Re MacSween; - [1956] HCA 76

RE MACSWEEN Ex PARTE Industrial Law (Oth.)-Commonwealth Industrial Court-Power to order compliance

with rules of registered organisation-Decisions of High Court that earlier legis- lation in same terms conferred judicial power on the Court of Conciliation and ArbitrationRe-enactment of legislation and conferring of power on Common- wealth Industrial Court when established as judicial tribunal-Whether power judicial or administrative-Whether High Court should reconsider question in view of earlier decisions and action of Parliament-The Constitution (63 &64 Vict. c. 12), 8. 75 (v)-Conciliation and Arbitration Act 1904-1956, S. 141.*

In view of the fact that in enacting S. 141 of the Conciliation and Arbitration Act 1904-1956 the legislature has acted upon the decisions in Jacka v. Lewis (1944) 68 C.L.R. 455 and Barrett v. Opitz (1945) 70 C.L.R. 141, that section should be treated as vesting part of the judicial power of the Commonwealth in the Commonwealth Industrial Court and not as being an attempt to confer power of an administrative character on that tribunal. The Court accordingly refused an order nisi for a writ of prohibition upon grounds which would impugn those decisions.

APPLICATION for Order Nisi for Prohibition.

In November 1955 Donald Roffey MacSween was duly elected to the office of secretary of the Victorian branch of the Clothing and Allied Trades Union of Australia, an organisation of employees registered under the provisions of the Conciliation and Arbitration Act 1904-1956, the only other candidate for such office being one Frederick Wilmot Bradley. On 5th December 1955 Bradley laid certain charges against MacSween under the rules of the organisation,

Section 141 of the Conciliation and

vance of any of the rules of an organi- Arbitration Act 1904-1956 provides :-

zation by any person who is under an

100 CLR 274

A. which charges were heard under the rules by the branch executive

of the Victorian branch on 19th December 1955 when they were dismissed.

MACSWEEN;

In April 1956 MacSween received notice from David Skene Fraser purporting to act as the general secretary-treasurer of the organisa- tion of an appeal by Bradley from the decision of the branch executive of the Victorian branch to the federal council of the organisation and of charges against him laid by Bradley of a sub stantially similar nature to those dealt with by the Victorian branch executives for hearing before the federal council.

Fraser in his capacity as general secretary-treasurer was present at the meeting of the federal council when the charges against MacSween were heard and took an active part in the hearing thereof and in the decision thereon by which MacSween was found guilty of all charges and was suspended from office and membership of the organisation and from being employed by it for a period of four years. Fraser was not a delegate to the federal council of the organisation nor was he by virtue of his office a member of such council and his participation in the hearing before the federal council was unauthorised by any rule of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1956] HCA 76
Decision Date: 3 December 1956

CaseChat Overview and Summary

The applicant, Fraser, sought an order nisi for a writ of prohibition directed to the Commonwealth Industrial Court. This followed a decision by the Commonwealth Industrial Court which declared a decision of the federal council of the Clothing and Allied Trades Union of Australia, suspending Mr. MacSween from office and membership, to be null and void. Fraser contended that section 141 of the Conciliation and Arbitration Act 1904-1956, under which the Commonwealth Industrial Court had made its order, purported to confer non-judicial, administrative power on the court, and that this was an invalid exercise of legislative power.

The central legal issue before the High Court was whether section 141 of the Conciliation and Arbitration Act 1904-1956 conferred judicial power on the Commonwealth Industrial Court, or whether it was an attempt to confer administrative power. This question arose in the context of previous High Court decisions, namely *Jacka v. Lewis* and *Barrett v. Opitz*, which had interpreted similar legislative provisions as vesting judicial power. Fraser argued that the court should reconsider this question, particularly in light of the establishment of separate tribunals, the Industrial Court and the Arbitration Court, and the potential for differing interpretations of the power's character.

The High Court, in its oral judgment delivered by Dixon C.J., refused the order nisi. The Court reasoned that the legislature, in enacting section 141, had acted upon the prior decisions of the High Court in *Jacka v. Lewis* and *Barrett v. Opitz*. Consequently, the Court considered that section 141 should be treated as vesting part of the judicial power of the Commonwealth in the Commonwealth Industrial Court. The Court declined to grant an order nisi on grounds that would impugn these earlier decisions. The Court also indicated that the other ground raised by the applicant was not within the scope of a writ of prohibition.

Orders