Consolidated Press Ltd v Australian Journalists' Association [1947] HCA 11; (1947) 73 CLR 549 (8 May 1947)

HIGH COURT OF AUSTRALIA

Consolidated Press Limited Applicant, Appellant; and The Australian Journalists' Association Respondent, Respondent.

Penton Applicant, Appellant; and The Australian Journalists' Association Respondent, Respondent.

H C of A

8 May 1947

Latham C.J., Rich, Starke, McTiernan and Williams JJ.

Kitto K.C. (with him Windeyer), for the appellants.

Barwick K.C. (with him Murphy), for the respondent.

Barwick K.C.

Kitto K.C., in reply.

The following written judgments were delivered:—

May 8

Latham C.J. and

McTiernan J.

These are appeals from two orders of the Commonwealth Court of Conciliation and Arbitration (his Honour Judge Foster) dismissing applications made by the appellants. The application by the appellant company was an application under s. 60 of the Commonwealth Conciliation and Arbitration Act 1904-1946 for the de-registration of the respondent association, which is registered as an organization under Part V. of the Act. The application by the appellant B.C. Penton was for the disallowance of certain rules of the respondent association on the ground that they were tyrannical or oppressive—s. 58D (1) (b).

The appellants rely for their right of appeal upon the decision of this Court in Jacka v. Lewis[1] where it was held that the High Court has jurisdiction to hear and determine an appeal from an order of the Commonwealth Arbitration Court, where the order was made in the exercise of its judicial power. It is objected for the respondents that the orders dismissing the applications were not orders of a judicial character and that therefore no appeal lies.

It was decided in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[2] that s. 60 did not purport to confer and did not confer any part of the judicial power of the Commonwealth upon the Commonwealth Court of Conciliation and Arbitration. Accordingly, an order made under s. 60 and a refusal to make such an order are not judicial orders. The appeal of the company is therefore incompetent and should be struck out.

The reasoning in the case cited shows that an order made under s. 58D for the disallowance of a rule is not a judicial order. Isaacs J. said:—"It was argued for the organization that s. 60 of the Arbitration Act purported to confer strictly judicial power. But that cannot be sustained. The creation and equipment of representative organizations both of employers and employees is an incident to the power in s. 51 (xxxv.) of the Constitution. They are instruments for the more effective exercise of the power (Jumbunna Coal Mine, No Liability v. Victorian Coal Miners' Association1(1908) 6 C.L.R. 309.). Parliament may adopt them as part of its mechanism. That mechanism can be made and unmade at the will of Parliament. It may be moulded, refashioned, or abolished in any manner indicated. The step of establishing an organization may be retraced at any point and, for any reason declared by the Act, by any officer in whom Parliament places confidence for the purpose and to whom it gives the necessary discretion. The function created by s. 60 is not judicial in the constitutional sense"[4].

The disallowance of a rule of an organization is a moulding or refashioning of the organization. This procedure is part of the procedure which is described as not judicial in the constitutional sense. An order under s. 58D disallowing a rule, or a refusal to make such an order, is therefore not a judicial order. Penton's appeal therefore is also incompetent and should be struck out.

Rich J. and

Williams J.

These are appeals against an order of the Commonwealth Court of Conciliation and Arbitration dismissing two summons, each dated 13th September 1946; the appellant in the first summons being the applicant Consolidated Press Ltd., and the appellant in the second, the applicant B. C. Penton. The respondent to each summons was the Australian Journalists' Association, an association registered under the Commonwealth Conciliation and Arbitration Act 1904-1946.

The first summons was an application under s. 60 of the Act calling upon the respondent to show cause why its registration should not be cancelled because of the inclusion amongst its rules of rules numbered 52 (m), 52 (n), 53 (a), 53 (b), 53 (d), 54 (a) (10) and 54 (h). The second summons was an application under s. 58D of the Act calling upon the respondent to show cause why the same rules should not be disallowed.

In Jacka v. Lewis[5], it was held that the jurisdiction of this Court under s. 73 (ii.) of the Constitution to hear and determine an appeal from an order of the Commonwealth Court of Conciliation and Arbitration made in the exercise of its judicial power is not excluded by s. 31 (1) of the Commonwealth Conciliation and Arbitration Act. In Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[6], this Court held that s. 60 of the Commonwealth Conciliation and Arbitration Act does not purport to confer part of the judicial power of the Commonwealth upon the Commonwealth Court of Conciliation and Arbitration. We are bound by this decision, and must therefore hold that the first appeal should be dismissed for want of jurisdiction.

Section 58D was inserted in the Commonwealth Conciliation and Arbitration Act by the Commonwealth Conciliation and Arbitration Act 1928, s. 48. Section 58C and s. 58E were inserted in the principal Act by the same section. Section 58D gives a member of an organization a statutory right to apply to the Commonwealth Court of Conciliation and Arbitration to disallow any rule of that organization on the grounds mentioned. A controversy between a person and an organization whether he is a member of an organization and therefore entitled to apply to the court under the section, and a controversy between a member and an organization whether a rule should be disallowed, relate to the interpretation and enforcement of existing rights. Such controversies fall within the well-known definition of judicial power given by Griffith C.J. in Huddart, Parker & Co. Pty. Ltd. v. Moorehead[7], adopted by the Privy Council in Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation[8]. This definition and other definitions of judicial power are set out in the judgments of this Court in Rola Co. (Australia) Pty. Ltd. v. The Commonwealth[9]. We are therefore of opinion that this Court has jurisdiction to hear the second appeal.

His Honour dismissed the second summons because he was of opinion that Penton was not a member of the organization at the time the summons was filed. He did not deal with the merits. Admittedly Penton was a member of the respondent until 19th July 1946. On that date an alteration of rule 2, made in accordance with the rules of the respondent, provided that the editor of a metropolitan daily newspaper could not be eligible for membership. The amendment was registered with the Industrial Registrar, and thereupon became effective under s. 58C of the Commonwealth Conciliation and Arbitration Act. The alteration was authorized by s. 58A of that Act which provides that an organization may, as therein mentioned, change the conditions of eligibility for membership. But such a change would not automatically terminate an existing membership unless the rules of the organization so provided. There is no such rule in the rules of the respondent, so that the change would only affect future applications for membership. Members of the respondent on 19th July 1946 who became ineligible under the alteration would still continue to be members until their membership was terminated in accordance with the rules. Rule 51 (4) provides that the Federal council, or Federal executive of the respondent may terminate the membership of a member who is not employed on work which is provided for in rule 2. Penton's membership could be terminated under this provision. But in the meantime he would continue to be a member. His Honour was therefore in error in dismissing the second summons without considering the merits.

On an appeal, this Court has jurisdiction under s. 37 of the Judiciary Act to give such judgment as ought to have been given in the first instance. But s. 58D refers to the opinion of the Commonwealth Court of Conciliation and Arbitration. It would be preferable therefore that the court below should give its opinion on the merits in the first instance.

We would therefore allow the second appeal, and remit the second application to the Commonwealth Court of Conciliation and Arbitration for hearing.

Starke J.

These are two appeals from an order of the Commonwealth Court of Conciliation and Arbitration dismissing applications made by the appellants to that Court, the one an application on the part of the Consolidated Press Ltd. by summons to the Australian Journalists' Association to show cause why the registration of the Association should not be cancelled and the other an application on the part of Penton by summons to the Association to show cause why certain rules of the Association should not be disallowed.

The former application was based upon s. 60 of the Commonwealth Conciliation and Arbitration Act 1904-1946 and the latter upon s. 58D of the same Act. And it is contended that the order of the Commonwealth Court of Conciliation and Arbitration is not a judgment or order which is the subject of appeal to this Court. The appellants rely upon the provisions of the Commonwealth of Australia Constitution Act s. 73, the Commonwealth Conciliation and Arbitration Act 1904-1946, s. 31 and the decision of this Court in Jacka v. Lewis[10]. In that case it was held that an order made pursuant to s. 58E of the Commonwealth Conciliation and Arbitration Act 1904-1934 was the order of a Federal Court exercising judicial power vested in the High Court and other Courts mentioned in the Constitution s. 71. The order, it was said, determined the rights and obligations of parties under the rules of an organization registered under the Act and was subject to the sanction provided by the Act.

Here we have applications for cancellation of the registration of an organization and the disallowance of certain rules. In a sense, associations of persons have a right to be registered as organizations if certain rules are complied with and a right also to maintain their registration and their rules subject to the discretion and opinion of the Court in certain cases. But, as I have said before, "the limits of the legislative, the executive and judicial powers of the Commonwealth are nowhere defined" (Rola Co. (Australia) Pty. Ltd. v. The Commonwealth[11]). It is the nature of the function that determines its character (Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation[12]; R. v. Commissioner of Patents; Ex parte Weiss[13]). And, as Isaacs J. said, in Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[14], "The creation and equipment of representative organizations both of employers and employees is an incident to the power in s. 51 (xxxv.) of the Constitution. They are instruments for the more effective exercise of the power ... The function created by s. 60 is not judicial in the constitutional sense" (see also In re Judiciary Act 1903-1920 and Navigation Act 1912-1920[15]). It is true that in the Jumbunna Case[16] this Court entertained an appeal from a decision of the Arbitration Court dismissing an appeal from a decision of the Industrial Registrar disallowing objections to the registration of an association under the Commonwealth Conciliation and Arbitration Act 1904. Griffith C.J. said "We all think there is nothing in the objection" (that is an objection that an appeal did not lie from the decision of the Arbitration Court). "Section 73 of the Constitution gives an appeal to this Court from orders of any other federal Court, and the Court appealed from is such a Court. Section 31 of the Act has no application to the order now in question."[17] And see also R. v. Commonwealth Court of Conciliation and Arbitration; Ex parte Brisbane Tramways Co. Ltd.; Ex parte Municipal Tramways Trust, Adelaide Tramways Case (No. 1)[18]. But this view "was dissipated" in the case of Waterside Workers' Federation of Australia v. J. W. Alexander Ltd.[19] because s. 72 of the Constitution required that every justice, whether called by that or any other name, of any court created by Parliament should, subject to the power of removal, be appointed for life (see Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd.[20]). And the judges of the Arbitration Court were not, at that time, so appointed.

And it was held that the Court had two functions, arbitral and judicial, which were distinct and severable. The provisions of the Act conferring judicial functions upon the Court (the provisions of the Act relating to the enforcement of orders and awards) were therefore invalid whilst those relating to the arbitral functions were valid. And in the Jumbunna Case[21] the validity of Part V. of the Act relating to the registration and cancellation of the registration of organizations was declared valid. The Act No. 39 of 1918 vested the enforcement of orders and awards of the Arbitration Court in courts strictly so called. Various amendments and additions have been made from time to time in Part V. of the Arbitration Act relating to organizations but the substance of the legislative provisions has remained. And in 1925 this Court held (Australian Commonwealth Shipping Board v. Federated Seamen's Union of Australasia[22]) that s. 60 of the Commonwealth Conciliation and Arbitration Act 1904-1921 did not confer judicial power upon the Arbitration Court and was therefore valid. The section has been amended from time to time since that date but the substance of its provisions is the same (see e.g. No. 18 of 1928, s. 49). Section 58D was inserted in the Arbitration Act in Part V. "Organizations" by the Act No. 18 of 1928, s. 48 as was s. 58E, the subject of the decision of this Court in Jacka v. Lewis[23].

The Act No. 22 of 1926 created the Arbitration Court a Federal Court in the strict sense. It conferred upon the judges of that Court the tenure required by s. 72 of the Constitution. By this means the Court acquired judicial functions in addition to the arbitral function already conferred upon it. But this did not convert the arbitral functions of the Court and the provisions of the Act relating to the registration and cancellation of organizations and the disallowance of their rules into judicial functions. Such provisions, as I said in the Shipping Board Case[24], were "in no sense an exercise of the judicial power of the Commonwealth."

Consequently, in my opinion, these appeals are incompetent.

The order appealed from is not an exercise of any judicial power of the Commonwealth on the part of the Arbitration Court and the judicial power conferred upon this Court, by s. 73 of the Constitution, to hear and determine appeals does not extend to such an order.

And I would add that cases in which prohibition has issued to the Arbitration Court pursuant to s. 75 (v.) of the Constitution do not conflict with this conclusion. Prohibition issues to restrain tribunals exercising judicial or quasi-judicial functions from exceeding their authority (see R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd.[25]; Waterside Workers' Federation of Australia v. Gilchrist, Watt & Sanderson Ltd.[26]; R. v. Commissioner of Patents; Ex parte Weiss[27]; R. v. Connell; Ex parte Hetton Bellbird Colleries Ltd.[28]). And keeping tribunals exercising judicial or quasi-judicial functions within their lawful authority is an exercise of the judicial power of the Commonwealth conferred upon this Court.

These appeals should be dismissed.

Appeals dismissed for want of jurisdiction with costs.

Solicitors for the appellants, Allen, Allen & Hemsley.

Solicitors for the respondent, Frank Brennan & Co.

[1] [1944] HCA 6; (1944) 68 C.L.R. 455.

[2] [1925] HCA 27; (1925) 36 C.L.R. 442.

[3] (1908) 6 C.L.R. 309.

[4] (1925) 36 C.L.R., at pp. 453, 454.

[5] [1944] HCA 6; (1944) 68 C.L.R. 455.

[6] [1925] HCA 27; (1925) 36 C.L.R. 442.

[7] [1909] HCA 36; (1909) 8 C.L.R. 330, at p. 357.

[8] (1931) A.C. 275, at pp. 295, 296.

[9] [1944] HCA 17; (1944) 69 C.L.R. 185.

[10] [1944] HCA 6; (1944) 68 C.L.R. 455.

[11] (1944) 69 C.L.R., at p. 210.

[12] (1931) A.C., at pp. 296, 297.

[13] [1939] HCA 7; (1939) 61 C.L.R. 240, at p. 255.

[14] (1925) 36 C.L.R., at pp. 453, 454.

[15] [1921] HCA 20; (1921) 29 C.L.R. 257, at p. 268.

[16] (1908) 6 C.L.R. 309.

[17] (1908) 6 C.L.R., at p. 324.

[18] [1914] HCA 15; (1914) 18 C.L.R. 54, at p. 72.

[19] [1918] HCA 56; (1918) 25 C.L.R. 434.

[20] [1924] HCA 61; (1924) 34 C.L.R. 482, at pp. 506, 507.

[21] (1908) 6 C.L.R. 309.

[22] [1925] HCA 27; (1925) 36 C.L.R. 442.

[23] [1944] HCA 6; (1944) 68 C.L.R. 455.

[24] (1925) 36 C.L.R., at p. 463.

[25] (1924) 1 K.B. 171.

[26] (1924) 34 C.L.R., at p. 552.

[27] (1939) 61 C.L.R., at p. 258.

[28] [1944] HCA 42; (1944) 69 C.L.R. 407, at pp. 428, 429.