Re The Hon Mr Justice Moore & Ors; Ex parte Pillar

[1991] HCATrans 352

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne	No M44 of 1991
In the matter of -

An application for writs of

prohibition and certiorari

against THE HONOURABLE

MR JUSTICE MICHAEL FRANCIS

MOORE (a Deputy President of

the Australian Industrial

Relations Commission

First Respondent

and

THE BUILDING WORKERS'

INDUSTRIAL UNION OF
AUSTRALIA and THE AUSTRALIAN

TIMBER AND ALLIED INDUSTRIES

UNION

Second and Third

Respondents

Ex parte -

DAVID INGLES PILLAR

Applicant/Prosecutor

BRENNAN J

GAUDRON J

MCHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 DECEMBER 1991, AT 11.00 AM

Copyright in the High Court of Australia

Pillar 1 11/12/91

MS M.R. hICKEY: If t~~ Court plsases, I appear on b~half of

the ~rosecutor actin~ in that matter. (instructed

by Harry Nowicki & Co)

MR s.c. ROTHMAN: If the Court pleases, I appear with my

learned friend, MR K.H. BELL, for the respondent

organization. (instructed by Taylor & Scott)

BRENNAN J:  I have been informed by the Registrar, who has

been informed by the Australian Government

Solicitor who appears for Deputy President Moore of

the Australian Industrial Relations Commission, the

first respondent in these proceedings, that Deputy

President Moore does not wish representation to be

made on his behalf in this matter and he will abide

by any order made by the Court.

MS HICKEY:  If the Court please. May I hand up an outline

of argument to the Court, together with a

legislative chronology.

BRENNAN J: Would you speak into the microphone.so that you

may ba recorded?

MS HICKE~:  Sorry, Your Honour. Does the Court wish me to

read the outline aloud?

BRENNAN J:	No, w~ can read it shortly for ourselves.
MS HICKEYi	Thank you.

BRENNAN J: Yes.

MS HICKEY:  Thank you. May I hand up to the members of the

Bench copies of the historical Acts referred to in

the legislative chronology or extracts from them.

BRENNAN J: Thank you.

MS HICKEY:  And if I could go first to that legislative

chronology, the first statute in the chronology

is - - -

BRENNAN J: What are we going to it for? What are we going

to look for?

MS HICKEY:  I wish to go to the Acts Interpretation Act and

the Judiciary Act in order to demonstrate that this

was the legislative framework or context into which

the 1904 Conciliation and Arbitration Act was

introduced. The Arbitration Act of 1904 proceeds

upon the assumption that there was this legislative

framework whereby jurisdiction was vested in State

courts in respect of criminal offences created by

the 1904 Act.

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BRENNAN J:  We are concerned with section 52, are we, of the

Act?

MS HICKEY: That is so, Your Honour, yes.

BRENNAN J:  Now, a particular construction has been placed

on section 52. Do you wish to address the question

of the construction of section 52 as a matter of

the meaning of the words used?

MS HICKEY:  Yes, I do, Your Honour. We say that the

ordinary natural meaning of the words used do not

embrace criminal proceedings, or proceedings for an

offence under the Conciliation and Arbitration Act. We then move on from there and go to other sections of the Act that deal with the word "penalty". Now,

it is clear under the present 1988 Act that the

word "penalty" is used in three senses. It may be

referable to something that is imposed in respect

to the criminal offence, that is the first meaning.

Secondly, it may be referable to a penalty that is

imposed in respect of breach of an award; and

thirdly, it may be something imposed on members

under the rules of the organization.

Now, in respect of those last two meanings -

that is the penalty for breach of an award and the

fines and penalties imposed members under the rules

of organizations - the Act expressly acknowledges

that the jurisdiction is conferred upon local State

courts in respect of each of those latter two

matters. In order to meet an argument that

section 52 is otiose unless it does refer to

criminal proceedings, we want to go back and look

at the history to demonstrate that the history will

confirm the ordinary natural meaning of the words
as not embracing criminal proceedings in order to

resolve any obscurity in the meaning of the

provision itself.

BRENNAN J:  What do you say is the meaning of section 52(1)?

MS HICKEY:  It is far easier to say what it does not mean,

Your Honour. That is, that it does not embrace

criminal proceedings. It is a difficult question

to say what the first part of section 52 means.

The reason for that is, the original provision,

section 67 was a provision referable to the court's

arbitral jurisdiction. The court at that time was

there to resolve industrial disputes and that was

its primary function. It did have some incidental

judicial functions in relation to the enforcement

of awards, but that was considered incidental and, of course, when one comes to the Waterside Workers v Alexander case, the court lost those judicial

functions because it was said that it was not

permissible under the Constitution to confer upon a

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body which was not a court any part of the

Commonwealth's judicial power.

Thereafter, the Act was amended to reflect

that decision in Alexander's case, so that for a
period the court had nothing but arbitral

functions. Later on again the Act was amended so

that the designation under - the status of persons

constituting the court was altered and the judicial

powers in relation to the enforcement of awards was

sought to be returned to the court. The view seems

to have been from 1928 that the court was a body -

until the Boilermakers case - that the court was a

body in which both judicial and arbitral powers

were vested, the judicial powers being incidental

to the primary function of the court as an arbitral

body.

So what we say is that section 67 was

referable to the arbitral functions of the court

and it was not until the Boilermakers case that the
court then decided that judicial functions could

not be conferred upon the court, and thereafter the

legislature proceeded to separate out, or endeavour

to separate out, the judicial and the arbitral

functions.

Now, the manner in which it did that was the

subject of some criticism in Reg v Spicer ex parte

Australian Builders Labourers Federation, (1957)

100 CLR 277. What we say is that it is a provision

referable to the arbitral functions of the old

court and, if it has any meaning at all in relation

to judicial functions, which are presently in the

Federal Court, then it is referable to those

functions which, up until 1956, were arbitral

functions and recognized as such. That is,
provisions such as disallowing rules of
organizations or cancelling the registration of

organizations or functions analogous to them; for

example, directions for performance of the rules of	organizations and registration. It is referable to
those sorts of things; organizational obligations,
liabilities, responsibilities, which arise by
virtue of the provisions of the Act itself.

But it is clear that it does not embrace or

does not serve to exclude from the jurisdiction of

local courts under the Judiciary Act the invested

Commonwealth jurisdiction in relation to offences

arising under the Act.

GAUDRON J: Except, Ms Hickey, that section 52(1) is

expressed in relation to an act or an omission, not

in relation to proceedings or matters.

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MS HICKEY: Yes, that is quite so. It is a difficult

provision to construe and it is difficult to say

exactly what it does mean. It is far easier to say

what it does not mean and, as I say, it is easy

then to say that it does not embrace - - -

GAUDRON J: But it does not help you to say it does not deal

with criminal proceedings, if you mean that in

terms it does not deal with criminal proceedings,

but it may deal with criminal proceedings if they

relate to an act or omission which has the

character described in section 52(1).

MS HICKEY:  It is arguable that the act or omission could

attract the criminal liability.

GAUDRON J:  And one or other of the liabilities specified in

section 52(1).

MS HICKEY:	It is arguable that section 52 when it speaks about act or omission is referring to liabilities
which may or may not attract criminal liability
under the Act. If that is so, we say the provision does not extend to criminal liability at all. That
is outside the whole provision. It is referable to
other sorts of things. That is made abundantly clear when you look at the history of the Act.

BRENNAN J: Looking at the language of the Act to start

with, you cannot torture it by history if the
language is itself clear, and if we look at the
language of the Act we have an act or omission for

which an organization is liable to be proceeded

against for a pecuniary penalty. Why do those

words not cover acts or omissions which are

offences?

MS HICKEY: There seems to be, Your Honour, two limbs in

section 52(1). The first refers to "an

organization or member is liable to be sued" in

respect of an act or omission.	The words
"liability to suit" ordinarily denote civil
responsibility, not criminal responsibility.	Then
when you go on to the second limb, that is an

organization or member being "proceeded against for
a pecuniary penalty" in respect of the act or

omission, again those words, we say, do not

ordinarily denote a criminal liability.

BRENNAN J:  Why not?

MS HICKEY: Because there are offences under the Act, (a)

which do not require as an ingredient that the act
or omission be committed by the organization or

member, criminal liability in relation to any

person, for example, an employer. So it leaves out

a whole area - on the assumption that that is

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applicable to criminal liability, it leaves out a

whole area of offences created under the Act where

there is not the ingredient of an act or omission

by a member or an organization.

But in addition to that, there are offences

created under the Act where the punishment of the

penalty in relation to the offence is alternatively

imprisonment. So where one finds an offence, where

there is the alternative penalty, then that is not
encapsulated either, and arguably they are the more
serious offences, those where imprisonment is

expressed in the alternative.

So if it does operate to embrace criminal

liability, it has a very lopsided application,

because it leaves out a whole range of offences

committed by, for example, any person, an employer,

and it leaves out of what may arguably be more

serious offences where the punishment or the

penalty is imprisonment as an alternative.

McHUGH J: But can we come down to the concrete case here.

The prosecution here is what, for offences under

214 and 268 of the Industrial Relations Act, is it?

MS HICKEY: There were proceedings instituted against each of the organizations involved in the amalgamation under different provisions of the Act.

McHUGH J:  But what is the section which you rely on as

creating the offences?

MS HICKEY: It is a combination of a number of sections,

Your Honour. Section 268(3) and paragraph (b) of

subsection (1) and paragraphs (c) and (d) of the

same subsection of 268 are relied upon. What was

alleged against the BWIU was a contravention of

section 214(1).

McHUGH J:

Where is the provision which makes it an offence

to contravene section 268?

MS HICKEY: That is found, Your Honour, when you go to the

part dealing with offences contained in Part XI,

from recollection. In relation to 214, it is

section 310.

McHUGH J:  And 321 in respect of - - -

MS HICKEY: In respect of 268, it is 321, Your Honour.

McHUGH J: Well, 321(3), for example, says:

An organization that contravenes

subsection 268(3) is guilty of an offence

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punishable, on conviction, by a fine not

exceeding $1,000.

MS HICKEY:  And indeed, given that they are organizations in

both cases one would expect that would not be the

case.

BRENNAN J: Well, you have an organization being held liable

to be proceeded against for the recovery of a fine.

Why is it not just straight within the language of of 52(1)?

MS HICKEY: Because, Your Honour, we rely upon the ordinary

natural meaning of the words. "Be proceeded

against" and "being sued", we say, are not words
which ordinarily denote the institution of criminal

proceedings.

McHUGH J: Why not? "Proceed against for a pecuniary

penalty".

MS HICKEY:  We say that is referable to proceedings

historically, the contribution from a member in

respect of a pecuniary penalty imposed for breach

of an award.

McHUGH J: Well, that leads to the rather curious result

that a breach of section 268(1) would be within the

exclusive jurisdiction of the Federal Court because of the provisions of 321(1), but a breach of 268(3) is not. Section 321(1) provides:

An organisation shall not contravene subsection 268(1). Penalty: $1,000.

Now, do you concede that that is within 52?

MS HICKEY:  We say that neither is within section 52.

McHUGH J: Not even a provision which says:

An organisation shall not contravene

subsection 268(1). Penalty: $1,000.

MS HICKEY:	I do not concede that, no, Your Honour.
BRENNAN J:	Can you give us an indication of some section of the Act that 52(1) does apply to?
MS HICKEY:	In relation to the first part being proceeded

against, an organizational member being proceeded
against in respect to natural remission, we say

that it would be applicable to proceedings fought

seeking a direction for the observance of the rules of the organization, where an organizational member

- members of the organization more correctly - had

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acted, or omitted to act, in a way required by the

rules.

BRENNAN J:  What would be an act or omission for which an

organization is liable to be proceeded against for

a pecuniary penalty?

MS HICKEY:  Your Honour, that is much more difficult,

because this provision appeared in the 1904 Act at

a time when there was provision in relation to

proceedings being taken for contribution against a

member where the assets and property, funds of an

organization, were insufficient to satisfy a

penalty imposed upon the organization for breach of

an award.

McHUGH J: Well that may be the history, but what about in

this 1988 Act? Section 52(1) assumes that there

are proceedings which can be taken for pecuniary

penalties against an organization. Well where

in - - -

MS HICKEY:  An example of that, Your Honour, would be

proceedings under section 178, the imposition of a

penalty upon an organization for breach of an
award. That is a proceeding, if it is successful,

which gives rise to the imposition of a penalty.

McHUGH J: Well, it seems a curious distinction that a

breach of 321(1) on your argument is not within 52,

but 178(1) is.	What is the difference between the
two?

MS HICKEY: Because 178 gives rise to a non-criminal

liability, assuming the award breach is made out,
whereas criminal proceedings give rise to the

courts to criminal liability, and that liability

may be alternatively imprisonment.

BRENNAN J:  What you are saying is that the word "penalty"

in 52(1) is a penalty other than a criminal

responsibility.

MS HICKEY: That is so, Your Honour, yes.

BRENNAN J:  And the basis upon which you make that

submission is that the history tends to show that

that that is what was in the mind of the

legislature?

MS HICKEY: Well, I put the primary submission that the

ordinary natural meaning of the words is not

denoting criminal responsibility but I then go on

to say, when one looks at other provisions in the

Act which expressly confer upon local courts

jurisdiction in relation to the imposition of

penalty for breach of an award and also confer upon

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local courts jurisdiction in relation to recovery

of fines, penalties, from members under the rules of the organization. Given that other provisions confer jurisdiction upon local courts in respect of

each of those matters, the provision is a provision
of some obscurity and in order to resolve that
obscurity one may have regard properly to the

history of the statute to resolve that obscurity, and also, we say, to confirm the ordinary natural

meaning of the words as not embracing

criminal liability.

BRENNAN J: For my part, I would be grateful if you could

show me how it is that this section stands apart or
is to be compared with other sections dealing with

jurisdiction in order to point up the application

of the words "pecuniary penalty" to a non-criminal

pecuniary - - -

MS HICKEY:  Yes. I rely first upon the fact that

section 178 enables the court and local State

courts to impose a penalty for breach of an award,

that is except in the case of bans clauses where

that might only be done by the Federal Court.

Local courts do not have jurisdiction in relation to breaches of bans clauses, but in respect of all

other breaches of awards local State courts are

given jurisdiction, and that is expressly

acknowledged in section 178.

The other provisions that we rely upon are the

fact that in respect of penalties or fines that

might be imposed upon a member under the rules,

other sections of the Act are expressed also that

local courts have that jurisdiction, and that

emerges when one goes to section 290(2).	We find
that:

Any fine, fee, levy or dues payable to an

organisation by a member in relation to a

period after the organisation was registered

may be sued for and recovered, in the name of

the organisation, as a debt due to the

organisation, in a court of competent

jurisdiction.

And also section 351(2):

On the hearing of a proceeding in a court for

the recovery of a penalty, fine, fee, levy or

due, the court may -

and of course that is a reference back to

subsection (1), being local State courts or

Territory courts -

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if in the interests of justice it considers

appropriate, adjourn the hearing to a court of

competent jurisdiction to be held at some

other place in the same State or Territory.

BRENNAN J: Are those the relevant provisions?

MS HICKEY:  Yes.

BRENNAN J: If one looks at those provisions, one sees that

courts other than the Federal Court are being given

jurisdiction in non-criminal matters.

MS HICKEY: That is so, Your Honour, yes.

BRENNAN J:  Why is it then that 52(1) does not propose

exclusive jurisdiction in the Federal Court?

MS HICKEY:	For this reason: when section 67, which is the counterpart to section 52(1), was introduced, the
court had no criminal jurisdiction. The provision
could not therefore have been referring to the criminal liability.
BRENNAN J:	What court has criminal jurisdiction?
MS HICKEY:	The courts which had criminal jurisdiction at that time were local State courts exercising their
invested or conferred Commonwealth jurisdiction under the provisions of the Judiciary Act.
Notwithstanding that thereafter the old
Commonwealth Court of Conciliation and Arbitration was given some criminal jurisdiction in respect of
offences arising under the Act, that did not happen for a long time and it was not given general
jurisdiction in relation to criminal offences.

Thereafter again, much later on, it was given

general jurisdiction in relation to criminal

offences arising under the Act, but that was done

at a time when the very Act which gave that general

jurisdiction created a right of appeal to the court

from State courts, local courts, in respect of

prosecutions arising under the Act.

So it is quite clear that the legislature,

when it conferred that general criminal

jurisdiction upon the court, did not do that on the

basis that there was any exclusive jurisdiction in

the court to do it, because it was expressly

conferring an appellate jurisdiction upon the court

in respect of prosecutions in respect of offences
arising under the Act, where they occurred in local

courts.

BRENNAN J:  Ms Hickey, I do not want to hold you back unduly

from your canvassing of the history, but speaking

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for myself at the moment, I do not see that, as a

matter of construction of the present Act, there is

much doubt attaching to 52(1); that if it has an

area of operation which is capable of applying to

criminal proceedings for penalties, then it

operates upon those proceedings and 178, 290 and
351(2), if they have any effect in the construction

of 52(1), tend to support that view.

MS HICKEY:  Your Honour, the difficulty is that, on its

face, it does not deal with all criminal offences

arising under the Act.	It is very lopsided in its
application.

GAUDRON J: It deals with organizations, and one might

detect from that an intention that organizations

should not be subject to any court but the Federal

Court.

MS HICKEY:  We say that really is a lopsided operation,

because there are other participants in the

arbitral machinery established by the Act, but in

addition to that we say rhetorically: why would

you seek to make a jurisdiction to the Federal

Court exclusive in relation to the criminal offences where imprisonment was not - - -

GAUDRON J: For example, if the Federal Court has general

supervisory jurisdiction with respect to elections, one might well think it advisable to ensure that no

other court has jurisdiction in respect of matters

pertaining to the conduct of union elections.

MS HICKEY: This is not a provision restricted to elections.

GAUDRON J:  No, but that is one reason why you might think

that.

MS HICKEY:  Your Honour, there are other offences created by

the Act which are organizationally based, if I can

use that term. For example, the Act proscribes an	employer dismissing an employee or injuring him in
his employment on account of the employee's
membership of an organization. Why, one would ask,
would you embrace, on the argument the exclusive
jurisdiction of the Federal Court, criminal liability on the part of the organization but not
that in relation to an employer who dismisses the
employee on account of his union membership?

So, it is very lopsided. It does not seem to

have a great deal of rationality about it, merely

to pick up some offences only and, arguably, the

less serious ones and ignore the whole range of

organizationally based offences where the act or

omission concerned is not undertaken by the

organization or a member of the organization.

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For those reasons, we say, the Act operates in a very peculiar fashion. But, in addition to that,

what we say is, if it is, indeed, a provision that

is referable to the exclusive jurisdiction of the

Federal Court, then it is cast in very odd language for that purpose because the ability of the legislature to enact a provision of that nature arises from the Constitution, sections 76 and 77.

That takes you back to matters arising under the

Act, in this case.

Section 52(1) does not refer at all to matters

arising under the Act and, indeed, that was the

subject of some comment in Williams v Hursey; that

was at a time when it was section 147 of the old

Act. The provision, in some ways, cannot be read

literally because, if it is, it is beyond power.

Williams v Hursey, in the judgment of His Honour Mr

Justice Menzies, made that very point,

(1959) 103 CLR. And in the judgment of His Honour

Mr Justice Menzies, at page 113 of the report,

His Honour makes the point that read literally the provision would extend far beyond any matter in respect of which the court - which was the

Industrial Court at that time - had jurisdiction.

The passage starts at about point 2 of the

page:

The jurisdiction of the Supreme Court of

Tasmania -

it refers to section 147, then, in the middle of

the page, it says -

It is sufficient to say that I consider that

the section, so far as it is material,

deprives any other court of jurisdiction to
hear a suit against an organization or a

member of an organization if that suit is

within the jurisdiction of the Industrial	Court, but does not attempt to deny to another
court jurisdiction to hear a suit - which the
court could not itself try - on the ground
that it concerned an act or omission about
which the Court could decide in a suit which
it could hear and determine. If an organization were to be sued for libel, the
argument I reject would deny to a State court
jurisdiction to hear the action, not because a
federal court had exclusive or, indeed, any
jurisdiction to do so, but because, for
example, in the action it fell to be determined whether the plaintiff had acted in
disregard of the rules ..... As I construe the
section, I think it is within constitutional
power (ss 51(xxxv), (xxxix) and 77(ii). If,

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however, it had to be construed in the way I

reject, I would regard it as outside power

because it would seek to deprive State courts

of their jurisdiction otherwise than by
defining the extent to which the jurisdiction

of a federal court is exclusive of that of a

State court (s 77(ii)).

Now, what we say is if indeed section 52(1)

was concerned with judicial power and depriving
local State courts of their invested Commonwealth

jurisdiction, then it is a very bizarre way of

doing it, and arguably it is beyond power for the

reasons I have just referred to in Williams v

Hursey.

We say the explanation for the strange form of

words used is to be found in the history, because

the original provisions of section 67 was referable

to arbitral functions. In the judgment of

Mr Justice Isaacs in J.C. Williamson Ltd v

Musicians Union of Australia, His Honour looked at

Part Vas it then was of the Act, and considered the Act as a whole, and His Honour arrived at the conclusion that it was a provision designed to

protect the organization as an industrial
disputant, that is, in respect of interstate

industrial disputes to which an organization was

party. The old court had that jurisdiction and the

matter could proceed only in the court.

What we say also is the reference to pecuniary

penalty was a reference also to the arbitral
function also exercised by the court at that time

in relation to contribution proceedings, that is,

where a penalty had been imposed in civil

proceedings upon an organization for breach of an

award and the organization had insufficient funds

or property, the Act itself imposed liability upon

the member to contribute the deficit, and the old

court exercised a power to order contributions by a

member.

McHUGH J:  Why would there be a distinction in principle

between an action for a pecuniary penalty and a

proceeding for a fine? After all, an action for a

penalty was always regarded as a penal action at

common law. The discovery was not available in an

action for recovery of a penalty because - a person

being penalized, so what is the difference in

principle between recovering a penalty and

recovering a fine?

MS HICKEY:  It turns upon the nature of the proceedings.

Recovery of a penalty in respect of breach of an

award is a non-criminal proceeding. It is a civil

proceeding. That was made explicit in Gapes v

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Commercial Bank of Australia, which is in the list

of authorities, which was considered by a Full

Bench of five members of the Federal Court. It was

argued in that case that what is now section 178

gave rise to a criminal liability. The court

decided otherwise. It was non-criminal. Whereas,

in respect of a fine, that normally refers to

criminal proceedings.

There are a number of authorities which assert

that the distinction between breach of an award on

the one hand, and offences against the Act on the

other, is a well recognized distinction: breach of

award giving rise to civil liability; offences

against the Act to criminal liability.

That has been been a distinction observed from

the outset and it was a distinction made abundantly

clear not only in Gapes case, but in this Court

in -

McHUGH J:  To make good your argument, do you not really

have to satisfy us the term "pecuniary penalty" is

confined to civil actions for the recovery of

penalty?

MS HICKEY: Well, as I say, the difficulty in demonstrating

that is that the Act itself is explicit that except

in relation to bans clauses, local courts have that
jurisdiction. They have jurisdiction under

section 178 to impose penalties for breach of

awards. Similarly, if the term is used in relation

to fines, penalties arising under the rules of
organizations, local courts also have that

jurisdiction.

BRENNAN J:  So they have and section 52 says nothing to the

contrary because it was subject to this Act.	Why
is it that you - - -

MS HICKEY: Well we rely upon that for the submission that

the provision is one of considerably obscurity, and

that obscurity will be resolved when you have

regard to the history of the Act because it is

abundantly clear that when that provision was

introduced the Court had no criminal liability at

all.

BRENNAN J: With respect, Ms Hickey, the problem I have at

the moment is that leaving aside the history, I do

not any obscurity, but if I listen to the history I

might be convinced that there is some. That is not

usually the way one approaches the history of a

submission - - -

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MS HICKEY:  Well no, and I do not do it to create confusion.

As I say, I rely upon the ordinary natural meaning

of the words - - -

BRENNAN J: Well then, the ordinary natural meaning of the

words is that there is a proceeding for the

recovery of a pecuniary penalty.

MS HICKEY: That is so.

BRENNAN J:  Now those words are equally capably of applying

to proceedings which are either criminal or civil

in their nature.

MS HICKEY:	I do not accept that step, Your Honour.
BRENNAN J:	Why not.

MS HICKEY: Because, Your Honour, there are offences created

under the Act for which imprisonment is an

alternative form of punishment.

GAUDRON J:	Or an organization.
MS HICKEY:	Not for an organization, no.
GAUDRON J:	And of course, section 52(1) is concerned with organizations.

MS HICKEY: That is so, Your Honour, yes.

GAUDRON J:	And only with organizations.
McHUGH J:	Or members of organizations.
GAUDRON J:	Or members, yes.
MS HICKEY:	But in respect of members, there is, from

recollection, no offence created by the Act which

has as an ingredient thereof, the act or omission

having been undertaken by a member of an
organization.	So what we do say is that the

reference to pecuniary penalties is a reference to

civil proceedings, not criminal proceedings, which

are right outside section 52(1), and as I say, we

rely upon the history to confirm that -

BRENNAN J:  The effect of that submission is, as

Justice Gaudron pointed out to you a while ago,

that you would have a Federal Court with exclusive

supervisory jurisdiction over questions of union

elections, but you would have that court without
jurisdiction in respect of offences against, or

rising in the course of the union elections. That

seems a very peculiar lopsided - - -

Pillar 15 11/12/91

MS HICKEY: Well, not necessarily, Your Honour. The Act

creates a large number of offences, ranging in

seriousness, even where the act or omission

concerned is undertaken by the organization.	One
might point to the offences here.	Why, one would

ask, would you want to make proceedings in respect
of those sorts of matters with an exclusive

jurisdiction of the Federal Court when, for

example, in respect of other organizationally-based

offences, where the penalties may well be higher or

alternatively imprisonment, would you not want to

include that within section 52.

McHUGH J: But the Federal Court has certainly got

jurisdiction in respect of prosecutions.

MS HICKEY: That is so, yes.

BRENNAN J: Under what section.

MS HICKEY:  It is section 50, Your Honour. Your Honour

might notice that the term "penalty" there is used

in relation to section 178, that is award breach,

non-criminal liability, whereas when it is desired

to refer to criminal proceedings, the phraseology

is:

prosecutions may be instituted for offences

against this Act.

One would have thought that if section 52 is

designed to catch prosecutions for offences against

the Act committed by an organization or member
thereof, it would have used the sort of terminology

that is resorted to in section 50, as distinct from

the mere reference to penalty when that term is

used in section 50 in respect of section 178,

non-criminal liability.

McHUGH J: But is your argument that the court has no

jurisdiction at all in respect of a 268(3)

prosecution?

MS HICKEY:  No, Your Honour.

MCHUGH J: It is not?

MS HICKEY:  No, a court does have jurisdiction in respect of

that. That is clear in section 50. It does have

jurisdiction but it does not have exclusive

jurisdiction in relation to that. In respect of

prosecutions for offences under the Act, there is

concurrent criminal liability - - -

McHUGH J:  I am sorry, I got the wrong subsection. I meant

268(1). What is 268(1)? What sort of a

prosecution is that?

Pillar 16 11/12/91

MS HICKEY: That imposes the obligation and you then have to

go to Part XI.

MCHUGH J:  You go to 321.

MS HICKEY: Yes, in respect of the criminal liability.

MCHUGH J: It says:

An organisation shall not contravene

subsection 268(1). Penalty: $1,000.

What, does the Federal Court get its jurisdiction

under S0(l)(e)?

MS HICKEY:	Where does it?
McHUGH J:	No, does its jurisdiction derive from section

SO(l)(e)?

MS HICKEY:	Yes, it does.
McHUGH J:	So does your argument mean that the reference to

"pecuniary penalty" in 52 is really a reference to

penalties under 178?

MS HICKEY:  On its face, yes. It may also be referable to

the penalty or fine imposed under union rules, but
the difficulty then is that the Act expressly
confers or acknowledges the conferment of

jurisdiction in respect of each of those matters

upon local courts.

McHUGH J: Except 52 is subject to the Act.

MS HICKEY: Yes, that is so.

I did desire to go into the history. Does the

Court wish me to do that?

BRENNAN J: That is a matter entirely for you.

MS HICKEY: Yes, I do desire to, if Your Honour pleases. If

I could go to the legislative chronology that I

handed up, the first three entries in that refer to

the context in which the 1904 Conciliation and
Arbitration Act was introduced and particularly the

Judiciary Act whereby, under sections 39 and 68,

Commonwealth judicial power was conferred upon

local State courts.

When one comes to the 1904 Conciliation and

Arbitration Act, one finds when one looks at

Part II, which prohibits strikes and lock-outs in

relation to industrial disputes, that it creates a

number of criminal offences.

Pillar 17 11/12/91

McHUGH J:	I am sorry, what is the Act again?
MS HICKEY:	I am now going to Act No 13 of 1904,

Your Honour, having made the point that it was

introduced within the context of the Judiciary Act,

sections 39 and 68, conferring Commonwealth

jurisdiction upon local State courts.

MCHUGH J: Yes.

MS HICKEY: Part II of the 1904 Act proscribed a number of

offences, and you will see that while some of those
offences in Part II were referable to an

organization, some are referable to "person".

Part III established the court and that court had,

under section 18, jurisdiction to prevent and

settle all industrial disputes.	I should refer the
Court briefly to its powers under section 38.	The

Court will see that, under paragraph (c), the court

had power:

to fix maximum penalties for any breach or

non-observance of any term of an order or

award, not exceeding One thousand pounds in

the case of an organization -

et cetera. Then, under paragraph (d): it had

power to impose those penalties; paragraph (e):

to enjoin any organization or person from
committing or continuing any contravention of

this Act;

and then one goes to Part IV, headed "Enforcement

of Orders and Awards", section 44, enable the

recovery of penalties in respect of breach of an

award, which was exercisable not only by the court

but also by any court of summary jurisdiction.

Then, when one goes to section 47, you find

that:

For the purpose of enforcing compliance with

any order or award, process may be issued and

executed against the property of any

organization or in which any organization has

a beneficial interest, whether vested in

trustees or howsoever otherwise held, in the

same manner as if the organization were an

incorporated company and the absolute owner of

the property or interest.

Then subsection (3) provides that:

Where the property of an organization on

execution is insufficient to satisfy fully any

process for enforcing any order or award, the

Pillar 18 11/12/91

members of the organization shall, to the

extent of the maximum penalties defined in

paragraph (c) of section thirty eight, be

liable for the deficiency.

And then section 48 empowered the court to:

on the application of any party to an award,

make an order in the nature of a mandamus or

injunction to compel compliance with the award

et cetera.

Then Part V dealt with organizations and

section 55 dealt with those that might be

registered. Then one comes to section 57, which

deals with registration itself, and 58, which deals

with incorporation. Section 60 enabled the

cancellation of registration by the court on

specified grounds. Section 65 commences a group of

sections entitled Organizations Generally and what

they may do or are entitled to do is set out in

section 65. Section 68 enabled the organization to

sue or be sued for the purposes of the Act and its

register or other name; section 67, which is the

counterpart to subsection (1) of section 52:

Unless the contrary intention appears in this

Act, no organization or member of an

organization shall be liable to be sued, or to

be proceeded against for a pecuniary penalty,
except in the Court, for any act or omission

in respect of which the Court has

jurisdiction.

Then section 68: All fines fees levies or dues payable to an organization by any member are

recoverable in the State courts.

Then section 69: Every dispute between an

organization's members may be decided in a manner
directed by the rules and the court, on the

application of the trustees or other officers

authorized to sue on behalf of the organization may
order the payment by any member of any fine,

penalty or subscription payable under the rules.

and then next:

or any contribution to a penalty incurred or

money payable by the organization under an

award or rule of the Court; but no such

contributions should exceed the sum of Ten

pounds.

Pillar 19 11/12/91

We say that is clearly a reference back to the

provisions in section 47, where the assets and
property of the organization are insufficient to

satisfy the penalty imposed for breach of an award.

The other provisions I shall refer to in - - -

McHUGH J: Can I just stop you for a moment there. If an

organization was prosecuted for breach of section 6

of the 1904 Act, did the court have exclusive

jurisdiction?

MS HICKEY: It had no jurisdiction, Your Honour, none at

all.

McHUGH J: Now what is your basis for that?

MS HICKEY: There is nothing in this Act which seeks to

confer upon the old court jurisdiction in relation

to offences arising under the Act. Its only

jurisdiction is section 18, the arbitral
jurisdiction in respect of interstate industrial
disputes, and that is elaborated upon in
section 38. Again that is restricted to industrial
disputes, but it may impose penalties for breach of

an award and fix the maximum penalties for breach

of an award. In Alexander's case the ability of

the court to impose penalties for breach of an

award was said to be judicial power and not

exerciseable, therefore, by the court.	What one
would say is:	if the court did have any criminal

jurisdiction then that would have been an even

stronger reason for striking down a provision

giving that sort of jurisdiction than were the
provisions of section 34 and 38(c) and (d) were the

provisions relied upon in Alexander's case.

It is quite clear that there is nothing in

this Act which confers jurisdiction upon the court

to impose any sort of penalty in respect of

offences created by the Act. The position,

therefore, was that the jurisdiction in relation to the offences created by the Act was exerciseable in

accordance with the provisions of the Judiciary Act

by local State courts.

Now, the next Act we go to is Act No 39 of

1918 and that followed on from Alexander's case

which struck down the power of the court to

exercise judicial powers. That was on the basis

that the court established by the Act was not a

judicial body capable of exercising Commonwealth

judicial powers, and therefore it could not

properly exercise powers of enforcement of awards

which was, in its nature, judicial.

Pillar 20 11/12/91

Act No 39 of 1918 reflected this decision by

taking away from the court the power to impose

penalty for breach of an award. One might say if

there were jurisdiction of the court in respect of

offences, then that would have been a stronger

ground in Alexander's case and that also would have

been taken away. But, of course, it was not there.

So the situation was after Act No 39 of 1918 the

court was solely an arbitral body.	It had no
judicial powers at all.

Now, Act No 22 of 1926 sought to restore to

the court its powers of enforcement of awards, and

it did that by altering the designation and status

of the persons constituting the court so that it
could be a court exercising judicial power of the

Commonwealth in terms of Constitution 71.

The next Act is Act No 18 of 1928, and this

Act for the first time created some criminal jurisdiction in the court, but it was not jurisdiction in respect of all offences under the
Act. It was very limited, and it is limited to the sections set down in the chronology, and indeed,

they were the lesser offences. They were not the

offences found in Part II in respect of strikes and

lockouts.

The next step in the chronology is Act No 43

of 1930. That amended section 38 in respect of the

penalty that might be imposed for breach of an

award by reducing the maximum penalty. It also

repealed section 47 which was the statutory
provision imposing upon members liability for

penalties imposed for breach of an award where the

funds of the organization were insufficient to

satisfy execution. But that was deleted in 1930.

The next step in the chronology is Act No 10

of 1947. That Act gave the court an appellate

jurisdiction in respect of internal appeals within

the Commission, but it also inserted section 35

enabling appeals from State courts in respect of

prosecutions - in respect of offences against the

Act.

McHUGH J:  What section is 35?

MS HICKEY: Section 35, this is Act No 10 of 1947,

Your Honour.

McHUGH J:  Yes. My copy only goes up to 28.

MS HICKEY:	I am sorry.
GAUDRON J:	Mine seems to conclude at 29.

Pillar 21 11/12/91

BRENNAN J: Mine finishes at 29 also - - -

McHUGH J:  Mine actually jumps from section 3 through to

29 is missing.

MS HICKEY:  I do apologize. What Act No 10 of 1947 did was

by section 8 to insert a new Part III.	And within
that Part III there is a new section 35.	And that
new section 35 ran as follows:

There shall be an appeal to the court from a

judgment or order of any other court -

(a) in proceedings arising under this Act,

including proceedings under section 44, or

proceedings for an offence against this Act -

and it then goes on -

and the court shall have jurisdiction to hear

and determine any such appeal.

This was the same Act which gave general criminal

jurisdiction to the court in respect of offences

arising against the Act. But, while it did that,

it also gave an appellate jurisdiction to the court in respect of offences arising against the Act from local State courts, which courts were exercising

their invested Commonwealth jurisdiction in

accordance with the provisions of the Judiciary

Act.

The section that did that was section 21.

That is the section that amended section 89B so as

to confer a general criminal jurisdiction upon the

court and the phraseology was that "the person was

being charged accordingly before the court". That

same Act renumbered - - -

BRENNAN J: Could you restate that last proposition about

section 89B?

MS HICKEY: Section 21 of Act No 10 of 1947 amended

section 89B so as to confer general criminal

jurisdiction on the court in relation to offences

under the Act and the phraseology used was that

"the person was being charged accordingly before

the court". Do you have a copy of that provision?

You do not? I do apologize. Perhaps if I read out

the new section 89B.

BRENNAN J: That is section 21 of the 1947 Act?

MS HICKEY: Act No 10 of 1947.

BRENNAN J:  Was section 21 inserted by - - -

Pillar 22 11/12/91

MS HICKEY:  Inserted or amended section 89B so that 89B

provided:

A person who has committed an offence against

this Act may be charged accordingly before the

court and the court may impose a penalty

provided by this Act in respect of that

offence.

McHUGH J: Unfortunately, all I have got is four pages of

Act No 10 of 1947 which sets out 1, 2, 3 and then I

do not know what section but it is the part that

inserts Part III but I only have from section 21

through to 28 of Part III.

MS HICKEY:  I do apologize for that, and perhaps I could try

to rectify that over the luncheon adjournment so

that you do have the entire Act. My learned friend

tells me that he has relied upon it and provided to
you as an authority - he relies upon Act No 10 of

1947, so you should have it anyway.

BRENNAN J:  Has it been handed in perhaps?

MR ROTHMAN:  I apologize, Your Honour. It was in fact given

in the list of authorities.	I apologize if the
Court has not got it.	I was just trying to be
helpful.

MS HICKEY:  My learned friend has provided me with a copy.

BRENNAN J: That will be of some assistance, thank you.

MS HICKEY:  I will endeavour to have copies made over the

luncheon adjournment. The next Act in the

chronology is Act No 18 of 1951.

McHUGH J: Just before you go on, 89B became section 119,

did it?

MS HICKEY: That is so, and then later on again, 191. There

were two lots of renumbering, Your Honour. The

next Act in the chronology is Act No 18 of 1951 and

what has been referred to under that heading is the

fact that section 11 substituted section 78,

Proscribing Incitement to Boycott an Award, and the new provision actually contained a subsection

whereby:

A person who has committed an offence against

this section shall not be charged before the

court.

Therefore, the only way of proceeding in respect of

an offence of inciting to boycott the award was

through local State courts exercising their

invested Commonwealth judicial power.

Pillar	23	11/12/91
McHUGH J:	I think you	will have to have to sack your

photocopier.	There are problems again, I think, so
far as I am -	I have not got section 11 in No 18 of
1951.

MS HICKEY: Again, I do apologize and I shall do something

over the lunch adjournment. Section 15 amended

section 119.

MCHUGH J: Yes, I have got that.

MS HICKEY: That referred to the procedure whereby the

proceedings might be instituted in the court.	Then
the next Act in the chronology is Act No 44 of

1956. This was following the Boilermakers case and

it was a very substantial amendment and it sought

to separate out the arbitral functions from the
judicial functions, the latter being conferred upon

the Commonwealth Industrial Court. Section 41 of

that Act replaced section 31. That was the

provision dealing with appeals to the court from

State courts including prosecutions for an offence

against the Act in local State courts. That had

been struck down in Collins v Charles Marshall Pty

Ltd, and it was amended by Act No 44 of 1956.

BRENNAN J:  What section should we be looking at there now?

MS HICKEY: Section 41 replaced -

McHUGH J: It is the same problem again; it has not been

reproduced.

MS HICKEY: 

I do apologize, Your Honour. Perhaps I can read

the provision and, again, tend to photocopying over
the luncheon adjournment.

MS HICKEY: 

The new section 41 provided:

The court has jurisdiction to hear and

determine an appeal from a judgment, decree,

a Supreme court) or of a court of a

Territory made, given or pronounced in a

matter arising under -

(a) this Act -

order or sentence of a State court (not being

and that, as I say, was the amended form following

the earlier provision having been struck down in

Collins v Charles Marshall,
but there is nothing in invalidity of the earlier provision turned upon the

appellate jurisdiction of the court in respect of

offences under the Act, from local State courts.

The difficulty with the earlier provision was that

it went well and truly beyond matters arising under

Pillar 11/12/91

the Act to matters of State jurisdiction and that

was the difficulty with it that gave rise to its

invalidity. Act No 44 also renumbered so that 41

became section 113 and section 86 became

section 147 and 119 became 191.

The next Act in the chronology is considerably

later and that is Act No 89 of 1974, and that

amended section 147 by inserting subsection (2) in

terms that the jurisdiction of the court under

section 140, 141 and 144 and Part IX is exclusive

of the jurisdiction or any similar jurisdiction of a State industrial authority. Section 140 was the

power to strike down rules of organizations,

section 141 was the power of the court to give
directions for the performance and observance of
the rules of organizations. Section 144 empowered
the court to make a declaration in respect of
entitlement to membership of an organization and

Part IX was in respect of the court's conduct of inquiries into irregularities alleged in the

conduct of elections within organizations.

BRENNAN J:  Now, just pausing at that point, what was the criminal jurisdiction of the court?

MS HICKEY: At that stage?

BRENNAN J: Yes.

MS HICKEY: After 1956, Your Honour, the criminal

jurisdiction it had was conferred in terms of

procedure by section 191, but there was no
provision which drew together the entire
jurisdiction of the court and provided, as one now

finds in section SO, that it had general

jurisdiction in respect of offences against the

Act, section 191, providing that a person might be

charged before the court. But what we say is that

a provision of that nature does not evince an

intention to deny the invested Commonwealth

jurisdiction under section 39 of the Judiciary Act

conferred upon local State courts in respect of

offences arising against the Act. It is

consistent, we say, with concurrent criminal
jurisdiction in both the court and local courts.

It is not consistent, we say, with exclusive criminal jurisdiction.

Then, the next Act in the chronology is the

Crimes Legislation Amendment Act - - -

BRENNAN J: Just a moment. Who has jurisdiction at that

stage in respect of breaches of awards?

MS HICKEY:  The Commonwealth Industrial court, Your Honour.

Pillar	25	11/12/91
BRENNAN J: Exclusively?
MS HICKEY:	No, Your Honour.	We say the counterpart to

section 52 was then section 147.

McHUGH J:  You could prosecute under courts of petty

sessions?

MS HICKEY:  Yes, that is so, as well as in the court.

MCHUGH J: Yes.

MS HICKEY:  And we say that is still the position.

Section 52 is, in substantially identical terms, with some minor change of wording, with section 147

and therefore the position still is concurrent

criminal jurisdiction. There is nothing in the

1988 Act which evinces an intention to destroy the

jurisdiction conferred upon local State courts by

sections 39 and 68 of the Judiciary Act. So the

position remains, concurrent criminal jurisdiction.

BRENNAN J:  So there was concurrent criminal jurisdiction

and concurrent jurisdiction for penalties for

breach of awards.

MS HICKEY: Yes, Your Honour, except in relation to bans

clauses.

BRENNAN J: Except in relation to bans clauses? That really

gives section 52 no work to do at all.

MS HICKEY:  No, Your Honour. We say there is plenty of work

for section 52 to do, and it is the sort of work

that is described in subsection (2) in relation to

State industrial authorities. It covers the same

area as one finds in subsection (2). It would be

strange indeed if one made the Federal Court's

jurisdiction in respect of directions for

performance of rules, striking down rules,

declarations in respect of entitlement to

membership, and irregularities alleging the conduct

of union elections - to make the Federal Court's

jurisdiction exclusive as against State industrial

tribunals.

BRENNAN J:  I did not make my question as clear as I should.

The provision of section 52(1) which relates to

"acts or omissions for which an organization is

liable to be proceeded against for a pecuniary

penalty", do those words have anything to do?

MS HICKEY:  The last lot of words, "pecuniary penalty", no, Your Honour. They ceased to have any real work to

do when the provision for contribution was taken

out of the Act. That was the old section 47, the

section that said where the funds of the

Pillar 26 11/12/91

organization are insufficient to satisfy execution in respect of the penalty imposed for breach of an award, the members are liable for the deficiency,

to a maximum of - - -

BRENNAN J:  Am I right in thinking this, that there are only

two classes of penalties provided for in the Act;

one is penalties for breach of an award under

section 178, the others are pecuniary penalties so

prescribed from four offences under the Act?

MS HICKEY: Well, the Act also seems to recognize that a

penalty or a fine might be imposed upon a member

under the rules, so there are three, Your Honour, I

would submit.

BRENNAN J:	Now, in relation to the penalties for breach of the award there is no doubt that there is
concurrent jurisdiction under 178?

MS HICKEY: Yes, Your Honour.

BRENNAN J: In relation to penalties, if they are penalties

being debts owed to an organization, under 290, the

jurisdiction lies where?

MS HICKEY: Concurrent again.

BRENNAN J:  Concurrent. So there is only one possibility

which can exist in relation to penalties being

exclusive to the Federal Court, and that is in

relation to criminal penalty.

MS HICKEY: Well, we say when you look at the Act and its

history, it has never ever been referable to - - -

BRENNAN J:  I appreciate that, but in other words, to give

section 52(1) this construction you cut across the

history of the Act?

MS HICKEY: Quite so. You ignore - - -

BRENNAN J: Is there any room for those words in 52(1) if

you do not cut across the history of the Act?

MS HICKEY: There is no room for the part that talks about

penalty, no, Your Honour. And that was the

position from the time the old section 47 was taken

out, the provision in respect of contribution

proceedings.

BRENNAN J:  Now, if, as a matter of construction of the Act

within its four corners, you can give those words

operation only by reference to criminal penalties,

is there any principle of statutory interpretation

which allows you to go to the history?

Pillar 27 11/12/91

MS HICKEY:  Your Honour, we again go back to what was put

originally, the words "being sued" and "being

proceeded against" are ordinarily not words that

denote liability to criminal offences.	We do not
go to create obscurity.	We go to it to resolve the

obscurity. Section 52(1) is a very difficult

provision to construe. If it is a provision

referable to the court's judicial power, it is

really not expressed in terms that does that

sensibly bearing in mind that that only may be done

conformably with Constitution 76 and 77.

But, of course, if one goes back to the

history and perceives that originally it was a

provision in respect to the arbitral function of

the court, it then makes a great deal of sense.

The terminology is appropriate for that purpose.

It refers to the court's "arbitrary jurisdiction in respect of the settlement of disputes", and the
reference to pecuniary penalty is a reference to

the fact that the court had jurisdiction to order

contribution by a member to a penalty imposed upon

an organization where the organization had

insufficient funds for that purpose. Once that

provision regarding contribution, the old

section 47, was taken out, then the latter words

really had no work to do, Your Honour.

McHUGH J: Could I come at the matter from a different

angle? Apart from 178 and section 290 is there any

other sections in the Act which indicate that any
court but the Federal Court has jurisdiction in

relation to recovery of fines or penalties?

MS HICKEY:  Of course, you really have to look at the

Judiciary Act because that does confer jurisdiction

upon local courts in respect of criminal offences.

You really cannot, in respect of a matter like that, ignore the Judiciary Act provisions, and it then becomes a question because there is this

invested jurisdiction under provisions of the

Judiciary Act: does the Act evince an intention to

displace or destroy the operation of sections 39

and 68 of the Judiciary Act so as to take away from

local State courts their invested Commonwealth

jurisdiction in respect of those offences?

McHUGH J: But if there is nothing in the Act which

indicates that any other court has jurisdiction in

respect of a pecuniary penalty, and you have

section 50 giving the jurisdiction to the Federal

Court, and 52 making it exclusive, why should that not be sufficient to evince an intention to exclude the operation of the Judiciary Act?

MS HICKEY:  What we say, Your Honour, is that there are a

number of sections which appear to proceed upon the

Pillar 28 11/12/91

basis that there is concurrent criminal

jurisdiction, and those provisions are section 350,

which refers to a court in respect of - it makes

the distinction between fine or other pecuniary

penalty imposed. So that seems to acknowledge that

these sorts of proceedings will be in courts other

than the Federal Court. Then 351, where there is a

reference again to local State courts having

jurisdiction in relation to penalty, fine, et

cetera. 356 - - -

McHUGH J:  And 357.

MS HICKEY:  Yes, Your Honour. 311 is a criminal offence, as

distinct from section 178, and then 357 again,

paragraph (c) of subsection (1):

Where a court has:

(c) imposed a penalty for a contravention of

section 311 -

It then goes on. But they seem to acknowledge that

there is criminal jurisdiction in local State

courts.

GAUDRON J: Yes, but does that really cut away from

section 52(1), which is after all dealing with
organizations or members of organizations. These

provisions are directed generally.

MS HICKEY: Section 3(11) is wilful breach of an award.

McHUGH J: That is by an employer.

MS HICKEY: It could be an organization; it could be a

member of an organization.

GAUDRON J: But need not be.

MS HICKEY:  Need not be, no. Going back to section 52, it

is expressed to be subject to the Act, so arguably
these provisions being consistent with concurrent
criminal jurisdiction in local State courts, the
operation of section 52, if it is applicable to

criminal proceedings, is overtaken.

But of course, it is primarily the Judiciary

Act that one goes to for this purpose - that is

sections 39 and 68. They were provisions when were

enacted before the 1904 Act. The 1904 Act was

introduced within that context and it proceeded

upon the assumption that it would be local State

courts exercising the jurisdiction, otherwise one

had a situation where offences were created but

there was no court that had jurisdiction.

Pillar 29 11/12/91

So it is for those reasons that we say that section 52 does not suffice to deprive local State

courts of their invested Commonwealth jurisdiction

pursuant to the provisions of the Judiciary Act.

One would need a very clear statement of that sort

of intention, and it is simply not there,

Your Honour.

BRENNAN J:  Ms Hickey, I do not know whether you have

exhausted what you wish to say about the
construction of the Act within its own four

corners, but I think I did take you away from your

historical analysis at the point where you had got

to the 1956 Act.	Is there anything you wish to add
to that?

MS HICKEY: Well, I do not think so, Your Honour. It was

really making the point that notwithstanding that

Act No 26 had sought to return to the old court

judicial powers, that once one gets to the

Boilermakers case that was revealed for the error

for which it was, because of the doctrine of

separation of powers, and the Act No 44 of 1956

sought to separate out judicial powers from

arbitral powers but in doing so it allocated powers

that hitherto had been determined by this Court to

be arbitral, it allocated them to the new

Commonwealth Industrial Court.

An example of that was the striking down of

union rules. Now, the Court had already held that

the striking down of union rules and deregistration

were arbitral functions. Act No 44 of 1956 sought

to give those to the court, but when it did so,

this Court said that was bad. So notwithstanding

that there was this attempt to separate the

functions out, it was a somewhat mindless exercise

and that was considered in - - -

BRENNAN J:  Do we need to go to that particularly, for the

purposes of your argument?

MS HICKEY:  No, I just wanted to give the reference to it,

Your Honour. It is the Builders Labourers case,
Your Honour - Reg v Spicer ex parte Australian

Builders Labourers Federation, 100 CLR 277. The

relevant pages are in the list of authorities which

we have already provided to the Court.

What we say is, in the same way as the

legislature somewhat mindlessly allocated arbitral

functions to the new Commonwealth Industrial Court,

when it sought to give to the court power of

disallowance of union rules, so also, when it

picked up section 147 and sought to give that to

the court, that also was a mindless exercise

because it ignored the fact that section 67 was a

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provision dealing with arbitral functions, not with judicial functions. And we say that because it was

an arbitral function, it clearly did not embrace a

criminal jurisdiction.

Now what we do say is that subsection (1) is

to be construed now consistently with

subsection (2) of section 52, so that it embraces
those functions that were formerly arbitral, for
example, disallowance of rules, deregistration or
functions analogous to them, for example,
directions to the performance of an observance of
the rules which are now exercised by the court,
functions which are the same type of function as
described in subsection (2).

If the Court wishes me to take you to authorities in respect of some of the matters I

have gone to very briefly - - -

BRENNAN J: In relation to the history?

MS HICKEY: Yes.

BRENNAN J:  I would not have thought that that was

necessary, is it? Is there any question of

principle which the authorities could illuminate

that you have not already covered by reference to

the provisions of the Acts?

MS HICKEY: Well, there is the JC Williamson v Musician

Union case, where His Honour Mr Justice Isaacs has

expressed that section 67, that is the predecessor

of section 52(1), is referable to the Court's

arbitral jurisdiction, because it had to do with

protecting industrial dispute - in an organization

being industrial dispute from any other court.	The
court was, of course,	a body for the prevention

and settlement of industrial disputes by

conciliation and arbitration.

BRENNAN J: Yes, but that does not really trespass upon the

argument that you want adduce here.	You want
to - - -

MS HICKEY: Well, I do rely upon it though, of course,

because we say this: this was a characterization at

an early point in time of a provision that had been

there from 1904. Then the next authority that is

relied upon is the Waterside Workers Federation v

Alexander, and the fact that in that case, in order

to characterize the court as an arbitral body, a

number of the judgments are explicit that this

Court does not even have jurisdiction in respect of

criminal offences created by the Act.

Pillar 31 11/12/91

Then we rely upon the fact that when the Court

was given criminal jurisdiction, that was done at

the same time as the Act sought to create a right
of appeal from local State courts in respect of
prosecutions under the Act, and of course, that

appeal provision is still there. It is contained

in section 56 and it is sufficiently wide to

embrace appeals from State courts in respect of

prosecutions for offences against the Act.

It is for those reasons that we say that the

section 52 - because it was originally referable to

the arbitral jurisdiction of the court and not its
judicial functions and because the Act was

introduced within the context of the Judiciary Act

that section 52 does not give to the Federal Court

exclusive jurisdiction in respect of offences
arising under the Act. There is nothing in the Act
which evinces an intention to destroy or displace
the invested jurisdiction under the provisions of

the Judiciary Act.

McHUGH J: But your difficulty is that 52 is directed only

to prosecutions in respect of organizations or

members - that is the argument against you - and

none of the matters that you have put really

touches that vital issue, do they?

MS HICKEY:  What we say is if it is referable to judicial

functions, it is very lopsided. It is an

irrational provision because it leaves out that

whole area of organizationally based offences; for

example, the employer dismissing an employee on

account of union membership, organization

membership.

Now, it leaves out, also, those offences, arguably the more serious offences, but where

imprisonment may be an alternative penalty. And

that could be the case in respect of the member.

But we then say that there is no provision in the

Act in terms which creates a criminal offence in respect of an act or omission by a member of an

organization. There are such offences as against

an organization and as against a person and as

against an employer but not as against a member.

BRENNAN J:  I am not sure that I understand your argument

precisely. Is it that the statutory history of

section 52 shows that it is confined, or should be

construed as being confined, to what were basically

arbitral functions?

MS HICKEY: That was the starting point, yes, Your Honour.

BRENNAN J:  Once we get to the stage of Boilermakers and

after that stage, it is quite clear that whatever

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construction one gives to 52, it is not concerned

with arbitral functions; it is concerned with

judicial functions.

MS HICKEY: That is so, Your Honour, yes.

BRENNAN J:  So that when we come to consider what judicial

functions are exclusive, what statutory history do

we have which shows that criminal proceedings are

excluded from 52? What are the statutory

historical indicia of that?

MS HICKEY: Against being -

BRENNAN J: Against their being included?

MS HICKEY:  The appeal provision which embraced

BRENNAN J: That is appellate jurisdiction.

MS HICKEY: That is so, but it was expressed originally,

prior to 56, that it embraced prosecutions for

defences within local courts. It was amended

because of Collins v Charles Marshall Pty Ltd, but

the amended form was sufficiently wide to embrace

proceedings for an offence in local courts, and it

is still in that form.

McHUGH J: But it still has scope for operation, does it

not, even if your argument is unsuccessful?

MS HICKEY: Yes, it does, in respect, for example, of a

penalty imposed for breach of an award. We next

rely upon the fact that it was clear from the

Builders' Labourers case that when the legislature

endeavoured to separate out judicial functions from

arbitral ones, it did not get it right in all

cases. It sought to confer upon the court power to

disallow rules and this Court said in the Builders'

Labourers case that that was an arbitral function

the court. In the same way, we say, as the	and therefore not capable of being conferred upon	legislature picked up that provision and sought to
impose it upon the court, it also picked up
section 147 as a somewhat mindless exercise.

But we say it can be given a sensible

operation if you construe it in relation to

functions that were previously arbitral exercised

by the old court, or functions analogous to them

which are now exercised by the court as judicial

functions and that would embrace striking down

rules, in its present form, directions for the

performance and observance of rules,

deregistration, entitlement to membership of an

organization and inquiries by the court into

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election irregularities; the very sorts of things

that are spelt out in subsection (2).

BRENNAN J: Well the consequence of that then is to give

those precise words which we have been discussing,

dealing with proceedings for the imposition of a

penalty, no work to do in 52.

MS HICKEY: Well, that has been the position since Act No -

1930 legislation - - -

BRENNAN J:  No, but whether it has been or not, your

proposition is that they have not got any work to

do - - -

MS HICKEY: That is so, Your Honour, I have to accept that.

BRENNAN J: They are, as it were, some kind of prehensile

appendage with no function to perform.

MS HICKEY:  Yes, Your Honour. But can I make the point also

that the Act does have a number of such appendages

and one of those - and again it is about

contributions - is to be found in the present

section 290, and that is the counterpart to the

old 69. It follows almost word for word the old

section 69:

a dispute between an organization and its

members shall be decided according to the

rules.

then subsection (2):

fine fee levy, payable to an organization by a

member may be sued for and recovered by the

organization in a Court of competent

jurisdiction.

But it is the next provision which is very bizarre:

A Court of competent jurisdiction may, on

application bought in the name of an

organization, order the payment by a member of

any contribution not exceeding $20 to any

penalty incurred or money paid by the organization under an award or order.

Now the peculiarity about that is, there is

nothing in the Act which creates a statutory obligation on a member to meet any part of a

penalty imposed upon an organization for breach of

an award. As I say, that was the original

section 47 that said, where the funds of the

organization were insufficient to meet the penalty
then members were liable for that deficiency and

the old section 69 gave the court power to order

Pillar 34 11/12/91

that contribution. Now, 47 was taken out in 1937,

but 69 remained unamended in relation to

contribution and it is still there, but now it has

been turned on its head. It is not the court that

does it, and it was an arbitral function, it is now

said to be local courts, that is, the Act purports

to confer upon local courts, judicial bodies a

power which is non-judicial. So there has been a

mindless application of some of these older

provision when they were re-enacted in the 1988

Act, but we say - - -

BRENNAN J: It is difficult for a court to construe an Act

by saying there are a number of mindless

applications in.

MS HICKEY: Well, that language is very strong, I accept

that - perhaps too strong, but the court has said

it in the Builders Labourers case, Your Honour. It

talked about the bodily transfer of provisions

notwithstanding, in relation to striking down

rules, that it sought to impose upon the new

Commonwealth industrial court a function that was

arbitral, and the court said you cannot do it.	Now
we say, similarly, in respect of contribution proceedings, notwithstanding the statutory
provision that enabled or imposed upon a member a

liability to contribute to a penalty imposed upon

an organization where its funds were insufficient

for that purpose, notwithstanding that that
statutory provision was taken out, the provision

regarding contribution remained in the old

section 68 and it is still there in 290.

McHUGH J: But 293, if it is valid - - -

MS HICKEY: If it is valid, quite.

McHUGH J:  - - - it must be supported under Sl(xxxv) and

not under Chapter III, must it not? That is to say

it is not an investing of judicial power; it

cannot be an investing of the judicial power of the

Commonwealth.

MS HICKEY: Quite, but how can you confer upon a body which

is a court non-judicial powers? I mean, if you

cannot do it in respect of Commonwealth courts then

even less can you do it in respect of State courts.

McHUGH J: Perhaps you can.

MS HICKEY:	We say that that is a similar sort of exercise to the exercise that was criticized in Builders
Labourers case but some of these provisions have been enacted without a great deal of understanding
as to their origin and meaning and the provision
about contribution in section 69 remained there

Pillar 35 11/12/91

notwithstanding that there was no statutory basis

upon which it could operate or no trigger to bring

it into operation because section 47 had been taken

out in 1937.	And here we are in 1988, and it is
still here but turned on its head.	So if I do say,

Your Honour, going back to Your Honour's

question - - -

BRENNAN J:  We understand that there are some anomalies on

your argument in the construction of the Act but is

there anything else that you wish to put in terms

of the basis for your submission as to the
construction of 52 which, essentially, is that you

do not give any operation to those words with which

we are concerned.

MS HICKEY:  I have to accept that, Your Honour, but I do

draw attention to section 290(3). There are these

anomalies there.

BRENNAN J:  Your argument essentially is the anomalies have

to be accepted.

MS HICKEY:  Yes, Your Honour, and you have to accept that,

therefore, in respect of the second limb of 52(1),

where it refers to pecuniary penalty, it has no
work to do and it has not since 1930, Your Honour.

BRENNAN J: Yes.

MS HICKEY:  So they are the matters that we do rely upon,

Your Honour.

BRENNAN J: Yes, thank you, Ms Hickey.

MS HICKEY:  I have not taken you to authorities but I think

I have referred to the principal ones and the pages

are set out in the list of authorities we provided

the Court with earlier on.

BRENNAN J: Thank you. Mr Rothman.
MR ROTHMAN:	If the Court pleases, might I hand up an

outline of the submissions, if we might. It may be

appropriate if I at least start with the

proposition that is before the Court. While the

Court is obviously concerned with the construction

of section 52 and the jurisdiction of the Federal
Court under section 50, it comes before the Court

by way of prerogative writ arising out of a

decision of the Deputy President under section 253Q

of the Act.	Can I take the Court very briefly to
that.

Section 253Q - and I am assuming that the

Court is familiar with the section - deals with

what action should be taken after a ballot has been

Pillar 36 11/12/91

approved in accordance with the Act; that is a

ballot for amalgamation of organizations should be

approved after the amalgamation has been approved.

And in accordance with section 253Q(2):

If a designated Presidential Member is satisfied -

those are words which we will ultimately come to;

(a) and (b) are not relevant for the current issues

and I do not go to them.

(c) that there are no proceedings (other than

civil proceedings) pending against any of the
existing organisations concerned in the

amalgamation in relation to:

(i) contraventions of this Act .....

(ii) breaches of:

(A) awards .....

the Presidential Member must -

in mandatory terms -

after consultation with the existing

organisations, by notice published as

prescribed, fix a day ..... as the day on which

the amalgamation is to take effect.

What occurred before His Honour - and as is

clear from His Honour's decision which is contained

in the appeal book at page 118, page 118 - was, on

the day that His Honour had set down for dealing

with the question of ·whether or not he would be satisfied of the three circumstances set out in subsection (2), a matter was raised with

His Honour, namely the charges and summonses which

had issued in the magistrate's court relating to

the two amalgamating organizations, namely the BWIU

and the ATAIU - I give them their short titles.

His Honour held or found that he was indeed

satisfied of the three criteria set out in

subsection (2) and was so satisfied because, in His

Honour's opinion, the proceedings before the

magistrate's court had not been validly commenced

by virtue of the fact that it was within the

exclusive jurisdiction of the Federal Court.

His Honour regrets the fact that it comes

before him in a somewhat odd way and it is a matter

that probably should have been peculiarly decided

by the Federal Court of Australia, but nevertheless

is forced to decide the issue. So that the only

Pillar 37 11/12/91

issue that was, in effect, before His Honour

Deputy President Moore and is before this Court,

was the question of whether or not there were

proceedings other than civil proceedings pending

and my learned friend has taken the Court to that.

We say that for the proceedings to be pending under section 253Q, the proceedings must have at

least been validly commenced in a court of

competent jurisdiction - that is a court having

jurisdiction to deal with the matters.

Now, there is an argument - and we certainly

inform the Court of it - that because of the way in

which the structure of the Act is framed, the words

ttproceedings pendingtt there do not derive their

ordinary meaning because what is before the
designated Deputy President is a process by which
the designated Deputy President satisfies himself

not by a hearing or by judicial proceedings,

because there is a requirement only to consult with

existing organizations, and we say the effect of
the requirement for consultation shows that the

legislature, in section 253Q did not have the

intention of requiring it to be a hearing or a

proceeding conducted judicially, that is the

satisfaction under subsection (2).

In those circumstances, we say that there is a

strong argument to the effect that proceedings

pending there must mean at least proceedings which

have been served on the organization or

organizations, because they are the only bodies with whom the Deputy President must consult and since these charges and/or summonses had not in

fact been served on or brought to the notice of the

organizations concerned prior to the day, they were

not indeed pending in the sense that that term is

used in section 253Q(2).

Now, it is an argument we do not, in our because the terms of section 52 and section 50 are	respectful submission, need to pursue in this case
unambiguous and clear. They expressly confer on
the Federal Court of Australia exclusive
jurisdiction in relation to any act or omission in
which an organization or a member of an
organization is sued or to be proceeded against for
a pecuniary penalty.

The outline makes clear that the proceedings

before the magistrate's court certainly were

proceedings for a pecuniary penalty in the ordinary

meaning of that term. The Court has been taken to

section 310 and 321, which are the sections under

which the proceedings against the two unions are

taken. They clearly set out a penalty which is in

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money terms, and only money terms, and we say that

the ordinary meaning of the term "pecuniary

penalty" would therefore at least include the

offences under section 310, section 321(1) and

section 321(3). They are the two sections that are

at issue in these proceedings.

I then refer the Court to section 50 of the

Act, which my friend acknowledges clearly confers

jurisdiction on the Federal Court in relation to

all prosecutions, and these sections are clearly

prosecutions, therefore the matters are within the

jurisdiction of the Federal Court. Then I take the

Court to section 52 and the decision of

Williams v Hursey. My learned friend, indeed, took

the Court to the passage in Williams v Hursey,

(1959) 103 CLR 30, in the judgment of His Honour

Justice Menzies at page 113. His Honour there

says, and it has been accepted widely since that

time that, at point 5 on page 113:

It is sufficient to say that I consider that

the section, so far as is material, deprives
any other court of jurisdiction to hear a suit

against an organization or a member of an

organization if that suit is within the

jurisdiction of the Industrial Court, but does
not attempt to deny to another court

jurisdiction to hear a suit - which the court

could not itself try - on the ground that it

concerned an act or omission about which the

Court could decide in a suit which it could hear and determine.

In my respectful submission, that passage

points to one of the problems with the construction

that is put forward by my learned friend in this

matter. It is necessary firstly for the court to

have jurisdiction. My learned friend relied at one

point on the provisions of section 76 and 77 of the

Constitution.	What we are here talking of, in
terms of section 52, is the conferral of federal
jurisdiction.	We are not talking of denying to

State courts that which is conferred otherwise than

by federal jurisdiction. So that section 76 and 77

of the Constitution are, in our respectful

submission, irrelevant. What is done in section 52

is to say that in so far as the Federal Court has

jurisdiction, and it is in relation to an act or

amiss.ion against an organization for a pecuniary
penalty - leave out the member for the time being -
that is exclusive of the jurisdiction of a federal
court. The words are as plain as they can be. We
point the Court to the definitions of pecuniary
penalty in paragraph 4 of the outline, we take the
Court to the decision of a Full Court of the

Federal Court of Australia in Gapes v Commercial

Pillar 39 11/12/91

Bank of Australia, (1979) 38 FLR. His Honour

Justice J.B. Sweeney, in that case - and the Court

may be familiar with the fact that prior to Gapes's

case - - -

BRENNAN J:  What passage do you wish to refer to in this

case?

MR ROTHMAN:  The first passage, Your Honour, is at page 433.

The actual outline is a little misleading in this

respect and I apologize to the Court. Before I

actually go to the passage, it is necessary to

point out that before Gapes's case it was thought
that section 119 of the then Conciliation and

Arbitration Act, the equivalent of the current section 178, was itself a criminal proceeding

because it imposed a penalty. Leaving aside the

nightmare that was involved in suing for a breach

of an award because it was a criminal proceeding,
that held sway in the court and in the various

courts for some period of time.

In Gapes's case the Full Court of the Federal

Court, consisting of the then Acting Chief Judge,

His Honour Justice Smithers and Justices J.B.

Sweeney, Evatt, Deane (then in the Federal Court)

and Justice Fisher decided that section 119 was not

criminal, it was civil, and the discussion of the term "penalty" is embarked upon by the court from the basis that the ordinary meaning of the term

"penalty" at least includes "criminal" and is this

penalty criminal or civil, so that in that sense

once has to understand the passages to which I will

take the Court.

At page 433 at about point 7 on the page

His Honour the acting Chief Justice refers to

Conciliation and of an award provision, which has an equivalent in

section 122 of the then

the current Act of section 311: 

In section 122 Parliament has declared that

wilful breach of an award is a criminal offence

and has provided a maximum penalty of $40

therefor -

and he refers throughout to the penalties that are

involved in the provisions of the Act. At page 437

he goes on to say, at about point 8 on the page:

It is to be observed also that as is the case with the offence created bys 122, the

form of expression used in other sections

which impose penalties for what are clearly

offences is to proscribe certain conduct and

add at the foot of the section the word

Pillar 40 11/12/91

"Penalty" followed by the amount of the

penalty expressed in money. This form of
expression is obviously used to invoke the
provisions of s 41 of the Acts Interpretation

Act. This method of creating offences is used

precisely or substantially in a number of

sections in Pt XI of the Act. Section 41 of

the Acts Interpretation Act is in the

following terms -

and I do not read it. Section 41 of the Acts
Interpretation Act I should add has been repealed.

The equivalent provision is now section 4D of the

Commonwealth Crimes Act.

Can I then take the Court to page 443. His Honour, referring to section 122, which is a

criminal proceeding, at about point 4:

The general scheme of the Act is that where a

penalty is provided for a breach of the Act,

it is and always has been done in the form in

which s 122 now appears. That section it may

be added has been in its present form except
for the conversion of the amount of the

penalty from pounds to the corresponding

amount of dollars. It is in the form referred

to ins 41 of the Acts Interpretation Act.

The pecuniary penalty -

and I emphasize those words -

The pecuniary penalty is set out at the foot

of ~he section of the Act and indicates by use

of the formula that the contravention of the

section is an offence against the Act

punishable upon conviction.

His Honour Justice Deane refers to the criminal

penalty under section 122 in like terms as a

pecuniary penalty, and does so at pages 458 and 459

of the report. At page 458 point 5:  In the absence of express statutory

direction, the question whether proceedings

for a statutory penalty are criminal in

character can be assimilated to the question

whether the act or acts in respect of which
the proceedings are brought constitute a

criminal offence.

I do not read the remainder. Over the page -

the provisions of s 119 of the Act are to be
contrasted with the provisions of s 122 which

expressly provide that no person "shall

wilfully make default ..... " and which set out,

Pillar 41 11/12/91

at the foot of the section, a pecuniary

penalty of $40.

We simply go to that to show as one example only of

the fact that in ordinary usage the term "pecuniary

penalty" clearly would include a criminal penalty

in money kind.

AT 1.00 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

BRENNAN J: Yes, Mr Rothman?

MR ROTHMAN:	If the Court pleases, at the break I had taken the Court to Gapes v Commercial Bank of Australia
and the references in paragraph 4 of the outline of
the submissions that we have made.  The Court will
recall that His Honour, Deputy President Moore,
dealt with this issue of the ordinary meaning of
the term "pecuniary penalty" in his decision and it
can be found at appeal book pages 118 through to
125.

He cites one of the cases that is given in the

list there, Reg v Smith, in the England reports.

We do not take the Court to it, but there are

innumerable cases which show that the term

"pecuniary" means of or amounting to money,

pertaining to money, and the term "penalty"
includes both civil and criminal matters, and they

are its ordinary meaning.

I do not take the Court to any of the other authorities there cited. It is sufficient for our

purposes to rely on the ordinary meaning of the

term "pecuniary penalty" in any event. We say that

the term "penalty" itself is in any event used

throughout the Act to refer to both civil and

criminal penalties, and that can be seen in the

references in the Act at sections 350, 356 and 357.

My learned friend took the Court to section 350 for another purpose. However, the

Court will see there that the legislature refers

quite clearly to:

a court may not direct that a person ..... in

default of the payment of a fine or other

pecuniary penalty imposed under this Act.

Pillar 42 11/12/91

We say that clearly shows that fines and other penalties under the Act are all treated as

pecuniary penalties. In section 356 the

legislature speaks of:

A court that imposes a penalty under

section 178 or 311 .....

Section 178, my learned friend and we say, is a
civil penalty; section 311 is a criminal penalty.

That is the equivalent of the old section 122 in

the Conciliation and Arbitration Act. So again the

term "penalty" is used for both civil and criminal

penalties in the Act and, similarly, section 357

refers to penalties under section 178 and, in

paragraph (c), of penalty for contravention of

section 311. So that again the term "penalty" is

used in the Act consistently, in our respectful

submission, to refer to both civil and criminal

penalties. Nothing in the Act detracts from its

ordinary meaning.

BRENNAN J:  I do not think we need trouble you any further,

Mr Rothman.

MR ROTHMAN: If the Court pleases.

BRENNAN J:	Ms Hickey, do you have anything to say?
MS HICKEY:	May I provide copies of that legislation.

BRENNAN J: Thank you.

MS HICKEY:  The first is Act No 10 of 1947, then following

that No 18 of 1951 and then 44 of 1956.	The only
matter I wish to go to is this, Your Honour:	I
omitted to indicate to the Court that I was

specifically relying upon Rowell v Child. In his

judgment in that case, His Honour

Mr Justice Northrop recites some of the history of
the legislative provisions.	He refers to the

practice of the prosecution of criminal proceedings

for offences against the Act in local State courts

and refers to a number of cases in support of that

practice.

McHUGH J:  You refer to it in paragraph 10 of your written

submissions.

MS HICKEY:  Yes, that is so, Your Honour. We do rely upon

that practice in the sense that we say the practice is consistent with the construction I have advanced

to the Court and upon which we rely and the history

of the legislation that I have taken the Court to.

If the Court pleases.

Pillar 43 11/12/91

BRENNAN J:  The Court will adjourn briefly to consider the course it will take.

AT 2.26 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.38 PM:

BRENNAN J:  On 11 September 1991 Mr Justice Dawson granted

an order nisi for writ of prohibition directed to any further step under Division 7 of Part IX of the
the Honourable Mr Justice Michael Francis Moore,
the Deputy President of the Australian Industrial

Industrial Relations Act 1988 (Cth), "the Act" in

relation to the proposed amalgamation of the

Building Workers' Industrial Union of Australia

("BWIU") and the Australian Timber and Allied

Industries Union ("ATAIU"). On 2 September 1991,

Mr Justice Moore had dismissed an objection to his

fixing of a date under section 253Q of the Act as the day on which the proposed amalgamation was to

take effect. His power to fix an amalgamation day

was conditioned on there being no proceedings

against either organization in relation to

contraventions of the Act. In fact there were

charges laid in the Magistrates Court at Melbourne

against the BWIU and ATAIU. On 30 August 1991, a

Mr Rust had charged the BWIU with a breach of section 214(1) of the Act and the ATAIU with a

breach of section 268(3) of the Act.

Mr Justice Moore held that, by force of

section 52(1) of the Act, the Magistrates Court had

no jurisdiction to hear and determine these

matters. Accordingly, he proceeded to fix 23 September 1991 as the amalgamation day. Section 52(1) of the Act reads as follows:

Subject to this Act, the jurisdiction of the

Court in relation to an act or omission for

which an organisation or member of an

organisation is liable to be sued, or to be

proceeded against for a pecuniary penalty, is

exclusive of the jurisdiction of any other

court created by the Parliament or any court

of a State or Territory.

The prosecutor, seeking an order absolute,

submits that the statutory history of section 52(1)

shows that it is confined to what were arbitral

functions or what are functions having a close

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relationship with arbitral functions.	Counsel
submitted that the ordinary meaning of

section 52(1) and its statutory history combine to show that it was not intended to apply to criminal

proceedings. The difficulty with this approach,

acknowledged by counsel for the prosecutor, is that

it denies any field of operation for the words "the

jurisdiction of the Court in relation to an act or

omission for which an organisation or member of an organisation is liable to be sued, or to be liable to be proceeded against for a pecuniary penalty"

in section 52(1), which defines a jurisdiction

exclusive to the Federal Court. If any operation

is to be given to those words, that operation is

limited to proceedings for a pecuniary penalty for

offences under the Act. Jurisdiction in

proceedings for other kinds of pecuniary penalties

are dealt with expressly by section 178 which

clearly provides for the exercise of concurrent

jurisdiction by the Federal Court and other courts

of competent jurisdiction and, arguably, by section

290(2) which relates to recovery of moneys in a

court of competent jurisdiction. Section 52(1) is

subject to both of these provisions. The words

quoted from section 52(1) in their natural and

ordinary meaning are apt to describe proceedings

for recovery of penalties in either civil or

criminal jurisdiction (see Gapes v Commercial Bank

of Australasia Ltd, (1979) 38 FLR 431) and the term

"penalty" is used in other sections of the Act to

describe criminal penalties as well as civil

penalties: see sections 350, 356 and 357. The

considerations advanced by the prosecutor do not

detract from the ordinary meaning of the words.

It follows that Mr Justice Moore was correct in holding that the Magistrates Court had no

jurisdiction to hear and determine the charges laid

in that Court and accordingly that he had power to

fix an amalgamation day. The order nisi is

discharged. The Court will adjourn.

AT 2.41 PM THE MATTER WAS ADJOURNED SINE DIE

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