorry, your Honour.
HIS HONOUR:   You had taken me earlier to the proceedings before Wilcox CJ, and the role played by the applicant union which although it had perhaps not been served correctly nevertheless appeared and I thought you were going on to ask me to draw some conclusion from that.
MR LE MI RE:   Well, we say that is a matter that goes to your Honour's discretion. The applicant could have raised the matter in those proceedings and elected not to. We say that is a matter that goes to the exercise of your Honour's discretion, whether your Honour ought to, in effect, direct that the matter go to the Full Bench or alternatively an order nisi or alternatively be remitted to the Industrial Relations Court to consider an order nisi. We say that the applicant had the opportunity to raise the matter in those proceedings and elected not to. Now that, of course, must be seen together with a number of other factors and the applicant, no doubt, might say: well, it had that opportunity but that opportunity has now passed and it does not now have the opportunity. We say, repeating it, it had the opportunity and elected not to take it.
Next, it is now, in effect, conceded by the applicant that the matter will in practical terms, be moot. That the order expires at the end of this month and that if the matter proceeds beyond today then in whatever way it proceeds, the order will have expired and there will be no restrictions, consequences, and so on upon the applicant.
.D.
It is put by the applicant, or combination of the applicant and the intervener that Mr Johnston represents, that this is a vehicle for the consideration by the High Court of a matter of importance. But, we say that this is not a suitable vehicle for such an exercise. It is not - for a number of reasons.
[11.26am]
First, the point that has already been raised that the order will have expired. It will be a moot point, by the time the Court ever came to consider the matter it would be theoretical only. Secondly, we say that there are indeed, perhaps I will come to that - secondly, the application at least, raises many grounds other than what is said to be the constitutional question on the matter of importance. Paragraph 2 of the draft order nisi sets out six or possibly more than six grounds. They all - the first it may be observed, they do not go - they do not raise any constitutional question. They raise generally questions relating to the - might be referred, the agency point that has been raised.

Your Honour, in relation to each of those grounds we would submit, at the appropriate time that they are unarguable. They raise no arguable points at all. But, they have not been - no argument has been advanced to your Honour by the applicant in support of them, and it would not seem appropriate for us to, as it were, commence that argument. We observe, however, that for arguments which if not immediately apparent on their face, and we think they are, but are not immediately apparent on the face of it, we would demonstrate to your Honour that those grounds are unarguable.
Next, those grounds, if they are arguable, raise questions of fact. And there is something of a paradox in that because of course the ground 2 is put in terms of being an error of law on the face of the record. And we submit that on the authority of Craig v South Australia, the record in this case would consist of no more than the initiating application to Commissioner Laing. And the order made by Commissioner Laing. And we would submit that the matters raised would not - the assertions that are contained or assumed within the grounds, are not raised by the record properly constituted.
The paradox is that on the one hand we say that, and that there is no arguable case on a number of grounds including the fact that the record does not raise them. But, secondly, to the extent that any of those grounds are or can be argued, they raise questions of fact, or mixed questions of fact and law. My learned friend Mr Courtis, I understand it, puts it to your Honour in bald terms that this was political action. That, as I understood it, one is not capable of acting as an agent for another in carrying out political action.
Why that is so has not been explained. Perhaps going back to the first part of the proposition, it is an assertion that this is political as distinct from industrial conduct. There is, you are aware, your Honour, something of a controversy about whether or not action which may originally have had some non industrial motive, taken for some matters which original arise for say political or social reasons, can nonetheless become industrial, by reason of the action being taken. But, that perhaps just shows the problems that underlie these bald assertions that are made by the applicant in drawing a distinction as if it were between political action and industrial action. And saying that there cannot be agency because it is political.
And we say in relation to that, that the distinction is not a simple one, as my friend would put it. Secondly, we say it has not been demonstrated why the action that was taken cannot be taken as agents, or cannot be carried out through agents. But, I sought not to get into the details of those grounds, because as I have indicated to your Honour, no submissions have been made by my learned friend in support of them.
HIS HONOUR:   And I suppose also that my part answer to that might well be that, if paragraph 1 of itself - that is paragraph 1 of the draft order, clearly raised questions appropriate to be referred to the Full Court, but paragraph 2 did not, it might be an argument for referring paragraph 1, but not paragraph 2.
MR LE MI RE:   Well, possibly, your Honour, they can - if that meant that the - yes, that the rest of the application fell away, then I can see that the order, whichever form it took, laid only to paragraph 1, then I suppose ipso facto that disposes of ground 2.
HIS HONOUR:   Well, it disposes of it in the sense that it is then open to the applicant to take action in whatever other jurisdiction it chooses to.
MR LE MI RE:   Well, we would say that puts a hardship on my client, at least, if it is being required to litigate in a number of different forums and would not going to be more appropriate for the whole matter to go to the Industrial Relations Court.
HIS HONOUR:   On the advantages in it - do you submit in the matter going to the Industrial Relations Court. I mean I appreciate, I think you put at the forefront of your argument that there is nothing to be referred or remitted
MR LE MI RE:   Yes, your Honour.
HIS HONOUR:   Now, if there is a matter of substance that needs to be dealt with and it is appropriate to deal with it, do you say: well, you are to go to the Industrial Relations Court rather than the High Court.
MR LE MI RE:   Yes. Well, there are factual matters, we say that Mr Courtis said that we have lodged a list of objections to Mr Lovell's affidavit. And says that they are technical matters only. Well, with respect, that is all they purport to be. And they are only objections to admissibility. That does not mean that the - insofar as matters remain in Mr Lovell's affidavit, are admissible, that they are accepted by my client. Nor does it mean that - oh, I am sorry, your Honour, in fact we have not filed objections.
HIS HONOUR:   No. You have not.
MR LE MI RE:   No. I am sorry. We did serve upon my learned friend Mr Courtis, of course, that is why his able to refer to it, a list of objections. I do not think I need trouble your Honour with them.
HIS HONOUR:   No, I do not want you to thanks.
MR LE MI RE:   No. It is a list of paragraphs of the affidavit to which objection is taken on the grounds of admissibility. But, over and beyond that, there are matters which we would - there are factual matters which are raised, and indeed, both my learned friend Mr Courtis and Mr Johnston flag them in referring to the - my notes have got they did refer to the - in Mr - sorry, in the application, yes, of the CFMEU. In paragraph 3(b) it sets out grounds of the application, it is referred to the order:
Unduly and hence unconstitutionally restricts them from engaging in industrial action but represents a reasonable not disproportionate and reasonably adapted exercise of their freedom -

And so on. So, questions of proportionality, reasonableness. The effect in the particular circumstances of this order, all are raised by the various parties. Mr Courtis in his submissions to your Honour, referred to - the expression was "the intolerable burden". That was placed upon the applicant by this order. So, all of this requires a factual setting in which the matter is to be considered. The extent and nature of the industrial action, the effect - looking at the competing public interests, the effect of that industrial action upon my client was immediately directed, and upon the public of Western Australia, affected by the action that was being prohibited.
So, all of these, we say, require a factual setting in which the matters are to be considered. Now, that raises both the questions of, that the matter ought not to proceed at all, and secondly, if it did, it should go to the Industrial Relations Court. So it not to proceed at all, because whilst the matter requires all this factual setting, it is all moot now that there is no industrial action occurring. The order, as your Honour has canvassed, will have expired by the time the matter ever comes to be considered. And if it does come on for consideration then it requires a factual setting which in our - factual finding, which in our submission would be more appropriately considered dealt with by the Industrial Relations Court, rather than by this Court.
There is another matter and I am not sure whether reference to authority helps, but I out of habit so - it was a decision of his Honour Kirby J in re Turner ex parte Homestead Award Winning Homes Pty Ltd. And I do have a copy for your Honour, it might be of assistance.
HIS HONOUR:   Yes, thank you.
MR LE MI RE:   I am sorry, I apologise to my friends, I do not have copies. This is a matter in which his Honour in fact ‑ ‑ ‑
HIS HONOUR:   This was an ex parte application.
MR LE MI RE:   It was your Honour. And the way in which the matter was in fact disposed of is not of assistance to us. His Honour ordered that it be dealt with by way of a direction that there be a notice of motion to the Full Court. But, his Honour refers to a number of matters on page 563 about letter (f). A list of reasons, which in our submission, are essentially why the matter ought not to there proceed, by the order nisi, his Honour says:
First was that experience teaches that it is frequently useful to leave a determination of all factual matters before a court proceeds to deal with the legal question.

Well, perhaps I have addressed that already. We say that there are factual matters there for determination and his Honour goes on in the next paragraph to refer to - at the end of that paragraph in the final sentence, of the first paragraph on page - second column on that page:
This Court would then have the advantage of the reasons of the judge at first instance of a Full Court of the Industrial Relations Court.

Well, in this case perhaps not of one judge but this Court would have the advantage of - if the matter eventually come to the High Court, if that was necessary, of the reasons of the Full Court of the IR Court. His Honour refers to in the penultimate on page 563 another possible reason for delay being that there were - was understood that there were to be changes to the relevant legislation. And perhaps an analogy, in this case your Honour, is that there are cases which have been heard by this Court and which judgment I stand has been reserved, which may have impact upon this case. And it would be sensible in that context for - if any matter was to proceed, for it not to proceed prior to judgment being delivered in those cases which ‑ ‑ ‑
HIS HONOUR:   Well, that would really only go to the timing of the hearing of an application to the Full Court would it not?
MR LE MI RE:   Yes. It could as well take that.
HIS HONOUR:   Mr Edelman, let Mr Courtis see that, please.
MR LE MI RE:   Sir, the three principle matters we would - what your Honour is asking in particular about the IR Court rather than this Court, we would say, because of the other grounds, and your Honour has put an alternative proposition there. Secondly, because of the facts that would need to be ascertained, and third because if the matter was eventually to come to this Court, and it is a matter of importance as my friends say, then this Court would have the benefit of the matter having been considered by an earlier Court. Both the facts having been sieved and the issues having focused and been defined by that Court.
As to the first ground, put as the constitutional question. It is not altogether apparent whether there is any difference between the applicant and the intervener and the way and the matter as put. But, as we understand it the way in which the matter is now put by the intervener is it involves not, if I understand it, not a challenge to the validity of the legislation, but in essence that the matter should be - or that the section should be read down. And that is, as we understand, a rather different proposition than that which was originally, or as we understood it being put by the applicant.
If so, and the way we understand Mr Johnston puts it, the matter relates only to and resolves the particular order that was made by Commissioner Laing. As we understand it, Mr Johnston puts it, that the order is too wide and too all embracing. But the basis of the challenge be put by the intervener is not a challenge either to the legislation itself, or to any - well, it is not a challenge to the legislation itself - and that, in our submission, diminishes the arguments that are put in favour of it being a matter of great public importance and necessity for going to the High Court in the first instance. Indeed ‑ ‑ ‑
HIS HONOUR: Well, I think what is being said, in part at any rate, is that the Commissioner in the course of giving his reasons identified this - well, the stoppage of work as a political protest. And it is then said: well, if it was a political protest it is not an industrial matter and is therefore outside the scope of section 127. Or, if it falls within section 127, it must yield to the implied freedom. Neither of those arguments involves a challenge to the validity of section 127, at least as I understand it.
MR LE MI RE:   Yes. Well, as I - perhaps it is not terribly helpful to rehearse it all - as I understood the intervener seeks to put only the second argument. Mr Courtis, at your Honour's invitation indicates that they better take both. In relation to the first argument that your Honour puts, that of course has not been developed. There was one, which I think your Honour indicated that your Honour thought might be raised on Mr Lovell's affidavit, it is hard to see that it is raised, in any event. Of course it would take one back to the questions of fact that underlie it. The fact that true it is that Commissioner Laing referred to a political protest. But, that of course, is in the context of the underlying or initial motive for the action that was taken.
And perhaps again that is to do no more than to again revive arguments about whether industrial action is industrial action, may give rise to industrial dispute notwithstanding that it has a political motivation. In our submission, it is clear and could not be argued to the contrary that what was taking place was industrial action, as defined by the Act, whatever the motivation for it might be. If the argument that - as we understand it now being put, that if there is industrial action within the meaning of subsection (4) of the Act, but such action has as its motivation some political reasons, that that lies outside of section 127. Why that might be so has not been developed. Has not raised and not sure, your Honour, if it really is raised in the grounds.
HIS HONOUR:   There is some reference to it in paragraphs, I think about 22 to 25 of Mr Lovell's affidavit.
MR LE MI RE:   Yes.
HIS HONOUR:   But, again on one reading is perhaps saying no more than - although it refers to lack of jurisdiction, it is perhaps really saying in yet another way that the implied freedom protects the cessation of work.
MR LE MI RE:   Yes. Indeed, looking at the proposed grounds, it perhaps indicates another problem and that is again coming back to the suitable vehicle - the grounds which are set out in Mr Courtis' draft order nisi, certainly do not clearly reveal that to be a ground.
HIS HONOUR:   No.
MR LE MI RE:   Although perhaps 1(c) is sufficiently all encompassing, that it could cover almost anything, but it certainly does not indicate those grounds.
HIS HONOUR:   Well, paragraph 1(b) could be read in like manner too.
MR LE MI RE:   Yes. But, indeed the only matter that is clearly raised is this matter that is put primarily by Mr Courtis as being, what he puts as the implied freedom argument.
HIS HONOUR:   Yes.
MR LE MI RE: We understood that to be the basis for this application. I do not propose to address your Honour in any detail about the implied freedom argument. In doing so we start to embark upon in essence either the argument in favour of an order nisi or the merits of the argument. We, I suppose it is transparent to say, that this matter does not fit within the Australian Capital Television or the Nationwide News principles. It goes - it does not fit within the implied freedom that was spelled out in the various judgments in those two cases. Some of the matters which of course are different in this case, is that the Act, or section 127 of the Act, is not a law with respect to the prohibition or restriction of political communications.
Rather it is put, and we do not understand it to be put that it is, rather it is put against us that it is a law which in any particular given case may have such consequences. This is not a case in which what is sought to be prohibited or restricted is the communication of words or speech. Rather this is a case concerned with conduct with industrial action. There is of course risk of entering into rhetoric, no suggestion that the applicant or its members, or the intervener or its members are in any way prohibited from expressing their disapproval of the legislation which the applicant says its disapproval of motivated this action.
The Commissioner's order has no effect upon that. The Commissioner's order is concerned not with the expression of views about political matter or political discourse, but with conduct being industrial action, in this case.
.D.
To the extent that the matter does raise question of proportionality and reasonableness, then those are matters, again harping to earlier issues, which would require evidence, and the factual matrix and context in which this all took place, to be considered.
[11.51am]
Although we submit that those matters are raised in the Capital Television case and the Nationwide case, in the context of, of course, laws, which fell into the - I call it the first category - they were concerned with laws which prohibited speech or words, rather than being laws which were not prohibiting speech or words, but which in a given case, may have that effect. So it is not sufficient for the applicant to, as it were, answer or propose the tests that were considered in those cases. Having said all that there is largely a matter of judicial impression, and your Honour's assessment of the matter, and I do not propose to address your Honour in any further detail on that ground. May it please your Honour, those are our submissions.
HIS HONOUR:   Yes, thank you, Mr Le Mière. Mr Pettit, perhaps I should look to you next?
MR PETTIT:   Thank you, your Honour.
HIS HONOUR:   Perhaps you could begin by identifying the interests which the Commonwealth has in this matter? I am not suggesting you do not have an interest, but simply so that we can see in what direction your submissions go.
MR PETTIT: Yes, your Honour. The Commonwealth has actually taken an interest in this matter from the outset, and intervened before the Commission. Its interest there was in the preservation of the integrity of the new section 127, because there had before that, been some pronouncements from members of the Commission to the effect that section 127 should be resorted to only after alternate means had been attempted. In other words, it was a provision of last resort. Our interest, subsequently to that, is in addition that the section remain valid, as it stands.
HIS HONOUR:   Well there has been no attack made on the validity of the section, or no anticipated attack, as I understand the argument.
MR PETTIT:   Yes, with respect, until today that was not clear. But in any event, whether it be phrased as a reading down, because of constitutional constraints, or as a pro tanto invalidity matters not to us. The Attorney-General's interest remains to argue that it has the full ambit of operation, and certainly valid operation in respect of the facts of this matter. Of course, your Honour, if the matter does go on to a full hearing in respect of the ACTV principles, then the interest of the Commonwealth is clear, because it is then an impediment on its legislative power, in respect of industrial disputes.
HIS HONOUR:   What course do you submit is appropriate to be taken in the light of the argument that has been addressed thus far?
MR PETTIT:   Yes, your Honour, the Commonwealth takes a position which from what I understand may be a little more robust than has been put this morning, and that is that there should be no orders and the applicant should be required to seek the remedy in the Commission. And it is the point I wish to develop at some length this morning. Before I start that, your Honour, can I just try to clear up one other point which has arisen, I think at your Honour's instance, and that is the possibility that the applicants' case is twofold: namely, that this matter was never an industrial dispute, as that phrase is defined in the Act, and taking its meaning from the Constitution; and secondly, even if it is, the section or the Commissioner's behaviour is circumscribed by ACTV principles.

Your Honour, the case was never put before the Commission or subsequently on the grounds that here is an industrial dispute, which the Commissioner ought to address. On the contrary, that proposition was expressly disavowed before the Commissioner, and I can refer your Honour to our own submission in the transcript, which is in Mr Lovell's affidavit, and to submissions made, I think, by Mr Allen.
HIS HONOUR: Can you identify those pages for me, Mr Pettit? This is in the transcript that is in exhibit to Mr Lovell's affidavit, is it?
MR PETTIT: Yes, perhaps I can have that done, and in the meantime, your Honour, could I take you - while, my solicitor is looking that up for your Honour, can I take you to section 127 of the Workplace Relations Act?
HIS HONOUR: Yes.
MR PETTIT: Your Honour will see that subsection (1) of section 127 is effectively the definition of "jurisdiction" to make the order as well as the power to make the order. And your Honour will see that the jurisdiction is, in the circumstance - there are three circumstances, and it is where it appears to the Commission that industrial is:
...happening, threatened, impending, probable, in relation to: (a) and industrial dispute -

which of course takes its meaning from the Constitution:
(b) the negotiation or proposed negotiation of agreements, (c) work that is regulated by an award or a certified agreement.

The case was always put expressly on that last basis.
HIS HONOUR: Put by whom?
MR PETTIT: By the applicant for relief, Western Power. You will see, your Honour, that all that is required is that the industrial action is in relation to:
...work that is regulated by a certified agreement.

The section does not require that the dispute be about such work. It only requires that the action be in relation to that work, which in turn is work regulated by a Commonwealth Award or certified agreement. Now, that was the purpose of leading some evidence before the Commissioner, that the work of Western Power workers was indeed covered by certified agreement, in order to raise paragraph C. So, I am told, your Honour, that it is at page 32 to 42, although I suspect that might be myself.
HIS HONOUR:   I do not want you to take me through, Mr Pettit, unless you think it is necessary, but if you could just identify the pages?
MR PETTIT:   Yes, it is also apparent from paragraph 8, your Honour, of exhibit E, of Mr Lovell's affidavit, I am reminded.
HIS HONOUR:   I am not sure where you left me with the transcript. You began by saying 32 to 42, I thought.
MR PETTIT:   Yes.
HIS HONOUR:   Then I understood you to retract that.
MR PETTIT:   I retract that, because it was suggested to me by my solicitor, your Honour, but that is my own submissions.
HIS HONOUR:   Yes.
MR PETTIT:   It is very clear from my submissions, that I understood that, but of more importance is the way in which it was put by the then applicant.
HIS HONOUR:   Well, let me have that when you can.
MR PETTIT:   Yes, I will, your Honour. Your Honour, I turn to develop and I hope without repetition, one of the matters adverted to by my learned friend for Western Power and it is that the facts of this matter are so far insufficiently articulated before agreed. I want to develop it by turning to the strength of the applicant's case at the same time. All the majority judgments in the ACTV case, as your Honour would be aware, founded on the implication of a freedom which was required for the endorsement of representative democracy.
And to establish an inconsistency with that, it had to be shown that two things were present. First of all that the law restricts political communication in a manner which is prima facie inconsistent with the Constitution, but secondly, that the law also fails the test of proportionality or appropriateness and adaptedness. Now with that test in mind, your Honour, can I ask that we consider for the moment at least four possible cases of laws which might arise for consideration under the principle and ACTV case?
First of all, there may be laws which directly control political communication, and ACTV is a case in point, as is Nationwide News, as to which the prima facie test almost goes without saying. The second sort of law is a law which controls a category of communications generally, so that political and other communications are caught alike, and an example may be the defamation cases. Again, that second category is of a less obvious case of prima facie infringement of the Constitutional guarantee.
The third category of laws might be that there are laws which do not themselves control communication, but they do affect the time or the means or the place at which communication may be made or may be effectively made, and I have in mind here, your Honour, what I understand to be the argument in the case presently reserved of Levy vs State of Victoria. Again, in those circumstances, one can see some argument about an opportunity to make political communication. But the fourth category, your Honour, is the category in which we submit that this case falls, and it is this: here we have a law or an order of the Commission, which affect neither political communication, nor any means or time or place of that communication.
Now, that matter has been put to your Honour this morning as I understand it, and the reason we put it in that category is entirely one of facts. And I will develop, just later, your Honour, to suggest that the facts are simply insufficient. But it is the facts that the political rally and the march and the distribution of leaflets and the speeches and so on, which are all referred to in Mr Lovell's affidavit, all happened 2 days before the order of the Commission. Secondly, the order itself did not have any operation upon any communication. It operated only upon industrial action, as defined, in this case a strike.
And thirdly, on the affidavit of Mr Lovell, there is not one word of evidence that any political communication after 1 May, when the order was made, which was in any way dependent upon the continuation of the strike. It is not said that the strike gave a forum for communication; not said that it gave means or a time or a place; it is not said that - one is left to assume, I should say, that it is going to be said that it is itself a political communication. But your Honour, that is where the facts are completely deficient. As far as we know, the people who are on strike, and at whom the order was directed, were off fishing or mowing their lawns.
There is just nothing to tie those persons being on strike with any political communication. So, the fact that all the political rhetoric, which is mentioned in Mr Lovell's affidavit is unrelated to the continuation of the strike, after 1 May, appears, your Honour at paragraph 17 of Mr Lovell's affidavit. You will see there, your Honour, that paragraph 17A, Mr Lovell deposes to:
A notification of a 24 hour stoppage -

which is on the Tuesday, and that is the day, of course that there was a march and demonstration and speeches.
Then in subparagraph (b), he deposes that on 30 April, the next day, the members of the CFMEU resolved that members were to continue their political protest. So there is a distinction, and it is only after 1 May, the action after 1 May, which is the subject of Commissioner's orders. That is why we say, your Honour, that this case falls into my theoretical category number four: it is merely an instrument, the strike is merely, after that date, an instrument of inflicting inconvenience and damage in support of political communications which are made entirely independently of the strike action.
One can imagine, your Honour, an argument that a strike is either political communication or is necessary for effective political communication. For example, if there were proposed a rally or a march, then in order for a sufficient number of persons to attend, to make it an effective communication, it may well be that persons have to take 4 or 5 hours off work, and that might be categorised as a short term strike. One can imagine an argument like that. But not, with respect, in the present case, where all that political communication had already taken place.
And as I say, this was a mere instrument of inconvenience to perhaps threaten the legislature. Perhaps our submission is twofold, your Honour: firstly, that the activity which was post 3 pm on 1 May, post the Commissioner's order, was not itself any form of political communication. And that is what I have developed. Alternatively, it may be, if your Honour is not persuaded by that submission, that the law in this regard is characterised by matters of fact and degree. In that case, we would take the second step and say that as a matter of fact, and degree, the strike activity after 1 May was just too remote from any political communication to be protected.
And throughout this, your Honour, in our respectful submission, it is very important to bear in mind the source of the restriction on Commonwealth power, be that executive power in the hands of the Commissioner, or legislative power. And the source of the restriction is always the protection of the system of representative democracy. When one turns one's mind to questions of fact and degree, the touchstone must always be whether or not the activity inhibited, impairs representative democracy. And in our respectful submission, the continuation of strike activity into, I think at that stage, its fourth day, third or fourth day, and after the rally, could not conceivably be an impairment of representative democracy of either the State of Western Australia or the Commonwealth.
Your Honour, I would indeed take that submission a step further to submit that on the contrary, if there is civil disruption, which a strike in the power industry is, representative democracy demands that there be a restriction upon that sort of activity.
HIS HONOUR:   It seems to me that that is taking me into an area of assessment, that is probably inappropriate on this present application.
MR PETTIT:   Yes, I can see that point, your Honour, but the submission, nevertheless is that this proposition advanced by the application is unarguable and it is upon that basis that we ask your Honour to make no orders. That the matter be left in the hands of the Commission, and perhaps I will develop that a little. There is no doubt, in our submission that the Full Bench may address all the matters in paragraph 1 and paragraph 2 of the application. There does not seem to be any doubt about paragraph 2. It sometimes seems to be suggested that the Full Bench of the Commission cannot appropriately handle ground one.
But the Full Bench of the Commission, under section 45(1)(g) of the Act is expressly given appellate jurisdiction to entertain applications to the effect that the Commission below exercised jurisdiction when there was none. Each of the subparagraphs of ground one, in this application, is founded squarely on a question of jurisdiction. And with respect, I need not remind your Honour that questions of constitutionality are frequently aired in the Commission. When one puts together the submissions by my learned friend, Mr Le Mière, that the question is going to be moot by the time it gets to be heard by this Court and the possibility that the question can be resolved on grounds two, without consideration of ground one, in our submission, it becomes the better option for this Court, with respect, to do nothing and require the matter be taken on appeal.
And I think your Honour has already been referred to the case law on that proposition, namely, to the effect that in the normal course, in industrial relations prerogative writs do not issue as of course, but the applicants are required to exhaust their remedies in the Commission. If your Honour please, that completes our submissions.
HIS HONOUR:   Thank you, Mr Pettit. Are you in a position to give me those page references?
MR PETTIT:   Yes, it is at page 6, I am told, your Honour.
HIS HONOUR:   Thank you.
MR PETTIT:   Yes, in the middle of page 6, the Commissioner says ‑ ‑ ‑
HIS HONOUR:   I do not need you to read it, I will have a look at it myself.
MR PETTIT:   Thank you.
HIS HONOUR:   Mr Mitchell?
MR MITCHELL:   Yes, your Honour I simply adopt the submissions of the second respondent, and my learned friend, Mr Pettit.
HIS HONOUR:   Thank you. Mr Courtis, anything by way of reply.
MR COURTIS:   Yes, thank you, your Honour. Firstly, my learned friend, Mr Le Mière, made an issue of the proposition that the order will be moot in 2 weeks time. Sir, with respect, it is not quite that simple, because firstly, we are liable to penalties under section 178 of the Act, if people not under our control, the CFMEU, do, or are alleged to have done actions in breach of the order. And you see, that is what, in our submission, highlights the very central problem. The order is interim, but it is part of continuing proceedings, because ‑ ‑ ‑
HIS HONOUR:   Which is the penalty provision?
MR COURTIS:   Sorry, 178, your Honour, it is part eight of the Act.
.D.
And also it is Part X of the Act, section 294: Cancellation of registration. So we are potentially liable, not only to the penalties under section 178 but also to being cancelled under section 294. In our respectful submission, it is not - I should say it is simplistic to say that the matter will be moot soon. It is completely out of our control. We are not the CFMEU, we are not its members, and if the members of the CFMEU as individuals, as private citizens, not as members of the union, decide to take further political action on the face of the order we are liable to those penalties and we can be dealt with for a past breach of the order as well as for any potential future breach of the order. So, in our submission, it is simply too simplistic.
[12.17pm]
Now the second point is my friend, Mr Le Mière, said in effect that questions of reasonableness and proportionality are matters of fact which need to be looked at in the Court below, but our submission is that the way in which the order is actually made, the broad all inclusive ambit of the order, puts it beyond questions of proportionality or reasonableness. For example, the order is so broad that it not only, on the face of it, prevents industrial action, and I will come back to that point, but it may be wide enough to stop speech, but also conduct of a non-verbal nature. So for instance, the men may be picketing and holding placards, the placards which may convey a clear political message as to how they think, or what they think about the legislation. But on the face of the order that clear political conduct involves us in the penalties that are available and also cancellation of registration on the basis that we have an agency agreement and on the basis that, well, the conduct complained of is industrial, not political, so it is too simplistic.
Now the other point I wish to make, my friend, Mr Le Mière, referred your Honour to the draft order which is exhibited to the affidavit of Mr Lovell of 8 May. Can I just ask your Honour to look at the draft order at page 3. Now it seems that there is - if I have got my friend wrong he will correct me no doubt but it seems to me that he at least concedes this much. Paragraph 1 and paragraph 2A(i) might be matters which could go to the Full Bench. I think, if I have understood him correctly over the page at page 4 other matters are then raised under paragraph 2 which I have understood - sorry? The whole of 2 - I apologise. My friend tells me his argument is that the whole of paragraph 2. Perhaps I can make it more specific and say - and this is the point I am coming to. If your Honour takes a view that your Honour would be prepared to order that paragraph 1 go up to the Full Bench, and presumably that would be on the basis that there is a constitutional argument to be raised, can I refer you to 2A(i) whereby we say the application on its face pleads an agency agreement, etcetera, when there can be no agency relationship between the CFMEU and the prosecutor because of the political nature of the resolution.
HIS HONOUR:   No, I do not really understand that. Why is it because - it is not necessary for me to express any sort of concluded view on that, but why is it that the political nature of the resolution, as alleged, precludes an agency agreement?
MR COURTIS:   Because the kind of agency that is expressly provided for by the order of Deputy President Polites must be and can only be an industrial agency in relation to industrial matters. But the resolution from which this political conduct emerges is, on its face, a political resolution and political action can never be the subject of the kind of agency that is considered to be part of the order of Deputy President Polites, and we say that is a simple matter of law. You do not need a great complex trials of fact to come to that view.
There is a motion by the CFMEU, a political motion, they take political action, in our submission, and orders are then made against us on the basis that it is industrial action, not political action. So it is a simple matter, we say, and what I am submitting at the end of the day, your Honour, is this; not that I make the concession but it is open for your Honour to take a view that to the extent that paragraph 2A(i) raises a political or a constitutional argument then if your Honour is minded to send up these matters which are based on political and constitutional arguments then you ought to send up to A(i), together with paragraph 1.
Now that is not my application of course, my application is that the whole matter goes up but I simply wanted to focus your Honour's attention on 2A(i) because my friend, Mr Le Mière, says: well, if you come to that kind of a view you would only send up paragraph 1 and not paragraph 2, so I am simply responding to that proposition by simply pointing out that 2A(i) does raise a political question and therefore a constitutional question.
My final point, sir, with respect to Mr Le Mière, and going back to that hearing on 9 May before Wilcox CJ I am instructed that one of the reasons why he discharged the injunction was the fact that my client had complied with the original order of Commissioner Laing. Now I do not want to sort of debate that any further, I think your Honour is going to look at the transcript and no doubt all that will emerge, but I just wanted to make that point, that that is my understanding. Not the only reason, but one of the reasons. Now if I can turn to my learned friend, Mr Pettit. Now he focused on section 127 and particularly 127(1)(c) but, you see, your Honour, if - my apology, your Honour, I had it tagged but I have lost the tag. Yes, I am sorry. Sir, 127(1)(c):
If it appears to the Commission that industrial action is happening or is threatened, impending or probably in relation to work that is regulated by an award or a certified agreement.

With respect, as I understand what occurred before Commissioner Laing, had nothing to do with an award or a certified agreement. So if I am wrong on the facts, no doubt I will be corrected, but that ought also to emerge from the transcript and my friend, Mr Pettit, actually referred you to page 6 of that transcript which is before you, and there is an express reference to section 127(1)(c) that on my instructions properly construed what was before the learned Commissioner was not conduct in relation to an award or a certified agreement but rather, we would say, properly construed the very question of whether the conduct of the CFMEU workers was industrial action or indeed whether it was political conduct which was either beyond the jurisdiction of the Commission or if it was within it, certainly subject to the implied freedoms or guarantees of the Constitution.
HIS HONOUR: What was the situation, Mr Courtis, was there an award or was there a certified agreement?

MR COURTIS:   Yes, there was an award, I am instructed but, as I understand it, there was no issue before the ‑ ‑ ‑
HIS HONOUR:   No, I understand your argument but just as a matter of fact.
MR COURTIS:   Yes, there was an award, I am instructed, yes. If your Honour please, those are my submissions.
HIS HONOUR:   Yes, thank you, Mr Courtis. I think the only ‑ ‑ ‑
MR LE MI RE:   Your Honour, just in relation to the last point that your Honour was asking. It is referred to in - I think Mr Pettit referred to it - exhibit E of Mr Lovell's affidavit.
HIS HONOUR:   Given in the transcript?
MR LE MI RE:   No.
HIS HONOUR:   What paragraph?
MR LE MI RE:   Exhibit E to Mr Lovell's affidavit, it is the initiating application by Western Power to the Australian Industrial Relations Commission. And paragraph 8 of that application sets out the basis on which the application was made and refers to the award and the agreement.
HIS HONOUR:   Yes, thank you, Mr Le Mière. I think the only matter outstanding in terms of material is the transcript which I would ask be provided as soon as possible. In light of that and the arguments that I have heard this morning I will reserve my decision. The Court will now adjourn.
AT 12.26 AM THE MATTER WAS ADJOURNED
INDEFINITELY

[1997] HCATrans 118

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