Re Media Entertainment and Arts Alliance & Ors; Ex parte Her Majesty's Attorney-General for the State of Queenslaxnd

[1994] HCATrans 266

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Brisbane	No B9 of 1994
In the matter of -

An application for writs of

prohibition and certiorari

against THE HONOURABLE

DEPUTY PRESIDENT POLITES of

the Australian Industrial Relations Commission, THE

HONOURABLE DEPUTY PRESIDENT

ACTON of the Australian

Industrial Relations

Commission and COMMISSIONER

McDONALD of the Australian

Industrial Relations

Commission and THE AUSTRALIAN

INDUSTRIAL RELATIONS

COMMISSION

First Respondents

MEDIA ENTERTAINMENT AND ARTS

ALLIANCE

Second Respondent

BIRCH CARROLL AND COYLE

LIMITED

Third Respondent

BIRCH CARROLL COYLE

(NORTHERN RIVERS) PTY LTD

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GAUDRON J
(In Chambers)

Fourth Respondent

AUSTRALIAN WORKERS' UNION OF

EMPLOYEES, QUEENSLAND

Fifth Respondent

Ex parte -

HER MAJESTY'S ATTORNEY-
GENERAL FOR THE STATE OF

QUEENSLAND

Prosecutor/Applicant

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 30 MARCH 1994, AT 10.13 AM

Copyright in the High Court of Australia

MR J.S. DOUGLAS, OC: If Your Honour pleases, I appear with

MR R. JONES on behalf of the State of Queensland.

(instructed by K.M. O'Shea, Crown Solicitor,

(Queensland)

MR J.A. LOGAN: If Your Honour pleases, I appear for the

fifth respondent. (instructed by C.A. Sciacca &

Associates)

HER HONOUR:  Yes. I take it there has been no service of

anything?

MR DOUGLAS:  There has been service. We took that

precaution. We have been told by the employer

respondents that they do not propose to attend,

although they are reserving their rights, of

course. We have also served section 78B notices

and have heard back from two States that they do

not propose to intervene at this stage.	Mr Logan's
client, the AWU, Queensland, has appeared.	We have
not heard from the MEAA, which is the main

respondent Union or, the main opponent, I suppose.

HER HONOUR:	Yes.
MR DOUGLAS:	We have affidavits of service which we can file

if Your Honour - - -

HER HONOUR:  No, it is not necessary. An affidavit was

apparently filed in Canberra

MR DOUGLAS:	On 23 March.
HER HONOUR:	- - - which I have not seen yet.

MR DOUGLAS: That is Mr Logan's affidavit.

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HER HONOUR: That is Mr Logan's affidavit.
MR LOGAN: If Your Honour pleases, yes. It was filed

yesterday afternoon.

HER HONOUR:  Yes. Perhaps I will just take a minute to read

that. Yes, it replicates the substance of the

prosecutor's affidavit.

MR LOGAN: In effect, yes. There is that to it and,

further, Your Honour, just to bring up to date the

picture in the Industrial Relations Commission as

to where matters stand with the first instance

proceeding.

HER HONOUR:  Yes. Well, what is that first instance

proceeding? Perhaps Mr Douglas will - - -

MR DOUGLAS:  It is an application by my learned friend's

client, the Australian Workers' Union of Employees,

Queensland, under section lll(l)(g) to, in effect, ask the Commission to refrain from certifying an

industrial agreement between the Media

Entertainment and Arts Alliance and Birch Carroll

and Coyle and another Birch Carroll and Coyle

company on the ground that it was more convenient

for the matter to be dealt with by the State

jurisdiction.

HER HONOUR:  Yes, that is one matter but that is really just

a proceeding within a matter, is it not?

MR DOUGLAS: There was a dispute finding earlier on.

Subsequently, an agreement was reached between
Birch Carroll and Coyle and Birch Carroll and Coyle

(Northern Rivers) with the Media Entertainment and

Arts Alliance. Those parties then sought to have

that agreement certified by the Commission. In

that proceeding, the AWU intervened and sought

relief under section lll(l)(g). So, that is the

substantive proceeding that is before the

Commission.

The AWU subsequently sought relief or sought

an award in the Queensland Industrial Relations gave rise to this application were then commenced

by the MEAA under section 128 of the Industrial

Relations Act seeking to restrain the Queensland

Commission from making such an award.

That order was made and we seek relief from

this Court by way of prohibition and certiorari to

stop the Australian Industrial Relations Commission

from restraining the Queensland Industrial

Relations Commission.

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HER HONOUR:  Yes, I follow.

MR DOUGLAS: That is how it arises. Really, I think, our

learned friend's affidavit is relevant,

particularly, to show that this application is not

academic. What it shows is that the Commissioner

hearing the application for certification has

refused the AWU's application to use

section lll(l)(g) to keep it in Queensland and he

is now proposing to go ahead and examine

certification of the agreement. But our learned

friends have instructions to appeal from that

decision and to seek a stay pending the appeal.

So, this matter before Your Honour is still a

live issue, not a dead issue, despite what has

happened in the Commission since it made the order

we seek to have prohibited or quashed.	Does
Your Honour follow that?

HER HONOUR:	Yes, thank you.
MR DOUGLAS:	Your Honour should be familiar with the issues

that arise from a decision called Reg v Moore where

Your Honour appeared as the Solicitor-General for

New South Wales about 11 years ago now.

HER HONOUR:	It is not necessary to go into the time span.
MR DOUGLAS:	Sorry, Your Honour: some time ago.

HER HONOUR: That makes it worse.

MR DOUGLAS:  The issues that do arise were dealt with by the

decision of the High Court in that decision and, really, very similar issues arise here with some

variations effected by some subsequent development

in the law and by a change in the nature of the

order made by the Industrial Relations Commission.

Your Honour may remember the decision in Moore's

case. Would Your Honour like a copy of it?

HER HONOUR:	I remember it, thank you, and I have it.
MR DOUGLAS:	Thank you, Your Honour.  We have a number of

other cases which could assist Your Honour but I

think, for present purposes, I really only need to

take Your Honour to Moore's case in any detail.

HER HONOUR:  I do not know that you need to do that,

greatly. What, in a nutshell - - -

MR DOUGLAS: Perhaps I can summarize it very quickly.

HER HONOUR:  Yes. Your main argument is that the same

matters are not before the two tribunals, I take

it?

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MR DOUGLAS:  Yes. There are some problems in respect to

that. If Your Honour remembers Moore's case,

probably the main ratio of which, really, all

Their Honours adhered to was that the order made by the Full Bench was just too wide and comprehended matters that were not matters before the federal

Commission.

HER HONOUR:  Yes, but as they pointed out nobody sought only

partial prohibition.

MR DOUGLAS: That is so. In this case, the Full Bench has

clearly sought to specify more particularly what it

seeks to restrain and has set out a schedule of the

matters it seeks to restrain in its order. So, it

is a more precise order than in Moore's case.

The next hurdle that had to be overcome in

Moore's case was the question of identity of

parties and we say - - -

HER HONOUR:  It is difficult to say that that was a ratio of

the - - -

MR DOUGLAS:  It is difficult to say it was a ratio but it

was certainly critical to the reasoning of Sir Harry Gibbs and Justice Dawson, in our

submission, and appears to have been very important

in the reasoning of Justice Deane. If Your Honour

remembers, Justice Wilson agreed essentially with

both Justice Dawson and Justice Deane. that it was not necessary that there be an identity

of parties. So, in our submission, you can draw a

ratio from that, that there was identity of

parties. The Full Bench disagreed with us and

expressed the view that that had not been decided

particularly in the context of relief sought under

section 128(1)(c) rather than section 128(l)(a).

We would be contending that they are wrong there.

The Full Bench also drew attention to the fact that the Industrial Relations Act had changed since

1983 in allowing non-parties to enforce awards,

under section 178(S)(ca), I think it is.

HER HONOUR:  I take it, however, that - although the

affidavits do not indicate this - all employees

are, in fact, eligible to become members of the MEA

if they are not, in fact, members?

MR DOUGLAS:  I think that is true. It does not have the

problem about administrative services of the State

that arose in the Moore case.

Now, with respect to that issue, the

legislative change, the High Court really seems to

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have looked at that issue in a footnote in a

decision called Re Finance Sector Union; Ex parte

Financial Clinic to which Your Honour was a party.

It is a footnote in that decision which really

suggests that the reasoning of Sir Harry Gibbs in

Moore was repeated, even taking into account the

legislative change made since then.

HER HONOUR:  I think there is a later matter on that, is

there not?

MR DOUGLAS:  I do not know. That is the latest one I know

of.

HER HONOUR:	Maybe not.
MR DOUGLAS:	I will certainly try and find out if there is

anything later.

HER HONOUR:  Maybe not; I do not know. It may be the one I

am thinking of.

MR DOUGLAS:  So that is one other debatable issue where the

ground has changed slightly since Moore's case and

the Full Bench has taken a different view from that
taken in Moore's case, which then comes up to the
next issue which is the constitutional issue which

was not addressed in any conclusive form at all in

Moore's·case.

HER HONOUR:  There is a lot to suggest that if your first

arguments are right it would be within

constitutional limits in Moore's case, is there

not?

MR DOUGLAS:  In Moore they did not really have to address

the issue whether the legislation was

constitutional. This case does give rise to it in

a very neat form though. If Your Honour is

familiar with section 128 of the Act, it permits

such a restraining order to be made in three sets

of circumstances: if a State authority -

is dealing or is about to deal with:

(a) an industrial dispute;

(b) a matter provided for in an award or an

order of the Commission; or

(c) a matter that is the subject of a

proceeding before the Commission.

Clearly, the application in this matter was limited
to the third of those, and the order made by the

Full Bench was limited to the third of those.

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HER HONOUR:	But the constitutional question only arises if

you fail on your other points, does it not?

MR DOUGLAS: Yes. It may only arise then. It depends

whether the High Court wishes to be bold and take

it out the front.

HER HONOUR:	That is now the nub of this, is it not?
MR DOUGLAS:	Yes.
HER HONOUR:	It would certainly only arise if the

construction questions were resolved against you.

MR DOUGLAS:	Yes.
HER HONOUR:	Why should it not be remitted?
MR DOUGLAS:	Because the construction questions differ

significantly from Moore's case in that facts have

changed.

HER HONOUR: Yes. Construction questions would seem to me

to be eminently suited to the new court.

MR DOUGLAS:  The other issue is, of course, the importance

of the constitutional issue.

HER HONOUR: If you come to it.

MR DOUGLAS:  Yes, and its narrowness.

HER HONOUR: If you come to it.

MR DOUGLAS:  Yes. The other is the cri de coeur that,

Your Honour, the ground changed only today.

HER HONOUR:	Yes, very well. Now, it seems to me that this is a case in which you have to give notice to the
parties of the possibility of remitter, do you not
think?

MR DOUGLAS:  I would have thought so. Of course, we were

not in the situation when we filed the affidavit.

HER HONOUR:  No, of course not. I am certainly prepared to

grant the order nisi as requested but I would want

notices given to everyone, along with service,

seeking submissions as to why the matter should not

be remitted or, alternatively, if a consent order

can be made, well and good.

MR DOUGLAS:	Thank you, Your Honour.
HER HONOUR:	How will we attend to that, Mr Registrar?

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MR DOUGLAS:  There is a draft order annexed to the

affidavit. We would need to supplement it by an

order that, perhaps, a motion be served on the

parties returnable here requiring them to make

submissions as to whether or not the matter should

be remitted to the Industrial Relations Court.

HER HONOUR:	As to why the matter should not be remitted.
MR DOUGLAS:	As to why the matter should not be remitted.
HER HONOUR:	Yes.  You, of course, may make further

submissions too, Mr Douglas.

MR DOUGLAS:	Yes, thank you, Your Honour.
HER HONOUR:	And Mr Logan.  The Registrar suggests if the

matter stands down for a few minutes he will be

able to provide the appropriate order.

MR DOUGLAS:  Thank you, Your Honour.

HER HONOUR: .We will adjourn briefly.

AT 10.27 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.38 AM:

MR DOUGLAS:	Your Honour, the formula we have worked out in consultation with the Registrar is to add to the
draft order nisi, which is the last exhibit to
Ms McCarthy's affidavit, the words:

And it is further directed that notice be given to the second, third, fourth and fifth	respondents requiring them to show cause, in
Canberra on 11 April 1994 at 10.30 am, why the
order nisi herein should not be remitted to the Industrial Relations Court of Australia
or, alternatively, calling on the said
respondents to sign a consent pursuant to Order 44 rule 23 of the High Court Rules that
the order nisi be remitted to the Industrial Relations Court of Australia for determination.

We propose to put that as the second-last paragraph

in the draft order.

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HER HONOUR:  Yes, thank you. I was checking the draft order

to ensure that there is no stay in it because I

would not propose to grant a stay.

MR DOUGLAS:	No, there is not, no.
HER HONOUR:	Very well, an order nisi will issue in the

terms set out in the annexure TMM6 to the affidavit

of Ms McCarthy of 23 March 1994, as amended by the

insertion of the paragraph read on to transcript by

Mr Douglas.

MR DOUGLAS:	Thank you, Your Honour.
HER HONOUR:	The Court will now adjourn.

AT 10.41 AM THE MATTER WAS ADJOURNED SINE DIE

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