Re The Construction, Forestry, Mining and Energy Union; Ex parte The Colliery Officials' Association of New South Wales

[1993] HCATrans 114

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IN THE HIGH COURT OF AUSTRALIA	•
Office of the Registry

Sydney	No Sl4 of 1993
In the matter of -

An application for writs of

prohibition and certiorari

directed to DAVID ANTHONY

DUNCAN, constituting the Coal

Industry Tribunal

First Respondent

THE CONSTRUCTION, FORESTRY,

MINING AND ENERGY UNION

Second Respondent

AUSTRALIAN IRON AND STEEL PTY

LIMITED

Third Respondent

Ex parte -

THE COLLIERY OFFICIALS'

ASSOCIATION OF NEW SOUTH

WALES

Prosecutor

Colliery 1 12/5/93

DEANE J

TOOHEY J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 MAY 1993, AT 10.20 AM

Copyright in the High Court of Australia

MR J.A. McCARTHY, OC:  May it please Your Honours, I appear

with my learned friend, MR J.J.E. FERNON for the prosecutor in this matter. (instructed by Emery Partners)

MR R.J. BUCHANAN, OC:  May it please the Court, I appear

with my learned friend, MR G.J. HATCHER, for the

third respondent. (instructed by Blake Dawson

Waldron)

MR S.C. ROTHMAN: If the Court pleases, I appear for the

second respondent, the CFMEU. (instructed by

Turner Freeman)

DEANE J:  The Deputy Registrar has certified that she has

been informed by the Australian Government

Solicitor, who acts for Mr Duncan who constituted

the Coal Industry Tribunal, the first-named

respondent in these proceedings, that their client wishes to submit to the order of the Court save as

to costs.

MR McCARTHY: Pursuant to the practice direction,

Your Honours, I hand up a summary of.the

submissions for the prosecutor. Copies have been

provided to my friends, and additional copies have
been provided to the Court Crier in accordance with

the practice notes.

DEANE J: This is another of the cases where no Court, other

than this Court has jurisdiction, is that so?

MR McCARTHY: That is so, Your Honour.

DEANE J: Why is that? Is it an exclusion in the

Federal Court Act, or -

MR McCARTHY:  As I understand it, Your Honour, it is

specifically mentioned in the Federal Court Act as

not being one of the tribunals. Your Honours,

might I seek your indulgence for a moment. On

page 3 of the written submissions in paragraph 8,

on the first line, there is a gap.	I was wondering
if Your Honours might assist me.	The word that

should be there is "totally", "totally compelling",

and the inverted commas should be around both those

words, they are a quotation from the decision. We

only noticed that as we were approaching the Court.

Your Honours, the application before you comes

pursuant to an order nisi granted by

Justice Gaudron on 29 January this year. The

application book sets out the order nisi at pages 1

to 6, and the grounds on which the order was sought

are set out substantially at pages 3, 4 and 5.

Colliery 2 12/5/93

The application is supported by an affidavit

of. John Quinn Boyd and, subject to the Court's

direction I was not proposing to read this

affidavit.

DEANE J:  We have all read the papers, Mr McCarthy.

MR McCARTHY:  Thank you, Your Honour. But to inform

Your Honours, that for the purposes of this

application, the paragraphs that would be relied on

are paragraphs 1 to 14 of that affidavit. I have

spoken to my friend Mr Rothman in relation to that.

I have not spoken to Mr Buchanan, but I had

understood that none of the matters deposed there

are in dispute.	Your Honours, the principal parts
of the - - -

McHUGH J:  Mr McCarthy, was an application for a stay made,

and if it was, was it granted?

MR McCARTHY:  An application for a stay was made and the

page 5 - that if there were further difficulties,

application was not granted at that time, but

the parties were on two days notice to make an

application for a stay but, Your Honour, she did

not grant a stay at that time, that is a stay of

the order.

The affidavit has attached to it the two

decisions that are the matter of challenge.

McHUGH J:  I am sorry to interrupt you again, but what was

meant at page 5 of the book, line 9, where it is

said:

AND IT IS FURTHER ORDERED that this order nisi

shall operate until the determination of the

prosecutor's -

Are there words missing from that? Should it be,

"shall operate as a stay in accordance with

Order 55 rule 10"?

MR McCARTHY:  Your Honour, it was the standard form, and I

thank Your Honour for drawing that to my attention.

I think the words there should be "should operate

as a stay".

TOOHEY J: But that is not consistent with what you just

told us.

MR McCARTHY:  Your Honour, in this way, that the ordinary

stay provision was not what was in dispute. What

was sought was an actual stay of the order of the

Tribunal, and that particular application was not

acceded to.

Colliery 12/5/93

TOOHEY J: But I am not sure what you mean, Mr McCarthy, by

"stay of the order". Do you mean a stay of any

action or proceedings upon the order?

MR McCARTHY: 

Yes. Well, Your Honour, in the sense that the

order allowed certain action to take place in
relation to membership or representation at the

Elouera site. It was sought, at that stage, not to

have that order go into effect. Justice Gaudron

did not grant that order at that time, and I am not
sure, now that Your Honour brings it to my

attention, what - and I will have my junior check -

it was exactly that we were granted in terms of

stays, but it was not the case - just to make

myself as clear as I can - that the order that gave

the right to representation was at that stage put

in abeyance.

TOOHEY J: 

It is hard to see what else could have been

stayed, is it not?

MR McCARTHY: That was the main matter, Your Honour. That

is right. There was nothing else and certainly

Justice Gaudron did not grant it at that time. The

two decisions are set out at page 17; exhibit JB2,

and goes through to page 40 of the appeal book, and

then there is JB3, which is the central decision

from the point of view of the prosecutor, which is

at page 41 and thereafter to page 45.

Your Honours, before I take you to the detail of

this judgment - - -

DEANE J: Well now, going to the orders on page 45, the only

order we are concerned with isl; is that so? The

others are simply consequential.

MR McCARTHY:	They are, Your Honour, and only one in relation to the extent to which it has bearing on
the prosecutor and the membership of the prosecutor, that is, it would be all those parts referring to the Colliery Officials' Association of
New South Wales and to the words:

in addition those employed to use deputies'

certificates of competency under the Coal

Mines Regulation Act 1982.

The other two orders are consequential,

Your Honour, and the only other reference that is of specific importance in that, and we would at a

later stage have put that it was only

consequential, was in order 3, the last four lines
of that order where there is reference to "former

members of the Colliery Officials' Association."

McHUGH J:  What are you seeking prohibition in respect of?

Colliery 4 12/5/93

MR McCARTHY:  The whole of the order, but Justice Deane

asked me what the specific part was. The operative

part is in order 1, and to such extent as it may
have had bearing, those parts of the consequential

order that refer to the prosecutor or the

prosecutor's members. And that is set out,

Your Honour, in the order nisi at page 3 at lines 2 to 5 where what - - -

McHUGH J: Yes, I understand -

MR McCARTHY:  Thank you, Your Honour. Your Honours, before

proceeding to a detailed consideration of the

decision and of the legislation and authorities,

might I attempt to put the essence of the

prosecutor's submission in as plain language as I

may muster. The prosecutor says that the order

before this Court, the order and the decision, has

been founded by the first respondent on additional

or supplementary powers that he found that he had

been provided with under his statute, that those

powers were the powers of the State Industrial

Court and/or the State Industrial Commission and

that those powers in the context of the State

Industrial Relations Act required him to make an

order of the type that he has made on the

application of the second respondent.

McHUGH J: Well, the beginning and end of your case is in

paragraph 5 of your written submissions, is it not?

MR McCARTHY:  It is, Your Honour, and that is it in essence,

and what I was coming to say is that that order

cannot be made by a State Industrial Commission and

it cannot therefore found jurisdiction for such an

order to be made by the Coal Industry Tribunal, and

that order therefore, we say, is - he has

misconceived his jurisdiction; he has acted in

breach of the conditions of his jurisdiction; and

the order is therefore beyond his jurisdiction.

That is our case in its essence and I would - - -

DEANE J: Is the argument if there is a lacuna or a gap in

the scheme, is it, that in exercising State powers

he cannot make an order against a Commonwealth

registered organization and in exercising

Commonwealth powers he cannot make an order against a State registered organization?

MR McCARTHY:  Using the additional or supplementary powers.

Your Honour, if I might say so, the principal

authority for that is a passage I am about the read

of Your Honour's in Duncan's case, and this is the
case which you said would rarely arise but has
arisen, where there is a difference in the nature
of the additional or supplementary powers and that

the Tribunal, paraphrasing Your Honour, would have

Colliery 5 12/5/93

to consider the significance and nature of those

powers when they are to be specifically used.

McHUGH J: What is the basis of the limitation? Is it the

construction of the relevant sections? Is it a

limitation on the constitutional power of the State

of New South Wales to interfere with or to make
orders in respect of federally registered

organizations, or vice versa; or is it a

combination of construction influenced by

constitutional limitations?

MR McCARTHY:  I think, Your Honour, it is the last

conflation that Your Honour refers to. Obviously

the language itself of the statutes is the first

place that one would look. The Industrial

Relations Act, read as a whole, can be read as having jurisdiction over certain specific areas and

organizations without going to the matter in great detail. Basically, the State Industrial Relations

Commission and Court has jurisdiction over State

registered organizations, that is, those that are

either registered or recognized at State level.

That industrial relations statute and that industrial relations system is seen in the context

of the whole of the Australian industrial relations

system. There is an Australian Industrial

Relations Act and Commission which is founded on a

constitutional power in the Federal Court and it

has an area of operation which, when there may be

conflict between the federal and State system,

would obviously prevail under the Constitution in

any circumstances.

McHUGH J: What happens when a purely federally registered

organization is doing something in New South Wales?

Has the Industrial Relations Commission of New

South Wales got no power under sections 220 and 221

of the Industrial Relations Act to make some form

of demarcation order in respect of it?

MR McCARTHY:	No, it has no power to do that, Your Honour, on its face. There would be a wider constitutional
point that may arise, for instance, in a context
where the Australian Industrial Relations
Commission had made a power. But leaving that
aside, to answer your question directly, if one
looks at the very terms of the State Industrial that are covered and the way in which the
application is made, what is being referred to there is State registered or recognized
organizations.

The State Industrial Relations Commission

could not entertain the application of a federally

Colliery 6 12/5/93

registered union for the purpose of obtaining - and

this is what is important, Your Honour - coverage

under that Act, the coverage of a State registered

organization of employees. In other words, such an

application would be, in our respectful submission,

incompetent on behalf of a federally registered

organization.

Secondly, it would not in terms and does not

in terms give any power to the State Industrial

Relations Commission to make an order in favour of

a federally registered organization. It is not

something that is concerned with federal

organizations whatsoever.	So in our submission,
Your Honour, there - - -

McHUGH J:  The question here though is not whether to make

an order in favour of a federal organization, but

whether it could make an order restraining a

federal organization, is it not?

MR McCARTHY:	Is Your Honour referring to the instant case?
MCHUGH J: Yes.
MR McCARTHY:	The instant case is one where an order has

been made in favour of a federal organization; not

restraining it.

McHUGH J:	No.
MR McCARTHY:	The organization that has been restrained and

excluded, Your Honour, is the State registered

organization.

McHUGH J: Yes, I appreciate that.

MR McCARTHY: But, it is simply, in our submission, the case

that there is no such power in the State Industrial

Relations Commission, for it to make an order of

that type, nor in the State Industrial Court.

Without taking Your Honours to the detailed sections which I, if necessary, will do, but that

is - - -

McHUGH J:	I would have thought that was the starting point.
MR McCARTHY:	Your Honour, certainly the starting point in

terms of that particular argument. But,

Your Honours, that would be our proposition in

relation to the State organizations and to the

State Industrial Relations Commission.

If that power does not exist there, that

power, we say, cannot exist in the Commonwealth
Industrial Tribunal and in the Coal Industry

Tribunal, and therefore to make an order of this

Colliery 12/5/93

sort relying on the supplementary powers is to act

beyond jurisdiction.

McHUGH J: 

Why should you not read the words "mutatis

mutandis" into the two statutes which give
jurisdiction to the Tribunal?

MR McCARTHY: 

Your Honour, because of the nature of the

constitutional arrangements in Australia, that

would be my first answer, but the second answer is

this:	I am asking, in actual fact, that that be
done, that they be read mutatis mutandis.	The Coal

Industry Tribunal has already recognized it had no

power under section 34(1) and, by reference,

section 118A to touch a State union. By the same

token, when you turn around to the State power, it

gives no power mutatis mutandis to make orders

about a federally registered organization.

It is the fact that the Tribunal has not

treated the supplementary powers in the two

Coal Industry Acts and the nature of the powers of

the Industrial Relations Commission, federally, and

the State Industrial Relations Commission, mutatis

mutandis, that has resulted in the order in this

case. He has already recognized in his judgment

that he could not make an order against the coal

industry officials - association - under his

federal power.

What he did not follow was that under the

State power, the supplementary power, he did not have any power to make an order in favour of the

first respondents, the Construction Union. It is

the fact that the consistency has not been

recognized by the Tribunal, that the conflation

that has resulted in this order has come about.

Your Honours, the order of matters that we set

out in our submissions go to some of the matters

that Justice McHugh has raised, but I would hope to

deal with the matters in this way. Your Honours,

matters at this stage.

unless there was something that was put by either
of my learned friends in relation to our

propositions 1 and 2 of the outline of submissions,

Turning to submission 3, might I take

Your Honours now to the decisions of the Tribunal

to the relevant parts. Your Honour Justice Deane

has informed me that the Bench has read the appeal

papers so it would only be to, in my submissions,

the most relevant parts of these decisions that I

would take you now, rather than to take you to the

decisions as a whole. I think the Bench would be

aware of the context in which the application was

Colliery 12/5/93

made by the second respondent, and the industry

context in which this came forward.

Your Honours, the references we would draw to

your attention in this first decision are, firstly,

at page 25 of the appeal book, line 40, where under

"Determination" the Tribunal said this:

The application made to the Tribunal is

clearly based on section 118A of the IRA. The

application's terms are set out at the

commencement of this decision. Sections 118A

is as follows:-

And then there is set out, Your Honours,

section 118A of the Industrial Relations Act, that

is the Commonwealth Act, and I draw Your Honours'

attention to the fact that this is referred to as -
the application being made is clearly based on

section 118, that is on the use of the

supplementary powers of the Tribunal which, under

the Commonwealth Act, that is the Commonwealth Coal

Industry Act, are vested in the Tribunal through

section 34(1A) of that Act.	Now, that is the first
reference.	The next reference I would draw

Your Honours' attention to is at page 27, at

line 35, where in matters of jurisdiction there is,
having made reference to the federal Act, the
Tribunal says:

I find that a dispute exists for the purposes of the CIA being a dispute comprehended by any or all of subparagraphs -

and he makes reference there -

..... in section 4 of the CIA.

He makes reference then to the form of demarcation dispute and orders that might be made.

The next reference I would take Your Honours

to is at page 32, at line 15 where, referring to

various submissions about the position of the

various unions that were before him, the Tribunal

said:

The COA is in an entirely different situation. It is accepted that deputies on

the South Coast of New South Wales currently

belong in their entirety to the COA.

And then at the bottom of page 32, at line 40,

Your Honours will find this:

Colliery 9 12/5/93

COA has to be considered separately to

the ETU and the MEWU. There are three

significant reasons for this:-

(i)       it is a state registered union not affiliated with the ACTU;

(ii)       there is no evidence of any transfer of

membership to UMW on the South Coast and in this it differs from both the ETU and MEWU; and

(iii) the provisions of section 118A of the

IRA have no relevance.

And that is my point in relation to the question

from Mr Justice McHugh, that I was saying, mutatis

mutandis.

I deal first with the last named.

Although section 118A of the IRA has no

relevance, the Tribunal, because of the

provision of section 40(1A) of the CIN -

CIN being the State Act -

and of the provisions of Schedule 2 Part 3 Clause 16(c) of the IRN, has access to the

provisions of section 220 and 221 of the IRN.

It is noted that these sections are in

chapter 3 - Disputes, Industrial Action and

Other Matters. The two sections are -

and, Your Honours, those sections are set out

there. Might I just draw Your Honours' attention
to this, so that there need be no specific

reference to that legislation on its own. At

line 15, Your Honours will find a typographical

error, where the reference is:

Application for an order under this section

may be made by the Minister, an industrial

organisation or an employee.

That is a typographical error, that should be

"employer". That is the section that is relevant

there. He then sets out sections - - -

DEANE J:  Mr McCarthy, I am lost. Why has not section 118A

of the Commonwealth Act any relevance?

MR McCARTHY:  Because it could only be made, Your Honour, in

terms of section 34(1) of the federal Act - that is

the Coal Industry Act - and in terms, section 118A

makes no reference to a State registered union. It

is only for unions that are under the jurisdiction

of the - - -

Colliery 10 12/5/93

DEANE J: But why should it? 118A(l)(a) says:

an order that an organisation of employees -

that is Commonwealth registered

is to have the right -

That covers the first part of the order, does it

not?

MR McCARTHY:	Yes, Your Honour.
DEANE J:
to the exclusion of -

and here is the big difference between the

Commonwealth and State Act -

another organisation -

not "another such organization", which means that
on the face of it the Commonwealth Industrial

Relations Commission has power to order coverage in

favour of - - -

MR McCARTHY:  Yes, but, Your Honour, "organization" is

defined in the Act as an organization registered

under this Act.

DEANE J: Yes, I follow that.

TOOHEY J: Could I just ask you this, Mr McCarthy. The

argument is that an order should not and could not

have been made in favour of a federal organization.

What was the standing of the federal organization

before the Tribunal?

MR McCARTHY:  The standing, Your Honour, is under section 4

of the Coal Industry Act, both federal and State;

that is, that it is an organization which

represents various classes of employees within the

coal industry. Under its primary jurisdiction,

Your Honour, both at federal and State level, the

Acts provide that both federal and State

organizations may be heard by the Tribunal and

heard in the same proceedings and against each

other. That is in the primary jurisdiction.. That

is in terms of section 39 of the State Act and

section 40(1), which is the primary jurisdiction to

hear and determine various matters that the Coal

Industry Tribunal has.

TOOHEY J:  So your objection does not go to the standing of the other union before the Tribunal.

Colliery 11 12/5/93

MR McCARTHY:	Not in relation to the exercise of primary powers, Your Honour, but in relation to the
supplementary powers, this is different. This is
what Mr Justice Deane had spoken about in Duncan,
which I will come to.
TOOHEY J:	So it is only at that point that you start to object to the position of the State registered
union before the federal - sorry, the other way: the federal registered organization before the
State Tribunal?
MR McCARTHY:	Your Honour, it is not an objection in the

sense of a formal objection to locus.

TOOHEY J:  No, I appreciate that. I am just trying to

define at what point the objection arises.

MR McCARTHY:	That is the point. When he turns to say, "How am I going to deal with this?", when he turns to
say "I am going to use the additional or supplementary powers", then he says "This is my
jurisdiction", when you look at that jurisdiction what one finds is that his jurisdiction under the State Act is the same as the State Industrial
Relations Commission and it can only be in relation
to State registered organizations. In other words
he cannot use that power for a federal union and he
cannot use it against a State union for a federal
union.
McHUGH J:	Can I pursue the question that Justice Deane

asked? It is true that read literally 118A does

not seem to apply to a State registered

organization. But it cannot be the case, can it,

that 118A is to be read literally in the context of

the Coal industry Act, because 118A is about orders

to represent under this Act. Those words cannot be

carried across.

MR McCARTHY:  No.

McHUGH J:  When section 32 of the federal Act invests the

powers and functions in the authority, and other

sections like 34 and so on amplify that, why should

not one look at the words "powers and functions"

rather broadly and say that what has been given to

the Coal Industry Tribunal by incorporating 118A is

a power to make demarcation orders.

MR McCARTHY:  There is no doubt that they have the powers to

make demarcation orders, Your Honour, but

section 34(1A) which is the relevant attribution of

the AIRC - that is the federal Commission's powers

to the Tribunal - specifically says, Your Honour,

that those powers are those given to the Commission

Colliery 12 12/5/93

in relation to industrial disputes before it under

that Act.

McHUGH J: Yes, I know, but 118A, if read literally, would

not be vested in the Tribunal at all, would it?

MR McCARTHY:  No. Your Honour, there have been other

occasions that this Court has dealt with this

matter of these ancillary powers and said that it

is relevant, for instance, in the making of interim

orders.

McHUGH J:  I appreciate that it is, but you cannot apply

118A literally in the context of the Coal Industry

Act, can you? I mean, the Coal Industry Tribunal

cannot make an order that an organization of

employees should have the right to the exclusion of

another organization to represent under the

Commonwealth Act. That is not part of its powers,

is it?

MR McCARTHY:  It is, and it has just done it, Your Honour,

in relation to the Metal Trades Union and the ETU.

That is why they are not here. They have just used

that power under 118A to do that. That is exactly

the purpose of the federal power.

McHUGH J: It is perhaps my lack of understanding, but the

order that they have made, is that an order under

the Commonwealth Industrial Relations Act, or is it

an order under the Coal Industry Act?

MR McCARTHY:  It is an order under the Coal Industry Act,

Your Honour, using - - -

McHUGH J: Well, that is my point, because 118A in terms is

talking about representation under the Industrial

Relations Act Commonwealth.

MR McCARTHY:	Yes, Your Honour.
McHUGH J: See, you cannot transcribe it literally.

MR McCARTHY: Well, Your Honour, it is the power that is

transcribed and, with respect, there is a sense in

which it is literal. What I would understand the

relationship between section 34(1A) of the

Coal Industry Act and the federal Act to be is

the powers is the body that is actually using them.	this; that the only difference between the use of before the Tribunal, the Tribunal can also be regarded as the Australian Industrial Relations
Commission in terms of the powers that it has, and
which it can exercise when dealing with a matter before it.

Colliery 13 12/5/93

In other words, Your Honour, the powers of the

Commission are literally transferred through

section 34(1A) into the Coal Industry Tribunal, and

all one then does is look as to what the ambit of

those powers are. That is why - - -

McHUGH J:  But when you say you can transfer them literally,

you would have to put a blue pencil through the
words "under this Act", for example, in 118A(l)(a),

would you not?

MR McCARTHY:  To that extent, yes, Your Honour.

McHUGH J: But does that not mean it is a question of how

you characterize the power which is transferred? Is

it a power of demarcation which is transferred, or

is it a power of demarcation limited to another

registered to other organizations registered under

the federal Act.

MR McCARTHY: Well, Your Honour, how the characterization

would come is to look, in actual fact, at how the

power has been in actual fact operated. What, say,

for instance in this case, has happened over the
federally registered organizations is that the

Tribunal has said that it has the same powers under its Act as the Commission; that the powers under

that Act in relation to federal organizations are

transferred to the Tribunal and those powers can be

used for the purposes of settling a dispute before

them.

Why those powers can be used - and while it

may be that the purpose of the power, that is the
actual place of the demarcation dispute is the

Tribunal rather than the Commission, when you come

to the question as to what is the nature of the

power that can be used through section 118A, again,
Your Honours, the Tribunal has the power of the

Commission, that the Commission has in disputes

before it under that, and it says the words "under

that Act".

So that while it may be that you would look to

the Coal Industry Act as to what the nature of the

dispute is in terms of the Tribunal and

jurisdiction, in actual fact, for the nature of the

power, it is the power that is specifically

delimited in the Coal Industry Tribunal as being

that which a commission has before it under that

Act.

What we would draw from that, relevantly, is that if, under that Act, the Commission does not

have the power to affect a State registered union,

similarly, the Coal Industry Tribunal would not

draw that power and - - -

Colliery 14 12/5/93

McHUGH J: Well, you treat it as an either/or situation,

that the Tribunal has either got to exercise the

power under 118A, or the power under 221 or 222,

but why can it not use a combination of them?	Why
does it not have the power to entertain the
application under 118A and then use its powers under the New South Wales Act to make an order
against the State registered organization?

MR McCARTHY:  Your Honour, in our submission, that is not

open because that is not the way in which the

supplementary powers have been set out and that is

not the terms in which they have been understood or

applied. It would have the effect - and that

question can be asked in the broadest terms and

put, "Does section 118A allow the Australian

Industrial Relations Commission to make orders

affecting a State registered union?" In our

submission, the answer to that is, "No."

DEANE J: But that is not the question as Mr Duncan

approached it and as Justice McHugh is suggesting.

What Mr Duncan has said is, "ll8A empowers me to

make the order for coverage, and to make the orders
for exclusion in relation to the two Commonwealth
registered organizations. It does not empower me

to make the order of exclusion in relation to the State registered organization, but the State Act,

by reference to the State Industrial Relations Act,

does empower me to make the order for exclusion of

the State registered organization and, combining
them, I make this order" .

Well now, the question therefore is, in the context of this legislative scheme, can one read the designated powers together so as to produce

that result? Now, that seems to me to be the

question that we are concerned with.

MR McCARTHY:	Your Honour, certainly the powers can be combined, or read together, at various points, but
that is not the way in which the powers have, in
actual fact, been dealt with by Mr Duncan. I will
have to go on through this material to -
DEANE J: Can I ask you this:	if he had not made the order

for coverage by the Commonwealth organization,

would you dispute that he could have made the order

for exclusion of your client under the State side

of the legislative complex?

MR McCARTHY:  Yes, Your Honour.

DEANE J: Why?

MR McCARTHY:  Certainly an order could have been made under

the State complex of - - -

Colliery 15 12/5/93

DEANE J:  Why does not 22l(l)(b) expressly authorize an

order excluding your client?

MR McCARTHY:	Your Honour, it cannot, we submit, in the context here because what is being proposed is not
that an order be made in terms of 22l(l)(a) by - - -
DEANE J:	I said 221(l)(b).
MR McCARTHY:	I am sorry, Your Honour.
DEANE J:	I am sorry, it is (c).
MR McCARTHY:	Your Honour, this is in the context of the

Coal Industry Tribunal or whether an Industrial

Relations Commission can make this order?

DEANE J:  The Coal Industry Tribunal which has the powers

conferred on the State Commission by 22l(l)(c).

MR McCARTHY:  Your Honour, if that is conferred, that power

could only be exercised in the context of an

application of the type that is referred to in

section 220, which is not the application here.

That is:

the Minister, an industrial organisation or an

employer.

But certainly if Your Honour put to me, say, for

instance, BHP had made the application, could that

order be made, the answer is: yes, an order under

22l(l)(c) could be made at the instance of BHP.

DEANE J: But you see, you have now brought the argument to

the whole point of the case and that is, you only

get to first base by doing what this Court has said

you cannot do with the Coal Industry Tribunal, and

that is isolating its Commonwealth jurisdiction

make an order under State legislative authority if	from its State jurisdiction and saying it can only
the application can be identified as a State application. That is, on my understanding, quite contrary to what this Court said in three cases in
the line of cases dealing with this Tribunal.

MR McCARTHY:  Your Honour, that is so, but is not quite

where this application is going, or what the

context of this application is. This is, first and

foremost, concerned with the use of the

supplementary power, as Your Honour has defined it,

in Duncan's case.

Now, with the supplementary power, one has to

be careful to see what it is that has been given to

the Tribunal through the jurisdictions of the two

Colliery 16 12/5/93

commissions. If the words that are there, that

says having the power of the Commission that it has

in terms of jurisdiction of a dispute before it, if
those words are given their ordinary meaning, what

they mean, in our respectful submission, is that

you look to see in what way the Tribunal's

jurisdiction has been increased.

In circumstances, in our submission, where

take the State level - that you go to the
jurisdiction of the State Industrial Commission and

one finds that it has only jurisdiction to deal with a certain class of dispute between certain

parties and certain circumstances, then it could

only be those powers, particularly when the word

used is a "dispute" within its jurisdiction, that

it could only be those powers which go over to the

Coal Industry Tribunal, as supplementary to the

principal powers which are in section 40(1) of the

State Act.

Your Honour, it is not inconsistent with the

rulings of this Court, including remarks of your

own which I will take Your Honour to shortly, to

say that if it is the case that the Commission, at

State level, does not have those powers, it must

follow that those powers cannot be through

section 40(1A) vested in the Coal Industry
Tribunal. Similarly, if the powers are, in another
context - that there are certain federal powers
that are not there, it cannot be said that those

are vested in the Tribunal.

Your Honours, for instance, it would not be

the case that State power could be used in relation

to a federally registered organization, in our

submission, to make a general rule. In other

words, to settle a dispute other than by some form

of conciliation or arbitration as the federally

registered organization goes, or finds it status

finally, in the Australian community under that In that way, there are differentiation and

section of the Constitution.

difference and different forms in which powers can

be expressed through the two Acts.

McHUGH J:  I do not know what has been decided, Mr McCarthy,

but I would have thought you could have made a

common rule under this legislation. This Tribunal

could make a common rule as a result of investing a

State power. I mean, among other things, the

New South Wales Industrial Commission can act of

its own motion.

MR McCARTHY:  So can this Tribunal, Your Honour.

Colliery	17	12/5/93
McHUGH J:	I know.	So, the New South Wales Commission could

have made an order of its own motion excluding your

clients from this particular industrial situation.

Why could not the Tribunal exercise that power as

part of its general powers when it has got this

application before it?

MR McCARTHY: Well, Your Honour, my reference in terms of

additional power, in terms of order, was in terms

of the meaning of the supplementary or additional

powers that have been given. I was not directing

the remark, Your Honour, to the primary power,

which ·is in section 40(1) of the State Act. In

relation to that jurisdiction, Your Honour, it is

certainly the case that the Tribunal, having before

it State and federal organizations, could make a

common rule. What my point was, was that when one

turns to supplementary powers, just as the federal

- if one goes to the supplementary powers and as to

their meaning, they are powers of the State and

federal industrial relations commissions, those

powers within their jurisdiction have certain
limitations on them. If you are proposing, as the

Coal Industry Tribunal, to use those powers as the basis of your jurisdiction, there may be various

limitations there and that is not inconsistent with

saying that you, in other circumstances, can use

both powers together.

I think it has to be kept in mind that, for instance, if one was using those powers,

Your Honour, at the State level, and you were

dealing with a federally registered organization,

in my submission, there would be a difficulty at

that point, if that was the way in which it was
proposed to proceed, or, more particularly, turning

a way that could not be used, for instance, by the

it around, if you were dealing under the

Commonwealth Industrial Commission itself.

DEANE J:  Mr McCarthy, can I interrupt you once more and

then we will let you get on with your argument.

But simply to understand your argument, how would

it go if, reading the Commonwealth and State

industrial relations legislation in the terms of
the relevant Coal Industry Acts, one read them on
the basis that you adjusted them so that

organization was understood as having its defined

meaning under the coal industry legislation. You

follow the point I make?

MR McCARTHY:	I do, Your Honour, yes.
DEANE J:	In other words, each of the Commonwealth and State

Coal Industry Acts defines "organization" in a way

that covers both Commonwealth and State registered

Colliery 18 12/5/93

organizations. Now, what if one reads the (lA)

provisions as bringing in the relevant Commonwealth

and State legislation, but adjusted so that the

specific definition of ''organization" applies.

Where would the argument go then? I know you do

not read it that way, but I am just asking you, if

you did read it that way, where would the argument

go, so that I can understand the argument.

MR McCARTHY:  Yes, Your Honour. The argument would go that

there would be power - - -

DEANE J: That would be an answer to the argument if one

read it that way or - - -

MR McCARTHY:	Your Honours, that would have to follow but, of course, what that would mean, and I would submit
is that a meaning is given to two clauses that are
additional or supplementary that is not only
contrary to what is there in terms of the face of the language itself, but further is contrary to the
known practice of the two bodies that are being
referred to in the supplementary power. It is saying, in effect, that the Australian Industrial
Relations Commission has a power that it does not
have, and the State Industrial Relations Commissions have powers that they do not have.
DEANE J:	No, it would be saying that, in the context of the

coal industry legislation and of the specific

definitions of organization in that legislation, in

transposing the powers of the Commonwealth and

State Commissions to the Coal Industry Tribunal you

do not have to worry about the distinction between

Commonwealth and State organizations because you

read the powers as intended to imply indifferently.

MR McCARTHY:  Well, Your Honour, what is transferred is, in

each case, powers. It would still be difficult, in

our submission, to say that is the meaning of those

sections because the words, in actual fact, stop

with the words, or have in the federal Act, "in

relation to industrial disputes before it under the

Act".	One could certainly say that that is not
what the meaning there is.	I would have to think

for a moment, Your Honour, as to whether that in

actual fact for the federal meaning - so federal

Industrial Relations Commission - whether that raised a matter of constitutional significance or

not, that is, that is vested a power that may not

be constitutional. But, putting that to one side,

in relation to the State, again it would not be

making sense of the jurisdiction to, in our

submission, say that.

The second matter that I would raise in

relation to that is this, that if that was the

Colliery 19 12/5/93

meaning to be attributed to those two sections,

both the federal and the State Parliament, in our

submission, could have said so in clear words, and

it is certainly not the case as to what has been

said there, and I think, in effect, Your Honour's

question would implicitly concede that that is so.

If Parliament was saying that those sections were

to have that meaning, it could have been stated in

those terms.

But assuming Your Honour's point that that is

what the section is to be read to mean, subject to

the constitutional issue about the Commonwealth,

that would have the result that the powers would be

comparable from both the federal and the State

level and would turn in that way. I am not sure if

I can take that any further, Your Honour.

DEANE J:  Thank you.

TOOHEY J: It just seems to me that part of the problem has

stemmed from the use by the draftsman of the term

"power" in section 40 of the State Act and

section 34 of the Commonwealth Act, when really

what they are talking about is jurisdiction. I

mean it is section 40 of the State Act that tells

you what the jurisdiction of the Tribunal is, is it

not? Or is there some other section that tells you

that?

MR McCARTHY:  No, section 4(1) tells you what the

jurisdiction of the State Act is and - - -

TOOHEY J: Section 41?

MR McCARTHY: Section 40(1) sets out the jurisdiction of the

State coal industry.

TOOHEY J: Yes, well, that is how I would read it, but both

in the Commonwealth and State legislation the term

each case that follows up that speaks of additional	"power" is used and then you have the subsection in
powers. But really those sections - the primary
subsection is concerned with jurisdiction. I mean,
no doubt you can spell out of "jurisdiction"
certain powers but it seems to me there really is a distinction between subsection (1) in each case,
which truly tells you what the jurisdiction of the
Tribunal is, and then you go to subsection (lA) and
that tells you effectively what the powers are.
And seen that way, it may be easier - I am not sure
- but it may be easier to simply, in each case, to attribute to the Tribunal, a State Tribunal all
Commonwealth powers and the Commonwealth Tribunal
all State powers.

Colliery 20 12/5/93

MR McCARTHY:  I am not sure, Your Honour, if that could

follow, given the asymmetrical nature of our

federal and State compact.

TOOHEY J:  I am not saying it does. It might make for a

better analysis if the distinction were drawn

between jurisdiction and power in this area.

MR McCARTHY:  Your Honour, in some circumstances that might

be helpful, but just in relation to that point,

might I draw Your Honours' attention to this, that

section 40(1) of the State Act does not only refer

to jurisdiction; it actually uses the word "power".

TOOHEY J:  I appreciate that. It does not use the word

"jurisdiction" at all, which prompted my remarks to

you.

MR McCARTHY:  Your Honour, power in the Tribunal flows first

and foremost from section 40(1). The only

reference or purpose of section 40(1A) is to

provide additional powers. The primary power of

the Tribunal is found in the immediately preceding

subsection.

TOOHEY J:  We are moving into an area of semantics, although

I do not think it truly is semantics. Of course if

you see subsection (1) as dealing with power, then

subsection (lA) almost inevitably deals with

additional power.

MR McCARTHY: It does, Your Honour.

TOOHEY J: If you see subsection (1) as dealing with

jurisdiction, subsection (lA) is more truly aimed

at the powers of the Tribunal. But at the worst, the legislature has used the word "power" and has

gone on to speak of the exercise of the power in

subsection (1) and then the additional powers.

MR McCARTHY:  Yes, Your Honour. I just wanted to draw

Your Honours' attention to this, that in

subsection (lA) the final clause in terms of
defining the additional powers talks about what the

court, now the Commission, has:

in relation to an industrial dispute of which

the ..... Court has jurisdiction.

They are the specific words that are used. It is

again our submission that when one looks at the

actual plain meaning of the words there of the

additional power, of course the power of the sort

that has been used here under the State Act does

not vest in that sense in the State Tribunal.

Colliery 21 12/5/93

Your Honours, in the decision of Mr Duncan,

the first respondent, the other references that I

wish to take Your Honours to were at page 33,

lines 5 to 10 and the matter is then set out.	Then
at page 34 there is a reference to, at line 10,
where:

It is noted that section 221 is

predicated on a demarcation dispute and in

this it differs from -

the federal Act. And then there is a formal

finding of a dispute at the State level. In the

next paragraph there is then reference specifically

to the fact that the second respondent:

is not an industrial organisation for the

purpose of section 220(2) it not being to my

current knowledge as defined in section 406 -

of the State Act.	In our submission that is still
the case.	Then he goes on, and he said:

I an however not precluded by this from

considering the application.	The matter is
before me -

and he has a reference there, section 39(i) of the

State Act. I think there is a typographical error
there, Your Honours, that should be

section 39(b)(i) of the State Act, and he says -

as much as it is -

before him -

by virtue of section 33(b)(i) of the -

federal Act, that is a reference there to parties

to a dispute and would be a reference there to the

two organizations, the COA and the second
respondent.	Your Honours, I will not read it all

but there is a further reference - -

DEANE J:  Does not Mr Duncan make a very good point there,

though? I mean, you go back to page 33, when your

answer to a suggestion that he has power under

22l(c) is that that power can only be exercised in
an application under 220(2), but you then go to the

sections of the coal industry legislation, and it

specifically says that any of its powers can be

exercised:

on the application of ..... an organisation or

person affected by an industrial matter.

Colliery 22 12/5/93

If you go to the definition of "industrial matter",

it would seem to come within (n); if you go to

"organization" and it expressly includes both State

and Commonwealth organizations.

MR McCARTHY:	Yes, Your Honour.
DEANE J:	I am not saying it is right, but I do think there

is great force in the point Mr Duncan is making

there.

MR McCARTHY:  Your Honour, we would not dispute the

sentence:

I am however not precluded by this from

considering the application.

Your Honour, there is no argument in terms of ultimate jurisdiction, and perhaps this might have

been part of the confusion as - part of the import

of what Your Honours thought I was saying, that

this is not a matter that could not be dealt with

under section 40(1) of the Act. That is not the

burden of our submissions whatsoever.

McHUGH J:  What is the precise paragraph under section 40(1)

that you say that it comes under, Mr McCarthy?

MR McCARTHY: If it did - - -

McHUGH J: Is it (c)?

MR McCARTHY:  There has been in this matter, Your Honour, a

finding of an industrial dispute under (b), but if

that had not been present, there is, in our

submission, no doubt that it would come under (c).

"Industrial matters", specifically, in the

definition section refers to "demarcation". There

would be no argument about that at all.

To answer again what Justice Deane raised, there is no dispute in the sense of so far so good,

with the sentence put forward:

I am however not precluded by this from

considering the application.

The rest of that page is occupied with what turns out to be an absolute cul-de-sac in this case, and

is abandoned later on. The Tribunal at that stage

seemed very keen to operate under

section 22l(l)(b), that is - if Your Honours turn

back to where that is set out in the Act - at

page 33, what the Tribunal was looking at was an

order that, in effect, gave one organization the

right to represent all employees at the particular

site.

Colliery 23 12/5/93

What had occurred at that stage, and it was

picked up later by Mr Duncan, was, of course, the

applicant had not sought orders against the ACSA -

the Australian Colliery Staff Association - and

there could be no factual basis on which any order

of that type could be made.

At page 35 at about line 37 there is a

reference to the use of the tests that were laid

down on section 118A, and there is a recognition
that the COA was in a different position.

The next reference is at page 36 and this is at line 10. This follows the use of the federal

power in relation to the ETU and the MEWU, and then

the Tribunal goes on to say:

I make no final determination as yet as

regards COA. The strong inference from the

fact that there have been no transfers by

deputies on the South Coast is in contrast to
inferences that may be drawn from

s.221(2)(b) -

and there is the reference to that again.

No reference was made to it by the parties who

seemed to overlook the fact that COA is only

state registered.	I will give the relevant
parties -

and he postponed that to 11 December.

The next reference, Your Honours, is at

page 41.	What I would draw Your Honours' attention
to there - this is the second decision.	The

Tribunal at line 20 makes reference to section 118A
of the Australian Industrial Relations Act and

gives right of representation, and he refers to the

three associations there.	Then he makes reference
again to what he had said and which I quoted just
earlier, about the special position of the COA.	He
then sets out at pages 41 and 42 - and I will not
read them - the submissions. Then at page 43 he
has the determination.	He makes reference to this

at line 15, as to the factors he had taken into

account. He says:

most relevantly s 221 of the Industrial

Relations Act of New South Wales but also

s 118A of the Australian Act.

He makes various references there to circumstances

in the case. Then for our purposes, Your Honours,

page 44 is the key part. At line 10, after

considering various local factors, he said:

Colliery 24 12/5/93

I have no doubt at all that prior to the

Industrial very terms encapsulates much of the reasoning

introduction of s 221 of the

adopted by members of the Australian

Industrial Relations Commission in the

s 118A ..... these factors would have been

totally compelling.

When I return to the statutory provision

I am concerned withs 221(2). It is set out

in full in the earlier decision -

He makes reference to a decision that had recently

been given by the State Commission. We have that

decision here, Your Honours; I will hand it up. In
our submission, it does not take the matter any

further. Then he goes on to say:

s 221(2)(a) which appear as relevant as

s 221(2)(b) ..... It appears clear that the

situation at Elouera is withins 221(2)(a).

That is the provision in relation to

rationalization. He then goes on and says:

BHPSDC ..... is an "enterprise employer" that

being, by virtue of s 4 of the Act simply an employer carrying on a business, undertaking or project. While argument has introduced

some doubt whether s 221(2)(b) is

appropriate -

and I think he is referring to the fact there that

there would be only one union on the site -

I am satisfied s 221(2)(a) is. I am drawn to

the conclusion that these statutory provisions
are to be taken as contrary to the type of

considerations I called "totally compelling"

in the previous paragraph. In the circumstances of this case I am

satisfied that the power ins 22l(l)(a) has to

be used for the purpose of s 221(2)(a) and

accordingly -

he made the order. As the matter could not affect

the ETU and the MEWU as that had been made earlier,

he is just giving an omnibus expression to his

order there. Then he says at line 40:

The orders issue using powers conferred

by and through each of the Coal Industry Acts

of Australia and New South Wales.

Then at page 45 the order is set out.

Colliery 25 12/5/93

Your Honours, to put the matter in the context of authority, we submit that the nature of the

State power is such that when that is relied on

exclusively and, in our submission, the language at

page 44 makes clear that he is not using anything

in relation to section 40(1), that section 40(1A)

as being the basis on which he has founded the

powers that he can exercise, that those powers in

terms are such that the State Industrial

Commission, to put our point again, does not have powers in terms of its jurisdiction to make such an

order. In our submission, if that is so, then the

power that must go over under that transposition

and which is relied on is one that also cannot have

that effect.

Now, the nature of the supplementary powers have been the subject of some consideration in this

Court in recent years. A principal passage is that by Justice Deane in Duncan's case and, in fact in

our submission, this quotation which I will take

you to is the real statutory context in which the

problem that we have before us arose. There was a
passage at 592 in which Justice Deane has set out

the nature of industrial disputes and industrial

matters, and spoken of the combined operation and

the way in which those powers may be used, and then

says at 592 the only qualification about the

combined effect of Commonwealth and State power:

The qualification which needs to be made

to the general statement that it is

unnecessary for the Tribunal to seek to

identify the source of the powers which it is

exercising results from the differences

between the respective provisions of the two

Acts dealing with the nature and content of the Tribunal's supplementary powers and the

enforcement of the Tribunal's awards or
orders. In exercising powers which are

conferred by the Act, the Tribunal is vested

with the powers which are given by the

Conciliation and Arbitration Act 1904(Cth) to

the Commonwealth Conciliation and Arbitration

Commission or to a member thereof
(Act, s.34(1A)); in exercising powers which
are conferred by the State Act, the Tribunal
is vested with the powers conferred upon the

Industrial Commission of New South Wales in relation to an industrial dispute of which

that Commission has jurisdiction

(State Act, s.40(1A)). An order or award

which is made in pursuance of the Act takes effect and may be enforced as if it were an award of the Commonwealth Conciliation and

Arbitration Commission (Act, s.36); an order or award which is made in pursuance of the

Colliery 26 12/5/93

State Act shall, when filed in the Industrial

Commission of New South Wales, "have effect in

all respect and be enforceable" as if it were

an award or order of that Commission (State

Act, s.42(1)). Where the supplementary powers

conferred by the two Acts differ in relevant

respects or where enforcement provisions or

proceedings are involved, it may be necessary

to identify the source of the particular

powers which the Tribunal is exercising or has

exercised in making a particular award or

order. In a case where the award or order is

not being or was not made in the exercise of

concurrent or composite powers derived from

both Acts with the result that both sets of
supplementary powers and enforcement

procedures are prima facie available and

applicable, it may be necessary to identify

the source of jurisdiction in order to

determine the nature and scope of available

supplementary powers or the identity of the

appropriate enforcement procedures.

Then, the last sentence also:

Overall however, the circumstances in which

the Tribunal will itself be concerned to

identify the source of powers will be rare

since the Tribunal will not itself ordinarily

be concerned with enforcement procedures and
the differences between the supplementary

powers conferred by the two Acts are not such

as to make it likely that they will ordinarily

be significant.

In our submission this is that rare case and in our

submission this is the case in which it does become

significant to look at the source and the nature of

the supplementary powers as has been set out there

by Justice Deane.

What we would rely on from that is that in

seeking what the supplementary powers are, we say

that first of all they do differ in relevant

respects. Second, that the nature of that

supplementary power is something that needs to be,

in our submission, fairly carefully looked at and

construed and that in relation to this power it is obviously a power that has certain delimited range

in relation to State registered organizations and

is not one which, if relied on as being the power

under which someone operates - - -

McHUGH J: What do you say about the proposition in Justice

Deane's judgment in Duncan at the bottom of 588 and over to 589:

Colliery 27 12/5/93

It would be contrary to the intended operation of the concurrent legislation to import any

requirement that (they) ..... must be exercised

in isolation ..... supplement and complete the

powers conferred by the other -

corresponding legislation?

MR McCARTHY:  Your Honour, I think that that is of an

undoubtedly correct characterization of the nature

of the principal powers that are involved there. I

do not see any inconsistency between what is stated

by Justice Deane in that part of his decision and

the quaiification that he has put.

McHUGH J:  I was not suggesting that there was. But how

does your general argument fit in with that passage

at 588 to 589?

MR McCARTHY: Well, Your Honour, only in the sense that this

is one of those matters in which the qualification

concerning the nature of the supplementary powers

has become pertinent and relevant. That

undoubtedly, Your Honour, when one reads, for

instance, the provisions of section 40(1) of the

major Act and the equivalent section 34(1), one can

see a clear comparability between the two powers

being vested in the same Tribunal and in that way

can be seen to operate at both federal and State

levels.

But, Your Honour, again, because of the nature of our constitutional arrangements, there are some

asymmetrical elements to federal and State power.
It does not mean when one - that is the burden of our submission, that when one goes to supplementary

powers one has to be careful to see what the nature

of those supplementary powers might be. They are

certainly intended to be complementary, but the

nature of them is defined by the statutes

themselves. When one goes to the source, which is

the two Acts, one finds that in the State Act there

is only a very limited power, or a more limited

power, than might have been anticipated.

In other words, Your Honours, if one is

calling on additional powers to assist in the

overall scheme, there may be circumstances in which

the actual detail of those powers is something that

has to be fairly closely looked at. I mean, it may

be that the State Act was set up in such a way -

that is the State Industrial Relations Act - given the nature of the State Constitution, that federal organizations could make applications before it.

There is no doubt that the State parliament could

make an Act to that effect, and it could give

jurisdiction over non-State registered

Colliery 28 12/5/93

organizations to the State Industrial Relations

Commission.

But the fact is that that is not what has happened. There, the terms of the State industrial

relations jurisdiction is defined in the Industrial

Relations Act and does not extend that far. When

one then turns to saying, "Well, what is the ambit of those powers?", the State parliament has fairly

clearly, in terms of the nature of the

supplementary power in the Coal Industry Act, set

down a fairly definite formulation. It says the

powers of that Commission:

in relation to an industrial dispute of which

the Commission or Court has jurisdiction.

Now, Your Honours, it could have been stated in

different terms, but it has not been. That is what

we would draw as being the nature of what

Mr Justice Deane is saying, by saying there are

rare cases when you have to look for the source of

the powers, but this is one in which one does that.

Your Honours, in relation to that, in the same

judgment at page 553, in a judgment of the then

Chief Justice, this appears at about point 5:

The terms of the arrangement -

that is the arrangement between the Commonwealth

and the State establishing this scheme:

can have nothing to say as to the powers of

the Tribunal, since, once an arrangement is

made, and a person has been appointed to

constitute the Tribunal, the powers and

functions of the Tribunal will depend entirely

on the provisions of the statutes.

That is, the words of the statutes themselves.

Even though that seems to be clear, he then had

said at the bottom of the page: 

As at present advised, I can see no reason why a body which derives power from two sources

cannot exercise whichever power appears

available and appropriate in any particular

case.

so, the availability and the appropriateness, in
our submission, would depend upon what the
provisions of the statutes were, and the provisions

of the statutes at least in their language and

their ambit, in our respectful submission, are

fairly clear.

Colliery 29 12/5/93

Your Honours, in relation to our proposition 3

in the outline of submissions, we then go on to say

in proposition 4 that the powers identified by the

first respondent, and that is a reference to

page 44 of the appeal book, and purportedly relied

upon and exercised by him, and that was

sections 220 and 221(a), do not empower him to make

any order giving the second respondent the right,

to the exclusion of the prosecutor or at all, to

represent under the Act or the Coal Industry Act
1946 the industrial interests of persons employed

by the third respondent under the Coal Industry

Interim Award (Deputies and Shotfirers) made under

the Act. Now the Act, of course, is the State Act.

One has the interesting situation in relation

to that, is that the State now, in terms of an

order that the State Industrial Commission - which

is enforcement provisions which are activated

through the State Act, would now have, as a party,

and as a person who can activate it, an

organization that is not recognized in terms of the

State idustrial relations system, which would be another reason, in our submission, why given the

nature of the enforcement provisions, and I think

that is also a part of the point Mr Justice Deane

made in Duncan's case, that when you do look at the

enforcement provisions, there are ways in which the

nature and the sources of those enforcement

provisions comes into play. We are going to have

now the anomalous position where that order

apparently will be in the way that it was put

forward and enforced at the State level.

We say, Your Honours, that what is set out at

paragraph 4 falls within the general category for

the application that we make of what was referred

to in the AWU case in 99 CLR, and I quote at

point 5, page 511 to this effect:

It is true that when a writ of

prohibition is sought the burden of showing

that there is an excess of jurisdiction rests

on those seeking the writ. But once the basis
on which jurisdiction is asserted is disclosed

the issue is defined and the existence or want

of jurisdiction must depend on the facts

affecting the question thus ascertained and

their legal complexion.

In our submission, under that rubric, what we are

concerned with here is not 22l(l)(b) or (c), but

221(l)(a). That is the basis on which Mr Duncan

said he was proceeding. He based his jurisdiction

not on any federal provision, and not on section 40(1) of his own Act, but on his

supplementary powers. He found those supplementary

Colliery 30 12/5/93

powers to be those of the Industrial Commission of

New South Wales and he proceeded, in our

submission, to use those powers for a purpose that

the State Industrial Commission could not use them.

Under this rubric, the basis of jurisdiction is asserted and he has, in the action that he has

taken, defined the basis on which he has seen

himself as acting and, indeed, in the terms of the

language that he used, of requiring to act. Those

were, in our submission, the facts that have been

ascertained and we submit that that is the basis on

which a prohibition can be sought. In paragraph 5

we then set out - and I will not read again - what

we say is the effect of section 40(1A) in terms of
the language of the section and, in relation to the
type of action that has occurred here, we say that

the way that the first respondent has exercised his

powers does extend it to an exercise of a power

that the State Industrial Commission could not

exercise in the terms of that power.

In relation to that we have prayed in aid a

recent case of the High Court in 173 CLR and, in

particular, Justice Brennan at pages 142 to 143.

At page 142 at point 2 of the page there is

reference to:

Judicial review on the ground of excess or

want of jurisdiction is available when a body

purportedly acting in exercise of jurisdiction

has no jurisdiction to act in the particular

way.

We would particularly rely on the expression "in

the particular way".

Then at page 143 at point 5 there is a

reference to:

A Tribunal which misconceives its jurisdiction

and is thereby led to make an order which

exceeds its jurisdiction may be prohibited

from further proceeding on the order but when

a tribunal, misconceiving its jurisdiction,

fails to exercise it the non-exercise of its

jurisdiction does not amount to an excess of
jurisdiction.

It is the first proposition in that sentence there

that we would wish to rely on, that is, a

"misconception of its jurisdiction" can lead to an order which exceeds its jurisdiction. Again, that

in the context of the supplementary power.

We make reference in paragraph 6,

Your Honours, to - I would also, Your Honours, if I

Colliery 31 12/5/93

just might go back to that decision, seek to make

reference to, as also supportive though in the

context it is now obiter dicta, remarks by

Justice McHugh at page 164 and page 165 of the

decision in the Public Service Association case and

I read from about point 5:

that there is an "excess of jurisdiction" -

that is a Tribunal -

when it does an act, the doing of which is

within its general power or authority, but

which was done in breach of the conditions
which authorise the doing of acts of that

class or nature. As the passages in the

judgments in the foregoing cases demonstrate,

however, it is not uncommon for superior

courts to use the phrases "want of

jurisdiction" and "excess of jurisdiction"

interchangeably. Nevertheless, whichever

phrase is used to describe the situation, an

inferior court or tribunal can be said to have

acted in excess or in what of jurisdiction

only when the relevant act was done in breach
of the conditions which define the ambit of

the powers and authorities of that court or

tribunal. That being so, a mere failure to

exercise jurisdiction cannot constitute an

"excess or want of jurisdiction".

In terms of that analysis, Your Honours, we would

submit that the action by the Tribunal here has
been in breach of the conditions which defined the

ambit of its powers and authorities, that is, that

it had that of the State Industrial Relations

Commission. If the powers to do the act at the

State level are not there in the Commission they

cannot be there in the court.

In paragraph 6 we make reference to an error

of law. In our submission, if our primary

submission is of merit it would follow that there

was an error of law on the face of the record in
this matter, and I have reference there to

Houssein's case, and then we make the submission

that as well as the grounds being made out for

prohibition, if again the argument is successful,

we say that this is an error of law on the face of

the record that goes to jurisdiction and would

found grounds for certiorari, and that section 50

did not take that matter any further in terms of a

privative cause because the error or law that we
point to is one that would be in excess of

jurisdiction.

Colliery 32 12/5/93

Then in paragraph 8 we make reference to the nature of the decision that has been given below,

the fact that except for the operation of 221 and

the related provisions, the respondent has said

that he found the case otherwise totally

compelling, that these would in these circumstances

amount to the case where an order would be

appropriate and it would be difficult to concede,

assuming that the error was found, what the

discretionary considerations would be against

prerogative relief.

The-re is reference there, Your Honours, to two

cases, being Yirrell v Yirrell and Reg v Ross-

Jones; Ex parte Green, which are references to, in

the first case, if there is want of jurisdiction as

founding a right to prohibition, and then in Ross-

Jones' case, saying that if that was the situation,

that is usually what is, unless there were

significant grounds, a proper basis on which

prerogative relief may be granted.

Your Honours, outside of that, those are the

submissions in-chief for the prosecutor.

DEANE J: Thank you, Mr McCarthy. Mr Buchanan, you are

going next, are you?

MR BUCHANAN:  Yes, Your Honour. I hand up copies of our

outline for the Court.	The Court will have seen
that we advance four broad propositions.	The first

one is that the general powers of the Tribunal are

an ample source of jurisdiction for the order which

was made. The next is that the additional powers

are a further sufficient source of jurisdiction.

The third proposition is that even if the Tribunal is confined to the additional State powers

as the only source of power, as the prosecutor

contends here, there is jurisdiction to make an

order to the same effect as that made by the

Tribunal, so that any mistake by the Tribunal, if

there be one, is a mistake only of form and not of

substance. Finally, we contend that prosecution

will not go to correct a mistake by the Tribunal if

any mistake made was a mistake within jurisdiction.

Might we make a general submission at the

outset about the legislative scheme, which the two

Coal Industry Acts involve. In our submission, the

intention of those Acts is to create a single

tribunal and to invest it with jurisdiction in a

way which will overcome, so far as is possible, any

limitation arising under the Constitution. In

other words, we submit that it is to be a single

undivided tribunal, exercising a single undivided

jurisdiction. It is intended to be fully effective

Colliery 33 12/5/93

to deal with industrial disputes in the coal

industry. The argument for the prosecutor, if it

succeeds, would be antithetical, in our submission,

to that general intention.

In support of what we say in paragraph 1 of

constitutes the Tribunal - which provides the

the outline, we refer in particular to the

following sections in the Commonwealth Coal

authority for the arrangement which constitutes the

Tribunal, and the counterpart in the State Coal

Industry Act is section 36. We then refer to

section 32 and, in particular, the declaration that

the Tribunal is to have all the powers and
functions specified in this part of the Act and
that those powers are, by subsection (2), vested to

the extent that the federal legislature has power

under the Constitution so to do.

The nature of that arrangement has been the

subject of consideration and comment by this Court.

We have given four references, but might we refer

the Court only to Cram, and the particular passages
to which we would refer are those, firstly at

page 127 of the report commencing at about point 3,

the recognition of the Tribunal and local coal

authorities as joint Commonwealth and State

authorities. Then, the discussion at about point 6

on that page of the statutory mechanism which

permits the investiture of powers jointly by both

the Commonwealth and State legislatures, namely

that that is possible because that is expressly

authorized, as a matter of necessary inference, by
the Commonwealth Act, and the reference to the fact
that the Tribunal and the authorities are to have
all the powers and that the Commonwealth Act,
expressly in relation to supplementary powers,
recognizes that the Tribunal is to have the powers

conferred by the State Act as well as the powers

conferred by the Commonwealth Act.

There is then a reference to the discussion of

those matters by Mr Justice Brennan in Duncan's

case, and we then refer to the passage at about

point 4 on page 128, to the effect that:

the Commonwealth Act either confers or

authorizes the conferral on the authorities of

all or any of their powers and functions.

Then we would point to the extracts from Duncan's

case, which are set out at pages 129 and 130,
followed by this statement by the Court, at

page 130 point 4:

Colliery 34 12/5/93

The case is clear authority for the

proposition that the Tribunal is not required to exercise powers conferred by the State Act

in isolation from the powers conferred by the

Commonwealth Act.

To the same effect at page 131 at point 3:

once it is accepted that the powers derived

from the Commonwealth and State Acts are not

required to be exercised in isolation from
each other, but may be exercised concurrently

or in combination in the one matter, then the

concept of separate Commonwealth and State

tribunals exercising separate powers becomes

untenable.

McHUGH J:  What does "one matter" mean in that context?

What troubles me in this particular case is how you would enforce this order. You could not enforce it

under section 36 of the Commonwealth Act, could

you, and you could not enforce it under section 42

of the State Act.

MR BUCHANAN:  It may not be necessary, Your Honour, to

enforce it at all. It is an order which declares

the rights which the organizations will have to

represent interests before the Tribunal. The

Tribunal can give effect to that order itself by simply recognizing or not recognizing or acting or not acting upon applications made by the organizations which are in conflict with the order

which it makes.

McHUGH J: But must not the fact that you could not enforce

it under one or other Acts throw some light on

whether or not it is a valid order?

MR BUCHANAN: 

Not in the circumstances of this power, in our submission. Take, Your Honour, for example, the

similar power in the federal Industrial Relations
Act.	The way under that Act in which any such

order is carried into further effect is by an

amendment to the rules of the organization

concerned rather than by enforcement of the order

in its own terms.

Such a prospect does not arise under the Coal

Industry Acts. The Coal Industry Tribunal is only given the power to the extent that it is necessary

to use in connection with considering and

determining industrial disputes. But in that

context it is given a full power to recognize or

not recognize the organizations which appear before

it.

Colliery 35 12/5/93

McHUGH J:  I appreciate that, but it is section 36 of the

Commonwealth Act and section 42 of the State Act

which make it binding on the parties. Unless you

can bring the order within those sections, you

cannot bind the parties. If you cannot bind the

parties, then what is it; just something up in the air?

MR BUCHANAN:  We come to this a little later in the

submissions, but one could certainly enforce, to

the extent that that was necessary, an order for non-recognition of the prosecutor here under the

State Act. The second respondent - - -

McHUGH J:	No doubt you can if you get a proper order, but the order which has been made in this case may not
be enforceable under either Act.  You could not
register it under the State Act, it does not seem
to me to be the case, and it does not seem to be an
order that is made under the powers vested in the Tribunal by section 32(2) of the Commonwealth Act.
MR BUCHANAN:	The enforcement powers, Your Honour, seem to

be concerned with the notion of enforcing awards.

The awards or orders are to be registered as though

they were awards of the federal or State industrial

bodies respectively, and enforceable in that sense,

and we would think in relation to matters such as

a matter of which the Tribunal always has control

the recovery of moneys due or things of that kind.

in proceedings before it, in our submission, the

notion of enforcement really lacks practical effect or significance, but if it were necessary to find a

method of an independent -

McHUGH J:	Can I just interrupt you to say, but is that so? These orders have got real effect, not in the
Tribunal's room, where it hears cases, but out in
the field.

MR BUCHANAN:  No, Your Honour, because they do not govern a

right to enrol members.

McHUGH J: Well, does it not say, "You shall not

represent"?

MR BUCHANAN: It says, "You shall not represent". It does

not say, "You may not enrol". Taking that as an

example, in the federal Industrial Relations Act,

if it is desired to accomplish the further step of

limiting a right of enrolment, then one needs to

make the consequential orders which are provided

for in section 118A itself.

MCHUGH J: Yes.

Colliery 36 12/5/93

MR BUCHANAN:  But it is not necessary to impose a limitation

of that kind in order to give full effect to the

first order under the section, which is really

simply an order about recognition by the Tribunal

itself as to the rights of representation of the

organization. It is a right to represent

industrial interests under the Act in question.

Now, in the context in which this matter arises,

namely in the context of the Coal Industry Act,

that is a matter, in our submission, which always

remains within the control of the Tribunal itself.

Might we add this submission: if the Court was

against us on all of that, then these are not
matters which need to concern the Tribunal itself.

If there are difficulties about enforcement, they

might arise for those who seek to enforce the

order, but they are not matters which cut down the

Tribunal's power.

Mc HUGH J: Yes .

MR BUCHANAN:	We wanted to come, and more particularly is that so, in our submission, if one is addressing,
as I am at this point, the general pqwers, or as
Mr Justice Toohey has expressed them, perhaps the
primary jurisdiction of the Tribunal.
Might we go back for a moment to the Act using the federal Coal Industry Act again as the vehicle.
We refer to section 33:

The Tribunal is to have authority to exercise any of its powers, duties and functions -

(a) of its own motion;

(b) on the application of -

an organization or person affected by an industrial

matter. Section 39 of the State Coal Industry Act

is expressed in identical terms to those

provisions, and we will refer shortly to the

definition of "organization" although it has been

mentioned in the proceedings already.

Then section 34, particularly paragraphs (a)

and (b):

the Tribunal is to have power to consider and

determine -

(a) an industrial dispute extending beyond

the limits of any one State;

(b) an industrial dispute in the State;

Section 40 of the State Coal Industry Act is

couched in identical terms to that. So that the

Colliery 37 12/5/93

grant of power from both legislatures, in those

respects at least, is in identical terms and in a

context where there is an express declaration that

the Tribunal or any authority constituted under the

part is to have all the powers and functions

specified in the part.

Might we then refer to some of the definitions

which, in these respects, are also framed in

identical terms in both the Acts. Firstly the

definition of "industrial dispute":

A dispute (including a threatened, impending or probable dispute) as to industrial matters;

and a situation which is likely to give rise to

such a dispute.

Then, "industrial matters", which is framed in

the traditional way or the usual way up until

recent times, the Tribunal identified as

particularly relevant, paragraphs (j), (n) and (p),

but it is sufficient for our purposes to focus

particularly on paragraph (n),

(n) a question arising between two or more

organizations or within an organization as to
the rights, status or functions of the members
of those organizations or of that organization
or otherwise, in relation to the employment of

those members -

and the concluding words:

includes all questions of what is right and

fair in relation to an industrial matter -

The State Act defines "industrial matters" in an identical way. "Organisation" is then defined in the way in which is set out and would the Court

note the particular reference in the parentheses to

"the protection of the interests of its members"

including "their representation before industrial

tribunals and authorities", and the fact, as has

been mentioned, that the definition extends to

embrace both federal and State organizations.	The
State definition is in identical terms.

So there is, in our submission, a grant of

general power to deal with ordinary industrial
disputes and industrial matters, which is precisely
the same under both the Commonwealth and the State

Acts and, in our submission, that is with a view to

the undivided exercise of those powers in matters

before the Tribunal.

Colliery 38 12/5/93

In the Tribunal's decision, the first decision

on 30 November 1992, it found expressly that the

matters before it were industrial matters for the
purposes of the Coal Industry Acts and in

particular demarcation disputes and the references

to those findings are in the application book at

page 27, firstly at about line 32:

I find that a dispute exists for the purposes of the CIA being a dispute comprehended by any or all of subparagraphs(j), (n) and (P) of the

definition ..... ! also find that the dispute

can be characterized as a demarcation dispute

it falling within sub-paragraph (n).

He then goes on to say at the bottom of that page:

I note closely approximate the definition of

demarcation dispute in section 4 of the IRA.

The noticeable difference is the absence of

paragraph (c) -

which he sets out.

In the present case the concern is with the representation under the CIA not the IRA. I see no particular relevance in the omission. I also note the reference in the IRA

definition to the fact that a demarcation

dispute need not extend beyond the limits of

any one state before the AIRC can use its

powers in that regard. As the present dispute

arises in the coal mining industry of New

South Wales I take that matter no further.

The next finding was at page 34 of the

application book, where the Tribunal is dealing

with the possible application of sections from the

New South Wales Act. At line 7, he says:

predicated on a demarcation dispute and in It is noted that section 221 is

this it differs from section 118A of the

IRA ..... I have already found a demarcation

dispute in the present matter and for the

purposes of the powers conferred on the

Tribunal by New South Wales legislation I

formally repeat that finding.

So that he finds, as a matter of fact, that the
matters before him, for the purposes of both the

Coal Industry Acts, are industrial disputes and, in

particular, demarcation disputes.

Both the prosecutor and the second respondent

are organizations as defined by each of the Coal

Industry Acts. The matters were clearly industrial

Colliery 39 12/5/93

matters within the meaning of those Acts and, in
our submission, the Tribunal had power to determine
the matters before it and to make the order which
it did, simply as a resolution of an industrial

dispute using its general powers and without the

necessity to refer particularly to either
section 118A of the federal industrial legislation
or 221 of the New South Wales industrial

legislation.

It would be a curious and, with respect,

which are joined together in the legislation for the purpose of proceedings before

unacceptable result, in our submission, that the organizations

it, in the same way that the federal and State

industrial tribunals can demark the interests of

organizations in proceedings before those

tribunals.

McHUGH J: Yes, but there are limitations on both of those

tribunals, are there not, in the sense that the

federal tribunal cannot demark industrial interests

between federal and State organizations, and it is

the same in the State?

MR BUCHANAN:  It does not need to, Your Honour, for the

purposes of - - -

McHUGH J:  I appreciate it does not but then when you get a

tribunal which is given the powers of both

tribunals, it is just the sort of case where you

might get the gap.	What neither can do, it cannot
do.

MR BUCHANAN:  One would have to find the gap, Your Honour,

by identifying a failure to achieve the legislative intention because, in our submission, the intention is to put the Tribunal in the situation of being

able to deal in a combined way with issues in the

coal industry, whether intra-State and otherwise

within the New South Wales power, or interstate and

otherwise within the federal power.

To overcome, so far as that might be done, any

difficulties which would otherwise have arisen

under the Constitution or from the separation of

powers. It does that by an identical investiture

of power by a declaration that each Parliament

intends that the Tribunal should have all the

powers which it is given, from whatever source, and

by defining the organizations, the legislative

creatures, which appear before it in the same terms

as including organizations from both spheres. Of

course, it does that only for the purpose of the

Coal Industry Acts.

Colliery	12/5/93
McHUGH J:	I appreciate that, but the Coal Industry Acts of both Australia and New South Wales are old Coal
Acts. Neither has been amended since 1979 and these demarcation provisions are of recent origin.
MR BUCHANAN:	The particular provisions are of recent

origin, Your Honour, but not the problem and not

the power and, indeed, the practice of industrial

tribunals, both State and federal, for very many

decades to deal with them, the forms of the orders
have changed but the substance of the difficulty

has not and nor, in our submission, has the general

approach in principle changed very much.

But Your Honour, the position is this, in our

submission, that if this difficulty arises, it
arises because the intention of the legislatures

have been imperfectly translated by the terms of

the enactments.

McHUGH J:  I know, but that is something that is always

likely to happen when you use these catchall

sections.

MR BUCHANAN:  Yes, but our submission is, Your Honour, that

that has not happened in this case. If we are

wrong about that, then we have a couple of

alternative propositions that we wish to rely upon,

but that is our -

McHUGH J:  You have got to give each Act a purpose of

construction and obviously purposes along the lines

that you have specified and have been so stated in

this Court on more than one occasion.

MR BUCHANAN:  Yes. It is to constitute a Tribunal,

Your Honour, which will not be bedeviled by the constitutional distinction between federal and

State powers in this area.

DEANE J:  Mr Buchanan, how long do you think the balance of

your submissions will take?

MR BUCHANAN:  Not long, Your Honour, because much of what we

wish to say has been touched on by members of the

Court already.

DEANE J: Well, in that case, the Court will adjourn now

until 2.15 pm.

AT 12.45 PM LUNCHEON ADJOURNMENT

Colliery	41	12/5/93
UPON RESUMING AT 2.19 PM:
DEANE J: Yes, Mr Buchanan.

MR BUCHANAN:  Thank you, Your Honour. Might we come to our

second proposition, Your Honours. The additional

powers are granted by section 34(1A) of the

Commonwealth Act and section 41(1A) of the State

Act. We have already referred to the passage in

Cram to the effect that the Commonwealth Act

recognizes and authorizes that the Tribunal is to
have all the powers conferred by the Commonwealth

and the State Act. ·

Those powers, in our submission, are the

general powers given by the Coal Industry Acts and
any particular powers which are given by either the

Federal or the New South Wales industrial

legislation. The two sections in question appear

to contemplate that the Tribunal will have, and be

capable of exercising at the one time, all the

powers which derive from all of those sources, and

that much is clear, in our submission, from the

language in, for example, section 34(1A):

the Tribunal is, subject top this section, to

have in addition to all other powers conferred

on it by this Act or the State Act all powers

which are given by -

at that time -

the Conciliation and Arbitration Act.

TOOHEY J: 

Does that argument, Mr Buchanan, involve reading

sections of the Commonwealth and State legislation
as if they were transposed, in one case federally

to include State, and State to include federally, or is there an argument that does not require you

to do that? 

MR BUCHANAN: 

It requires them to be read, Your Honour, as

complementary enactments; each recognizing and

acknowledging the conferral of power by the other

Parliament, and each accepting, in the case of the

Commonwealth Act - by necessary implication,

authorizing the Tribunal to have at the one time

all those powers available to it. I am not sure if

that answers Your Honour's question but - - -

TOOHEY J: For the time being, yes.

MR BUCHANAN:  Thank you, Your Honour. Might we refer to

what appear to us to be the relevant provisions of

the federal Industrial Relations Act, so far as

Colliery 42 12/5/93

they bear upon the present matter, because we want

to suggest to the Court that, in fact, the Tribunal

was able to deal with the whole of the matters

before it relying, if necessary, solely upon

section 118A of that Act. We want to refer the

Court to the definition of "industrial dispute" in

the Industrial Relations Act 1988. It includes,

Your Honours will see:

a demarcation dispute (whether or not, in the

case of a demarcation dispute involving an

organisation or the members of an organisation

in that capacity, the dispute extends beyond

the limits of any one State) -

Demarcation dispute is itself defined in three

paragraphs. The first paragraph is identical to

paragraph (n) of the definition of "industrial

matter" in the two Coal Industry Acts. Passing

over paragraph (b), paragraph (c) is the provision

that the Tribunal says at page 28 of the

application book has been omitted from the

definition of the Coal Industry Acts. But it is

sufficient, in our submission, that a demarcation

dispute as defined in the federal Industrial
Relations Act is defined inclusively in precisely
the same terms as appear in the definition of

"industrial matter" in the Coal Industry Acts.

When the federal Industrial Relations Act

gives a power, as we submit it does, in

section 118A to deal with demarcation disputes and

bearing in mind that "organization" is defined in

the Coal Industry Acts to include both federal and

State organizations, there is, in our submission, a

sufficient source of power for the Tribunal to make

the entirety of the order which it made in this

case relying if necessary solely upon section 118A

as it was asked to do.

TOOHEY J: That section rather illustrates the matter I was

putting to you a moment ago, because it refers to	"organization of employees" and "organization" is
defined as meaning organization registered under the Act. Therefore, do you read section 118A
differently?

MR BUCHANAN:  Yes, Your Honour.

TOOHEY J: Or do you give it a literal reading but

nevertheless, in combination with other sections of

other Acts, argue that it gave the Tribunal the

necessary power?

MR BUCHANAN:  The latter, Your Honour. One cannot read it

literally, and it is clearly not intended that the power expressed literally in this section is to be

Colliery 43 12/5/93

imported. What is imported by section 34(1A) is a

power to make orders of the	kind which are
identified in section 118A.	It is a power
exercisable, 34(1A) says:

for the purpose of the power referred to in section 34(1), that is, a power to consider and

determine industrial disputes.

In our submission, what is imported in this

respect, and in other respects, by subsection (lA)

is a power to make orders of the kind which are

available to the federal commission, or in the

appropriate case to the State commission. As it

happens, the orders under 118A and section 221 of

the State Act are identical in nature, and no
question of any disconformity between them arises.

In our submission, it is the character of the order

or the nature of the power to which attention must

be given, rather than the literal words of the

section or any peculiar condition which govern its

Industrial after all, for the purpose of the jurisdiction

exercise in the context of the federal

given by section 34(1) of the Coal Industry Acts,

and in the context of the Coal Industry Acts

themselves.

DEANE J: This argument involves reading "organization of

employees" in the wide sense of the definition in

the coal industry's legislation.

MR BUCHANAN:	Yes.
DEANE J:	Does that not mean that this argument gets you

nowhere, because if you be right on that, as I

follow Mr McCarthy's argument, he does not really

contend that the case is not at an end by reference

to the two routes that Mr Duncan followed. But if

you be wrong on reading "organization of employees"	other than in the sense it bears in the section of	the Commonwealth Act, your argument fails, does it
not, in this aspect of it?

MR BUCHANAN:  On this aspect of it, Your Honour, yes. are moving in stages, Your Honour. We

We firstly say

the general powers are sufficient; we next say 118A

on its own is sufficient because of the operation

of the definition of "organization" in the Coal

Industry Acts.

DEANE J:  Why would you say 118A is sufficient, in that if

you be right of the construction of "organization

of employees" in the Commonwealth Act, you would

likewise be right on that construction in the State

Act, I would have thought.

Colliery 44 12/5/93

MR BUCHANAN:	Yes.
DEANE J:	Which means, the way Mr Duncan did it could be
justified.
MR BUCHANAN:	Yes, Your Honour, not necessary but

justifiable.

DEANE J: But the argument you are now putting leads into an

area of great difficulty for you, and that is, you

would have to say that because he had jurisdiction

under 118A that was good enough, notwithstanding

that he expressly said he did not have full

jurisdiction and that he relied on another

provision which he saw as compelling him to decide

the case the way he did and in a different way to
the way in which he may have decided it if he

relied on what you say was his jurisdiction. It

seems to me you are bringing a storm down on your

head, if I might say so.

MR BUCHANAN:  I do not intend to, Your Honour, but as a

matter of construction - and if it is necessary to

do so, of course, we will deal with what I think

Your Honour is adverting to - in our submission, it

was not necessary for him to insist upon

submissions as to the effect of section 221. This

is not a matter which the parties raised, as he

point out, but a matter which he raised with them.

In our submission, he had ample jurisdiction.

DEANE J: Yes, although I am taking you ahead. The point I

am trying to make with you is, there is a world of

difference between saying, "Oh, he thought he had

jurisdiction to do what he did because of

section A, but that does not matter because he had

the jurisdiction under section B", and between

saying, "He said he did not have jurisdiction under

section B. He purported to do it under section A

and observed requirements which were quite

inapplicable to the jurisdiction which we say he

had".

MR BUCHANAN:  Yes. Well, Your Honour, we put it in the

first way, that he may have made a simple mistake

as to the source of his jurisdiction, but we also

say that it will not matter in the end because the

tests are the same. Any question of the exercise

of a discretion would fall to be decided by the

same principles and tests, whether under 118A or

under section 221. This is something which he

discusses in his decision and he sees the relevant

tests as not being different. In the result, he

uses 118A for two of the organizations which he

excludes and 221 for the third.

Colliery 12/5/93

We propose to go on, Your Honour, to say now

that what he did was justifiable on that approach

also, although as we would argue it, not necessary.

But assuming it to be necessary, Your Honour, what he did was an effective exercise of power, deriving powers jointly from the federal and State Acts and,

in particular, to the extent that this was

necessary from 118A on the one hand, and 221 of the

New South Wales Act on the other hand, and

incorporating them together as he did in a single order, he made only one order in this case and it was the order which is to be found in the

application book at page 45, which he made at the

same time that he delivered the second decision.

It is an order which incorporates the whole of his conclusions in both decisions and, in our

submission, his power was open to be exercised in

that undivided way, assuming it was appropriate, as

he thought it was, to derive some power from

section 118A and the balance of the power from

section 221 of the New South Wales Act. To this

point, if the Court pleases, our contention is that

on any view of the operation of the legislation,

the order which he made in the form in which it was

actually made is within jurisdiction.

Might we come then to the third contention,

which is that even if it was not permissible, as

the prosecutor contends, for him to combine in the

one order orders relating to a federal organization

and a State organization, so far as the prosecutor

is concerned, any defect is a defect of form only

and not a defect of substance because it was open

to him, as was pointed out to my learned friend Mr

McCarthy this morning, to make an order relying

solely upon the State power and, in particular,

section 22l(l)(c), having the effect of excluding

the prosecutor from the representation of its

members at the Elouera mine.

There are, as the Court will have noted, three different kinds of orders which can be made under
either 118A or section 221.	The first is an order

that one organization is to have rights of

representation to the exclusion of another; the

second is that an organization which does not have

a present right is to acquire it; and the third is

that an organization is not to have a right to

represent somebody's industrial interests.

There is no question about the existing right

of the second respondent to represent the interests

of all the employees concerned by virtue of its

constitutional coverage. So that the first limb of

Mr Duncan's order really has no particular work to do so far as the second respondent is concerned and

Colliery 46 12/5/93

had an order been made, as was sought from him,

that the prosecutor and the other unions simply be

excluded from rights of representation, the effect

so far as the prosecutor is concerned, in practical

and legal terms, would be precisely the same as the

order which was made.

The Court will find the orders which were

applied for set out in page 17 of the application

book and they include orders of the kind mentioned

in both paragraphs (a) and (c) of the relevant

sections. Your Honours will see that a second

order.- which was not made, but no reason is given

for its omission - was sought which, if made, would

simply have had the effect of excluding the

prosecutor and the other unions. Such an order

could be made relying, if necessary, solely upon

the combination of powers in section 40(1A) of the

New South Wales Coal Industry Act and

section 22l(l)(c) of the New South Wales Industrial
Relations Act and it would, of course, require the

application or the observance of the same statutory directions as Mr Duncan thought were required to be

observed in relation to the order which he made.

DEANE J:  What does it mean, Mr Buchanan, to say somebody

has got the right to represent? I understand what

it means when you say they have got the right to

represent everybody to the exclusion of everybody

else, but if a union has coverage under its rules

and actual membership, what does saying it has got

the right to represent add to that?

MR BUCHANAN:  It may not add anything, Your Honour; it is

the exclusion of the right to represent or the

granting of the right where it does not exist which

really adds something. In the case of an order

under paragraph (a), the exclusion might be a

limited exclusion. It might be an exclusion, for

example, only in favour of a particular nominated

organization and not an exclusion altogether.

DEANE J: If, for example, your client and the staff

association had identical coverage, what would this

order add to your client's entitlement apart from

the - - -

MR BUCHANAN:  I am sorry, I appear for the employer,

Your Honour, but the union that was given coverage -

DEANE J: Yes, what would it add to it?

MR BUCHANAN:  It does not add anything to it in the

circumstances of this case because it had a full

right to represent these people by virtue of the

fact that its rules extended to cover them. It did

Colliery 47 12/5/93

not have the membership in fact, although it had

the right to enrol persons. The next point that we

wanted to make was the essence of the application,

Your Honours, that the prosecutor and the other

unions should be excluded from a right of

representation.

MCHUGH J: But do you not have some trouble about using 221

in the situation in which the Tribunal found

itself? Your argument has treated 221(l)(c) as

though it simply stood as some independent power,

but it is a power which can only be used by the New

South Wales Industrial Commission in order to

determine any question as to the demarcation of the

industrial interest of industrial organizations.

So it is not a power that the New South Wales - the

New South Wales Commission could never have made

this order.

MR BUCHANAN:  No, Your Honour. It could not have made the

order actually made.	It could have made an order
under paragraph (c).

McHUGH J: Well, it could not have in a dispute between a

federally registered organization and the COA,

could it?

MR BUCHANAN:  No, but it could have done so, Your Honour, if

necessary, acting on its own initiatives.

McHUGH J: Well, could it - - -

MR BUCHANAN: Yes, Your Honour.

McHUGH J: - - - because 220(1) says that:

The Commission may, by its order, determine

any question as to the demarcation of the -

that is 220(1).

MR BUCHANAN:	Yes, I see.
McHUGH J:	The powers in 220(1) can only be exercised when

there is a contest between industrial organizations

registered under the New South Wales Act.

MR BUCHANAN:  Yes. I think I would have to accept that,

Your Honour.

McHUGH J:  Yes. Does that not drive you back to your

original submission?

MR BUCHANAN:  Not entirely, Your Honour, because it is still

relevant that the power could be recognized -

perhaps I will qualify that answer - I do not know

that it saves me completely but it may go part of

Colliery 48 12/5/93

the way. Section 221(2) does provide a general discretion to use the powers in section 221 for

such purposes "as the Commission considers

appropriate."

It may, I think, be said against me that that

is all governed by section 220, but what is
imported, Your Honour, into the Coal Industry

scheme of things is the power to make the orders, not the limitations which flow from the fact that the orders can only arise as between organizations

within the New South Wales system.

At least, that is our submission about it;

that the power which is intended to be imported is

a power exercisable as between organizations as

defined in the Coal Industry Acts, and that this

power, and section 118A, are merely one or two

amongst a general catalogue of specific powers,

which are imported into the Coal Industry

legislation in aid of the general power to consider

and determine industrial disputes under the Coal

Industry Acts, and it is not intended to import with those powers limitations of the kind which

Your Honour mentions. In fact, it may not be

permissible for the Tribunal to cut down its
general powers by reference to the importation of a

conditioned power.

McHUGH J:  Does that mean under 118A there is no obligation

on the Tribunal to consult the peak councils

before - - -?

MR BUCHANAN:  I think it is an obligation to consider

consultation rather than a -

McHUGH J: But is the power condition on that? Can this be

a valid exercise of the power if there had been no

consultation.

MR BUCHANAN:  We would submit, yes, Your Honour, as a first

make orders of the kind which are identified in	position. But, what is granted is the power to	section 118A, and what is not imported are the
limitations which are imposed on the exercise of the power of necessity by the scheme of the
federal industrial Act.

I think the other answer, Your Honour, is that

it is not a strict obligation and that no

limitation flows, as the prosecutor would contend,

from the fact that the federal power in the federal
context can only be exercised as between federal
organizations, the State power and the State

context only as between State organizations,

because, if that were right, the Tribunal would be

precluded from dealing with the reality of the

Colliery 49 12/5/93

situation before it, which is that it entertains

applications from federal and State organizations,

all of whom are organizations for its purposes, but

it would lack the power to discriminate between

them as to rights of representation.

There would be a gap, as I think Your Honour

put it earlier, which is, put at its lowest,

unintended, if one appreciates the overall scheme

of things.

Your Honour, even if all of that were so,

putting the prosecutor's position in that regard at

its highest, this could all still be done to the

same legal and practical effect so far as the

prosecutor is concerned, by the making of an order

under paragraph (c), excluding it from rights of

representation of employees at this particular

mine. In our submission, that is the burden of the

application which was before the Tribunal. Might I

give five references without taking the Court to

it, and this observation.

The Court will notice in the decision much

discussion about whether this mine was a greenfield

site. The practical effect was that it raised

questions about whether the number of organizations

with existing rights at the three collieries being

rationalized should be reduced to one or perhaps

two. There is discussion about that issue in the

appeal papers at page 18 line 31, page 20 line 29

and page 21 line 28. Based upon that and other

factors, the Tribunal considers what was the
essence of the application before it, namely the

exclusion of three particular unions, and express

reference is made at page 22 line 38, page 23

line 6.

Now, Your Honours, if we are driven finally to

that last position, that is, that the matter can be

salvaged, if necessary, by reference to that

paragraph (c), we move from that to what we say,

particularly in paragraphs 11, 12 and 13.

Prohibition will not lie to correct or prevent defects of form, it will not lie for error in deciding a matter rather than excessive power, and

it will not lie to address a mistake as to the

source of jurisdiction.

The line of cases and the reasoning involved

in them, we are sure Your Honours are familiar

with. Perhaps it is not necessary to trouble the
Court with the specific references.

we have given quite detailed references to the discussion of a matter of that kind in Duncan's

case where the Court was entirely unmoved by an

Colliery 50 12/5/93

argument that there was an apparent jurisdictional limitation in an order which the Tribunal had made

and said regard must be had instead to the

substance of it. If that approach is taken in this

case, in our submission, then the matters we put

about paragraph (c) will arise for consideration.

May it please the Court, they are the

submissions.

DEANE J:  If you rely on your paragraph 13, it is not

apparent to me that that takes you anywhere in this case in that I have not quite followed why you said that the Tribunal took the approach that the

question was the same regardless of whether it was

under the application of the Commonwealth Act or

the application of the State Act. It seemed to me

that the Tribunal said the opposite to that.

MR BUCHANAN:  I am sorry, Your Honour. It will be necessary

for us to make one criticism of the Tribunal's

propositions, which I will come to in a moment.

What the Tribunal said in the first decision was

that the matter, so far as the application of

section 118A was concerned, fell to be decided by

reference to the principles and policies which were

inherent in that section and which had been applied

by the federal industrial tribunal. In that

decision also, we dealt with what he thought might

at that time be the need to apply

section 221(2)(b). He says at page 36 of the

application book, when reserving the position of

the prosecutor:

The strong inference from the fact that there

have been no transfers by deputies ..... is in

contrast to inferences that may be drawn from

s 221(2)(b) of the IRN.

That was the requirement to allow representation by

a single industrial organization at new places of

employment, and so on. In the next decision he

goes on to deal more specifically not with that

circumstance of a single union at a new place of

employment, but with a rather broader question of

rationalizing coverage by industrial organizations

of employees ..... employees of enterprise employers.

He says at page 44 in particular, at about line 10,

two things:

I have no doubt at all that prior to the

introduction of s 221 of the Industrial

Relations Act -

and this is the first thing -

Colliery 51 12/5/93

which in its very terms encapsulates much of
the reasoning adopted by members of the
Australian Industrial Relations Commission in

the s 118A ..... cases -

And, in our submission, he is there drawing a

parallel between the legislative policy in

section 221 and the concept of rationalizing

coverage and the line of principle which the

members of the federal Tribunal had been applying

in section 118A cases, which he discusses in the

first decision.

The second thing he says, and this is where we

take issue with him, is that had it not been for

the introduction of section 221 the factors he

mentions at the top of the page "would have been

totally compelling". With respect to him, that is

a misstatement of industrial principle, both

federally and in the New South Wales arena and we

have given a reference in our second list to three

cases which, in our submission, make that clear.

But we had not sought to debate that on this

question of jurisdiction.

DEANE J: But, how does that get you anywhere? I mean, say

that Mr Duncan had gone a step further and said,

"If the New South Wales provision was not the

applicable one, and I was going to decide this the

way I decided matters to which the Commonwealth

provision was the applicable one, I would have

found in favour of the prosecutor. But since the

State provision is the applicable one and it contains this expressed statutory provision, I find

against the prosecutor". How does it really help

you to say, if he had properly understood the

section which we say was applicable and which he

held was inapplicable, he would not have
necessarily have found the way he said he would

have?

MR BUCHANAN:  Your Honour, we deal with it this way. We say

if he had properly appreciated the industrial

principles at work he would not have made this

observation either, but that merely emphasizes that

the mistake, if there be a mistake, is a mistake

within jurisdiction and not a mistake which goes to

jurisdiction.

DEANE J: That is why I was directing you to your paragraph.

In other words, are you saying this: that if

somebody asserts a jurisdiction, and says that that
jurisdiction compels him to find a particular way,

there is no basis for prohibition even though he

does not have that jurisdiction but has another

jurisdiction which did not compel but which might

have allowed him to find that way. Because, if

Colliery 52 12/5/93

that is the proposition, I would be grateful if you

have any authority to support it.

MR BUCHANAN:  What we say is that there is a distinction to

be made between having jurisdiction to make an

order and misconstruing the true effect of a

statutory provision which might bear upon the

exercise of the jurisdiction. We contend that the

order which he made was within jurisdiction and

remains so, even if he has misconstrued any

relevant statutory provision.

This arises, as Your Honour points out to me,

if the jurisdiction exists either under the general

powers or under 118A and does not require to be

exercised under the State powers. We do not deny

his jurisdiction under the State powers to do what

he did.

DEANE J:  I follow that, but if you be right on that and he

had jurisdiction under the State power to do what
he did, how do we ever come to paragraph 13? We

only come to paragraph 13 if he did not have the

jurisdiction he purported to exercise, but had some

other jurisdiction.

MR BUCHANAN:  We come to it this way, Your Honour, that we

have, in this part of the argument, relied

specifically upon section 22l(l)(c), which is

conditioned by the same statutory direction as the

exercise of any power under paragraph (a).

We understand the prosecutor to deny his

ability to rely upon paragraph (c). Our argument

is that it was open to him to rely upon

paragraph (c) and assuming all the statutory

directions which he found to be applicable,

prohibition would not lie merely because he had

exercised power under paragraph (a) and not

paragraph (c). But the defect is a defect in form,

not a defect in substance.

If it is contended against us, Your Honour,

that jurisdiction exists elsewhere free of the

statutory direction in section 221, and that

therefore the exercise of his discretion is

completely miscarried, our response is, to the

extent that he made any error in mistakenly

believing that he was directed in terms by

section 221(2), firstly, it is a mistake within

jurisdiction, secondly that provision does no more

than restate what are well-established industrial

principles of the kind which he refers to in the

application of section 118A. So that it cannot be

expected that the result, free of the direct

application of the statutory injunction, would be

different.

Colliery 53 12/3/93

If that is a matter to be debated, it would have to be debated before Mr Duncan.

DEANE J:  I do not want to take time, but as I followed

Mr McCarthy's arguments, if what can be done, or

what was done, could properly be done under the

State Act, he does not rely on a misconception as
to the effect of 221(2); he relies on that to

justify a submission that if he establishes lack of

jurisdiction, there is no way this Court, as a

matter of discretion, should refuse to intervene.

Now, I am correct, am I not, Mr McCarthy?

MR McCARTHY: That is one part of it, certainly,

Your Honour.

MR BUCHANAN:  We did not understand it to arise under his

grounds, at all, Your Honour. Perhaps we have met

his - - -

DEANE J:  I thought it arose under his ground 5.

MR BUCHANAN:  I am sorry. I was talking about the grounds

of the order nisi.

DEANE J:  No. Under his ground 8, or under clause 8 of his

argument.

MR BUCHANAN:  Yes. We were referring to the grounds of the

order nisi, Your Honour. Perhaps we have met his

case more broadly than we need have. It may be

sufficient for us to say simply, and we do,

Your Honour, if necessary, Mr Duncan's intentions could have been given adequate effect to by an
order under paragraph (c), relying solely upon the

State power, and if that is right, as we contend it

undoubtedly is, then prohibition simply will not

go. Those are our submissions, if the Court

pleases.

DEANE J: Thank you, Mr Buchanan. Mr Rothman.
MR ROTHMAN:	Can I hand up a copy of the outline of

submissions. Before Your Honours commence reading

it, can I simply state that we do not press, simply

for the lack of confusion, paragraph 6 of the

outline.

DEANE J:	Can we cross it out?
MR ROTHMAN:	You can, Your Honour, yes. Before commencing

the submissions, can I make clear that we adopt

almost in toto the submissions that were put by my

learned friend, Mr Buchanan. Can I refer to a

number of matters that arose from the Bench

relating to both the submissions of my learned

Colliery 54 12/5/93

friend, Mr Buchanan, and the submissions of my
learned friend, Mr McCarthy.

Your Honour Justice Deane at the outset asked whether this was a matter that could not be heard

elsewhere. Section 39B of the Judiciary Act

excludes officers appointed under the Coal Industry

Act from the power of the prerogative writ of the Federal Court. The next question that was raised

related to the question of the stay. I can inform

the Court, before Her Honour Justice Gaudron a stay

was sought and denied. I do not think any issue

was taken with that in the end, but some confusion

arose at one stage or another.

Can I then deal, before dealing with the

substance of the proceedings, with a matter that relates to the form of the orders that, were the Court against my learned friend, Mr Buchanan, and

I, would be granted. The form of the orders that

have been sought seeks prohibition and certiorari

against the totality of the order. We would say

any order that ought be granted ought be granted

only in so far as it deals with the prosecutor's

interests.

DEANE J: As I follow, Mr McCarthy said that.

MR ROTHMAN:	I merely draw that to the Court's attention. Essentially the first three paragraphs that are set
out in the outline of the submissions that I have just put to the Court are paragraphs which deal with the general power of the Tribunal below to
make orders of a kind made at page 45 of the appeal
book even without the supplementary powers that are
granted either by section 34(1A) or section 41A of the two relevant Acts.

As I understand my learned friend

Mr McCarthy's argument, it is accepted by my

learned friend and his client that there was an

industrial dispute within the meaning of the

Coal Industry Acts before the Tribunal.

Paragraph 2, therefore it is probably unnecessary

to go to it. Indeed, there is no challenge to the

finding of dispute that is made at appeal book 27

to 28 and appeal book 34 as to the fact that there

were matters in dispute and a dispute within the

meaning of the Coal Industry Act, Commonwealth, and

Coal Industry Act, New South Wales, before the

Tribunal.

I refer in the first paragraph to the well-

known passage in the R v Duncan relating to the

lack of any lacuna in the powers of the Tribunal

relating to industrial disputes that come before

it. There being an industrial dispute without

Colliery 55 12/5/93

challenge before the Tribunal, it follows there is,

in our respectful submission, no gap in the powers

that are exercisable under the general powers

conferred by sections 34(1) or 40(1), respectively,

and the specific powers conferred by section 118A

and section 221 of the federal and New South Wales

Industrial Relations Act, respectively, and

imported into the powers of the Tribunal by virtue

of subsections (lA) of the two sections in question

are probably unnecessary.

McHUGH J: But they are powers which are hedged by

conditions, and is it not an elementary rule of

construction that a statute which confers a general

power does not permit the general power to be used,

if to do so would avoid the limitations imposed by

the special power?

MR ROTHMAN: 

Save and except this, Your Honour, that in the

are conferred generally in that, in the Coal

case of the Coal Industry Acts, both jurisdictions of general power, that is a general conferral of

powers that exist in either one of the tribunals,

depending on which Act one is looking at.

Therefore, in our respectful submission,

nothing in subsection (lA) could be deemed to have

cut down the general operation of subsection (1).

Can I say something further in relation to that?

If one looks at the powers that are conferred on,

for example, the Australian Industrial Relations

Commission, section 118A is not a code. The

general powers to settle an interstate industrial

dispute relating to demarcation is not cut down by

the provisions of section 118A, and if one looked

at the Industrial Relations Act, Commonwealth,

section 118 deals with demarcation disputes, that

is, interstate disputes, and allows - clearly

contemplates that the Australian Industrial

Relations Commission has general powers relating to

the prevention and settlement of industrial

disputes which include demarcation disputes, over

and above the powers that are granted by

section 118A, or in addition to.

McHUGH J: Yes, but you cannot use the general power to

settle an industrial dispute to avoid the

conditions or limitations in 118A, can you? Just

ignore them. Ever since the Anthony Hordern case

in 47 CLR, I would have thought that was a

fundamental rule of construction of the industrial

arbitration power.

MR ROTHMAN: Section 118A does not depend for its existence

on an industrial dispute at all.

Colliery 56 12/5/93

McHUGH J:	No, I know it does not.
MR ROTHMAN:	And section 118A was historically inserted in

1991. Prior to that there was a power in

section 118 which was a general power to deal with

demarcation disputes. Prior to that, Your Honour

will recall, there was a provision, section 142A,

which also sought to add to the general powers

conferred in relation to the prevention and

settlement of industrial disputes by giving the

Commission power to make orders relating to

representation before it, or under the Act.

McHUGH J: But just take a simple illustration: the general

power to settle industrial disputes could not be

used, for example, to make orders in terms of 118A,
but ignoring the obligation to consult peak

councils, could it?

MR ROTHMAN:  I agree with Your Honour for two reasons.

Firstly, section 118 also has that obligation in

it, but section 118A imports an obligation. But

can I say this, Your Honour, and I use this

somewhat reluctantly, but let us assume for the

purposes of argument that two State registered

unions in unison created a demarcation dispute with

a federally registered organization. That is, a

State registered union in the State of Queensland, a State registered union in the State of New South

Wales, acting in unison undertook conduct which was an industrial dispute, which gave rise to an

industrial dispute, being a demarcation dispute

with a federally registered organization. In my

respectful submission, section 118A says nothing

about whether the Australian Industrial Relations

Commission could settle that dispute.

McHUGH J: That may be so, but that is because 118A does not

govern that sort of situation.

MR ROTHMAN:  No, Your Honour, and relevantly for this case, the only limitations, in terms of jurisdiction,

that are contained within section 118A or

section 221 are limitations about which there is no

complaint; in other words, about consultation with

the peak councils and the like. The complaint that

is made in this case is very much in line with the

hypothetical position that I put to Your Honour

earlier; that is, it is very much in line given the

lack of a necessity for interstateness under the

Coal Industry Tribunal powers. It is very much a

demarcation dispute between a State registered

union and federally registered union.

Therefore, in my respectful submission, in

terms of looking at the example and the hypothesis,

one draws more from the example that I gave, that

Colliery 57 12/5/93

is, of the two years acting in unison, and in my

respectful submission, such a situation would be

capable of resolution by orders of a kind that

would otherwise be made under section 118A under

the general powers for resolution or prevention of gap, either in the power of the Australian
industrial disputes by, for example, the Australian

Industrial Relations Commission or, indeed, in the

Tribunal in relation to the resolution of

industrial disputes simply because there are

supplementary powers that are available in the

exercise of its general powers conferred by

sections 34(1) and section 40.

So that, in my respectful submission, what was

done by the Tribunal below was available to the
Tribunal under the general powers that would be

available in the prevention or settlement of an

industrial dispute, so long as the - a well-known

passage out of a number of cases; Wooldumpers,

Galvin and the like, to which I have given

reference in paragraph 3 - as long as the order is

relevant, reasonable incidental, appropriate or has

a natural or rational tendency to resolve the

issues in question awards can be made under the
general powers. This is not a case in which one

needs to find interstateness, for obvious reasons and, indeed, there is no complaint in relation to

it.

It is noteworthy that the application that was made by the second respondent was an application

under the Coal Industry Acts, and that is set out

at page 17 of the appeal book, and indeed, is an

application for orders of the kind found in

paragraph (c) of subsection (1) of either

section 118A of the Commonwealth Act or section 221

of the State Act.

Paragraph 4 sets out the general scheme under

which subsections (l)(a) come in to play.

Paragraph 5 of the outline deals essentially with the power referred to by my learned friend,

Mr Buchanan, as the power under section 22l(l)(c).

We say, with respect, that the effect of an order under subsection (l)(c), together with an order

under section 118A of the federal Act, is an order

that would be to the precise same effect as the

order that was made at page 45 of the appeal book,

and we make clear that, in terms of the positions

in relation to that, that the form of the order

itself cannot be the subject of a basis of

prerogative writ.

We refer the Court here to a passage in the

joint judgment of Their Honours Justices Wilson and

Colliery 58 12/5/93

Dawson in Reg v Duncan, 158 CLR. It may be

appropriate for me to take the Court to that. At

about point 8 at page 568 of that report,

Their Honours Justices Wilson and Dawson say this:

Notwithstanding the wording of the

earlier of the two orders, we think it

apparent that the Tribunal was intending to

increase the period of notice of

termination ..... Such an intention appears

clearly enough from the second of the two

orders ..... However, we think that the effect
of the orders is as we have said and, having

regard to the type of relief sought in these

proceedings, it is to substance rather than

form that regard should be had.

At page 569, at the foot of the page, Their Honours

say this:

It was also submitted that the orders did

not relate to any of the matters in dispute
because they were directed to specified

employees -

this was one of the many reinstatement cases that

came before the Court -

namely, those who had received notice of

termination of employment, whereas the
relevant matter in dispute was a claim for an
increased period of notice ..... In our view
this is also a matter of form only. If the
orders made by the Tribunal had, by way of
interim award, varied the relevant clause in
the applicable awards so as to increase
generally the period of notice required upon

termination of employment, the same result

would have been achieved ..... That the orders
were limited in their application does not in

our opinion mean that they were not related to

a matter in dispute, namely, the period of

notice required upon termination of

employment.

I simply take the Court to that for the fairly

trite proposition that it is the effect of the
orders and whether they are within jurisdiction
rather than the wording of the orders or the form

of the orders to which the Court would go. In my respectful submission, there can be no doubt that an order could be made under section 221(l)(c)

against the prosecutor. In those circumstances, coupled with the ability of the Tribunal to make other orders, that part of the order which deals with the prosecutor cannot be the subject, in my

respectful submission, of prerogative writ.

Colliery 59 12/5/93

Your Honour Justice McHugh, during the course of the proceedings, asked my learned friend,

Mr McCarthy, whether section 221 of the State Act

and/or section 118A of the federal Act had to be
read mutatis mutandis. We would, with respect,

suggest that that is in fact the case, that the

necessary changes need to be made in relation to

both section 118A and indeed in relation to

section 221 of the two Acts.

In that case the word "Act" would mean the

Coal Industry Act, or relevant Coal Industry Act,
rather than the Industrial Relations Act.
Similarly, the words "organization of employers" or
"organization" would be read in the defined sense
within the Coal Industry Act. Both the State Coal

Industry Act and the federal Coal Industry Act

define "organization of employers" to mean both

State registered and federally registered

organizations.

We say if one applies, as my learned friend,

Mr McCarthy, says is appropriate, the doctrine that

it should be imported with the necessary changes

being made, then the necessary changes would also
include the definition of organization and thereby

would include both federal and State organizations

in terms of the powers that can be exercised under

section 221.
We also say that to the extent that it is said section 220 of the Industrial Relations Act, New

South Wales, imports a restriction on the matters that can be dealt with under section 221, we say

section 39(b) of the Coal Industry Act makes clear

that an application can be made by "an

organization" which is defined in the statutory

sense as being both a federal or State organization

or "a party to an industrial dispute" which again,

in terms of the unchallenged finding of "industrial

dispute", would include the second respondent.

So that notwithstanding the apparent

limitation on who may apply in section 220 of the

State Industrial Relations Act, that is overcome by

the specific provisions of section 39 of the State

Coal Industry Act.

McHUGH J: That gets you over section 220(2), but what about

220(1)?

MR ROTHMAN:	Your Honour, we would say with respect that the proper interpretation of section 220, including
subsection (1), is that one would import in, as I
earlier put, the definition of "organization" and the necessary changes being made. That is the
first argument.

Colliery 60 12/5/93

McHUGH J: That is a separate argument.

MR ROTHMAN:  Yes. Secondly, we would say that in any event,

the ability to make an application that is
contained in section 39 would mean the ability to

make an application under section 221 and does not

import the restrictions that otherwise would be

contained in section 220, and that is the second

argument.

I do not read, as I said, paragraph 6. I have

put it in, I should add, only for this reason, that

there is raging in the Federal Court at the moment

a real issue as to whether Moore v Doyle, with

which the members of this Court would be familiar,

has the universality it has previously been thought

to have. I do not want, with respect, this Court

to make a comment in passing which accepts its
universality which might otherwise be an issue in

other proceedings.

Can I just then refer to section 221.

Section 221 relates to the issue that Your Honour

Justice Deane raised with my learned friend

Mr Buchanan as to the proper principles that the

Tribunal below utilized in determining the exercise of discretion that is reposed in it by section 221.

There is, in our respectful submission, no doubt

that the Tribunal took the view that there was an exercise of discretion, but where the exercise of

discretion was to be exercised it had to be

exercised for particular purposes. And since the

matter has not been raised in that since, I do not

really go to paragraph 7 in that situation.

Paragraph 8 deals with the Coal Industry Act

evidencing an intention by the legislature to grant

to the Tribunal a power to decide all such matters.

The New South Wales Act, by section 50, includes a

privative clause in the following terms:

An award, order or determination of the

Tribunal -

leaving out that which is irrelevant -

shall not be challenged, appealed against,

quashed or called into question, or be subject

to prohibition, mandamus or injunction, in any

court on any account whatever.

The terms of the Coal Industry Act 1946, a

Commonwealth Act, are in precisely the same terms.

In that Act it is section 44. Again, it deals

with:

Colliery 61 12/5/92

not be challenged, appealed against, quashed

or called into question, or be subject to

prohibition, mandamus or injunction, in any

court on any account whatever.

We concede, if concession is the right word,

that those provisions could not oust the

jurisdiction of the Court under section 75(v) of

the Constitution. We nevertheless draw the

attention of the Court to the fact that what was

before the Tribunal and the orders made by the exercise of the jurisdiction of the Tribunal;

secondly, related to the subject matter of the

legislation; and thirdly, is reasonably capable of

reference to the power given, and we cite to the

Court the decisions in Hickman's case to which it

may be appropriate to take the Court very briefly.

At page 614 - I apologize, it is 70 CLR, commencing at page 598, R v Hickman; Ex parte

Clinton. At page 614, in the judgment of

His Honour Justice Dixon, ·His Honour, at about

point 8 on the page, essentially states that:

The jurisdiction of this Court under

s 75(v) -

cannot be ousted, but goes on, at page 615, at

about point 2, to deal with what was regulation 17

in the regulations pursuant to the Act before the

Court in that case.	He says, at the top of that
page:

Such a clause is interpreted as meaning that

no decision which is in fact given by the body

concerned shall be invalidated on the ground
that it has not conformed to the requirements

governing its proceedings or the exercise of

its authority or has not confined its acts

within the limits laid down by the instrument

giving it authority, provided always that its

decision is a bona fide attempt to exercise

its power, that it relates to the subject matter of the legislation, and that it is

reasonably capable of reference to the power

given to the body.

His Honour, as he then was, at page 616, at about

point 2, at the beginning of that paragraph, says:

It is, of course, quite impossible for

the Parliament to give power to any judicial

or other authority which goes beyond the

subject matter of the legislative power

conferred by the Constitution.

Colliery 62 12/5/93

That, of course, is not a problem in this case, unless one was talking about Chapter III or the like, of the Constitution. Further down the page,

at about point 5:

But where the legislature confers authority
subject to limitations, and at the same time
enacts such a clause as is contained in

reg 17, it becomes a question of

interpretation of the whole legislative

instrument whether transgression of the

limits, so long as done bona fide and bearing on its face every appearance of an attempt to

pursue the power, necessarily spells

invalidity. In my opinion, the application of

these principles to the Regulations means that

any decision given by a Local Reference Board
which upon its face appears to be within power

and is in fact a bona fide attempt to act in

the course of its authority, shall not be

regarded as invalid.

In considering the interpretation of a

legislative instrument containing provisions

which would contradict one another if to each

were attached the full meaning and

implications which considered alone it would

have, an attempt should be made to reconcile

them. Further, if there is an opposition

between the Constitution and any such

provision, it should be resolved by adopting

any interpretation of the provision that is

fairly open.

Now those passages have, of course, been

recited and approved by the Full Court in various

cases. They were approved in O'Toole v

Charles David, a reference to which is given; they

were approved in Re: ABEU ex parte Citicorp case, a

reference to which is also given. They were also

approved in Reg v Coldham; ex parte AWU, reference

Mr McCarthy has taken to Court. to which is given in paragraph 10; and, indeed, in the PSA v FCU case, to which my learned friend Ultimately, the issue comes down to whether

the proper interpretation of the privative clause,

given that there are no relevant statutory

limitations because of the combined power of both

the New South Wales parliament and the Commonwealth

parliament, whether the privative clause is such

that it clearly gives to the Tribunal the power to

decide, in an unchallenged way, the kind of orders

that are open on the face of the legislation.

In our respectful submission, this is the very

case, or one of the very cases, in which a

Colliery 63 12/5/93

privative clause of this kind will indeed be given

force by the Court, and if there is an error - we

do not say there is, but if there is an error - the

Court would not correct that, because of the clear

intention of both the Commonwealth and State
legislatures that the Coal Industry Tribunal should

be given an unfettered operation in terms of

industrial disputes that come before it in the coal

industry.

There is really very little I can add to that.

I should perhaps say this. Certiorari is

necessarily caught up in the word "quashed" in the

privative provisions. The reference to that is in
the decision of Houssein to which my learned

friend, Mr McCarthy, took the Court. It is

contained in 148 CLR. The case starts at page 88,

the particular passage is a passage in the joint

judgment of the Court at page 93, about point 5. There is a citation of the Privy Council and its

adoption. It deals with the terms "quashed or

called in question in any court of law".	In Their
Lordships' opinion:

If "quashed" were for some reason not enough,

the expression "called in question in any

court of law is ..... amply wide enough to

include certiorari procedure. Accordingly

they are of opinion that paragraph (a) does

oust certiorari at least to some extent."

In the result their Lordships concluded that the words in question ousted the jurisdiction of the High Court to grant certiorari -

Now, in this case, there is specific and express

provision, which ousts or extends the jurisdiction
of the Tribunal to include the jurisdiction to

decide, even incorrectly, that which is before it,

and unless the attempt is not bona fide, or does

not come within the test I have already quoted from

the High Court, such would not be the subject of

prerogative writ, unless one fell foul in some way
of the constitutional requirements, such as Chapter

III, the conferral of judicial power and the like.

I have already adopted the submissions of my

learned friend, Mr Buchanan, and, other than that,

there is nothing I can add. I am sorry, there is

one matter. Your Honour Justice McHugh raised the

question of a lack of ability to enforce the order

as being the reason to invalidate it. Can I simply

point out to the Court that there is in fact no
provision in the Industrial Relations Act of New

South Wales for the ability to enforce any order

under section 221.

Colliery 64 12/5/93

There is in fact no provision, although it is

a little bit more convoluted in the way one gets to

it, to enforce any order under section 118A of the

federal Act. The only orders that can be enforced

under the federal Act are orders which vary awards

and are made under section 143(1). One has to look

at the definition of "award" and the terms of

section 143 and the terms of section 178. But on

that basis we say it would be inappropriate to

assume that because there was no enforcement
provision, the term clearly was not contemplated

because there is no enforcement provision of either

section 221 or section 118A. So that the argument

would be true of both of those sections in relation

to those two tribunals.

Your Honour Justice Deane raised somewhat in

passing as to what an order under section 221(l)(a)

did in terms of an organization that already had

coverage. It does this: it sets out what the
Tribunal itself has determined as the appropriate coverage, notwithstanding what is in the rules of

the organization. So that even though an

organization may have coverage, that is

constitutional coverage, coverage under its rules,

there may be disputes about whether or not that

coverage in fact exists as a matter of the

construction of its rules or whether it should

exist as a matter of, I suppose, industrial

appropriateness. What a section 22l(l)(a) order

or, indeed, a section 118A(l)(a) order does is set

out what the Tribunal has determined as the
appropriate coverage, notwithstanding what is in

the rules of the unions.

TOOHEY J: Is that right, Mr Rothman, because both 118A and

221 are qualified by the words "employees who are

eligible for membership of the organization"?

MR ROTHMAN:  Yes, Your Honour, and that is the point I make.

Paragraph (b) goes to granting coverage to an

organization that does not otherwise have coverage.

Paragraph (c) goes to denying to an organization

the right to coverage. Paragraph (a) goes to

declaring the appropriate coverage in relation to

organizations, both of which may have coverage.

TOOHEY J: Both of which do have coverage.

MR ROTHMAN:	Both of which do have coverage, yes, although whether or not they have coverage is quite often a
matter of some debate before the Tribunal. If the
Court pleases, those are the submissions we would
make.

DEANE J: Thank you, Mr Rothman. Yes, Mr McCarthy?

Colliery 65 12/5/93

MR McCARTHY:  Your Honour, there are only a number of brief

matters I wish to reply specifically to. Both my
learned friends made reference to the meaning of

the supplementary or additional powers clauses in

the Commonwealth and State Acts. There was

reference to section 118A, and whether that could

be used to justify or whether 22l(l)(c) could also

be used to justify the decision that was made by

the Tribunal.

In our submission, two matters bear on that. Firstly it would seem that, having heard the

argument, that there is no argument that has been

put forward that says that in relation to the type of order that the Tribunal made on the federal and

State relation that either the Industrial Relations
Commission, federal, or the Industrial Relations

Commission, State, could make that order.

McHUGH J:  I thought both counsels said that they could.

MR McCARTHY:  I think they said the Tribunal. think they said the Industrial Relations I do not

Commissions could make that order.	Your Honour, my
note is - - -

McHUGH J: Yes. You may be right.

MR McCARTHY:	- - - that it was the Tribunal; it was not the - so that we commence from a position over both
of those clauses that, given their ordinary
meaning, they do not have a reference to their use
in their primary sense, that is the powers that are
provided there as being ones that cross the two
barriers. The second matter is this, that there
has been a series of attempts to justify various
aspects of the power that was exercised by
Mr Duncan by reference to 22l(l)(b) and more
particularly to 22l(l)(c).

There does not appear, in my submission, to

have been any real argument put to justify, as

distinct from explain, the order that was made

under 22l(l)(a) of the Act.

And after all, Your Honours, it is not (b) and

it is not (c) that we are dealing with in this

matter, it is with his belief in relation to

22l(l)(a), and that comes to the third submission

that I would wish to make in reply and that is
this: that it is clear, in our submission, from

page 44 of the appeal book, that if this had been

just a matter concerned with his ordinary

jurisdiction, to use Mr Justice Toohey's terms, or

power, to use the terms of the Coal Industry Act,

that is section 40(1), Mr Duncan said, at that

position, he regarded the case that was put by the

Colliery 66 12/5/93

prosecutors as totally compelling. In other words,

there would have been a reverse of the order that

has in actual fact been made concerning the

prosecutor.

Thereafter he has said that it is not in section 40(1) that he finds his power. He says it

is in the Industrial Relations Act, State, in

section 221(2)(a). But he says more than that,

Your Honours. He says that he was constrained - he

used the words at 35 - that the powers have to be

used, that is to overcome a compelling situation,

and he says that because not of (b) and (c) but

because of 22l(l)(a) and the purpose of 222(2)(a).

Now, Your Honours, that brings about the

result. It is not in terms of discretion. He

believes that he is - and does - act in a way that

he is legislatively compelled. In our submission, Your Honour, what finally must be looked at is, in

that narrow area, having moved himself into a

position where he says, "This is the power that

applies", he says, "I must apply it". And all of

that is in the context of his saying that that is

what an industrial commission must do.

Your Honours, an industrial commission does

not have the power to do that. The words of

Mr Justice Deane at page 593 in Duncan stand, where

there is a reference to the qualification on the

combined powers, finishing with saying:

the Tribunal is vested with the

powers ..... conferred upon the Industrial
Commission of New South Wales in relation to

an industrial dispute of which that Commission

has jurisdiction.

In other words, it is within that narrow area of those powers of that type that the Commission found

that he believed that that was not only what had to

its authorization to do what was done. full, in my respectful submission, understanding It was in a

be done, but that is what an industrial commission

would be required to do. He makes the reference

there - and I just hand this up, not to read, but

just for the Court's interest - to an industrial

commission judgment which really adds nothing but

just is in terms of what was put there.	I just
hand that up to be put with the papers.	It is the

decision that is referred to in that section.

Mr Duncan believed that that is what a State industrial commission was required to do. In our

respectful submission, Your Honours, a State

industrial commission would not only not have done

that; they were not empowered to do that. If that,

Colliery 67 12/5/93

as we say on the record, is the understanding by authorization for his actions, that authorization did not exist. It is not a question of Mr Duncan's general jurisdiction in section 41 that is in issue

in this matter or is in issue before you today.

What is in issue is that a tribunal found

compelling powers and a jurisdiction that he

believed were derived from the State

Industrial Commission and it was only in that area,

and because of the existence of that connection,

that he believed that he should act as he has done.

And in that area he says it is a series of

provisions which a State Industrial Commission was

not in a position, we submit, to act upon and

neither was he.

It is within that narrow area, we submit, that

consistent with previous authority as to those

occasions in which the nature of additional powers

must be viewed and the overall constitutional

structure of industrial relations legislation must

be kept in mind that we submit that Mr Duncan in

this Tribunal has gone wrong on this occasion in

that way. It is not the great general question

that has been put in issue as has been in previous

cases here, but a specific case concerning a

specific union and a specific reference to an

understanding by a tribunal as to what its

jurisdiction was. It has acted in a particular way, as Justice Brennan said in the PSA case in South Australia, which was not consistent with its

jurisdiction. If it had been in other terms, in

other parts of his power, he has already indicated

what his result would have been. Section 40(1), if that is where it was, he has already indicated what

his decision would be; he found the position of the

prosecutors totally compelling.

TOOHEY J:  I am not sure where this is taking us,

Mr McCarthy. Are you mounting a new argument that,

if contrary to your primary submission the Tribunal

had power to do what it did, nevertheless

prerogative relief should lie because the Tribunal

misunderstood its power in believing it to be

compelled by the existence of the power to make the

order that it did?

MR McCARTHY:  No, Your Honour. I am certainly putting that

forward as a discretion.	I am saying that he
misunderstood -

TOOHEY J: Well, in your written submissions it exists, but

only really by way of an argument against the

refusal of prerogative relief.

Colliery 68 12/5/93

MR McCARTHY:  Yes, Your Honour.

TOOHEY J: But I thought you were getting fairly close to

saying that there was some misunderstanding of

power which itself might ground prerogative relief

in what you have just been saying.

MR McCARTHY: Well, Your Honour, I certainly was not

summarizing anything in reply different to what I had put in-chief. What I am directing my remarks

to is that it is only a narrow area that is

concerned here in this case in terms of what the

powers were, that he misunderstood what those
powers were and - it is fairly colourful language

he has got in his judgment about how this has come

about, and what I am saying, Your Honour, is that

the very way he has expressed himself lends

credence to the fact that if he is mistaken in the

nature of the jurisdiction that is imported by

section 40(1A), it is clear what the result of that

has been; he has reversed what would have been his

position if those powers did not apply. And I do

not put it any more highly than that, Your Honour.

TOOHEY J: Yes, I understand.

MR McCARTHY:  Your Honours, the last reference I would just

wish to leave you with is also in Duncan's case of

the - - -

McHUGH J: Which one?

MR McCARTHY:  I am sorry, Your Honour, 158 CLR. Yes, I take

Your Honour's point. In Justice Brennan's decision

there was a reference to the way in which the

perspective on Commonwealth power - the combination

of powers must be respected. It is at page 580 and

at point 5 there is this reference:

The federal powers vested in the Tribunal are

not extended beyond constitutional limits by

the vesting of State powers. The powers

vested in the Tribunal by the respective Acts
are not intended to blend and do not blend one
with the other so as to form an

undifferentiated mass without the character

and incidents of federal or State power. The two sets of powers are clearly differentiated

by the respective enforcement provisions.

And he makes those points thereafter. In our

respectful submission, when one is viewing
supplementary powers, that approach and what has
been said by Justice Deane, are of critical

importance and if one goes back to enforcement and

the character of powers, which can be and are

different in this respect.

Colliery 69 12/5/93

Your Honours, for those reasons we would

submit that there is error of law on the face of

the record, that the terms of the Acts themselves,

which refer to specific powers in the federal and

State Acts are such that the broader reading of

those terms is not authorized by the very wording

of the provisions that are there before you in that

legislation and, moreover, that if that is what the

meaning that is intended to be put or, as has been

submitted, on those words, it was simple enough for

the federal and State Parliaments, in legislation

that has now existed for over 40 years, to have at

some stage have said so. Because, in our

respectful submission, on the way that the wording

is at present, that language does not support that

approach. As Your Honours please.

DEANE J:  The Court is indebted to counsel for their

assistance, and will reserve its decision in this

matter.

AT 3.54 PM THE MATTER WAS ADJOURNED SINE DIE

Colliery 70 12/5/93