The Queen v Spicer; Ex parte Waterside Workers' Federation of Australia

[1957] HCA 96

100 CLR 312

perhaps, find additional support in the provisions of sub-s. (3) which confers a power which, if not entirely foreign to judicial power, is quite unusual. It was, of course, framed at a time when it was believed that the powers given by the earlier sub-sections were not judicial and it may, perhaps, be thought that its provisions were merely intended to provide some elasticity in the exercise of a recognised administrative power.

These considerations lead me to the conclusion that the functions created by S. 140 as at present framed are not judicial in character and that the purported vesting of them in a federal court did not make them so. Accordingly I am of opinion that the order nisi should be made absolute.

Order nisi made absolute for a writ of prohibition directed

to the judges of the Commonwealth Industrial Court restraining further proceedings upon the order to show cause dated 30th May 1957 directed to the Australian Builders' Labourers' Federation. Solicitors for the applicant-prosecutor, Morgan, Ryan &Brock. Solicitor for the respondents other than the respondent Winter, H. H. Renfree, Crown Solicitor for the Commonwealth.

Solicitors for the respondent Winter, Harold Munro &Co.

100 CLR 313

[ ]

THE QUEEN

SPICER AND OTHERS; Ex PARTE WATERSIDE WORKERS' FEDERATION OF

AUSTRALIA. Industrial Law (Cth.)-Stevedoring Industry-Waterside workers-Registration by

Australian Stevedoring Industry Authority--Waterside worker deregistered by authority-Appeal instituted to Commonwealth Industrial Court-Challenge to SYDNEY,

appeal provision by Waterside Workers' Federation-Judicial power-Adminis- Dec. 13, 20.

trative functions committed to judicial tribunal-Invalidity-The Constitution (63 &64 Vict. c. 12), Chap. III-Stevedoring Industry Act 1954-1956, 8. 37.

Section 37 of the Stevedoring Industry Act 1954-1956 (Cth.) purports to confer on the Commonwealth Industrial Court power to entertain appeals from decisions of the Australian Stevedoring Industry Authority made under S. 36 of such Act cancelling or suspending the registration of waterside workers and upon the consideration of any appeal to confirm vary or set aside the cancellation or suspension.

Held, that the section is invalid in that it purports to confer upon a judicial body created under Chap. III of the Constitution powers of a non-judicial character.

The history of 8. 37 of the Stevedoring Industry Act 1954-1956, discussed. Reg. v. Commonwealth Court of Conciliation and Arbitration,; Ex parte Ellis (1954) 90 C.L.R. 55, referred to. PROHIBITION.

On 29th November 1957 Webb. J., on the application of the Water- side Workers' Federation of Australia as prosecutor, granted an order nisi directed to The Honourable John Armstrong Spicer, The Honourable Edward Arthur Dunphy and The Honourable Sir Edward James Ranembe Morgan, Chief Judge and Judges respec- tively of the Commonwealth Industrial Court, and one George Buchan calling upon the said respondent chief judge and judges to show cause before the Full Court of the High Court of Australia

100 CLR 314100 CLR 315

H.C OF A. for an appeal with parties the authority is not joined as a party

and the scope of the appeal is not limited in any way SO far as the

THE QUEEN

functions of the court are concerned. The court is required to act as it were in a supervisory capacity. Under S. 36 4 no enquiry is

SPICER;

called for, and there is an appeal to the court from any action taken under that sub-section by the authority. Under S. 36 the authority is not limited to finding matters in relation to pars. (a) to (g) of sub-s. 1 it may consider matters purely industrial in character and the power of the court under S. 37 is no less wide. Prohibition should go.

D. I. Menzies Q.C. (with him J. McI. Young and J. H. Wootten), for the respondent Chief Judge and Judges of the Commonwealth Industrial Court, and for the Attorney-General of the Common- wealth, intervening by leave, upon whose behalf the following arguments were addressed. The present legislation confers a right upon a waterside worker to be registered whereas under the earlier legislation registration was discretionary in the board. Under the earlier legislation the board in the first instance was to decide whether there was to be suspension or deregistration subject to an appeal under S. 25 and the appeal dealt commonly with employees and employers. In the present legislation a different course has been taken in respect of employers: see ss. 33, 34, 35. These differences are of value in considering the amendments made in relation to employees. Employers are subject to judicial control, and employees whilst initially subject to administrative control may, if dissatisfied, secure under S. 37 judicial review. There is no difficulty in treating one as an administrative and the other as a judicial function. Such is the scheme of the new Act and there is no lack of constitutional authority. An appeal is now given to a properly constituted court. [He referred to Reg. v. The Common- wealth Court of Conciliation and Arbitration Ex parte Ellis (1).] The qualifications appearing in the passages cited make Ellis's Case 2 not binding in the present circumstances. Under SS. 36 and 37 as they now stand any discretion which the court has is the kind of judicial discretion which is always employed by a court in dealing with appeals from administrative tribunals, particularly when the right of a person to earn his living by registration is con- cerned. He referred to McCartney v. Victorian Railways Com- missioners 3 Medical Board of Victoria v. Meyer (4). It cannot be said from the passage of Act No. 93 of 1957 assented to yesterday

4(1937) 58 C.L.R. 62, at pp. 91-93. 1(1954) 90 C.L.R., at pp. 63, 67. 2(1954) 90 C.L.R. 55. 3(1935) V.L.R. 51, at pp. 62, 63. 100 CLR 316100 CLR 317

A. living. In a matter of such a nature there is far more warrant for

saying that the power committed to the court is intended to be

THE QUEEN

judicial power and that the court is intended to act judicially Section 37 is valid.

G. Wallace Q.C. (with him D. B. McKenzie), for The Common- wealth Steamship Owners' Association and other employers of the prosecutor. We adopt the arguments put on behalf of the Attorney- AUSTRALIA. General. On the question of reading down, see Steele v. Defence

Forces Retirement Benefits Board 1. In SO far as any difficulty arises by virtue of the presence of S. 36 (4) and its effect on S. 37, then on its true construction S. 37 does not apply to that kind of urgent interim suspension power, or, if it does, then there is no difficulty in eliminating that aspect of the appeal from the width of S. 37. In relation to Ellis's Case 2 see Federal Commissioner of Taxation v. Munro 3.

P. G. Evatt, for the respondent Buchan submitted to such order as the Court might see fit to make.

J. D. Holmes Q.C., in reply. The following written judgments were delivered -

DIXON C.J., WILLIAMS, KITTO AND TAYLOR JJ. This is an order nisi for a writ of prohibition directed to the learned judges of the Commonwealth Industrial Court. The tenor of the writ sought is to restrain their Honours from proceeding further with an appeal to the Commonwealth Industrial Court instituted in purported pursuance of S. 37 of the Stevedoring Industry Act 1954-1956. Sec- tion 37 is expressed to enable a person whose registration as a waterside worker is cancelled or suspended to appeal to that court. The respondent, Buchan, is a waterside worker whose registration was suspended and on 27th November 1957 he lodged with the Registrar of the Commonwealth Industrial Court a notice of appeal supported by an affidavit. What view that court might take as to Buchan's right of appeal does not appear for the appeal has not come on before the court for hearing. Buchan is a member of the Waterside Workers' Federation of Australia, a registered organisa- tion of employees, but that body is the prosecutor in the present proceedings to prohibit any further proceeding in the appeal. The ground simply is that S. 37 is invalid. No one has suggested that the

1(1955) 92 C.L.R. 177, at pp. 186, 2(1954) 90 C.L.R., at p. 63. 3(1926) 38 C.L.R. 153, at p. 212. 100 CLR 318

application for prohibition is premature or that Buchan's appeal was made only for the purpose of founding a writ of prohibition SO that the validity of S. 37 might be attacked, or that as the prosecu- tors are strangers to the appeal we should exercise our discretion against granting a remedy. We have had the advantage of the intervention in the argument, though not as parties to the cause, of the Commonwealth and of other interested bodies and all concerned seem strongly to desire that in this proceeding, notwithstanding the handicaps from which it might be found to suffer if its history were too curiously examined, we should decide the validity of S. 37. The validity of S. 37 depends upon its real nature and meaning. If it is to be interpreted as conferring upon the Commonwealth Industrial Court jurisdiction to hear and determine a matter arising under a law made by the Parliament of the Commonwealth within the meaning of S. 76 (ii.) of the Constitution, then there is nothing to be said against its constitutional validity. A matter of that description involves a claim of right depending on the ascertainment of facts and the application to the facts of some legal criterion pro- vided by the legislature see Barrett v. Opitz 1; Hooper V. Hooper 2. The existence of some judicial discretion to apply or withhold the appointed legal remedy is not necessarily inconsistent with the determination of such a matter in the exercise of the judicial power of the Commonwealth. But it is perhaps necessary to add that the discretion must not be of an arbitrary kind and must be governed or bounded by some ascertainable tests or standards. An analysis of S. 37 (1) considered independently of the sections which precede it in the Stevedoring Industry Act 1956 shows that in reality it does nothing but say that a person whose registration as a waterside worker has been cancelled or suspended may within a limited time appeal to the Commonwealth Industrial Court and that that court may confirm, vary or set aside the cancellation or suspension. Sub-sections (2), (3) and (4) contain nothing material to the present question. The nature and scope of the authority which it is intended that the Commonwealth Industrial Court should exercise under S. 37 (1) must in truth be ascertained from the sections in the Stevedoring Industry Act which precede and so to speak lead up to it, aided no doubt by the history of these various provisions. The sections in question now form Pt. III of the Stevedoring Industry Act 1956 which is entitled 'Port Quotas and Registration of Employers and Waterside Workers". Putting aside provisions that may be regarded as introductory and machinery

1(1945) 70 C.L.R. 141, at pp. 166- 2(1955) 91 C.L.R. 529. 100 CLR 319

OF A. provisions, the material sections begin with S. 28. Section 28

provides for the registration of employers, an expression defined

THE QUEEN

by S. 7 (1) in terms which it is unnecessary to repeat, but which in substance mean an employer offering stevedoring work. Section 29 then provides for the registration of waterside workers. Certain conditions are laid down which an applicant for registration must satisfy. If he satisfies them the authority, which means the Aus- tralian Stevedoring Industry Authority established under the Act, is required to register the person as a waterside worker at the port in respect of which he applies. There is a limitation in S. 30 of quotas for the respective ports. Section 31 requires that the water- side worker should submit his application for registration through the union, and the expression union is limited to the Waterside Workers' Federation of Australia and the North Australian Workers' Union and organisations of employees specified in some declaration in force made by the authority. There are provisions in SS. 32, 33, 34 and 35 relating to the quotas, to a registered employer's obliga- tions and their enforcement and to the cancellation and suspension of the registration of employers. There follows what for the present purpose is the most material provision, viz. S. 36. Sub-section (1) of S. 36 sets out the grounds upon which the authority may cancel or suspend the registration of a waterside worker. The authority may do so on any of the following grounds namely, that the waterside worker (a) is, by reason of misconduct in or about an employment bureau, or a wharf or ship, unfit to be a registered waterside worker (b) is, by reason of his physical or mental con- dition or his incompetence or inefficiency, not capable of properly carrying out the duties of a waterside worker or may be a danger to others (c) has acted in a manner whereby the expeditious, safe or efficient performance of stevedoring operations has been preju- diced or interfered with; (d) has not attended regularly for employ- ment as a waterside worker: (e) has failed (i) to offer for or accept employment as a waterside worker (ii) to commence, continue or complete an engagement for employment as a waterside worker; or (iii) to perform any stevedoring operations which he was lawfully required to perform (f) has been convicted of an offence against this Act; or (g) has failed to comply with an order or direction of the authority under this Act or an award of the commission. Before exercising the power to suspend or cancel registration the authority must make such inquiries as it thinks fit, but sub-s. (4) makes it possible to suspend the registration before the inquiry is held. Sub-section (5) provides that in considering whether the registra- tion of a waterside worker should be cancelled or suspended under

100 CLR 320

S. 36 the authority may take into account any disciplinary action which has been taken against the waterside worker by a union of which he is a member. Sub-section (2) provides that the suspension of the registration of a waterside worker at a port is to have effect until the expiration of such period, or of such number of working days at the port, as the authority directs. It would seem that S. 37 WATERSIDE intends that the Commonwealth Industrial Court should exercise by way of review or revision all the powers which are conferred upon the authority under S. 36. The Commonwealth Industrial Court is of course a court established for the exercise of part of the judicial power of the Commonwealth. We have recently upheld the validity of the provisions which established the court on the specific ground that the main overriding intention was to establish a court qualified to exercise the judicial power of the Commonwealth for the purpose of exercising that judicial power. Any provisions which may chance to confer some other power on the court must be considered severable and void see Seamen's Union of Australia v. Matthews 1. If S. 37 had been framed in such a way as to invest the Common- wealth Industrial Court with power to hear and determine issues defined with more or less precision as to the infringement by water- side workers of prescribed standards of conduct or as to the fulfil- ment of other definite conditions upon which the cancellation or suspension of registration was to depend, there might have been little difficulty in treating the duty or authority thus imposed or conferred upon the court as part of the judicial power of the Com- monwealth. And if a discretion had been added to remove or reduce the suspension or cancellation if the real merits appeared so to require, notwithstanding that an infringement had occurred, that would not necessarily have been inconsistent with a grant of judicial power.

Provisions very similar to those now found in Pt. III of the Stevedoring Industry Act 1956, although by no means entirely the same, were contained in Pt. III of the Stevedoring Industry Act 1949. Section 25 of that Act, which was a provision of Pt. III, corres- ponded sufficiently with S. 37 of the Stevedoring Industry Act 1956, but the power there given was to the Commonwealth Court of Con- ciliation and Arbitration. Clearly enough it was not part of the judicial power of the Commonwealth. It formed part of the general industrial powers of that court although it was exercisable by way of review or revision of the decisions of the Australian Stevedoring Industry Board. The differences between S. 25 of the Act of 1949 and 8. 37 of the Act of 1956 are of no significance with reference to

1(1957) 96 C.L.R. 529. 100 CLR 321

the character of the power as judicial or industrial. It seems

reasonably plain that the real intention was that the Common-

THE QUEEN

wealth Industrial Court should exercise the same power as thereto- fore had been reposed in the Commonwealth Court of Conciliation

SPICER;

and Arbitration in entertaining appeals against the suspension or cancellation of the registration of a waterside worker. There can be little doubt that it was intended as an industrial power, or if you like an administrative power, the exercise of which should be governed by a consideration not only of the specific matters set out in S. 24, which roughly correspond with those enumerated in the present S. 36, but also of all matters which might seem relevant to a sound and wise administrative control over the stevedoring indus try. This Court took the view in Reg. v. The Commonwealth Court of Conciliation and Arbitration: Ex parte Ellis 1 that S. 25 of the Act of 1949 conferred upon the waterside worker, by the remedy which S. 25 called an appeal, a right to a review of the action of an administrative body by the Court of Conciliation and Arbitration exercising a special authority. That court as a revisory tribunal was placed in the same position as the Stevedoring Industry Board; it must be satisfied of the existence of the necessary conditions prescribed by the provision, but once SO satisfied the same discre- tion arose in the court for exercise on the same considerations. It is difficult to believe that as S. 37 of the Act of 1956 the provision, unaltered in substance, is based on any other principles or expresses any other intention. The same legislative intention is apparent in S. 5 of the recently enacted Stevedoring Industry Act 1957. Section 5 is expressed to repeal the present S. 37 and replace it with a provision in almost identical terms conferring the power which it describes upon the Commonwealth Conciliation and Arbitration Commission. Section 5, however, is not to go into operation until such date as is fixed by proclamation and it therefore has no present effect. We were informed that only in the event of the present S. 37 being held invalid was it intended to proclaim the new one. Nevertheless, it represents the expression of a legislative intention and does nothing to dispel the notion that the words used in S. 37 were not intended to be read in any limited fashion so as to accom modate them to the judicial power and restrain their operation within the limits of that power; on the contrary it tends, if any thing, to confirm the contrary view. It seems clear enough that the power in the hands of the Commonwealth Industrial Court was intended to be of the same scope and have the same purpose as that given to the Court of Conciliation and Arbitration by S. 25 of the

1(1954) 90 C.L.R. 55. 100 CLR 322100 CLR 323

A. drawn from the Act which ought to preclude the waterside worker

from retaining his registration. If the court confined itself simply to the issue whether the waterside worker fell within any of the express grounds of disqualification enumerated in S. 36 1 and determined the "appeal" on that basis, its method of proceeding might be consistent with an exercise of the judicial power, but it would not be consistent with the intention which S. 37 manifests. That intention is to determine whether the authority has correctly applied S. 36. That would, in part, involve the exercise of the J. judicial power but it would also involve the consideration of the

questions of policy. These lie outside the realm of judicial power.

I am of the opinion that the jurisdiction which S. 37 defines is not strictly judicial power in the constitutional sense. If this opinion is right S. 37 is not valid, because, as the Industrial Court is created under Chap. III of the Constitution, it is contrary to the Constitu- tion for Parliament to confer upon it any power or function not belonging or incidental to the judicial power.

For these reasons I would make the order nisi absolute.

WEBB J. I would make absolute the order nisi for prohibition. In Reg. v. The Commonwealth Court of Conciliation and Arbitration: Ex parte Ellis (1) I expressed the view that S. 25 of the Stevedoring Industry Act 1949, which in material respects was in the same terms as S. 37 of the Stevedoring Industry Act 1956, conferred adminis- trative power and not judicial power on the Court of Conciliation and Arbitration established by the Conciliation and Arbitration Act 1904-1952. But I indicated that if the same power were conferred on a court having only judicial power it would become judicial power. However, that would have necessitated a modification of the terms in which the power was granted by resort to S. 15A of the Acts Interpretation Act 1901-1950, which a majority of this Court held in Reg. v. Spicer Ex parte Australian Builders' Labourers' Federation 2 was not available for the purpose of converting a non-judicial power into a judicial power. I dissented in the last- mentioned case, but I am not warranted in persisting in dissenting as to the effect of S. 15A.

Order absolute for a writ of prohibition prohibit-

ing further proceedings on the purported appeal of the respondent George Buchan to the Commonwealth Industrial Court num- bered in the Registry of the said Court No. 73 of 1957.

1(1954) 90 C.L.R., at p. 67. 2(1957) 100 C.L.R. 277