Re MacSween;

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.